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Some
Aspects of the Euthanasia Debate
IAIN BENSON
INTRODUCTION: In this talk I am not going to discuss in any detail the main arguments of the pro-euthanasia lobby. I will just briefly list them now: 1) Dying in pain; (91% of pain can be 100% controlled; the other 9% can be controlled within patient comfort) 2) Quality of Life; (the importance of the last 6 months of life for personal growth of patient, family, loved ones); 3) It's just an option (an additional right) “you don't have to avail yourself of it” (rights for some become duties for others — the vulnerable are then pressured to go along with the new “option”); 4) Cost (due to the use of extraordinary medical interventions that are frequently unnecessary). It is important to understand how to deal with these arguments and I know of no better presentation on these points than a video of Fr. Robert Spitzer recorded at Westminster Abbey, Mission B.C. in the fall of 1994 on the topic of Euthanasia. This brilliant tour de force by Fr. Spitzer has impressed many who have seen the video. I would like to make some comments to you that are of general importance and that I believe to be very important in the Euthanasia debate. I would like to spend a bit of time at the beginning by discussing a problem that is relevant to all moral debates in society and that has to do with how we speak (and think) about “right” and “wrong”. Obviously, on a particular issue such as euthanasia and the law, if there is an issue that deeply affects the way in which we think about “right” and wrong then that should be considered. I refer to this problem as the problem of “values language”. A large part of my talk will be in fleshing out this important point. Once that is done, I would like then to touch on some key points in the euthanasia debate. PART A. BACKGROUND: VALUES LANGAUGE After this I would like to touch on some other aspects of the debate surrounding euthanasia and assisted suicide. PART B. MISCELLANEOUS KEY POINTS IN THE DEBATE.
__________________________ PART A. BACKGROUND: VALUES LANGAUGE 1) The Rise of a “values” approach to ethics Judging by what is available in bookstores, there seems to be significant interest in “healing” and “self-help” in today's society. In philosophy, too, many writers speak of a need to restore wholeness or to deepen “authenticity” as a means of overcoming aspects that are seen as problematic. Many books have commented on the nature of the individual in North American society in terms that speak of “alienation”, “atomism”, “loneliness”, “narcissism” and “individualism”. And in the midst of all this, in all the western countries, we seem to be suddenly fascinated with death and talk of the right to die when and how we want. And this quest for death is discussed, as abortion used to be, in the language of autonomy, choice, and dignity and in “rights” themselves. This essay attempts to link, in a general way, this desire for wholeness and meaning with an aspect of current language which, it is argued, points to a loss of learning which deeply affects our ability to speak of goodness with conviction. The rise of insecurity about what is “good” and “bad” affects all aspects of society including law itself. The courts determine what the law is and how it applies to specific disputes. The role of the courts has always been important in affirming the symbolic role of law as well as its practical outworking. People will never stop murdering one another, but it is important to maintain our collective revulsion for murder by keeping the law against it on the books, the penalties severe and the enforcement as effective as possible. The current philosophical discussions referred to above are not discussed in legal judgments which necessarily focus only on the matter at hand. However where “fundamental rights and freedoms” are being discussed by the courts, as they must be in evaluating the Canadian Charter of Rights and Freedoms that Canada adopted in 1982, the judges must occasionally venture out upon deeper philosophical waters. The courts are, however, wary about discussing the nature of human flourishing and human happiness. This is perhaps understandable given the nature of legal (and general) education which has not, for many years, dealt with philosophical concepts with any rigour. In fact, a rigorous examination of philosophy is not required in most Canadian law schools and it is courses in the technique of law, not the purpose of law, that dominate. This separation of technique from purpose is visible in every area of human endeavour and reflects the separation of articulated philosophy from education. Many have suggested that it is education that is the wide-spread cause; or, rather, what education does not do. Some have said, that education is not occurring and has been replaced by “schooling”. Education would require a grounding in these deeper areas. In the former idea of education, the liberal arts were the artes liberales, from the Latin root for freedom: learning about the truth enabled us to be free from the shackles of being chained to what was only of our particular time (truth being eternal). The basis of all philosophy is the belief that there are better and worse things. The study and the work are in identifying on what basis we say some things are better or worse than others. The first principle of all moral philosophy has been said to be: We ought to desire whatever is really good for us and nothing else. [1] Would many endorse this statement today? I suspect that many would not because they have been taught that “goods”, like “values” are necessarily relative, one person's not being the same as the others. Yet is this quick dismissal satisfactory? Do we actually occupy a world of consistent relativism? I do not believe that we do and have come to the conclusion that our discussion has become obscured by language which is increasingly ambiguous and that masks the fact that we have, in fact, many beliefs which we share in common because they are “good”. In holding such views, moreover, we intend to assert that such concepts are “good” not because we think they are but because they are, in the nature of things — in reality. That others may disagree with us is not due to truth being relative but to something else. To take an admittedly extravagant example, few would agree with a person who said that they believed it was a good thing to rob banks at gunpoint. Most would say it was a bad thing and they would not accept another person's arguments to the contrary even if it was a part of that person's “values system” to assert such a thing. We recognize that “values” can differ but we do not allow “values” to act as a cover for actions we consider corrupt. Let us take a look at the term “values”. When we speak of our values do we actually mean that they are purely individual and that we do not, in some sense, have an obligation to respect these “values”? While we may take it as a foundational principle that “my values” and “your values” are necessarily personal, do we actually mean by this that this state of affairs is a good thing? Do we think about “values” that we mean to be or hope to be shared? I believe that we do in fact use “values” in this way as well. At a conference on medical ethics which I recently attended (and I know this kind of language is everywhere in educational materials — such as the Year 2000), speaker after speaker address such notions as “community values”, “shared values” and “fundamental values”. These speakers apparently addressed notions which they thought important because they had some validity beyond merely their valuing them as individuals. How is a “fundamental value” fundamental if it can or cannot be accepted by any particular person? Recall Mortimer Adler's point (footnote #1 to this paper) about “human rights” having some meaning because we recognize a validity to such rights for all people and all countries. We would not for a moment accept as valid the statement by a national leader who said something like this: “those human rights are your values, they are not the values of my country”. Would we not counter such a suggestion by saying that such “values” ought to be recognized by all countries? But once we insert the term “ought” into the argument, we have stepped beyond the language of “values”, or, at the very least, highlighted a problem with using such an ambiguous language. In fact, it is interesting to look into the history of the use of the term “values”. When we do so, we see that it is a usage that is very recent. The philosophers who have considered the term have pointed out that it came into Western usage from the German philosopher Nietzsche. He was the philosopher of the will who advocated the triumph and domination of the will. He spoke of the need to have a “transvaluation of all values” in which goodness would be only what we willed it to be and not what was given to us in the nature of things. The person generally considered to have been Canada's leading political philosopher, was the late George Grant. Grant's several books raise profound questions for our time. He was one of the clearest writers on the phenomenon of “values language” which, as he once noted in a Canadian Broadcasting interview is “... an obscuring language for morality, once the idea of purpose has been destroyed. And that's why it is so widespread in North America”. [2] “Everybody uses the word “values” to describe our making of the world”, says Grant: ... capitalists and socialists, atheists and avowed believers, scientists and politicians. The word comes to us so platitudinously that we take it to belong to the way things are. It is forgotten that before Nietzsche and his immediate predecessors, men did not think about their actions in that language. They did not think they made the world valuable, but that they participated in its goodness. [3] Grant then comments how use of “values language” by those who do not accept what it leads to, actually leads to a contradiction of many peoples' more deeply held notions. What is comic about the present use of “values”, and the distinction of them from 'facts', is not that it is employed by modern men who know what is entailed in so doing; but that it is also used by 'religious' believers who are unaware that in its employment they are contradicting the very possibility of the reverence they believe they are espousing in its use. [4] The use by both religious and non-religious people of “the language of values” is ubiquitous. The term “values”, like others (such as “pluralism”) is often used in areas of moral debate to bridge the gap I have been trying to describe between a personal language of meaning and a sense that there must be shared goods. The need for a “bridge” is obvious once one thinks about it, for the reasons I have tried to describe above. However, what I want to stress here is that these language bridges obscure rather than facilitate meaningful dialogue about goodness. This is an important point because language is central to our defense of goodness itself. Once corrupt a people's ability to speak about goodness and truth and you soon hamper their ability to think about goodness and truth. Language is related to thought and thought precedes action. Garbled language about truth eventually disables the ability to act and virtuous action was once seen and understood to be a key to human happiness itself. The Biblical account of the Tower of Babel and Orwell's accounts of language manipulation in his novel 1984 both speak to the relationship between language, meaning and human purposes. In identifying this chain of thought, we are now closer perhaps to identifying why books on “self-help” and “healing” are so prevalent at the very time when our language about virtue and goodness has become so confused. There is a deep poignancy in this two-fold phenomenon because it points both to our longing for communal goods which we wish to assent to and search for together and to our cooption by a language which undercuts this very effort. How ironic that our very search for meaning is undercut by a language which in its relativistic ambiguity precludes the very meaning we seek in its use: — our compasses have damaged needles. What has occurred, in part, is that the belief in intrinsic worth (which is the Oxford English Dictionary definition of the word “value”) has been replaced with the idea that the individual him or herself determines (or “creates”) worth, there being nothing “out there” to discover. Such usage of the term “value” may have plausibility when one is discussing aesthetic choices such as cut of clothes. Such use, however, becomes erroneous when such things as “the value of human life” are being discussed. Yet the modern use does not make a distinction and renders all “value” ultimately personal. In Canada one frequently hears people suggest that it is improper for people to attempt to force their personal values on others by way of law. This presupposes that there is such a thing as a “value-free” law. However law is about norms, and normative statements, no matter how one may attempt to dress them up, are not “value-neutral”. But note how far from any sense of “intrinsic” worth such a notion of “value” has come. There is no basis upon which one may assume that what “consensus” achieves will bear any relationship to an objective truth at all. [5] In fact, the notion of objective truth has been lost sight of altogether. If applied to governmental policy formation, this approach amounts to the ship of state being steered in the direction in which the bow happens to be pointed at the moment. Grant sees the modern creation of values approach as a sharp contrast to earlier ways of viewing the world. In this modern view of life: Man makes the world, and there is no overall system which determines what he makes. To act is to choose what kind of a world we want to make. In our acts we show what things we regard as valuable. We create value, we do not participate in a value already given. We make what order there is; we are not made by it. In this sense we are our own; we are independent. We are not hound by any dependence on anything more powerful than ourselves. We are authentically free because what happens in the world depends on us, not on some providence beyond our control. The fate of man is in his own hands. We and not God are the creators of history. [6] Joseph Power comments that: those who lived through the shift of meaning were largely unaware of it because they assumed that the terms were equivalent. And now as long as we assume that “values” is just a contemporary way of speaking of the good, or conversely that the language of the good and of the excellence of man as man is “just a crude way of talking about values, pretending that they have some status in the nature of things beyond our choosing,” we hardly notice the linguistic substitution. Grant is saying, however, as forcefully as he can, that “values” is not the equivalent of what has been meant by “the good.” [7] The ubiquitous use of “values language” ought to make us aware of the extent to which the moral universe many of us think we inhabit has been ignored (or usurped) by modern relativistic notions which if we recognized them many of us would reject. We can see examples of value relativism everywhere. It is particularly prevalent where issues relating to ethics are being debated. Sue Rodriguez, who so narrowly failed to get the Supreme Court of Canada to find a constitutional right to physician assisted suicide, expressed the modern view succinctly as follows: Why on earth would anyone want to impose their own value system on me? I've got mine, they've got theirs. [8] In fact, the international euthanasia debate provides many good examples of the indeterminacy of "values" language. Ethicist Eike Kluge from Victoria, in his presentation before the Senate Special Committee on Euthanasia and Assisted Suicide, made the following statements about values that serve to illuminate aspects of the problem of values language: Everyone is embedded in a social context, and that context shapes our expectations but also our values. There are two points that are important here, namely: the values are the primary determinate of how individuals will exercise a particular right, and second, that members of society usually come to accept the values of the society in which they are embedded. We might ask, however, if values are merely personal, the product of autonomous will, where do we go to find “societal values”? How do we know that "societal values" bear any relation to what is, by any standard, "good"? History, even contemporary history, is full of situations in which societies are doing things most would consider wrong or unjust. Do we actually believe that results of polls, or the desires of the majority are satisfactory ways of determining over time what is "right" and "wrong" in society? The Royal Commission on New Reproductive Technologies thought not, in some of its recent analysis, and for this reason decided to disregard the views of the majority of Canadians who did not believe that lesbians should have access to donor insemination. The Commission said that As we made clear in Part One of this report, the Commission believes that society's approach to new reproductive technologies should be governed by the social values of Canadians. We are also aware, however, of the difference between social values and individual opinions. We believe that social values held by Canadians are reflected in the Canadian Charter of Rights and Freedoms, and the prohibitions on discrimination it contains must be our guide in this matter. [10] In "The Poison of Subjectivism", an essay published in 1943, C.S. Lewis comments on the different way in which moderns view "judgements of value". He states: Until modern times no thinker of the first rank ever doubted that our judgements of value were rational judgements or that what they discovered was objective... The modern view is very different. It does not believe that value judgements are really judgements at all. They are sentiments, or complexes, or attitudes, produced in a community by the pressure of its environment and its traditions, and differing from one community to another. To say that a thing is good is merely to express our feeling about it and our feeling about it is the feeling we have been socially conditioned to have. [11] Lewis views the modern enterprise as a rejection of what he termed "traditional values" and states that: This whole attempt to jettison traditional values as something subjective and to substitute a new scheme of values for them is wrong. It is like trying to lift yourself by your own coat collar. Let us get two propositions written into our minds with indelible ink.
This impossibility of creating values means that one must, in a sense, take certain things as one finds them: Either the maxims of traditional morality must he accepted as axioms of practical reason which neither admit nor require argument to support them and not to 'see' which is to have lost human status; or else there are no values at all, what we mistook for values being 'projections' of irrational emotions. [13] As Lewis says by way of summation, "...a philosophy which does not accept value as eternal and objective can lead us only to ruin" and: If 'good' means only the local ideology, how can those who invent the local ideology he guided by any idea of good themselves? The very idea of freedom presupposes some objective moral law which overarches rulers and ruled alike. Subjectivism about values is eternally incompatible with democracy. We and our rulers are of one kind only so long as we are subject to one law. But if there is no Law of Nature, the ethos of any society is the creation of its rulers, educators and conditioners; and every creator stands above and outside his own creation. Unless we return to the crude and nursery-like belief in objective values, we perish. [14] Again Lewis asserts that "a dogmatic belief in objective value is necessary to the very idea of a rule which is not tyranny or an obedience which is not slavery". [15] [Here one might refer to the German jurist Gustav Radbruch, who, just after the second world war, indicated that law must be rooted in norms that transcend the state and made an impassioned plea for the necessity of natural law as a recognized grounding for civil law]. Again, Lewis, commented on the shift he saw occurring, and, just a couple of years before Radbruch, wrote: For the wise men of old the cardinal problem had been how to conform the soul to reality, and the solution had been knowledge, self-discipline, and virtue. For magic and applied science alike the problem is how to subdue reality to the wishes of men: the solution is a technique; and both. in the practice of this technique, are ready to do things hitherto regarded as disgusting and impious... [16] Throughout the centuries many of the greatest thinkers have discussed the importance of learning and preserving the central truths which define the society. These truths are not relative or subjective but transcendent. Michael Polanyi has written that: ...the adherents of a great tradition are largely unaware of their own premises, which lie deeply embedded in the unconscious foundations of practice... if the citizens are dedicated to certain transcendent obligations and particularly to such general ideals as truth, justice, charity, and these are embodied in the tradition of the community to which allegiance is maintained, a great many issues between citizens, and all to some extent, can he left — and are necessarily left — for the individual consciences to decide. The moment, however a community ceases to be dedicated through its members to transcendent ideals, it can continue to exist undisrupted only by submission to a single centre of unlimited secular power. [17] That many people in our society “are largely unaware of their own [moral and ethical] premises” is a fact. The purpose of raising these concerns here is to point to a body of academic opinion that ought not to be ignored. This body of academic opinion states categorically both that it is necessary to know transcendent ideals (such as the "sanctity of human life" or the “inherent dignity of the human person" or "the essential wrongness of actively taking innocent life") and also that the modern age is rife with a language which obscures purpose and leads to a rampant and lonely individualism that threatens community. As was said in the influential book Habits of the Heart: ....we have never before faced a situation that called our deepest assumptions so radically into question. Our problems today are not just political. They are moral and have to do with the meaning of life. We have assumed that as long as economic growth continued, we could leave all else to the private sphere. Now that economic growth is faltering and moral ecology on which we have tacitly depended is in disarray, we are beginning to understand that our common life requires more than an exclusive concern for material consumption. [18] Certain contemporary writers have written about the effect of a failure to teach the precepts of traditional morality and the difficulty that modern ethical theories pose to our understanding of ourselves in the modern age. These writers are invaluable for understanding what has happened and is happening to us on the moral level. [19] In various ways, these contemporary writers comment on different aspects of the emotivism that passes for moral discussion in the present day. "Emotivism", which dovetails with "values language" is defined by one commentator as: ....the doctrine that all evaluative judgments and more specifically all moral judgments are nothing but expressions of preference, expressions of attitude or feeling, insofar as they are moral or evaluative in character...moral judgments, being expressions of attitude or feeling, are neither true nor false; and agreement in moral judgment is not to be secured by any rational method, for there are none. It is to be secured, if at all, by producing certain non-rational effects on the emotions or attitudes of those who disagree with one. We use moral judgments not only to express our own feelings and attitudes, but also precisely to produce such effects in others. [20] Such a development, the writer continues, has led to a situation in which “...morality has to some large degree disappeared — and this marks a degeneration, a grave cultural loss.” [21] These writers point Out the fact that such a diminution of the moral framework in theory has not, in all circumstances been represented in practice. They note, for example, how many people will accept uncritically the notion that "values" are merely personal, one person's being on par with the next and then will use analysis or make comments indicating that they believe in or are using concepts of objective good. Thus, some people may enunciate, in one breath, a view that morals are purely subjective then, in the next, condemn apartheid, environmental polluters or Colombian drug barons, oblivious to the fact that they have, at the root of their views, a massive contradiction. We are becoming incapable of speaking about things that we consider must still be objectively true [22]. CANADIAN JUDGES: The situation as far as judges are concerned is more dire because of the practical consequences of their impoverishment. They are vested, amongst other things, with the duty to interpret the Canadian Charter of Rights and Freedoms: in doing so they are forced, in the midst of this vacuum of education, to give meaning to such general (and deeply philosophical) concepts as "freedom of association", "freedom of religion", "security of the person" etc.. At a conference held a few years ago at the University of British Columbia, Mr. Justice Willard Estey, who should be admired for his candour, stated that the judges are not trained in the very area for which we are looking to them for guidance. There are many examples of the difficulty the courts are having articulating a coherent approach to fundamental issues in society. Some might say the Rodriguez case itself (on the question of physician-assisted suicide) was such an example. I would like to examine another case, one in which the nine judges of the court were unanimous as to the approach to take. The judges were unanimous, but, as shown below, incoherent. The case of R. V. Butler [1992] 2 W.W.R. 577 involved the question of the definition of obscenity in the Criminal Code. In upholding the Criminal Code definition against a Charter challenge on the basis of the "freedom of expression", the court was at pains to attempt to base the restriction on pornography on the "harm" it does even though it could not establish a clear causal connection between the existence of pornography and harm arising from it. The court could not avoid the fact that such a restriction depends upon a moral basis yet it undercuts determining a valid ground for moral evaluation by saying that it must be found in the Charter itself. This is a nonsensical approach because the Charter is an open ended document that states its rights in outline and in the broadest of terms. The court, in dealing with a Charter case, once it has found a breach of a particular guaranteed right, must determine ultimately whether the breach or limitation is demonstrably justified in a free and democratic society; and this is an external analysis, involving matters not to be found in the Charter itself. It can be observed in the passages which follow, therefore, that the court, by seeking to avoid a particular moral framework, cannot erect any moral framework and ultimately ends up creating an entirely circular approach that makes moral articulation impossible. Mr. Justice Sopinka, in giving the majority judgment of the court [23] stated, at p.p. 606-607, that it is no longer an appropriate objective of law "...to advance a particular conception of morality" and that: ....this particular objective is no longer defensible in view of the Charter. To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract. D. Dyzenhaus, "Obscenity and the Charter: Autonomy and Equality" (1991), 1 C.R. (4th) 367 at p.270, refers to this as "legal moralism," of a majority deciding what values should inform individual lives and then coercively imposing those values on minorities. The prevention of "dirt for dirt's sake" is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter. Justice Sopinka then recognized that moral corruption and harm to society are inextricably linked and “it is moral corruption of a certain kind which leads to the detrimental effect on society” (p.608). But if it is "moral corruption of a certain kind" that leads to the detrimental effect on society, and Parliament has the right to legislate "on the basis of some fundamental conception of morality" then it is simply not possible to avoid "a particular conception of morality". Even at its most basic level, if Parliament legislates it would necessarily adopt a particular conception of morality (of whatever sort). Yet this was the very thing that Justice Sopinka said at the outset was "no longer appropriate". This is just another example of what might be termed the epistemological insecurity (or incoherence) of modern justice. The process of justice, due to the questions that come before it, must deal with matters which raise moral issues and competing philosophical approaches that could tax (and have taxed) the most learned of philosophers. With this sort of analysis from Canada's highest court, one wonders how much longer Canada can afford to continue forms of schooling that avoid an articulation of philosophy and a concomitant analysis of purposes as well as techniques. The fact that we speak of "rights" and "wrongs" in a language of "values" that is at best ambiguous is a clue to a deeper impoverishment on the level of moral learning. It is true that "the heart has its reasons which reason cannot comprehend" but it is also true that reason can offer a justification for action that can convince and inform those who "feel" it is a good thing to do good but do not know how to argue that we should. When we think about it, is it not a part of a full life to talk and to debate about the nature of life and love and goodness itself? In so doing we are in a world that is much richer than that recent and now almost dominant world of ambiguous "values" language. This new world, in its implicit but uneasy relativism cuts us off from encountering the truths we may or may not share but about which it is essential for us to discuss. Even in our disagreements about what is true and good we share more than we do when speaking to ourselves in the mirror of our personal "values". In discussing the approach which Socrates (5th century B.C.) took to knowledge, it is useful to reflect upon what Sir R.W. Livingstone wrote at p.xix of his Portrait of Socrates (Oxford: Clarendon, 1938): “The true approach to knowledge was not through books or lectures, but through conversation, discussion, question and answer, two or more persons beating a subject up and down, till the chaff is winnowed from the wheat...” If we care about goodness and the community that is an aspect of goodness, we must challenge the meaninglessness of "values": until we do we shall not be able to speak meaningfully (or with authenticity) about goodness and community or how to pursue them. PART B: AN EXAMINATION OF MISCELLANEOUS KEY POINTS: 1) Who Bears the Onus for a Change in the Law? Where what is being proposed is a radical revision of our traditional understanding of the concept of the "sanctity" or "dignity" or "respect" for human life, such a revision must be clearly grounded. We stand at an uncertain pass: so uncertain that the status quo is to be preferred on these matters. It is in circumstances such as these where presumptions may be used. The Law Reform Commission of Canada has said that: The Commission believes that any reform having to do with human life must begin by admitting a firm presumption in favour of life [24] In fact, the entire idea of law itself would crumble if we were to accept the notions of law- making that underlie the arguments based on autonomy. We cannot, in fact, cut off serious issues from all moral evaluations. The phrase "the issue is choice" is just silly and cannot form the basis of any workable moral system. It is a sleight of hand that succeeded (in abortion) and is becoming more and more prevalent in the euthanasia debates. The necessary (but not always easy) relationship between law and morality has been commented on many times in Canada. Note what the Law Reform Commission of Canada said about the role of the criminal law in their Report Our Criminal Law, Ottawa: 1976: In truth, the criminal law is fundamentally a moral system. In may be crude, it may have faults, it may be rough and ready, but basically it is a system of applied morality and justice. It serves to underline those values necessary, or else important, to society. When acts occur that seriously transgress essential values, like the sanctity of life, society must speak out and reaffirm those values. This is the true role of criminal law (at 16, emphasis added). [25] Mr. Justice Sopinka, speaking for the majority in Rodriguez, said there is: ....a generally held and deeply rooted belief in our society that human life is sacred or inviolable (which terms I use in the non-religious sense described by Ronald Dworkin, Life's Dominion: An Argument About Abortion. Euthanasia, and Individual Freedom (New York: Knopf, 1993), to mean that human life is seen to have a deep intrinsic value of its own). As members of a society based upon respect for the intrinsic value of human life and on the inherent dignity of every human being, can we incorporate within the Constitution, which embodies our most fundamental values, a right to terminate one's own life in any circumstances? [26] The majority of the Supreme Court of Canada answered this with a resounding “no” and by articulating the respect for "the deep intrinsic value" of human life, recognized that there are valid and necessary limits to personal autonomy. We support that decision and go further to say that no possible proposed legislation can show that the respect for human life would be adequately protected so that it would be impaired "as little as possible" [27] so as to satisfy a constitutional challenge. 2) The Nature of Medical care and the Compassionate Society It is fundamental to the nature of medicine that there be trust between the doctor and patient and that the doctor be trustworthy. It has been said of this that: The core minimal content for trustworthiness is that doctors can be relied upon never to kill patients on the grounds that the patients are thought not to have worthwhile lives. For undergirding a coherent concept of justice in society and ethics in medicine is: the assumption that every human being simply in virtue of his or her humanity has a fundamental worth and dignity and, consequently, basic rights which are to be respected... In so far as doctors have shifted from a position of fundamental respect for all human beings to one in which they discriminate between human beings in terms of acquired abilities and quality of life, they have not merely abandoned what is required for just dealing with other human beings in general, but they have also abandoned the core requirement of the ethic which is internal to the practice of medicine. [28] The Canadian Medical Association Annual General Meeting in 1994 passed a motion that doctors should not be involved in intentional killing or in assisting in suicide. Similar positions have been taken by doctors groups in many other countries who recognize and maintain the Hippocratic tradition which forbade intentional killing. The word "compassion" means, to "suffer with". This is the role of doctors and all those who have compassion for those who suffer. As Vancouver doctor Margaret Cottle put it in her testimony before the Senate Committee, "if we are walking along a bridge and we see someone about to jump off do we say, 'here, let me give you a push'?". 3) The fact of “Botched Suicide” does not Provide a Justification for Allowing Euthanasia: A wrong does not create a right. It is interesting how many of those who wish euthanasia or assisted suicide played a large part in the horrific scenes they describe by insisting on killing themselves at home. They never give good reasons for avoiding palliative programmes but simply focus that it was not their choice to use them. They then experience some horrible experiences in dying (the drugs didn't work fast enough, the bag slipped off, the person vomitted up the pills etc., etc.). But such unpleasant scenes can provide no basis whatsoever for a moral claim that the position of the law should change. 4) The Inability to Control Euthanasia if it is Legalized: Many people and groups would agree with the Report of the Select Committee on Medical Ethics of the House of Lords [29] when they found that "...we do not think it possible to Set secure limits on voluntary euthanasia". The members of this committee, who toured the Netherlands and rigorously examined the system currently operating there, found that "it would be next to impossible to ensure that all acts of euthanasia were truly voluntary, and that any liberalization of the law was not abused"; moreover, “...vulnerable people — the elderly, lonely sick or distressed — would feel pressure, whether real or imagined, to request early death". This Report is comprehensive both in terms of the groups and people who appeared before it, and in terms of its analysis of many of the same arguments you have before you. We hope that you will consider it in detail while making your deliberations. In their Opinion, the Committee concluded that: Ultimately, however, we do not believe that these arguments are sufficient reason to weaken society's prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia. We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. Moreover dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole. [30] This fear that the legalization of euthanasia would "chill" the most vulnerable amongst us has frequently been expressed by those appearing before the Senate Committee and it was on this issue that the Washington and California attempts to gain acceptance for euthanasia floundered. The Oregon "Death With Dignity" legislation, on the other hand (which allows physicians to prescribe lethal dosages for patients knowing the patients intend to kill themselves) was full of measures that were put forward as "safeguards" but would not have worked as such. Proponents of euthanasia are learning just how much they can succeed with and, having failed several times, are precisely crafting their legislation for maximum public acceptability — in the full hope of then expanding it more broadly, in other words, beyond the so-called "safeguards" [Glasgow Conference in 1993]. Concerns for the vulnerable were a key factor before the Lords Committee as well. [31] A central weakness in basing a notion of a "right to euthanasia" on personal choice or autonomy is that once one has a "right "to euthanasia (in whatever form) on the basis of autonomy, there is no good reason to limit it to the terminally ill or those in the last stages of illness. Serious depression can be just as agonizing in its way as physical suffering and is subjectively defined; a focus on autonomy must require access to personal choice in both instances. To argue otherwise is to ignore the nature of arguments based on autonomy or to erect a sentimental barrier in the first instance that cannot withstand other arguments over time. This was the German experience and is also the Netherlands experience. Recall that in the Netherlands, a young woman with anorexia was able to have euthanasia long before she was at a terminal stage of illness. [32] 5. Ethics and the Position of Sue Rodriguez: Should the Wishes of The Autonomous Self Drive Law Reform?: The idea that the law consistently does (or can) require us to accept the untrammelled choices of the autonomous self is an error. Yet, in the euthanasia debate now, as with the abortion debate of a few years ago, some approaches amount to this. For example, Prof. Kiuge, in his testimony before the Senate Committee, referred to the Supreme Court of Canada's general acceptance in Morgentaler of the importance of personal conscience and beliefs, aspirations and values. If the idea is that such a recognition somehow creates a right to the working out of these beliefs then, with respect, this would be nonsensical. [33] It may well be that "Sue Rodriguez's conscience, beliefs, aspirations and values” were treated unequally. But this is no basis to overturn the law; it is an invitation to look more closely at the nature of the beliefs that are in conflict. Quite apart from whether such actions are moral or not, the means of taking ones' life are there for everyone (as Senator Keon, himself a noted surgeon, pointed out during the Senate Hearings) refusing to eat is a choice for death (to say nothing of its moral character). It is simply dishonest to say that terminal patients do not have the means to kill themselves. There is something else going on in their wish to have others involved in their self-controlled deaths. [34] In addition, it is key to recognize that being "pro-life" is not the same as failing to recognize when death is the next natural stop. It is important to recognize the importance of not prolonging the process of dying when treatment has become excessive or burdensome. There is a time at which it is perfectly valid to refrain from further treatment. On these matters, the wishes of the patient must be respected. 6. The Need to Distinguish Between Withdrawing Treatment on the One Hand and Euthanasia and Assisted Suicide on the Other: Various writers now suggest, that the distinction between an allowing a person to die and killing them, "while psychologically comforting" is "ethically of no import". [35] The key to the distinction is the reasons for a withdrawal of treatment and whether it is being done with the intent of killing a person. If the intention is to kill, then there is no difference between an act and the "inaction" of withdrawing treatment. But this is not what is usually meant by those who say there is no difference between an active role and a so-called passive one. Again, and with respect to those who hold this view, they are incorrect. Various examples they may give to illustrate the similarity do not adequately recognize that only certain physician non-actions are morally acceptable but in the case of "burdensome" or "unnecessary" or "extraordinary" treatment at the end of life, such inactions do not intend the end, they simply do not interfere with an end that will happen naturally. The line is sometimes difficult to draw but it is a crucial distinction for, without it, much of the law relating to human acts would be weakened. What could Prof. Kiuge mean, for example, when he states that the palliative physician includes the death of the patient as part of his intention to palliate. [36] The death of the patient is an inevitability (given the nature of the illness) that makes palliation an option. The palliative physician no more intends the death than she or he intended the illness that leads to it. Intent, far from being irrelevant, or erroneous, as Prof. Kiuge suggests, is the essence of the distinction. This was recognized by Mr. Justice Sopinka's majority judgement in Rodriguez in the following terms: ....in the case of withdrawal of treatment, the death is "natural -the artificial forces of medical technology which have kept the patient alive are removed and nature takes its course. In the case of assisted suicide or euthanasia, however, the course of nature is interrupted, and death results directly from the human action taken.... The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard. However, the distinction drawn here is one based on intention — in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death. The Law Reform Commission, although it recommended the continued criminal prohibition of both euthanasia and assisted suicide, stated, at p.70 of the Working Paper, that a doctor should never refuse palliative care to a terminally ill person only because it may hasten death. In my view, distinctions based upon intent are important, and in fact form the basis of our criminal law. While factually the distinction may, at times, be difficult to draw, legally it is clear. The fact that in some cases, the third party will, under the guise of palliative care, commit euthanasia or assist in suicide and go unsanctioned due to the difficulty of proof, cannot be said to render the existence of the prohibition fundamentally unjust. [37] The distinction has a long historical tradition, is rooted in notions that are the basis of the criminal law (and all criminal law), and has commanded a wide philosophical following. It is, therefore ethically important, not "of no import" as Prof. Kiuge suggests. [38] The key philosophically is that there is no necessary moral difference between killing and letting die. But, as an editorial writer in the influential British Journal of medical ethics, noted: ....from the conclusion that there is no necessary moral difference between killing and letting die it simply does not follow that they are necessarily morally equivalent; all that follows is that there are cases where letting die is morally equivalent to killing (and of course vice versa)... 7) The Concern That Legalizing Euthanasia Would Conflict With the Good Of Palliative Care: The Netherlands Experience: Many people believe that palliative care is a good that should he encouraged in society. Many of those involved in palliative care have spoken of the fact that many people request euthanasia early in their illnesses, out of fear and prior to the important stage at which reconciliations etc. occur. The literature contains numerous accounts, we all know of examples personally. The Senate Committee hearings contained numerous accounts of people who were initially insistent on their wish to he finished off, subsequently changed their minds and expressed gladness that they did. Those learned in Palliative medicine report how all requests for suicide disappear once fear of pain is alleviated. In fact, the ability to treat pain has led Pieter Admiraal, the Dutch euthanasia expert to say that it is unethical to give euthanasia for pain because pain can be treated. A fact that needs to be emphasized, however, is that physicians are not yet routinely trained in palliative medicine or the most current methods of pain management. Before the Senate, many groups of Palliative care-givers complained of the poor training of physicians and urged the Senators to recommend additional training rather than euthanasia. Easy recourse to euthanasia would work against such goods. Moreover, experience elsewhere tells us that once the ethic of death is embraced, the ethic of care withers. It is well known that the Netherlands has almost no palliative care, and in the opinion of one of the experts who appeared before you and has studied the situation: ....it is noteworthy that one of the great laggards tin instituting palliative care in Europe] is the Netherlands. Its ethic of "easy death" has not led to the establishment of the ethic of care that is the proud hallmark of palliative care professionals. Some of these have told you they fear that palliative care, which needs to he encouraged by Canadian society, would suffer a set-back or not be introduced at all if euthanasia were to he legalized in Canada. The Senate Committee heard that 95% of people surveyed in nursing homes in the Netherlands opposed euthanasia and that 60 % of the general population are afraid of involuntary euthanasia. [41] These are extraordinary statistics! No less extraordinary was the testimony of the Dutch Physicians League before the House of Lords Committee to the effect that: What public support there was for euthanasia [came from] clever campaigning by the media and by the Dutch Voluntary Euthanasia Society. Many who supported euthanasia did so after witnessing the painful dying of relatives or friends, but this could be avoided by concentration on improving treatment. [42] 8. The Media, The Manipulation of Language and Improper Questioning in Polls: Anyone who read the press coverage of the Rodriguez case will be familiar with what is meant by "clever campaigning by the media". In the light of the portrayal of Ms. Rodriguez in the media, it is, to say the least, sobering to read the Hobbs Birnie book about her tragic life and death. Recently Phil Marchand, Senior Books columnist at the Toronto Star has published some Reflections on the Media in which he has noted that the primary purpose of the media today is to titillate and generally entertain. Yet the media's ability to influence what "evidence" people are aware of has a lot to do with how a story is perceived. It was for this reason that the media images of Sue Rodriguez, when compared with the stark commentary of Hobbs Bimie's book, was so shocking. What was not discovered or disclosed was absolutely relevant to the issue of assisted suicide. In addition, some commentators have noted that the form of questioning on polls can lead to sway poll results (referred to in Dr. Margaret Sommerville's testimony before the Senate Committee). One ought to be more than a little skeptical about embracing euthanasia in these circumstances without being extremely careful about ones sources for information. [43] PART C. CONCLUSION: THE PERSON IN COMMUNITY IN CANADIAN SOCIETY Sue Rodriguez's anguished question as to who owned her life, could have been answered much better than it was by a society that recognized that her tragic loneliness and anger were the very key to her personal isolation. Palliative care could have helped her but, in the end, in the poignant words of someone who knew her: She had an aching soul, and never had internal peace. She wouldn't let love in. and when you are starved for love, you sabotage any attempts people make to give it to you. There's a sort of attitude: love me, leave me alone. If you love, you can forgive and let go of the anger. I can say goodbye without a terrible resentment. But anger was Sue's foundation. Her identity was based on it. [44] It is the task of all of us who are concerned with alienation, loneliness and despair in society to do what we can to encourage those practices which assist support, care, nurture, hope and the progress of love. No close reading of Hobbs Birnie's account of Sue Rodriguez's death and life can fail to move us by the tragic circumstances of that life and her inability to reconcile with those who were closest to her. In testimony before the Canadian Senate Committee on Euthanasia and Assisted suicide, a highly experienced palliative care physician quoted an AIDS patient as having found the following theory in the suicide literature as he lay dying: "Many suicides want the fullness of control of their death because they could not control their lives. It is a tragic indictment, but it does explain the control". [45] This powerful conclusion should he read along-side Sue Rodriguez's life, it should be kept in mind for every life where suicide is being sought rather than palliative care. Euthanasia enters humbly and speaks the language of "dying with dignity" and "freedom of choice" within an age befuddled by ambiguous "values" language. In the experience of those who live near it, however, the spirit that the practice generates ends up further fracturing the moral code, and increasing what is already too present: isolation, evasion, hypocrisy and fear. ENDNOTES
ACKNOWLEDGEMENT Benson, Iain. “Some Aspects of the Euthanasia Debate.” presented at the Catholic Educators Conference, 1995, Holy Cross Regional High School, Surrey, B.C., February 17, 1995. THE AUTHOR Iain T. Benson lectures internationally on philosophical, theological, and legal issues related to strategic cultural renewal. A senior research fellow for the Centre for Renewal in Public Policy in Ottawa, Canada, Benson studies the connections between public policy, culture, moral discourse, and religious conviction. He has published articles on abortion and education, and is an authority on the thought and works of C.S. Lewis and G.K. Chesterton. Iain Benson is a member of the Advisory Board of the Catholic Educator's Resource Center. Copyright © 1995 Iain Benson
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