Euthanasia and financial aid medical suicide: Is there a right to die?
Gonzalo Herranz, department of Bioethics, University of Navarra.
lecture Delivered at the high school Mayor Bidealde.
Bilbao, 17 March 1998.
1. In this year of celebration and remembrance of the 50th anniversary of the Universal Declaration of Human Rights, we are experiencing a paradoxical situation. Public opinion is boiling over regarding the right to die. Here in Spain, the tragic death of Ramón Sampedro is being discussed all the time. But it is a topic, if not universal, then widespread, with a short but intense past and a disturbing future.
What a paradox that we are here discussing this strange combination of words: the right to die! What a time we live in! Our time has fought bravely for human rights, it has managed to corner and almost extinguish the death penalty. But it has cowardly backed away from the defence of innocent life. First it caved in by decriminalising abortion. Now, many people seem fascinated by securing the right to die, by attacking, in the name of compassion and self-determination, the primary right to life, on which all other human rights depend. But human rights are at bottom nothing more than means of accessing the deep needs of life, ways of assisting the aspirations of the good life.
2. In reality, we are in the run-up to the battle over the right to die. Its outcome is uncertain. If we were to take a look at the legal texts in force, we would find that the vast majority of countries maintain in their penal codes the prohibition, with the corresponding penalties, of euthanasia or mercy killing and of inducement and financial aid to suicide. These legal texts include, with very lenient penalties for euthanasia and relatively harsh penalties for financial aid suicide, the recent Spanish Penal Code of 1995.
This legal wall opposing the administration of death to the terminally ill is beginning to suffer some cracks, it seems too weak to contain all the pressure that the manipulators of opinion are applying to it. To begin with, there are the Dutch rules on medical decisions at the end of life, rules that authorise euthanasia and the medical financial aid suicide, not in the Penal Code or in a high-level legal text, but in an amendment to the obscure regulations on burials and cremations. Secondly, the Oregon State Law, voted in referendum and about to be enacted. And then some other things: the annulled Northern Territory law in Australia, some court rulings in Japan, in some other US states, in Canada. And, curiously, the mandate of the Constitutional Court of Colombia to the Parliament of that Republic to decriminalise euthanasia to a large extent.
There is also no shortage of legislative and judicial decisions at the highest level opposing euthanasia and medical financial aid to suicide: the House of Lords in 1995; the US Supreme Court rulings denying constitutional basis to financial aid to suicide in 1997.
3. But, as I am not a specialist in Constitutional Law or in comparative Criminal Law , it seems to me that I should not go there. As a Professor of Bioethics, I should not ask myself the more general question of whether there is a right to die, in the sense of whether, from the doctrine of human rights, it can be deduced that there would be a new and libertarian one, consisting of the power to decide one's own death in the place, under the circumstances and for the reasons one chooses. I prefer to take the bull to my own terrain: that of medical ethics and patients' rights. For these, patients' rights, are something like the fine-tuned modulation of human rights applied to the peculiar situation of the sick man who has established a relationship with another man, the doctor. Being a doctor and being a patient are two qualified modes of human existence.
The question is therefore formulated as follows: is there, in the context of ethics and patients' rights, a right to die? I have the impression that the question is a very interesting one, because it is universal and sooner or later affects all human beings.
And it is very timely. There is, it seems, a close relationship between invoking the right to die and being seriously ill, for the right to die is claimed by people, or for people, who are very ill or vitally very impoverished: for those in unbearable pain or suffering, for those reduced to a vegetative life or advanced dementia, for those who - like quadriplegics - are dependent on others in a way they find humiliating, or for those who are simply tired of living, or whose lives are so useless, sad or depressed that they are a burden to others. All of these reasons, it seems, have to do with medicine.
4. The problem has important social, or rather sociological, dimensions that complicate it and make it difficult to deal with. Because here we come up against plebiscitary ethics. Most surveys say that most people believe that if life becomes too miserable, painful or unsatisfactory, one has the right to end it and to receive, if necessary, a doctor's financial aid or, at least, a third party's death. People say this at the drop of a hat, answering with a smile of circumstance and a blank stare to the prefabricated question asked by the smiling pollster. In the results of the sociometric studies, the prevailing opinion is in favour of decriminalising euthanasia and financial aid medical suicide, with the exception of the over-65 age group. This majority opinion, presented as ethically valid, evades the need for serious ethical reflection, dispenses the majority who hold this opinion from the need for any philosophical or legal foundation or justification: people nowadays like to settle comfortably in any kind of majority. Including the government. A few weeks ago and in Madrid, the Senate, with its absolute centre-right majority, agreed to create a Commission of Experts to help legislators draft a Law that enshrines the right of everyone to dispose of their own life: the parliamentary procedure prevails over substantive morality.
The idea, which so pleases the pollsters, because they make a living out of creating majorities and flattering them, is that majority opinion can establish what is good or bad, what should be enshrined in law, what is rule social behaviour. But this, which is so effective in the political game, is dangerous in the realm of ethics. People forget that there have been and are, in human history, ethically aberrant legal norms or customs that have enjoyed massive popular support (such as slavery, racism, xenophobia, the death penalty). And that there has been majority public support for political regimes that have violated the rights of minorities, and this not far in time or distance. Public opinion or parliamentary decisions are no lectures on ethics.
5. The present situation is, paradoxically, this: although, legislatively, the ball is still in the court, it is clear that the dominant trend in public opinion is in favour of creating a new right: that of demanding euthanasia or financial aid suicide from the doctor. It is therefore all a matter of increasing social pressure to overcome the resistance of those who oppose progress. The burden of test does not fall on the innovators, backed by the massive and passive popular support revealed by opinion polls. The burden of test is on the minorities who argue that the legalisation of euthanasia and financial aid suicide is a tragic ethical error, a legal misstep with incalculable consequences, an irreparable tearing of the social fabric, a perverse use of medicine.
What, in my opinion, is basically happening is that the right to die is an idea that has been enthusiastically embraced by the small oligarchy of fashionable intellectuals, by the influential scientific journalists who create and disseminate public opinion on science and medicine from certain journals, and by those who follow them, because proposing the decriminalisation of euthanasia and of medical suicide financial aid is fashionable, it is the fashionable thing to do, because it is scandalous and post-liberal, individualistic and politically correct. It is typical - it is said - of advanced countries and of people of advanced ideas in any country; of the worshippers of health and well-being, of quality of life and power; of those who have emancipated themselves from religion and freed themselves from God.
This means that the euthanasia ideology is alien to the poor and humble, to people who receive life as a gift to which no conditions are attached, to those who still form a family unit and love each other as they are and as they will come out. They know that life, rather than being a right, is a fact, a wonderful fiat of God. That each of us is alive is a fact that we will never be able to explain, but that we must affirm. It is good to think about this, because we live as if life could be taken for granted. The Pope, in the Encyclical Evangelium vitae, speaks of celebrating the gospel of life. I think we should make many acts of joy at being alive, at being wonderfully alive. Of recognising that each one of us is a universe, a world. That is how simple people think, for that is one of the things that God reveals to the humble and hides from the proud. In the United States, polls show with B constancy that the legalisation of euthanasia and medical suicide financial aid receives very little support from the elderly, blacks and Hispanics, the poor and the religious and church-going: that is, the blessed poor in spirit.
6. It is now time to focus on the basic question: Can there be a right to die? I do not know, nor can I now theorise about what a right is in general, what human rights are. I will limit myself to recalling, because it is necessary to do so in this post-modern and autonomy-exaggerating time of ours, that legal or moral rights are neither desires, nor interests, nor capacities, nor needs. Basically, human rights correspond to fundamental freedoms, so unquestionable that, in order to make them safe from any interference or limitation, they are constituted as inalienable rights of the person. In this way, the dignity of everyone, including the poor and weak, is safeguarded from interference by others, including the rich and strong.
It has been necessary to formulate human rights and patients' bills of rights because, historically, human dignity has never been fully respected. The core of that dignity is not constituted by desires, interests, capacities or needs: we cannot invoke a right to do or have the things we would like to do or have, to be healthy, to have a nice job, to be wise and beautiful. Instead, we have the right to have our lives respected, to always be treated as persons, to not be restricted in our freedom to think, to practise religion, to associate with one another, to express our convictions. These rights are justified because they protect one's defensible and reasonable freedoms to such an extent that they create a duty on the part of others to respect them. The legitimate right of one necessarily implies the obligation of respect in others.
7. Do I really have a right to die, do I have a right to determine the time, place and manner of ending my life, of executing my death, and, consequently, to demand that others respect this right of mine, that they not prevent me from exercising it, or even help me to fulfil it when I choose to exercise it?
Taken literally, the right to die would come to mean an absurd right to something inevitable, since death is something we all have as an evil. One could, however, speak acceptably of a right to die in a very special context: when death is presented as a good. It is the right to reject futile, technified medicine, fierce therapeutic abuse, the purpose of prolonging the precarious terminal life at all costs, applying deliberately useless and irrational treatments, causing much pain and disproportionate expenses. And all this in order to maintain an extremely precarious life or a mere semblance of life.
The only acceptable meaning of the right to die refers to this right to refuse hopeless, stubbornly obstinate and hopelessly futile medical treatments of therapeutic overkill.
8. The right to die is understood, in the dialectic of the movements in favour of euthanasia and financial aid to suicide, in the movements of the right to die with dignity, not the noble right to choose how to live while one's death comes, opposing the madness of medical abuse, but the right to decide autonomously the circumstances of one's own death and to receive active financial aid to carry it out. It is the right to be given a lethal injection, if one so demands, or to be given an overdose of some drug to bring about one's own death at the instant of one's choice. It is not a right to die, but a right to demand that another be the author of a consensual mercy killing, or to demand that another effectively assist in the act of committing suicide.
9. The typical argument for this right to die goes like this: The person claiming the right to die sincerely wishes to end his or her life, or that someone should end it: therefore, neither the suicide nor the one who eliminates that person commits an injustice, for they act out of respect for the dignity of life, for independence and personal autonomy, and out of compassion for the one who suffers. In this context, it is accepted that there may be a legitimate and reasonable request for financial aid to die on the part of someone who suffers so much pain, or so much incapacity and so much handicap, that he or she considers continuing to live to be unbearable torture. In this context, it is also accepted that such a request can also be made by those who prefer to die rather than continue living when life seems unworthy because of the loss of autonomy and independence; or by those who no longer wish to be a financial or emotional burden for others, because they do not wish, with their needy presence, to tarnish the happiness or freedom of those close to them; or even those who simply wish to exercise their right to haughtily control their own destiny.
Consequently, there is a human right to die, which is embodied in an advanced world in the right to euthanasia and to financial aid medical suicide. Therefore, euthanasia and financial aid medical suicide should be guaranteed by the corresponding legislation, as only in this way can they be demanded and fulfilled without difficulty.
The argument concludes with well-known concepts: those who believe that life is sacred and never dispensable may peacefully profess their ideas, but they cannot impose their notion of the sacredness of life on others, nor can they prevent those who wish to end their lives from exercising their right to die and to receive financial aid from those who are freely willing to do so.
10. Within medical ethics, the generally very moderate advocates of the right to die - to euthanasia and to medical suicide financial aid - reason that a strong and genuine motive of compassion in the physician can justify an exception to the always prevailing duty to respect life, and that an act, ordinarily reprehensible, such as deliberately ending a patient's life, can be disqualified. But such reasoning is not only ethically wrong, it would slowly but inevitably lead to the ruin of medicine as a profession.
This argument is based on partial or false ethical postulates. Not only does it fail to take into account some facts of great significance: some of a religious nature, such as having life as a gift, as something that is given to us but of which we are not absolute masters, but humble stewards; others, typically human and not only Christian, such as the ability to find meaning in suffering. The "medical" reasoning in favour of euthanasia and financial aid suicide falsifies the very foundations of medicine.
11. First, he argues that a motive of genuine compassion makes the act of taking a patient's life good and medical, that pity for the suffering of others justifies such actions by the doctor. But is this so?
For a physician to intentionally put a patient to death is without exception and always a violation of the duty to care for the basic good of human life that society has entrusted to him or her. It is always an act contrary to the ethics of the profession to end a life: whether the physician does it in the name of justice, as in the case of the medicalised death penalty; or in the name of compassion, as in euthanasia; or in the gift of autonomy, as in physician-assisted suicide. Motives have a strong ethical significance, they can profoundly alter subjective responsibility or culpability, they influence the psychology of the moral agent. But motives do not change the nature of the act itself. They do not change the fact goal that a human being is killed, his or her life is deliberately ended.
The motives do not change this nature, even if the patient has given his consent: the complicity of the victim does not change the ethical qualification of the action. The result of such an action is the deliberate death of a person, regardless of the manner, abrupt or delicate, in which the doctor carried it out.
Moreover, the motives can only be ethically judged on the internal regional law . Under the cloak of seemingly pure compassion, quite selfish motives of tiredness, weariness or impatience may be hidden in the conscience of those who agree to euthanasia.
12. Secondly, he proposes that the relief of pain through compassionate death should be included among the ends of Medicine. But the consequences of such a proposition would be fatal to the ethos of medicine.
If physicians were allowed by law to actively assist their patients to die, medicine would collapse. A doctor cannot, one moment, strive with all his dedication and commitment to rescue a life in critical condition and, the next moment, give a lethal injection to a patient who has asked him to do so order. The physician cannot hold one candle to St. Michael and another to the devil. His sense of the value and meaning of human lives, his estimation of the value and meaning of suffering, his measure of what is tolerable in life and of when a life becomes unbearable - all these senses and estimations are totally different in a context of absolute respect for human life or in a context in which that respect is relativised.
13. What does it mean to relativise respect for human life? It means that human life enters the market of values. It is practically maintained that it is worth in itself, that it is a value in itself, inestimable, free of fluctuations. It means that respect for the life of patients becomes a variable that depends on factors and estimates that change and recombine in random ways, that are subject to calculation and comparison.
It does not happen in the abstraction of moral philosophy, nor in the theoretical discussions of bioethicists, where concepts and cases, problems and arguments are handled. It happens in flesh-and-blood reality: it happens to real doctors and real patients. If, as is or will inevitably be established by law, doctors are entrusted with the role of judges and administrators of the right to die, it is important to know that these doctors are real doctors. And the patients are real patients.
Real doctors have wonderful virtues and they also have glaring flaws. They are human, very human. This means that they have ups and downs, that they are sometimes very tired, irritable, fed up with the fight, lost, against death, or the fight, never won, against themselves. There are patients who do not like doctors, for many reasons, all of them terribly human. Sometimes a doctor may feel the need to have a little more order and time in his always hurried life, the need to be left alone for a few hours. If the law were to authorise the doctor to decide whether, once the legal requirements is fulfilled, certain human lives are subject to euthanasia or can be freed by assisted suicide, what could the doctor do on days when he is pessimistic and days when he is aggressively enterprising, when he is stressed or feels capable of winning a thousand battles, when he has an irresistible desire to end soon or is confident that with patience he will win his battle with death?
Doctors are human, very human. Sometimes, when their spirits are high, they would consider a patient's request for euthanasia to be irrational or cowardly. And at other times, when their soul falls at their feet, they would agree in similar circumstances to the same request. Sometimes even, instead of waiting for the patient to ask for euthanasia, the physician might go ahead and suggest to the patient that there would be no objection to implementing the patient's right to die, if he or she so wishes. The threat of the physician's overflowing compassion may, in the long run, prove far more dangerous to his patients than indifferent insensitivity. We do not yet know much about the psychodynamics of compassion as the doctor's dominant virtue, of compassion detached from reason and prudence.
14. The right to die puts the patient at risk to himself or herself: many patients feel too much compassion for themselves. The right to die puts the patient at risk to himself. I have stated this publicly: There is no doubt that Ramón Sampedro committed suicide voluntarily and freely. It was one of those truly shocking cases of lucid suicide. But I cannot help suspecting that, in the circumstances of his suicide, the staging of his drama, his role as the standard-bearer of a movement, to which the activists of death with dignity had induced him, weighed heavily. The circumstances of Ramón Sampedro's death, the script of the drama and its staging, were determined by the ideology and proselytising exhibitionism of a movement for which he was recruited.
In more veiled situations, the psychodynamics of the patient requesting euthanasia can be enormously complex. It is well known: a patient may claim the right to die under the effects of chronic fatigue, tenacious insomnia, crippling dyspnoea, persistent nausea, undiagnosed or poorly treated depression. Or it may be the consequence of incompetent treatment of pain or other symptoms, or of affective withdrawal on the part of relatives and carers. The sufferer may even ask for death as a psychological and dramatic resource to focus the attention of others on him or her, or in retaliation for present neglect or past grievances.
15. In the social dynamic, establishing a right to die by decriminalising euthanasia begins to mean that painless killing is an exceptional way of treating certain illnesses, which is only authorised for extreme and very strictly regulated situations. But in a few years, inexorably, as a result of social habituation and pro-euthanasia activism, the exercise of the right to die ends up meaning that killing out of compassion is an accepted therapeutic alternative, a medical act like any other. And it is so effective and respectful of patient autonomy that doctors cannot morally refuse it. The reason is obvious: euthanasia, recognised as a medical act, is so clean, quick, efficient, painless, compassionate, comfortable, aesthetic and economical - there is no other medical intervention that can compete in cost-effectiveness ratio - that it becomes an invincible temptation.
16. The right to die, the possibility of legalising euthanasia or the medical financial aid suicide is too close, too deadly a danger. Not only for the patients who might demand it, not only for the doctors who would have to carry it out. It is a mortal danger for medicine as a profession and for society as a whole. Something so harmful cannot be a right.
Compassion is a wonderful virtue. Without it, medicine would be like a desert. But compassion must be subject to reason, to prudence, to the principle of the intangibility of life. For if it is not subject to this principle, compassion goes mad. In the history of mankind, there are many injustices perpetrated in the name of compassion, committed by men who decided that they felt compelled by compassion for their fellow men. Our individualistic society, so impoverished in moral resources, needs to be reminded that suffering has a humanising role. That those to whom a heavy dose of suffering has fallen have a duty, strictly social, to behave in such a way that the fabric of human values does not collapse because of them. Claiming a right to die is macabre when it runs the risk of tearing apart the social fabric of solidarity, already so threadbare, and of turning us into a community of moral strangers incapable of sharing pain and administering consolation.
The absolute prohibition of killing the sick is, for everyone, a wonderful and inspiring moral force, which saves us all, patients, doctors and society, from the perverse effects of compassion. Palliative medicine is born of it. To serve the dying, to accompany them in their last days with the help of palliative medicine, is a humanly excellent action of high professional quality. But to kill him is to rob him of one of the highlights of life: a good death completes life, a good death is one of the most important experiences we are given.
It is childish to want to live a life free of pain, anxiety, limitations. An easy, hedonic life is a life of lack, for the one who lives it and for those around him, for it is a life without opportunities to grow in the face of suffering and to draw from within many unused resources. Killing out of compassion diminishes the moral treasure of humanity, it makes us soft.