Printer Friendly

Euthanasia in the Netherlands.

The growing debate about physician aid-in-dying has often invoked the Netherlands as a case study and has drawn somewhat indiscriminately on the Dutch experience to support arguements both for and against physician-assisted suicide and, especially, euthanasia. In December 1990 the Insititute for Bioethics in Maastricht assembled a group of seven Dutch and seven international experts for a two-day conference to examine the practice of euthanasia in the Netherlands. The conference was explicity intended to promote better understanding of the Dutch situation and to foster a critical yet constructive dialogue concerning these practices. Thus in addition to papers outlining the current state of law and practice, presentations addressed the social and ethical dimensions of physician aid-in-dying. Given its topic and goals, the conference quite naturally took the form of scrutinizing, debating, and justifying the practices of Dutch physicians in caring for patients at the end of life.

In his opening remarks Dr. L.B.J. Stuyt, president of the conference, noted that a central concern was the "wide divergence in the definition of term" that hampers mutual understanding and must be clarified. To lay the foundation for our further discussions, then, I examined the current Dutch definition of euthanasia.

What Are We Talking About?

Although |euthanasia' has been performed and publicly debated in the Netherlands for several decades, here as elsewhere the word is still used for many different practices of helping patients in their last moments of life. The Dutch debate has developed a growing consensus by focusing on competent patients who request that a doctor either assist them to take their own life (assisted suicide) or actively end life for them (euthanasia).

The definition of euthanasia widely accepted in the Netherlands is: the active termination of a patient's life at his or her request, by a physician. Although euthanasia is technically illegal, physicians who adhere to three important conditions recognized by the courts and endorsed by the State Commission on Euthanasia in 1985[1] are in practice not subject to criminal sanctions.

Voluntariness. The patient's request must be persistent, conscious and freely made. In the Netherlands "voluntary euthanasia" is a tautology and "involuntary euthanasia" a contradiction in terms.

Unbearable suffering. The patient's suffering, including but not limited to physical pain, cannot be relieved by any other means; both physician and patient must consider the patient's condition to be beyond recovery or amelioration.

Consultation. The attending physician must consult with a colleague regarding the patient's condition and the genuineness and appropriateness of the request for euthanasia.

Dutch law independently requires that physicians accurately report the cause of death and though not specifically directed toward the practice of euthanasia, this provision figures importantly as a safeguard. The extent to which it is actually adhered to has, however, been the focus of considerable debate and was recently addressed in two independent surveys of Dutch physicians.[2]

It is important to stress that several medical practices at the end of life are not considered euthanasia under this definition: respecting tha patient's refusal of treatment (whether before or after treatment has begun), abstaining from medically futile treatment, and giving needed pain medication in doses that may hasten death.

Just as it is incorrect to state that euthanasia is legal (it is specifically prohibited by Article 293 of the Dutch Penal Code), it is an oversimplification to state that euthanasia is accepted in the Netherlands. Certainly both debate and practice are more open and developed in the Netherlands than in other Western countries, but Dutch society recognizes that many serious question remain.

Moreover, in working toward a comprehensive ethical and legal framework to guide practice we must remember that definitions are not morally neutral. They are not just innocent tools that allow us to described reality. Rather, they shape our perception of reality - they select, they emphasize, they embody biases. Definitions constantly need refining if they are to aid our understanding and help ground law and policy.

Facts and Figures

If, as is often said, good ethics depend on good facts, it is important to know as much as we can about the actual practices of Dutch physicians. Dr. E. Borst-Eilers, chair of the Health Council and former medical director of the Academic Hospital at the University of Utrecht, addressed such questions in her conference presentation. Prior to publication of the Remmelink Committee's report in 1991,[3] hard data on the incidence of euthanasia were not readily available. Dr. Borst-Eilers attributed this to the fact that many Dutch doctors do not clearly and carefully maintain the distinction between euthanasia, the deliberate termination of a person's life at his or her request, and other medical decisions concerning the end of life, such as forgoing treatment. Moreover, because it is still a criminal offense under Dutch law, not all cases of euthanasia properly so called are accurately reported. Nonetheless, the number of instances reported by the physicians involved is increasing every year - from 180 cases in 1988 to 340 in 1989, for example. Dr. Borst-Eilers estimated that as of December 1990, the overall incidence of euthanasia was probably between 4,000 and 6,000 cases annually; that is, between 3 and 4.5 percent of all deaths.

Request for euthanasia come mainly from patients with incurable cancer (70%), chronic degenerative neurological disorders (10%), and chronic obstructive pulmonary disease. The primary reason patients give for requesting aid in dying is unbearable suffering, both physical and psychological. A common misunderstanding is that adequate pain treatment would eliminate patients' perceived need for euthanasia. Physical pain alone does not explain all request for euthanasia, however. Patients may experience other physical symptoms, such as chronic nausea and vomiting or incontinence, as unbearable for predominantly phychological reasons. For many patients facing the inevitable disintegration of bodily functions, Dr. Borst-Eilers noted, every day alice means an extra day of unbearable suffering. In such situations euthanasia becomes, in her view, the ultimate act of good terminal care - a perspective shared by many patients and physicians.

We know almost nothing about practices terminating the lives of incompetent patients (severely defective newborns, the irreversibly comatose, the severely mentally handicapped). Although the issue has been debated in various discussion papers, no case law has yet developed nor has the medical profession laid down guidelines for practice. While withdrawing or withholding treatment from severely handicapped newborns seems to be generally accepted among neonatologists, actively terminating the lives of those babies who survive the absence of treatment is a more difficult question. Even more delicate is the issue of actively terminating the life of a severely handicapped infant as soon as it is born, when its defects are so extreme that bringing about a speedy death seems the most merciful treatment. At least three of the eight centers of neonatology surveyed by the Dutch Pediatric Society in 1989 permitted such practices in exceptional cases.

So too, euthanasia is said to be performed on the prior request of now-incompetent patients, although the annual number of such cases is not known. When a demented patients, while still of sound mind, writes and undersigns a request for euthanasia in the even that he or she should become severely demented, that request will be considered valid, especially when it has been written or re-signed within the five years preceding the act of euthanasia.

Dr. Borst-Eilers concluded by noting that there seems to be little disagreement that euthanasia can be a blessing for individual patients, yet many question whether the practice harms society as a whole. To those especially concerned that euthanasia violates fundamental norms of the social role of medicine as a healing profession, Dr. Borst-Eilers responded that "there are situations in which the best way to heal the patient is to help him die peacefully and the doctor who in such a situation grants the patient's request acts as the healer par excellence."

In his counterpoint discussion, Alexander M. Capron, professor of law at the University of Southern California, questioned whether the Dutch definition truly limits the practice if euthanasia effectively by insisting on voluntariness. "By making euthanasia an accepted practice," he argued, "the definition opens the way to expanding the categories of patients for whom |euthanasia' is acceptable for reasons other than voluntariness." The argument for voluntary euthanasia is grounded in patient self-determination, but, Professor Capron noted, the analogy between forgoing treatment and active euthanasia is simply false. In euthanasia death does not follow from the patient's declining a possible life-extending medical intervention, but from the physician's giving a deadly substance to cause death. He found it "difficult to equate kiling the patient with healing" and begged participants to remember that Nazi programs of eugenics and euthanasia used the word healer in exactly the same fashion.

Moreover, the question of euthanasia draws out attention to a very real danger that the medical profession, in Holland or elsewhere, may confuse accepting the limited power and wisdom of the profession in the face of suffering and death with proclaiming the omnipotence (and omniscience) of health care professional.

Legalizing euthanasia thus raises two important policy problems. One is the immediate danger that medical errors will become self-fulfilling rather than self-correcting. The other is the possibility over the long term of sliding into involuntary euthanasia. Having a panel or court review physicians' decisions is not a solution, but would in fact sanction the taking of life and open the door to abuses by the medical profesion.

Public Debate and Private


Speaking on the basis of his personal experience, Dr. H.S. Cohen, a general practioner in Capelle a.d. IJssel, discussed euthanasia in private practice. The role of the family doctor is strong in the Netherlands, he noted. The relationship between doctor and patient often endures over many years, and that continuity of care, coupled with readily available nursing care and domestic help, means that over 30 percent of Dutch patients die at home. Euthanasia has long been a monopoly of general practitioners, though today more and more specialists practice it as well. In Dr. Cohen's experience, it is not "easier to kill than to care," and he has found that studying the medical, ethical, and legal aspects of euthanasia not only improves the quality of care given by the family doctor in administering euthanasia, but also the quality of terminal and palliative care generally. Indeed, Dutch doctors do their utmost to make life bearable, to find any acceptable solution but euthanasia. Yet it is nonetheless appropriate, he believes, for doctors and nurses to raise the subject of euthanasia with their patients. When euthanasia is negotiable and the end of life no longer a topic to be hushed up patients may find acceptance, tranquility, even peace and happiness.

When death becomes a matter of management, Dr. Cohen noted, a number of choices become necessary and several practical points must be discussed: the day and the hour of euthanasia, those to be present, the method to be used. Many family doctors follow a standard procedure of inducing a deep coma and then administering a curare relaxant to bring about death. General practitioners themselves more and more frequently notify the police of instances of euthanasia and this will prevent problems for both family and physician.

In his complementary presentation Dr. T van Berkestijn, secretary general of the Royal Dutch Medical Association (KNMG), discussed the evolution of the association's policy regarding euthanasia and assisted suicide. Shortly after the first case came to trial in Leeuwarden in 1973, he explained, the Executive Committee of the KNMG set up a working group to investigate the problem of euthanasia. In its effort to formulate guidelines for the medical profession the KNMG took over most of the criteria applied by the court. In distinction to the Leeuwarden verdict, however, the committee recommended that euthanasia be contemplated only when the dying process has actually begun. It also recommended that responsibility for performing euthanasia be reserved to the attending physician, that euthanasia remain a crime, and that assisted suicide be discussed separately.

Following the report of a second working group in 1984 the KNMG recommended that the distinction between euthanasia and assisted suicide be abolished on the ground that the intent in both cases is to bring about the patient's death. At that time it also addressed the question of conscientious objection to euthanasia. The executive committee recognized doctors' right to oppose euthanasia, but upheld their duty to refer patients who requested it to a colleague, as patient autonomy must be the guiding principle. By 1984 the KNMG and the state Commission on Euthanasia actively consulted one another before publishing their position papers, but it is difficult to know how much they influenced each other or the courts.

For several years the KNMG has been examining pain and suffering as necessary conditions for legitimate requests for euthanasia and assisted suicide and has accepted the notion that mental suffering may be unbearable even when the patient has no physical disorder but rather suffers solely from psychosocial causes. Furthermore, the association is now preparing guidelines for terminating the lives of incompetent patients - in the first instance, for severely defective newborns, and at a later date for the comatose and other incompetent patients such as the demented elderly and the severely mentally handicapped.

In response, Daniel Callahan, director of The Hastings Center, noted that both Dr. Cohen and Dr. van Berkestijn raised important questions concerning the status of the public debate, the doctor-patients relationship, and the coherence of public policy. Dr. Callahan observed that it is difficult for an outsider to tell whether the purported unanimity among Dutch physicians regarding euthanasia indicates the plenitude or absence of full debate. Moreover, the almost symbiotic relationship between the KNMG and the courts is rather unusual and makes one wonder what effect it has on public participation in the discussion.

Dr. Cohen said nothing about the new role that a shift to euthanasia carries with it for the physicians. Yet, Dr. Callahan noted, "to kill a patient at that patient's request is a radical departure from the longstanding moral traditions of medicine and the historical duties of the physician." Nor, suggested Dr. Callahan, did Dr. Cohen or Dr. van Berkestijn come to terms with the paradoxes that emerge from accepting euthanasia as a legitimate exercise of the autonomy of a patient who suffers unbearably. If avoiding suffering and patient self-determination are the primary moral criteria, he queried, how could a doctor ever properly refuse a request for euthanasia? Further, granting the individuals's right to self-determination even unto death, how is this right transferable to another? And finally, since suffering is in principle and forever unverifiable and has no objective correlation with a patient's (medical) condition, how could a physician ever be certain that a patient's suffering was genuinely unbearable? Other safeguards now in place seem equally problematic; indeed, the requirement for consultation seems a wherade when a concurring opinion can regularly be sought and obtained from physicians known to be sympathetic to euthanasia.

Moreover, the coherence of public policy seems to be threatened by the lack of public accountability for the practice of euthanasia and the absence of investigation of underreporting. Yet it is difficult to reconcile the desire for privacy with the need for public accountability; the Netherlands faces a further paradox in having to establish careful government oversight and regulation of the private decisions of patients and their physicians.

Institutional Considerations

Further discussion of Dutch caregivers' perspective was offered by Dr. C. Schaake of the Netherlands' Cancer Institute in Amsterdam. Drawing on the experience of patients and medical and nursing staff at the Institute, Dr. Schaake explained that the early 1980s marked a clear difference with regard to open discussion of requests for euthanasia in the hospital setting. Before the early eighties, she noted, overt discussion of euthanasia was not possible and patients' cases were considered only in secret meetings between staff and a member of the hospital ethics committee.

By 1986, however, the Institute had developed an official policy and guidelines for euthanasia. The new policy provided, among other things, that having once treated a patient the hospital and its staff could not refuse that patient's carefully considered request for euthanasia. The guidelines further stipulated that euthanasia must be discussed with all the individuals concerned, as is any other diagnostics or therapeutic intervention, and that only the medical specialist is to be responsible for performing euthanasia. The guidelines also provide for conscientious objection to euthanasia, holding that no one should be involved against his or her will.

Dr. Schaake pointed out that existing guidelines did not address all the questions that arise in caring for terminally ill patients. She offered the following scenario for discussion:

A patient who has severe pain that cannot be alleviated with routine analgesics and whose disease has progressed to the point where no further treatment is available may be given morphine in increasing doses to relieve pain. As a result, the patient may lose consciousness, at which stage there are two possible courses of action open to the physicians. One is to continue the morphine at increasing doses for the patient's remaining days, in which case the patient will die slowly. The majority of doctors in the Netherlands believe this to be inhumane and a heavy burden to the family. Or the coma may be terminated so that the patients is allowed to die peacefully.

This latter decision actively to terminate the patient's life cannot properly be called euthanasia, she noted, since the patient made no explicit request. Nor, however, is the death a direct result of pain management. Patients are told that the pain will be alleviated using increasing doses of morphine and that they will go into a coma, but they are not usually told explicitly that the coma will be terminal. She continued,

Doctors feel responsible for providing a good quality of life and therefore by implication a good quality of dying. Is this, however, good clinical practice? Is this a matter for the medical staff only or is it a matter for the law? ... What is the exact place for this recurrent procedure? My proposal is to distinguish this practice from euthanasia and to classify it as good medical practice when treating severe pain in terminally ill patients.

William Winslade, professor of psychiatry at the University of Texas, responded to Dr. Schaake's presentation by noting that she "rightly urged us not to lose sight of the particularities, the complexities, and the ambiguities of the human context in which we must make individualized choices about life and death." He acknowledged a deep personal ambivalence about euthanasia arising from his strong commitment to the value of self-determination on the one hand and a deep reverence for life and acceptance of death on the other. The need to control death - whether by postponing it or hastening it - seems to rest on a deep fear and denial, he suggested. Dr. Winslade finds himself intuitively less troubled by assisted suicide, which seems a more fully autonomous choice than euthanasia since the last, decisive act is performed by the dying person rather than the physician.

The Dutch practice of assuring patients that euthanasia can be talked about is, he noted, most appropriate and reflects a sensitivity that is much less common in the United States. Yet using the language of rights in speaking of euthanasia seems problematic - certainly speaking of the "right to die" is a curious way to refer to a natural inevitability. Moreover, while patients may morally be permitted to request euthanasia or assistance in suicide, they may not demand either; their only "right" is to make the request. Similarly, physicians ought to be permitted, but neither obligated nor forbidden to fulfill such request in appropriate circumstances. If these practices are morally justified, as he believes they are, they ought also to be legally permitted. He is troubled, however, by the prospects of institutionalization and routinization of euthanasia and assisted suicide and cautions that physicians must not succumb to what he calls "the banality of mercy."

Euthanasia and the Law

Under Article 293 of the Dutch Penal Code euthanasia is clearly a criminal offense: "He who takes the life of another person on this person's explicit and serious request will be punished with imprisonment of up to twelve years or a fine of the fifth category" [as much as Dfl. 100,000 or $60.000 U.S.]. Like other speakers, H.J.J. Leenen, vice president of the State Commission on Euthanasia, stressed the specificity of the definition of euthanasia at issue here.

Since the first euthanasia case came before the court in Leeuwarden in 1973 the only defense accepted by both trial courts and the Dutch Supreme Court has been that of force majeure (necessity) in the sense of conflicting duties - in which the physician's professional duty to alleviate suffering prevails over the duty to preserve life. Judicial decisions have essentially established the three conditions recognized by the State Commission and the KNMG: explicit voluntary request, unbearable suffering, and consultation.

As influential as Supreme Court decisions are, however, they do not change the law; in principle every case of euthanasia should be prosecuted. The result is a very ambiquous state of affairs in which a practice that is widely accepted in society remains nonetheless a criminal offense. In the absence of legalization, Dr. Leenen noted, informal procedures for decisionmaking and control of euthanasia have been set up, such as agreements between prosecutors and local associations of physicians not to press charges or the adoption by hospitals of explicit policies on euthanasia and assisted suicide.

Dr. Leenen also sketched the history of efforts to legalize euthanasia in view of this disparity among practice, law, and popular opinion. In response to calls for reform, he noted, in 1982 the government established the State Commission on Euthanasia. Draft legislation permitting euthanasia based on its 1985 final report was supported by a parliamentary majority, but opposed by the coalition government of Christian Democrats and Conservatives. The government attempted to forestall passage of the draft bill by publishing its own proposal, though it did not formally introduce it. In March 1986, fearing for the coalition, Conservatives withdrew their support of the parliamentary bill. A compromise proposal published in January 1987 and formally introduced in December of that year would have amended the Medical Practices Act to establish requirements for careful practice of euthanasia without, however, decriminalizing it. Doctors would have been enjoined to practice within the guidelines of the new Medical Practices Act but would have remained criminally liable for doing so. The fall of the coalition government in the spring of 1989 delayed consideration of the various proposals and in 1990 a new commission of inquiry was established. Arguments against euthanasia, Dr. Leenen concluded, are unconvincing: "From the viewpoint of the role law as to human seslf-determination in an ethically pluriform society, prohibition of euthanasia must be rejected."

Bernard M. Dickens, professor of law at the University of Toronto, remarked that at the outset there is an element of uncertainty in comparing the outcomes of criminal prosecutions under the Anglo-Canadian legal system as against the Dutch. In Canada, homicide and comparable serious offenses would be tried by jury, and while Dr. Leenen did not discuss how trial courts in the Netherlands determines facts and reach verdicts, it seems clear that lay juries will as much guided by compassion as by logic and judicial instruction on the meaning of the law. Furthermore, reliance on prosecutorial discretion, of which Dr. Leenen is critical, remains prominent in Canada, though there is growing interest in developing guidelines on the exercise of that discretion, So too, under Anglo-Canadian jurisprudence the plea of force majeure would be accepted as a defense only if the necessity in question was to save a human life. In that context, he remarked, "it is difficult to see how necessity could excuse deliberate ending of a life when no other was thereby saved." The scope of necessity is quite different in the two legal systems, and in the Anglo-Canadian tradition necessity will at most render criminal conduct excusable, not justifiable.

Professor Dickens noted that the Common Law tradition, like the Dutch, would distinguish euthanasia from other activities concerning the end of life such as forgoing treatment or alleviating pain with medication that may hasten death. But, unlike Dutch jurisprudence, the Common Law would give no special recognition to euthanasia as the deliberate ending of a person's life to end his or her inescapable suffering. Indeed, the Canadian Law Reform Commission expressly rejected "legal accomodation of euthanasia, in the sense of complying with a competent patient's clearly expressed request to have life ended by another's act, for fear that such accommodation would lead to lives being taken of patients who had not so requested." Yet while legalization of euthanasia would face the same systematic opposition in Canada as it now does in the penal code of the Netherlands, Professor Dickens concluded that "informal practices to mitigate a harsh result in individual cases might also be comparable, although probably less visible than in the Netherlands."

Religious Perspectives

This positions on euthanasia held by the Dutch Reformed Church and the Reformed Churches of the Netherlands were surveyed by Professor E. Schroten of the Center for Bioethics and Law of the University of Utrecht. In 1972, even before the first court case, he explained, the General Synod of the Dutch Reformed Church published a pastoral manual, "Euthanasia: Meaning and Boundaries of Medical Treatment." Using the then-common terminology of active and passive euthanasia the manual set the question of euthanasia within the broader context of the secularization of the human image and developments in medical technology. Finding that such technology has made prolonging life problematic, the synod concluded that quality of life is more important than length of life. The synod also called for attention to the problem of suicide, especially among the elderly, and questioned whether the wish to die should under all circumstances be denied.

The manual urged compassionate care for the dying and alleviation of pain, even at the risk of hastening death, and held that when the patient can no longer communicate or participate in relationships, medical treatment may be ceased. It concluded that the distinction between active and passive euthanasia is more psychological than ethical.

In 1985 a working group commisioned by the Reformed Churches of the Netherlands brought out a report entitled "Euthanasia and the Pastorate." Its answer to the central pastoral question of whether a Christian can take a life (or permit it to be taken) was that taking a life "is not necessarily without justification in the light of faith. "The report nonetheless concluded that legalizing euthanasia would not be the church's preferred course of action. Most Dutch Reformed Churches would restrict euthanasia to "borderline and emergency situations," a position Professor Schroten described as "no - unless ... "; only a minority would reject euthanasia absolutely.

In contrast, the Roman Catholic Church rejects euthanasia altogether. Its 1980 Declaration on Euthanasia holds that euthanasia is defined by intention and the manner of acting, and that doctors must not terminate the life of a dying patient, whether at his or her own request or out pity. To do so would violate fundamental tenets of divine law in a crime against life itself. The position of the Catholic Church in the Netherlands is reflected in a patoral letter of 1985 entitled "Suffering and Dying of the Sick." Recognizing the tremendous power of medical technology to prolong life, the Dutch bishops held that a patient has the right to refuse medical treatment: "One ought to renounce senseless prolonging of the dying process byforms of treatment that can no longer lead to improvement or relief."

Commenting on these religious perpectives, Raanon Gillon, professor of medical ethics at King's College, London, took up the notion of "quality of life." Our moral objective, he argued, ought indeed to be ensuring that the patient has some adequate quality of life, not merely a longer life. The difficulty is to determine whose judgement shall count in the matter. Dr.Gillon also urged participants to consider whether medicine itself may not create an obligation to honor requests for euthanasia. When life-prolonging technology has led to what the patient believes is a life not worth living, he asked, "does this create a special responsibility for the medical profession in general and the patient's doctor in particular to consider symphatetically sustained requests for active voluntary euthanasia?"

In the end, Gillon believes, the issue will turn on slippery slope considerations. One way to evaluate those concerns is to carry out the kind of social experiment now underway in the Netherlands is the "strictly regulated de facto legalization of euthanasia." Worldwide, many hope to learn from the Dutch experience.

Critical Discourse,

Constructive Criticism

Although these presentations sparked lively debate on a wide range of topics over the two days of the conference, two particular themes emerged as central in participants' concerns, nameley questions surrounding our shared understandings of |euthanasia' (or lack thereof) and the implications the practice of euthanasia holds for the profession of medicine.

A Value-Free Definition? Participants disagreed as to whether the Ducth definition of euthanasia incorporates elements that intrisically have moral conotations. Some, like Dr.Leenen, saw the fact that the Dutch restrict the term to free, voluntary request to indicate the moral neutrality of the definition. Others, including myself and Professor Capron, maintained that the definition is necessarily value laden and, moreover, tends to become a moral statement as its conditions unfold.

Those in the first group stress that we must restrict our usage to the definition given in the Ducth penal code, where euthanasia is said simply to be "the termination of a person's life on his or her request by another person." Dr.Leenen finds this definition to be value free precisely because it does not rely on further conditions like unbearable suffering that clearly are morally laden. Those who argued for the moral neutrality of the definition also point out that it is intended to eliminate cofusion by distinguishing euthanasia from situations in which patients refuse treatment, or treatments is withheld because cause it has become pointless, or painkillers are given that may indirectly hasten the patient's death, or life-sustaining treatment is withdrawn from comatoes patients. And by clearly setting apart this category of voluntary killing on request, the strict legal definition allows us to distinguish euthanasia from murder.

Those who argue that the definition of euthanasia is broader than that articulated in the penal code and necessarily has intrinsic moral connotations insist that we must taken into account precisely those elements such as unbearable suffering that Dr.Leenen would leave out. While the restricted definition of euthanasia has the seeming virtue of being clear, it is, opponents argued, impossible to maintain - as participants noted, physicians seem to have been among the first to be uncertain about the exact scope of the definition and even now do not adhere to it stringently.

Moreover, jurisprudence has privileged some of the elements of the legal definition. For instance, over the years judges have come to read "a person" to mean "a patient" only. So too they have insisted on the qualification that the patient be suffering unbearably or be "in utter distress." the courts have also made it clear that for euthanasia to be acceptable the expression "by another person" must mean specifically "by a doctor." The definition invoked by judges is not different in kind from that in the penal code, of course, but it is more explicit in that it incorporates the actual circumstances of doctors and patients as integral parts of the definition itself.

An even more fundamental question, however, is whether it is truly apppropriate, morally or legally, to attempt to limit the definition of euthanasia in just the way the Dutch do. Professor Capron was particularly troubled by the negative effect of this limitation. He sees it as artificially "building a consensus around the practice ... on the ground that it involves only voluntary patients, and voluntary patients who are in extremis, with unrelieved, suffering, in an incurable condition." This remark encapsulated the fear offinding oneself on a slippery slope and raised questions about the danger of hidden agendas beneath the accepted definition of euthanasia.

Definitions, I have argued, may serve two purposes quite apart from their logical function: they may legitimize what they describe; and they may encompass other things that people percieve as being relevantly similar. Definitions, that is, tend themselves to be (come) moral statements. We must recognize their pragmatic moral force - with regard to euthanasia, their power to pave the way for the practice itself. Applying the definition contributes to the process of transforming necessary conditions into sufficient ones and thus prompts the creation of a set of rules and regulations that may preempt further debate. Yet the fact that a Ducth physician may adhere to the conditions currently restricting the practice of euthanasia should not by itself put the physician's conscience at rest.

So too, definitions may be adapted to particular practical ends. Given the current Dutch definition, Professor Capron argued, "euthanasia is a lesser crime than murder, and if the courts then say, indeed, if done by a doctor in the following circumstances it will not even be a punishable crime, you have a strong incentive to define euthanasia this way because it keeps you under this set of court decisions."

The common tendency to extend a definition to things it was not originally understood to cover makes it important to address slippery slope concerns. A telling example in our context is the 1985 report of the State Commission, which condoned "euthanasia" for comatose patients at the request of the family if the patient did not immediately die when useless treatment was withdrawn. Strictly speaking, such a practice is not cosistent with the accepted definition of euthanasia, especially its requirement of voluntary request by the patient.

Suffering and Self-Determination. As we have seen, two major considerations play decisive roles in distinguishing euthanasia as a special category: pain and suffering, and self-determination. Yet as Dr.Callahan pointed out, these two primary motives compete with each other in the argument for euthanasia:

If the principal motive for the physician to act is relief from suffering, why outh self-determination to be required? And why would the duty to relieve suffering not apply to the incompetent just as well as the competent? Conversely, if we hold that self-determination should be the dominant motive, why should suffering be required?

John Keown, professor of law at the University Edinburgh, carried this argument further:

It seems unclear that either or both of these are requirements for what is accepted as ethical euthanasia, not least in the context of the State Commission's condonation of euthanasia for the irreversibly comatose - where you have neither autonomy nor presumably, suffering, unbrearable or otherwise.

"To the question of why a request is necessary if the task of the physician is to relieve suffering," Dr.Borst-Eilers replied, "the answer is that in this country legal reasons prevailed over intrinsic moral concerns about therole of the doctor. It was a matter of tactics; we could gradually win the field for the acceptance of euthanasia by starting with this category." Dr. van Berkestijn stated that the final goal of such tactics was "to decriminalize euthanasia when done by a physician." To the question of whether the implication that after euthanasia as narrowly defined was decriminalized one would go on to nonvoluntary cases the answer was yes, under stricly limited conditions.

Can Killing Ever Be Healing? Participants were very much concerned about the implications of euthanasia for the medical profession are philosophically mutually incoherent justifications for euthanasia seems in some ways a lesser question. The real issue, Dr. Gillon suggested, is whether euthanasia can be seen to be a proper part of the medical function of caring. I think, however, that there is the suffering of prospective indignity, of lapsing into permanent unconsciousness or incompetence where I turn into a sort creature that I do not wish to become. And I see the prevention of that sort of suffering as a proper part of a doctor's activities.

To some the word killing seems inappropriate in the context of the euthanasia debate. Thus Dr.Spreeuwenberg challenged opponents, "What do you mean exactly when you use the work killing? Why not use a more neutral expression like termination of life?" Dr.Callahan spoke for may participants when he responded that killing is in fact the most accurate and appropriate term we can use:

If I do something that ends the life of another, I think the dictionary would define that as killing. That is why we often make a distinction between killing and murder. To use a more neutral word is to hide from ourselves what we are doing. It is important in all moral debates to use very accurate terms that do not anesthetize our feelings.

To legitimize active euthanasia is to add a new category of killing. It is to add indeed the worst category of killing, namely private, self-determined killing between people, not for the sake of protecting the nation (as in war), not for the sake of justice (as in capital punishment), and not for the sake of saving a life (as in self-defense), but rather to satisfy private wants and desires.

Nonetheless others felt that killing may, under certain circumstances, become a medical act, performed according to the standards of the medical profession. "Terminal care is part of total care," asserted Dr. Schaake, "and performing euthanasia may be part of terminal care. By performing euthanasia after a delicate process of decisionmaking and judgement," she went on, "we do not like to think that we have performed a crime, but that we have helped a human being in existential need within the standards of our profession." Other Dutch physicians shared this perspective, albeit sometimes with less certainty about the moral goodness of their actions. Thus one physician commented, "I do not sleep the following night." and described the moral dilemma as a choice among many evils. He said, "To see my patient suffering is a bad situation and also to kill my patient is a bad situation, but I have to choose, Indeed, I cannot see it as a good act, but given the situation it is the best I can do."

If euthanasia were legal and recognized as good medical practice, however, would it become obligatory? If
COPYRIGHT 1992 Hastings Center
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:Dying Well? A Colloquy on Euthanasia and Assisted Suicide
Author:de Wachter, Maurice A.M.
Publication:The Hastings Center Report
Date:Mar 1, 1992
Previous Article:Voluntary active euthanasia.
Next Article:Euthanasia in the Netherlands: American observations.

Terms of use | Copyright © 2017 Farlex, Inc. | Feedback | For webmasters