Monday, September 20, 2021

What is the "good" of euthanasia, Part III: A true system of choice

Gordon Friesen
By Gordon Friesen, EPC Board Member.

Necessary comparisons 

I have stated, on many occasions, that I am categorically opposed to euthanasia and assisted suicide and I will continue to struggle, on the most fundamental level, for a complete prohibition thereof. However, this article is based on being faced with the necessity of choosing some rational framework, to accommodate assisted death as a fait accompli.

Some time around 2013, approximately two years after I first decided that my various writings in opposition to medically assisted death should be organized into an actual book (still incomplete to this day), I attended a public meeting, in Montreal, of the Physician's Alliance Against Euthanasia. Many very valuable things were said about the dangers of what was then mainly feared as "physician assisted suicide". In the post-presentation question period, I had the opportunity of advancing an unconditional right-to-die position according to which any rational person should be allowed to choose the time, and the manner, of their own death, with no medical criteria and in fact: with no criteria of any kind, other than a true ability to choose.

I didn't take this position because I wished to see assisted suicide legalized in Canada. Quite the contrary. However, I had become convinced that the principle of choice would inevitably prevail (as it subsequently has done), and that frankly embracing choice is the only possible way of preventing that much, much worse alternative, which consists of inaugurating a scheme of euthanasia, normalized as benign medical care (such as that which we see in Canada today).

I realize, of course, that this is counter to all intuition; and that most readers would naturally assume that assisted death, restricted by medical criteria, must still be preferable to a full-on right-to-die. And yet most sincerely, after multiple decades of considering these questions, I would wish to argue that this is not logically the case; or at least, I would wish to invite the reader to undertake a comparison of relative harms in each case (right-to-die, versus medical euthanasia), according to a very simple standard ("What is the worst that can happen ?"), applied fairly to each.

A summary quantitative analysis

Unfortunately, from the moment we accept any form of assisted death, people are going to die. That is the inescapable fact. Therefore, In order to choose our poison (that is: to choose any form of assisted death), we must mainly consider the effects of those deaths on the rest of society.

The first and simplest measure, of social impact, would be quantitative: for more deaths must produce more effect. And on this score, we see that the very permissive Swiss system, of largely choice-based assisted suicide, produces only about half as many deaths as the heavily medicalized euthanasia system of neighbouring Netherlands; and also, the number of physician assisted suicides in the relevant American States, is truly trivial in comparison with the volume of euthanasia, per capita, as already performed in Canada, only five years after legalization (2016).

And yet there is a deeper measure of harm involving the damage wreaked upon the moral compass of individuals, and indeed, upon the moral fabric of society. And it is upon these injuries that I would wish to insist in what follows.

The German example : Moral implications of a free choice of death

On February 26, 2020, the German Federal Constitutional Court struck down a recently passed law which had been intended to prevent private organizations from offering assisted suicide as a quasi-commercial service. The logic was simple : people have a (constitutional) right to commit suicide and to seek aid in so doing; but to stop the operation of organizations offering such assistance, would be to effectively nullify that right; and therefore, such organized (and presumably even commercial) activity must be allowed.

As far as the underlying moral case is concerned, it is simply recognized, in this ruling, that different moral opinions exist in a pluralist society; that it is not the role of the High Court (of a constitutional state) to make judgments of a moral nature; that such a role must be limited to ensuring the constitutionality of legislation.

Simply stated then: despite enabling assisted suicide, the German State will not affirm that assisted suicide is "good" (either in general, or in any particular case). And above all: there is no suggestion, explicit or implied, that the German government, German society, individual German citizens, or any professional group, in Germany, have the slightest obligation to provide assisted death.

Free assisted death, and protection of the sick and disabled

In keeping with this general approach there are a number of especially significant elements in the actual judgment, and in particular the following (quoted from the official translation):

"The right to a self-determined death is not limited to situations defined by external causes like serious or incurable illnesses, nor does it only apply in certain stages of life or illness. Rather, this right is guaranteed in all stages of a person’s existence. Restricting the scope of protection to specific causes or motives would essentially amount to a substantive evaluation, and thereby predetermination, of the motives of the person seeking to end their own life, which is alien to the Basic Law’s notion of freedom."

In other words, Germany does not opine on the value of motives. There is no limit on the personal freedom to die, medical or otherwise. And this, paradoxically, is precisely what protects others, in such a system, from "death by association". For to state that a person "should" be allowed to die in situation "A" (but not situation "B"), is the same thing as saying that it is "right" for "A" to die. And thus, to affirm, for instance, that only a person with a grave medical condition "should" be allowed to die, is functionally the same as saying that it is "good" for such a person to die (in a way it is not for others); which, to be sure, is only a hairsbreadth away from simply stating that such a person "should", in fact, die. The German model, however, avoids these grossly discriminatory implications entirely; and thus avoids placing a significant moral pressure towards precocious death (backed by the full authority of the State) upon particular vulnerable groups, which is to say: upon the ill and disabled.

Freely assisted death and the medical profession

To judge the independent and pluralist nature of medical ethics in Germany (and the freedom of individual doctors to practice as they wish) we note that in spite of the assumed constitutional right to die, the following were actually given as reasons for why independent suicide services are indeed necessary:

"Without (assisted suicide services) the individual is reliant on physicians ... at least in prescribing substances. ... willingness of a physician can only be expected in exceptional cases. ... physicians have shown little willingness ... and cannot be obligated... The prohibition of suicide assistance from physicians... has been incorporated into the professional codes of most State Chambers of Physicians,... (and this) guides the actions of physicians in practice even where the relevant codes are not considered legally binding."
Quite clearly, also, there is no expectation that any of this will (or should) change. For under this paradigm of mutual freedom, it is simply assumed that the protection of assisted suicide services in no way places any obligation, or demand, upon individual doctors, upon doctors' regulating bodies, or upon the medical profession as a whole.

Assisted suicide and the State

Because the German State has declined to recognize any moral validity to the constitutionally protected right to die, that State retains its own right (and assumed obligation) to do the following:
"taking measures of general suicide prevention. ... establishing that the individual’s resolution to commit suicide is sincere and final ... expanding and strengthening palliative care ... counter dangers arising from current and foreseeable living conditions capable of influencing the individual to choose suicide ... preventing assisted suicide becoming recognized as a normal way of ending life... counteract developments that create social expectations pressuring individuals to take their own life, e.g. based on considerations of usefulness."
The very last sentence, of this historic judgement protecting the operation of independent assisted suicide organizations in Germany, is the following detached statement:
Regardless (editor's italics), there can never be an obligation, on anyone, to assist in another person’s suicide.
Standing as a paragraph all of its own, this statement apparently means "regardless" of any consideration whatsoever, and the term "anyone", would logically include individuals, professions, and the State itself.

In conclusion

The measure of the value of any moral system lies in its internal coherence. The coherent implications of a free right to die (including the right to seek assistance in dying) lead logically to a position such as that of the German Federal Constitutional Court described above: with no explicit discrimination against the ill and disabled; no obligation of the medical profession; no moral association of the state; and thus, providing an optimal environment for positive regulation, and for the development of countervailing measures.

I have stated, on many occasions, that I am categorically opposed to assisted suicide and I will continue to struggle, on the most fundamental level, for a complete prohibition thereof. However, faced with the necessity of choosing some rational framework, to accommodate assisted death as a fait accompli, I find the non-medical right-to-die interpretation comparatively appealing. In a future continuation of this text, I hope to analyze, also, the rational implications (and practical results) of the medical euthanasia system, as adopted in Canada. I will then invite the reader to look, dispassionately, at the respective advantages of these two models, when laid side by side.

One might suggest, of course, that we Canadians no longer have the leisure of choosing between these paradigms. For, as a practical matter, we are already saddled with both. However, I would argue that this actually makes it all the more important to clearly distinguish between the two, in the hopes of preventing the worst properties, of one, from enabling (and enhancing) those of the other.

Gordon Friesen, Montreal, September 20, 2021 (français) (english site in development) (personal philosophical musings)

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