by Richard Dunstan
"The Latimer case raises questions about Canada's rigid murder laws," read the headline in Canada's Weekly Magazine (Maclean's, Nov. 28, 1994).
Say what?
Robert Latimer, nearly everyone remembers, is the Saskatchewan farmer who in 1993 killed his profoundly and painfully handicapped 12-year-old daughter with carbon monoxide. He was found guilty of second degree murder, which carries a minimum prison term of life with no parole for 10 years. Support and sympathy for Latimer has poured in from all parts of Canada. And Maclean's' idea of how to mend matters is to give Canada more flexible murder laws.
On one level, it is entirely unfair to begin a paper on euthanasia by citing the Latimer tragedy. So let me be clear: I am not suggesting that Tracy Latimer's death is what the mainstream euthanasia debate is all about. Responsible advocates of "death with dignity" do not support actions like those of Bob Latimer, who killed without consultation or safeguards a person who did not and could not consent. Instead, they are looking for legal relief for people like Sue Rodriguez, whose lucid adult decision was to ask for help in committing suicide when her battle with amyotrophic lateral sclerosis became too much to endure - help she in fact received, though illegally, at her death in 1994.
I am suggesting, however, that euthanasia supporters are stuck with the Latimer case whether they support it or not. For follow what route you will, the logical or the merely sociological, the high road approach to euthanasia leads right down to Tracy Latimer, and in a hell of a hurry.
Logically, if death is good for Sue Rodriguez, why not for Tracy Latimer? She seems to have been suffering just as much. Why should she be denied escape just because she couldn't understand what ailed her, let alone consent to euthanasia? And as for consultation and safeguards, with whom could Bob Latimer have consulted? He could no more have gotten legal permission for euthanasia than Rodriguez did. Why should Tracy be held hostage to that?
Sociologically, if media coverage is any indication, there has been just as much of an outpouring of public support for Latimer as for Rodriguez (though, to be fair, he has also gotten some criticism from the public that she did not get).
This is no "slippery slope" argument - it is more of a precipice. Start killing people (or helping to kill them) for "good reasons," and over you drop. That is why they make murder laws "rigid."
Enough of the soapbox for now. I have made the euthanasia debate sound very simple, because in some crucial respects I think it is. But of course, in many ways it is not simple at all. And it is time now to look at some of those ways.
Some of the complexities in the euthanasia debate stem from new factors - developments in medical technology, in ethical reasoning, in legal hazards - and we will get into those in a minute. But two of the most serious complicating factors are as old as can be, and as relevant as ever.
First, the factor of pain and suffering. I have been speaking as if life, in the sense of survival, were always and completely a blessing, but of course that is not always the case. Life can become so unpleasant and so hopeless that virtually no one would wish to continue it, and the opponent of euthanasia must face up to this fact honestly. Suffering can take many forms, physical, mental and emotional. Not all of these are relevant to euthanasia - I have not heard anyone suggest, for example, mercy killing for the clinically depressed - but many are, in particular physical agony and the emotional despair of extreme disability.
Second is the factor of suicide. People have always killed themselves, for reasons that seemed good to them, and it has long been recognized that laws against suicide serve little or no purpose. The debate on that point effectively ended in Canada in 1972, with the decriminalization of suicide, but the issue remains a live one with respect to euthanasia because it is plausibly pointed out that, if I have a legal right to commit suicide, and I am physically unable to do so unaided, it seems unfair to prosecute someone who helps me.
Suffering and suicide are perennial factors, but today's conditions have added a host of other complications. In particular, we have medical techniques that can preserve life far beyond what would have been possible in the past. All this is cause for gratitude; I myself have three bright, healthy granddaughters who would not be alive today apart from lifesaving technology and procedures developed well within my lifetime. In other cases, the value is less obvious: "life" of a sort can be preserved by artificial means when everything that makes life worth living is gone.
One consequence of this sort of medical development is that it is now possible, indeed almost common, to die in pieces. Where once brain function, heartbeat and breathing would have failed at almost the same time, the latter two can now be maintained when the brain is finished. So the question arises, what counts as death? And who counts as alive? If the euthanasia debate is about mercy killing, how long can we continue to insist that there is somebody there to be killed?
That last question, too, can be expanded well beyond the issue of timing of death, to other issues often referred to collectively as "quality of life." Is a life of unrelieved suffering worth living? Is a terminally ill person really "alive" in the fullest sense? What about someone who is not merely terminal but actively engaged in dying? What about someone whose cognitive life is over while their bodily processes continue?
One way that is sometimes used to deal with the question of the end of cognitive life is a redefinition of personhood. My friend Bob Lane, in his adjoining paper, suggests that being a "person" is not merely a matter of one's status as a human being, since (to the extent that one believes in them) it seems reasonable to consider God, angels, extra-terrestrials and perhaps even Great Apes as persons. Thus, he suggests, we need to look for appropriate criteria for determining personhood and ask ourselves whether someone in, for example, a persistent vegetative state meets those criteria.
Euthanasia itself is also far more than a simple moral "yes" or "no." Some distinguish between :active" and "passive" euthanasia, between mercy killing and deliberately letting someone die. Others, ranging from Lane in the adjoining paper to Pope John Paul II in 1995 encyclical The Gospel of Life (section 65), reject the idea that there is any moral difference between the two, since in either case a decision is being made to bring about someone's death. There is also what might be called "secondary euthanasia :" sometimes a patient dies the sooner because of the use of painkilling drugs or because doctors discontinue or do not begin a life-prolonging treatment which seems useless or cruel. In these cases a speedy death is not (in theory) the purpose of the decision, but it happens anyway.
Finally, all these complexities have produced a difficult legal situation for medical personnel. Doctors could theoretically face prosecution under the Criminal Code of Canada for doing, ceasing to do, or not beginning to do some of things discussed above. This seldom if ever happens (Euthanasia, Aiding Suicide and Cessation of Treatment, Law Reform Commission of Canada Working Paper 28, 1982, p. 8). But the theoretical possibility is an added burden on doctors in an already difficult situation, and it is a principle of natural justice that the person should be able to know in advance whether what he or she is doing will be subject to legal penalties.
One of the best-known attempts to deal with all these factors is the system now in place in the Netherlands. There, court decisions (not legislation, which still outlaws even voluntary euthanasia ) have supported Royal Dutch Medical Association policy which permits euthanasia for competent patients who persistently request it, and who are experiencing unbearable suffering that cannot otherwise be relieved. Euthanasia is normally administered, via a lethal drug, by family doctors, who are required to consult with another physician beforehand and to report the case to the coroner afterward.
A 1990 study found that 2,700 of the 129,000 deaths in the Netherlands that year were by euthanasia (including assisted suicide) that met the RDMA and court criteria. Another 1,000 cases of lethal injection - .8% of the deaths in the Netherlands that year - did not meet the criteria. Of these, about 600 were cases where patients had made their wishes known, but not in the manner required by RDMA policy; in the other 400 - all incompetent patients - no wish to die had been expressed.
The same study found that only 28% of the cases which did meet euthanasia criteria had been reported as required, though the percentage reported has been growing as policies are clarified. (All information on the Dutch situation is from Barney Sneiderman and Joseph M. Kaufert, eds. , Euthanasia in the Netherlands: A Model for Canada?, Legal Research Institute of the University of Manitoba, 1994, chapters 1 - 3.)
Though I do not in the least support the Dutch approach, and though I will be arguing for an entirely different and much more conservative policy, I mention it here only for its obvious interest to the euthanasia debate, and not to hang it (so to speak) for its obvious shortcomings in living up to its objectives. For any approach to the horrendous problems of human suffering involved in the euthanasia discussion, including my approach, will have similar shortcomings. Tracy Latimer dead by her father's hand is to me an altogether unacceptable outcome of the Bob Latimer approach; but Tracy Latimer alive in the condition she was in (let alone what she would have faced as her condition deteriorated in the future) is hardly cause for celebration either. Neither supporters nor opponents of euthanasia have any panaceas to offer, and neither side has the right to demand a panacea from the opposite side. All we can do is our best in an imperfect world, and in my view our best is to maintain the scarceness of life, even in horrendous circumstances, as the essential bulwark to all other rights, privileges and benefits human beings (or most of them) can enjoy on earth.
Does this mean, then, that life is an absolute value? In a word, no; there is precious little support for that concept from either religious or secular sources - if there were, religions would not honor their martyrs, not nations their war dead. But we are talking about law here, an d at law, other people's lives are generally treated as having absolute value. Oh, there are exceptions: the lawlessness (Geneva Conference notwithstanding) of war; the war-in-miniature of self-defense against street crime; capital punishment; abortion. But even these exceptions are shrinking in our society nowadays (except for abortion, which tends to be regarded as a "life" issue mainly by its opponents). Canada has abolished capital punishment. War is less condoned and more avoided than formerly; Canadian public opinion tends to oppose any involvement by our armed forces in actual fighting. Even self-defense is harder to use as a legal plea than it once was. And all with good reason: enforcing and following the rigid rule "keep your hands off other people's lives: is the primary task of a civilized government; back away from that, and no other government service - health care, highways, pensions or passports - will be of much value for long.
So. How does the "other people's lives" principle apply to the euthanasia debate? It applies by specifying that anything resembling euthanasia can be justified only on the basis that the subject is not other than oneself, or that the subject is not a person, or that his or her life is not truly at stake.
The second of these alternatives, however, that the subject is not a person, seems extremely dangerous, not to say catastrophic. References to God or Great Apes may show us that personhood is not such a simple matter as we may once have supposed. But while this argument may give us reason to expand the definition of personhood beyond human beings, it is not at all clear that it gives us even a theoretical basis to shrink the definition so as to exclude some human beings. And as a practical matter, says the Law Reform Commission (pp. 33-34), "History reveals too clearly the dangers of such a categorization ... history is filled with cases in which witches, the mentally ill, various ethnic groups and entire races have been eliminated after having first been characterized as non-persons... [we] must firmly disagree that any such distinction between person and non-person should be applied to living humans."
That the subject is not alive, however, or that life is not truly at stake, is in many cases a valid approach. There seems to be no reason not to accept the advances of medical science with respect to the determination of death. Death is now often measured by the absence of brain waves.. If someone wants to argue against that policy on the basis that brain waves might unexpectedly (or even miraculously) resume, I can only point out that the same argument can be made about breathing or heartbeat. That would mean we could never bury anybody. And, of course, if we accept that someone is dead, the moral issue of killing him or her cannot arise.
Life is also not truly at stake when a patient's death is inevitable and so imminent that a course of treatment can make no significant difference. In such a case, other considerations may properly determine, for example, the dosage of painkiller; killing the pain becomes the crucial issue, and if that hastens an already imminent death somewhat, so be it. But this criterion must be used with caution: regardless of the imminence of death, if you set out hasten death, you are making a "significant difference."
Finally, the question of whether the proposed subject is somebody else, or oneself. Tracy Latimer was clearly "somebody else" to her father (as well as being clearly a person and clearly alive, however far she might have fallen short of the ideal in both respects). Even most euthanasia supporters would agree that Bob Latimer's action was inappropriate, for no one could wish to universalize the principle he acted on: that some person may decide unilaterally to end an other's life. It might be argued, of course, that a responsible review process should be in place to make it possible for someone like Tracy, who could not give consent, to be put out of her misery. But with no chance to check out Tracy's wishes, what could such a "death committee" do except weigh the value of Tracy's painful life against yours or mine? Nothing could give them the right to do that. For a committee, as surely as for her father, Tracy Latimer was "somebody else" whose life no one might rightfully take.
We come now to the best case for euthanasia: the case in which the patient is not "somebody else" - where, as with Sue Rodriguez, a lucid, competent adult patient chooses to die. We have already agreed there is no point in a law which would forbid her to commit suicide if physically able to do so. Beyond that, I would also agree that as a competent adult she would have a right to refuse any medical treatment she might choose, for any reason at all, including the desire to die. So why, one might ask, should she be refused help - legally permissible help - in killing herself if she wants?
The answer, in part, is that even the right to unassisted suicide is not so simple as it has been made to sound. True, you cannot be prosecuted under the Criminal Code of Canada for attempting suicide. But suicide is still regarded at law as a great evil, and the police, if they hear of a proposed suicide will intervene as forcefully as necessary to prevent it. This is partly because the police, like the rest of us, assume that those who attempt suicide aren't in fact following their own true and considered wishes, and partly because the police consider failure to intervene in a known suicide attempt as "aiding, abetting or counseling" suicide, which is still prohibited by the Criminal Code of Canada even though suicide itself is not. (Nanaimo RCMP spokesman, 1995, telephone interview.)
Now none of this may appear to apply to Rodriguez, who obviously knew her own mind and had an impressive reason for wishing to end her life. Yet we are making rules here to cover all cases, and consent can be a slippery concept. Do we have competent consent? Uninfluenced consent? Present consent? Last year's consent (preserved in writing)? Presumed consent? Consent that could not change tomorrow - if there is a tomorrow? Consent will be suspect in a significant number of cases, and while it would be easy to design a process to separate the Sue Rodriguezes from people getting ready to jump off the Lions Gate Bridge, it would be impossible to design a process that would separate the Sue Rodriguezes from the not-quite-Sue Rodriguezes. Any defect in consent will turn even this, the very best case for euthanasia, into a matter of "other people's lives." A rigid, absolutist "hands off" is the only appropriate rule.
Must everyone, then, just continue to suffer until death comes at last, after every delay medical technology can devise? I cannot promise that that will never happen, any more than a supporter of euthanasia can promise that no one will ever be euthanized who would have had a change of heart the following day. But for the most part, the answer is no. Palliative care, and especially adequate painkillers, must be available to all, and doctors must be free to omit or discontinue medically useless treatment. But the law must never permit any act or omission which has as its chief purpose the hastening of death. "It's criminal to leave people in pain," Margaret Somerville, director of McGill University Centre for Medicine, "Ethics, and Law, said in commenting on the Latimer case (Maclean's, November 28, 1994).
"But the answer is to kill the pain, not the person."