ACTIVE AND PASSIVE EUTHANASIA
The conclusions we have reached in this chapter will shock a large number of readers, for they violate one of the most fundamental tenets of Western ethics - the wrongness of killing innocent human beings. I have already made one attempt to show that my conclusions are, at least in the area of disabled infants, a less radical departure from existing practice than one might suppose. I pointed out that many societies allow a pregnant woman to Ml a fetus at a late stage of pregnancy if there is a significant risk of it being disabled; and since the line between a developed fetus and a newborn infant is not a crucial moral divide, it is difficult to see why it is worse to kill a newborn infant known to be disabled. In this section I shall argue that there is another area of accepted medical practice that is not intrinsically different from the practices that the arguments of this chapter would allow.
I have already referred to the birth defect known as spina bifida, in which the infant is born with an opening in the back, exposing the spinal cord. Until 1957, most of these infants died young, but in that year doctors began using a new kind of valve, to drain off the excess fluid that otherwise accumulates in the head with this condition. In some hospitals it then became standard practice to make vigorous efforts to save every spina bifida infant. The result was that few such infants died - but of those who survived, many were severely disabled, with gross paralysis, multiple deformities of the legs and spine, and no control of bowel or bladder. Intellectual disabilities were also common. in short, the existence of these children caused great difficulty for their families and was often a misery for the children themselves.
After studying the results of this policy of active treatment a British doctor, John Lorber, proposed that instead of treating all cases of spina bifida, only those who have the defect in a mild form should be selected for treatment. (He proposed that the final decision should be up to the parents, but parents nearly always accept the recommendations of the doctors.) This principle of selective treatment has now been widely accepted in many countries and in Britain has been recognised as legitimate by the Department of Health and Social Security. The result is that fewer spina bifida children survive beyond infancy, but those who do survive are, by and large, the ones whose physical and mental disabilities are relatively minor.
The policy of selection, then, appears to be a desirable one:but what happens to those disabled infants not selected for treatment? Lorber does not disguise the fact that in these cases the hope is that the infant will die soon and without suffering. it is to achieve this objective that surgical operations and other forms of active treatment are not undertaken, although pain and discomfort are as far as possible relieved. If the infant happens to get an infection, the kind of infection that in a normal infant would be swiftly cleared up with antibiotics, no antibiotics are given. Since the survival of the infant is not desired, no steps are taken to prevent a condition, easily curable by ordinary medical techniques, proving fatal.
All this is, as I have said, accepted medical practice. in articles in medical journals, doctors have described cases in which they have allowed infants to die. These cases are not limited to spina bifida, but include, for instance, babies born with Down's syndome and other complications. In 1982, the 'Baby Doe' case brought this practice to the attention of the American public. 'Baby Doe' was the legal pseudonym of a baby born in Bloomington, Indiana, with Down's syndrome and some additional problems. The most serious of these was that the passage from the mouth to the stomach - the oesophagus - was not property formed. This meant that Baby Doe could not receive nourishment by mouth. The problem could have been repaired by surgery - but in this case the parents, after discussing the situation with their obstetrician, refused permission for surgery. Without surgery, Baby Doe would soon die. Baby Doe's father later said that as a schoolteacher he had worked closely with Down syndrome children, and that he and his wife had decided that it was in the best interests of Baby Doe, and of their family a whole (they had two other children), to refuse consent f the operation. The hospital authorities, uncertain of their leg position, took the matter to court. Both the local county court and the Indiana State Supreme Court upheld the parents' rig] to refuse consent to surgery. The case attracted national made attention, and an attempt was made to take it to the U.S. Supreme Court, but before this could happen, Baby Doe died.
One result of the Baby Doe case was that the U.S. government headed at the time by President Ronald Reagan, who had come, to power with the backing of the right-wing religious 'Moral Majority', issued a regulation directing that all infants are to be given necessary life-saving treatment, irrespective of disability. But the new regulations were strongly resisted by the American Medical Association and the American Academy of Pediatrics. In court hearings on the regulations, even Dr C. Everett Koop, Reagan's surgeon-general and the driving force behind the attempt to ensure that all infants should be treated, had to admit that there were some cases in which he would not provide life sustaining treatment. Dr Koop mentioned three conditions in which, he said, life-sustaining treatment was not appropriate anencephalic infants (infants born without a brain); infants who had, usually as a result of extreme prematurity, suffered such severe bleeding in the brain that they would never be able to breathe without a respirator and would never be able even to recognise another person; and infants lacking a major part of their digestive tract, who could only be kept alive by means o a drip providing nourishment directly into the bloodstream.
The regulations were eventually accepted only in a watered down form, allowing some flexibility to doctors. Even so, a subsequent survey of American paediatricians specialising in the care of newborn infants showed that 76 percent thought that the regulations were not necessary, 66 percent considered the regulations interfered with parents' right to determine what course of action was in the best interests of their children, and 60 percent believed that the regulations did not allow adequate consideration of infants' suffering.
In a series of British cases, the courts have accepted the view that the quality of a child's life is a relevant consideration in deciding whether life-sustaining treatment should be provided. In a case called In re B, concerning a baby like Baby Doe, with Down's syndrome and an intestinal obstruction, the court said that surgery should be carried out, because the infant's life would not be'demonstrably awful'. in another case, Re C, where the baby had a poorly formed brain combined with severe physical handicaps, the court authorised the paediatric team to refrain from giving life-prolonging treatment. This was also the course taken in the case of Re Baby J: this infant was born extremely prematurely, and was blind and deaf and would probably never have been able to speak.
Thus, though many would disagree with Baby Doe's parents about allowing a Down's syndrome infant to die (because people with Down's syndrome can live enjoyable lives and be warm and loving individuals), virtually everyone recognises that in more severe conditions, allowing an infant to die is the only humane and ethically acceptable course to take. The question is: if it is right to allow infants to die, why is it wrong to kill them?
This question has not escaped the notice of the doctors involved. Frequently they answer it by a pious reference to the nineteenth-century poet, Arthur Clough, who wrote:
Thou shalt not kill; but need'st not strive Officiously to keep alive.
Unfortunately for those who appeal to Clough's immortal lines as an authoritative ethical pronouncement, they come from a biting satire - 'The Latest Decalogue' - the intent of which is to mock the attitudes described. The opening lines, for example, are:
Thou shalt have one god only; who Would be at the expense of two. No graven images may be Worshipped except the currency.
So Clough cannot be numbered on the side of those who think it wrong to kill, but right not to try too hard to keep alive. is there, nonetheless, something to be said for this idea? The view that there is something to be said for it is often termed 'the acts and omissions doctrine'. It holds that there is an important moral distinction between performing an act that has certain consequences - say , the death of a disabled child - and omitting to do something that has the same consequences. if this doctrine is correct, the doctor who gives the child a lethal injection does wrong; the doctor who omits to give the child antibiotics, knowing full well that without antibiotics the child will die, does not.
What grounds are there for accepting the acts and omissions doctrine? Few champion the doctrine for its own sake, as an important ethical first principle. It is, rather, an implication of one view of ethics, of a view that holds that as long as we do not violate specified moral rules that place determinate moral obligations upon us, we do all that morality demands of us. These rules are of the kind made familiar by the Ten Commandments and similar moral codes: Do not kill, Do not lie, Do not steal, and so on. Characteristically they are formulated in the negative, so that to obey them it is necessary only to abstain from the actions they prohibit. Hence obedience can be demanded of every member of the community.
An ethic consisting of specific duties, prescribed by moral rules that everyone can be expected to obey, must make a sharp moral distinction between acts and omissions. Take, for example, the rule: 'Do not kill.' If this rule is interpreted, as it has been in the Western tradition, as prohibiting only the taking of innocent human life, it is not too difficult to avoid overt acts in violation of it. Few of us are murderers. It is not so easy to avoid letting innocent humans die. Many people die because of insufficient food, or poor medical facilities. If we could assist some of them, but do not do so, we are letting them die. Taking the rule against killing to apply to omissions would make living in accordance with it a mark of saintliness or moral heroism, rather than a minimum required of every morally decent person.
An ethic that judges acts according to whether they do or do not violate specific moral rules must, therefore, place moral weight on the distinction between acts and omissions. An ethic that judges acts by their consequences will not do so, for the consequences of an act and an emission will often be, in all significant respects, indistinguishable. For instance, emitting to give antibiotics to a child with pneumonia may have consequences no less fatal than giving the child a lethal injection.
Which approach is right? I have argued for a consequentialist approach to ethics. The acts/omissions issue poses the choice between these two basic approaches in an unusually clear and direct way. What we need to do is imagine two parallel situations differing only in that in one a person performs an act resulting in the death of another human being, while in the other she omits to do something, with the same result. Here is a description of a relatively common situation, taken from an essay by Sir Gustav Nossal, an eminent Australian medical researcher:
An old lady of 83 has been admitted [to a nursing home for the aged] because her increasing degree of mental confusion has made it impossible for her to stay in her own home, and there is no one willing and able to look after her. Over three years, her condition deteriorates. She loses the ability to speak, requires to be fed, and becomes incontinent. Finally, she cannot sit in an armchair any longer, and is confined permanently to bed. One day, she contracts pneumonia.
In a patient who was enjoying a reasonable quality of life, pneumonia would be routinely treated with antibiotics. Should this patient be given antibiotics? Nossal continues:
The relatives are contacted, and the matron of the nursing home tells them that she and the doctor she uses most frequently have worked out a loose arrangement for cases of this type. With advanced senile dementia, they treat the first three infections with antibiotics, and after that, mindful of the adage that 'pneumonia is the old person's friend', they let nature take its course. The matron emphasises that if the relatives desire, all infections can be vigorously treated. The relatives agree with the rule of thumb. The patient dies of a urinary tract infection six months later.
This patient died when she did as a result of a deliberate omission. Many people would think that this omission was well- justified. They might question whether it would not have been better to omit treatment even for the initial occurrence of pneumonia. There is, after all, no moral magic about the number three. Would it also have been justifiable, at the time of the omission, to give an injection that would bring about the patient's death in a peaceful way?
Comparing these two possible ways of bringing about a patient's death at a particular time, is it reasonable to hold that the doctor who gives the injection is a murderer who deserves to go to jail, while the doctor who decides not to administer antibiotics is practising good and compassionate medicine? That may be what courts of law would say, but surely it is an untenable distinction. in both cases, the outcome is the death of the patient. in both cases, the doctor knows that this will be the result, and decides what she will do on the basis of this knowledge, because she judges this result to be better than the alternative. In both cases the doctor must take responsibility for her decision - it would not be correct for the doctor who decided not to provide antibiotics to say that she was not responsible for the patient's death because she did nothing. Doing nothing in this situation is itself a deliberate choice and one cannot escape responsibility for its consequences.
One might say, of course, that the doctor who withholds antibiotics does not kill the patient, she merely allows the patient to die; but one must then answer the further question why killing is wrong, and letting die is not. The answer that most advocates of the distinction give is simply that there is a moral rule against killing innocent human beings and none against allowing them to die. This answer treats a conventionally accepted moral rule as if it were beyond questioning; it does not go on to ask whether we should have a moral rule against killing (but not against allowing to die). But we have already seen that the conventionally accepted principle of the sanctity of human life is untenable. The moral rules that prohibit killing, but accept 'letting die' cannot be taken for granted either.
Reflecting on these cases leads us to the conclusion that there is no intrinsic moral difference between killing and allowing to die. That is, there is no difference which depends solely on the distinction between an act and an omission. (This does not mean that all cases of allowing to die are morally equivalent to killing. Other factors - extrinsic factors - will sometimes be relevant. This will be discussed further in Chapter 8.) Allowing to die - sometimes called 'passive euthanasia' - is already accepted as a humane and proper course of action in certain cases. If there is no intrinsic moral difference between killing and allowing to die, active euthanasia should also be accepted as humane and proper in certain circumstances.
Others have suggested that the difference between withholding treatment necessary to prolong life, and giving a lethal injection, lies in the intention with which the two are done. Those who take this view resort to the 'doctrine of double effect', a doctrine widely held among Roman Catholic moral theologians and moral philosophers, to argue that one action (for example, refraining from life-sustaining treatment) may have two effects (in this case, not causing additional suffering to the patient, and shortening the patient's life). They then argue that as long as the directly intended effect is the beneficial one that does not violate an absolute moral rule, the action is permissible. Though we foresee that our action (or omission) will result in the death of the patient, this is merely an unwanted side-effect. But the distinction between directly intended effect and side-effect is a contrived one. We cannot avoid responsibility simply by directing our intention to one effect rather than another. if we foresee both effects, we must take responsibility for the foreseen effects of what we do. We often want to do something, but cannot do it because of its other, unwanted consequences. For example, a chemical company might want to get rid of toxic waste in the most economical manner, by dumping it in the nearest river. Would we allow the executives of the company to say that all they directly intended was to improve the efficiency of the factory, thus promoting employment and keeping down the cost of living? Would we regard the pollution as excusable because it is merely an unwanted side-effect of furthering these worthy objectives?
Obviously the defenders of the doctrine of double effect would not accept such an excuse. In rejecting it, however, they would have to rely upon a judgment that the cost - the polluted river - is disproportionate to the gains. Here a consequentialist judgment lurks behind the doctrine of double effect. The same is true when the doctrine is used in medical care. Normally, saving life takes precedence over relieving pain. If in the case of a particular patient it does not, this can only be because we have judged that the patient's prospects for a future life of acceptable quality are so poor that in this case relieving suffering can take precedence. This is, in other words, not a decision based on acceptance of the sanctity of human life, but a decision based on a disguised quality of life judgment.
Equally unsatisfactory is the common appeal to a distinction between 'ordinary' and 'extraordinary' means of treatment, coupled with the belief that it is not obligatory to provide extraordinary means. Together with my colleague, Helga Kuhse, I carried out a survey of paediatricians and obstetricians in Australia and found that they had remarkable ideas about what constituted 'ordinary' and what 'extraordinary' means. Some even thought that the use of antibiotics - the cheapest, simplest, and most common medical procedure - could be extraordinary. The reason for this range of views is easy to find. When one looks at the justifications given by moral theologians and philosophers for the distinction, it turns out that what is 'ordinary' in one situation can become 'extraordinary' in another. For example, in the famous case of Karen Ann Quinlan, the young New Jersey woman who was in a coma for ten years before she died, a Roman Catholic bishop testified that the use of a respirator was'extraordinary'and hence optional because Quinlan had no hope of recovery from the coma. Obviously, if doctors had thought that Quinlan was likely to recover, the use of the respirator would not have been optional, and would have been declared 'ordinary'. Again, it is the quality of life of the patient (and where resources are limited and could be used more effectively to save lives elsewhere, the cost of the treatment) that is determining whether a given form of treatment is ordinary or extraordinary, and therefore is to be provided or not. Those who appeal to this distinction are cloaking their consequentialist views in the robe of an absolutist ethic; but the robe is wonn out, and the disguise is now transparent.
So it is not possible to appeal to either the doctrine of double effect or the distinction between ordinary and extraordinary means in order to show that allowing a patient to die is morally different from actively helping a patient to die. Indeed, because of extrinsic differences - especially differences in the time it takes for death to occur - active euthanasia may be the only humane and morally proper course. Passive euthanasia can be a slow process. in an article in the British Medical Journal, John Lorber has charted the fate of twenty-five infants born with spina bifida on whom it had been decided, in view of the poor prospects for a worthwhile life, not to operate. it will be recalled that Lorber freely grants that the object of not tree is that they should die soon and painlessly. Yet of five untreated infants, fourteen were still alive after and seven after three months. In Lorber's sample, all the infants died within nine months, but this cannot be guaranteed or at least, cannot be guaranteed without stepping over between active and passive euthanasia. (Lorber's opponents have claimed that the untreated infants under his because they are given sedatives and fed only on der babies do not have healthy appetites.) An Australian clinic following Lorber's approach to spina bifida found that nine untreated infants, five survived for more than two years. For both the infants, and their families, this must be a long, drawn out ordeal. It is also (although in a society with a reasonable level of affluence this should not be the primary consideration) a considerable burden on the hospital staff and the community's medical resources.
Consider, to take another example, infants born with Down's syndrome and a blockage in the digestive system which, if not removed, will make it impossible for the baby to eat. Like Baby Doe', these infants may be allowed to die. Yet the blockage can be removed and has nothing to do with the degree of intellectual disability the child will have. Moreover, the death resulting from the failure to operate in these circumstances is, neither swift nor painless. The infant dies from dehydration or hunger. Baby Doe took about five days to die, an in other recorded instances of this practice, it has taken up to two weeks for death to come.
It is interesting, in this context, to think again of our argument that membership of the species Homo sapiens not entitle a being to better treatment than a being at a similar mental level who is a member of a different species. We could also have said - except that it seemed too obvious to need saying - that membership of the species Homo sapiens is not a reason for giving a being worse treatment than a member of a different species. Yet in respect of euthanasia, this needs to be said. We do not doubt that it is right to shoot badly injured or sick animals if they are in pain and their chances of recovery are negligible. To 'allow nature to take its course', withholding treatment but refusing to kill, would obviously be wrong. It is only our misplaced respect for the doctrine of the sanctity of human life that prevents us from seeing that what it is obviously wrong to do to a horse, it is equally wrong to do to a disabled infant.
To summarise: passive ways of ending life result in a drawn- out death. They introduce irrelevant factors (a blockage in the intestine, or an easily curable infection) into the selection of those who shall die. If we are able to admit that our objective is a swift and painless death we should not leave it up to chance to determine whether this objective is achieved. Having chosen death we should ensure that it comes in the best possible way.