<%-- Page Title--%> Law Update <%-- End Page Title--%>

July 11, 2004 

Right To Die - Justice Done Or Justice Denied?

The case of Euthanasia

Kamrul Hossain

Right to die, as a concept in the discussion in the field of law has relatively recently emerged, especially during the last half of the twentieth century. This has created an intense debate about the morality, as well as the legality of such right. But it has been in the last hundred years that there have been concerted efforts to make legal provision for voluntary termination of life, which in other word is - euthanasia. Although assisted suicide has been legally tolerated in Switzerland for many years, voluntary euthanasia or termination of life was not formally recognized by law. The Netherlands has become the first country in the world where euthanasia is now formally allowed. Despite the tolerance of the practice for years, and which was largely governed by case law, the Dutch parliament set down in law the practice of euthanasia. The legislation passed through all the parliamentary stages early in 2001 and so became law. The Belgian parliament has also passed similar legislation in May 2002.

What is Euthanasia?
The very concept of euthanasia contemplates the idea of one's free choice of termination of life by the help of the others. It may include idea of an assisted suicide, although there are important differences between these two. The former is an action, while the later is a facilitation. Euthanasia may be discussed in two ways. One is active euthanasia, and the other is passive. Active euthanasia is killing any person, even with his consent, no matter how terrible and painful his condition. There is a flat prohibition in general against active euthanasia. The law regards life as sacred, and it will punish for murder anyone who kills another individual or even hastens death by active means, be it by blows, strangulation, shock, starvation, injection or poison. Passive euthanasia is more difficult to analyze because the law rests uneasily on the distinction between acts and mere omissions, where the latter, in the absence of a legal duty, are not ordinarily regarded as culpable. Today it is generally permissible to cease treatment, such as medication or chemotherapy, even though it is known that death will quickly ensue. It is also generally permissible to withdraw artificial support systems, such as a respirator, if that course of action is demanded by the patient. Indeed some cases go so far as to view the withdrawal of food and fluid as the mere cessation of treatment and not the killing of another person.

Right to Life
The right to life is the most fundamental of human rights. If the right to life is not protected other human rights lose their relevance. As a human right, the right to life means, first and foremost, the prohibition directed against the state and public authorities in general to illegally or arbitrarily kill people. Secondly, the right to life also presupposes legislative and other measures that can, for example, be used to create a protective system against violence between individuals and to set up a functioning health care system. Almost all international documents of the Human Rights treaties, and the national constitutions of all states have recognized this right. In every religion, right to life is again and again emphasized as a basic fundamental right. However, the point is that from when exactly this right to life starts, and up until when it exists. From the religious (catholic, Islamic and so on) point of view, for example, a baby in the womb has its life; thus, abortion constitutes a murder. Critics to this view, however, argue that life starts after the baby has been born; in the womb it is only a part of mother's body, and therefore, any restriction on the prohibition of abortion infringes mother's right to privacy. The same is about euthanasia, whether it is in violation of the right to life. It has been very convincing in the public opinion of the United States, the UK and in Australia that euthanasia is contrary to the right to life. Strong voice in support of euthanasia is more and more urged.

Grounds argued for Euthanasia
Those who argue in support of euthanasia, contends that if a person is, (a) suffering from a terminal illness; (b) unlikely to benefit from the discovery of a cure for that illness during what remains of her life expectancy; (c) as a direct result of the illness, either suffering intolerable pain, or only has available a life that is unacceptably burdensome (because the illness has to be treated in ways which lead to her being unacceptably dependent on others or on technological means of life support); (d) has an enduring, voluntary and competent wish to die (or has, prior to losing the competence to do so, expressed a wish to die in the event that conditions (a)-(c) are satisfied); and (e) unable without assistance to commit suicide, then there should be legal and medical provision to enable her to be allowed to die or assisted to die. It should be acknowledged that these conditions are quite restrictive, indeed more restrictive than some would think appropriate. In particular, the conditions concern access only to voluntary euthanasia for those who are terminally ill. While that expression is not free of all ambiguity, for present purposes it can be agreed that it does not include the bringing about of the death of, say, victims of accidents who are rendered quadriplegic or victims of early Alzheimer's Disease.

Arguments against Euthanasia
It is often said that it is not necessary nowadays for anyone to die while suffering from intolerable or overwhelming pain. We are getting better at providing effective palliative care and hospice care is available. Given these considerations it is urged that voluntary euthanasia is unnecessary. One may also argue that permitting the legalization of voluntary euthanasia is to the effect that we never have sufficient evidence to be justified in believing that a dying person's request to be helped to die is competent, enduring and genuinely voluntary. There is a widespread belief that passive (voluntary) euthanasia, where life-sustaining or life-prolonging measures are withdrawn or withheld, is morally acceptable because steps are simply not taken which could preserve or prolong life (and so a patient is allowed to die), whereas active (voluntary) euthanasia is not, because it requires an act of killing. The distinction, despite its widespread popularity, is very unclear. Whether behavior is described in terms of acts or omissions (which underpins the alleged distinction between active and passive (voluntary) euthanasia), is generally a matter of pragmatics not of anything of deeper importance. It is often said that if society allows voluntary euthanasia to be legally permitted we will have set foot on a slippery slope that will lead us inevitably to support other forms of euthanasia, especially non-voluntary euthanasia. The fear of the slippery slope is, no doubt, part of the concern expressed here. But, as well, there are concerns about the role of the law and more particularly, its contribution to the regulation of medicine.

Nevertheless, the central ethical argument for voluntary euthanasia - that respect for persons demands respect for their autonomous choices as long as those choices do not result in harm to others - is directly connected with this issue of competence because autonomy presupposes competence. People have an interest in making important decisions about their lives in accordance with their own conception of how they want their lives to go. In exercising autonomy or self-determination people take responsibility for their lives and, since dying is a part of life, choices about the manner of their dying and the timing of their death are, for many people, part of what is involved in taking responsibility for their lives. Most people are concerned about what the last phase of their lives will be like, not merely because of fears that their dying might involve them in great suffering, but also because of the desire to retain their dignity and as much control over their lives as possible during this phase. Therefore, moral justice are not prejudiced, rather respected in euthanasia.

Dutch Law on Euthanasia
Dutch law regarding Termination of Life on Request and Assisted Suicide (Review Procedures) Act has entered into force on April 1, 2002. The inclusion in the Criminal Code of a especial ground for exemption from criminal liability means that doctors who terminate life on request or assist in a patient's suicide can no longer be prosecuted, provided they satisfy the statutory due care criteria and notify death by non-natural causes to the appropriate regional euthanasia review committee. The main aim of the policy is to bring matters into the open, to apply uniform criteria in assessing every case in which a doctor terminates life, and hence to ensure that maximum care is exercised in such cases. There should, however, be twofold criteria first, a patient's voluntary and explicit request to terminate his or her life when the s/he is facing a future of unremitting an unbearable suffering; second, the doctor should seek a second opinion from an independent physician who must also reach the conclusion that there is not alternative medical solution. According to article 3 of the Act a regional review committee will be established for the review of notification of termination of life. The Act overall culminates to provide necessary safeguard that abuse of the application of euthanasia is highly unlikely. Even more the doctors who are playing a big role here are regulated by their own professional ethical code. Therefore, the law is as a matter of fact well protected.
There were nonetheless, some debate with regard to the respect for the international human rights treaties. For example, Article 6 of UN's International Covenant of Civil and Political Rights (ICCPR), and article 2 of the European Convention on Human Rights states that right to life shall be protected by law. Therefore, by enacting law in order to let the life terminate is whether in violation of international obligation is a question. In accordance with the view provided by the Dutch government, Act does not conflict with its duty under international law to defend its citizen's right to life against violation by government or by any other individuals. According to the Dutch government, the convention deprive government and others of the right to take an individual's life against his will (except is specified circumstances). However, even if the conventions cannot be interpreted as imposing a general prohibition on the termination of life on request or assisted suicide, the national provisions of signatory states must certainly provide sufficient protection to meet the criteria of "respect for life". This is the basis of Dutch legislation on euthanasia. Performing euthanasia in response to a voluntary request from a patient does not constitute international deprivation of life within the meaning of the article of the convention cited above.

Concluding remarks
Whether euthanasia is moral, ethical or just depends on the construction of social value among the people living in a particular society. In Netherlands, for example, the bill when was finally tabled, an overwhelming majority in parliament approved. The opponents were only mainly the Christian parties who did not have, in fact, much political influence. In a democratic society, where individual rights are being emerged more and more, and state's control on its citizen's choice is more and more relaxed, it is the decision of the people at large to decide whether they wish to have a law alike. Justice thus is done once peoples' opinion is respected. Yet, a proper safeguard mechanism is the pre-condition to such enactment, which may be ethically justified. It maybe rationale, therefore, to argue that justice will not be done, if right to die is denied where there is a popular support behind such right as long as it does not harm someone else.

Kamrul Hossain is a research fellow of international law, University of Helsinki.