This article was first published in our 2018 print edition.
In this article, I argue that there are some acts of (passive) euthanasia that are justifiable, but that it would not be all right to legalise (active) euthanasia for two common, misconceived reasons that are presented by pro-euthanasia advocates: (1) the right to die; and (2) respect for autonomy. First, I begin by defining euthanasia. Second, I discuss the case of Anthony Bland. Third and fourth, I discuss the misconceptions of each reason presented by pro-euthanasia advocates.
We now turn to defining (1) euthanasia, and (2) the active and passive, with voluntary, non-voluntary and involuntary distinctions.
Beauchamp and Davidson provide one of the most comprehensive definitions of euthanasia, one that “dictates no moral conclusions” and “is not subject to refutation by counterexample”; as such, it will be referred to here for this article.2
They argue that the death of a person, A, is an act of euthanasia, by B, if and only if: (1) B intends A’s death and causes it by act or omission; (2) A suffers acute pain or is irreversibly comatose; (3) (a) B intends A’s death primarily to cease A’s suffering or irreversible comatose-ness, and (b) B’s intervention in causing A’s death produces less suffering than B’s non-intervention; (4) A’s death is caused as painlessly as possible, unless, subject to 3b, a means of causing A’s death that is more painful takes precedence; (5) A is not a foetus.2
Euthanasia has several qualifying adjectives to distinguish between acts of euthanasia that are active and passive: voluntary, non-voluntary, and involuntary. To clarify, euthanasia is said to be active “when medical intervention takes place […] to end the patient’s life”; passive “when medical treatment is withdrawn or withheld from a patient […] to end the patient’s life”5; voluntary “when carried out at the patient’s request”; non-voluntary “when the patient does not have the capacity to make a request”; and involuntary “when the patient is competent to make a request but does not do so.”9
Under Australian law, no legal distinction is drawn between euthanasia and murder: the latter being, very roughly speaking, an act of unlawfully killing another person with intent.6 And yet, we debate the moral permissibility of euthanasia, implying that we draw a significant moral difference between them: that is, “the person performing euthanasia is well motivated […] acting in the best interests of the person who dies […] whereas a murder is committed without regard for the interests of the victim.”7
We now turn to the case of Anthony Bland.
In 1989, Anthony Bland was “caught up in a stampede at the Hillsborough, England, football stadium; his lungs were crushed and his brain deprived of oxygen”8; “he sustained hypoxic brain damage,” and fell into a persistent vegetative state (PVS): “his brain stem continued to function,” so “he was not ‘legally dead,’” but “his cerebral cortex (the seat of consciousness, communicative activity, and voluntary movement) was destroyed.”10 His wretched state was described by Lord Justice Hoffman as:
“He lies in […] Hospital […], fed liquid by a pump through a tube passing through his nose and down the back of his throat into the stomach. His bladder is emptied through a catheter inserted through his penis, which from time to time has caused infections requiring dressing and antibiotic treatment. His stiffened joints have caused his limbs to be rigidly contracted so that his arms are tightly flexed across his chest and his legs unnaturally contorted. Reflex movements in the throat cause him to vomit and dribble. Anthony Bland has no consciousness at all. The parts of his brain which provided him with consciousness have turned to fluid. The darkness and oblivion […] will never depart.”1
As Bland’s condition had “no prospect for any improvement,” his doctors “applied to the court for permission to withdraw his ventilation, antibiotic, and artificial feeding and hydration scheme” (the ‘non-consensual regime’); however, the Official Solicitor declared that this was “a breach of the doctor’s duty to his patient, and a criminal offence.”10
In the end, the House of Lords ruled that terminating Bland’s life was “not in his best interests,” but because “any hope of Bland recovering had been abandoned […] his best interests in being kept alive […] evaporated,” and along with that, “the justification for the non-consensual regime and the duty to maintain it”; absent this duty, “the withdrawal of nutrition and hydration was not a criminal offence.”10
However, if we are to understand passive euthanasia as ‘withdrawing medical treatment to end a patient’s life,’ then Bland’s case was an instance of passive euthanasia. But Sir Thomas Bingham declared that this was “not about euthanasia,” as it was not the “taking of positive action to cause death.”
Hence some draw a legally (and morally) relevant distinction between active euthanasia and passive euthanasia (euthanasia as act or omission) and argue that the former is euthanasia, but the latter is not. In this article, for the sake of argument, it will be granted that euthanasia, whether by act or omission, is euthanasia.
The purpose of this case study is to proffer a common ground shared between most, if not all, pro- and anti-euthanasia advocates: allowing Bland to die was a morally justified act; and, if we understand euthanasia to include omissions, then it was a morally justified act of passive euthanasia. Thus, we can say yes in answer to the question: ‘are acts of euthanasia, considered only in themselves, ever justifiable?’, if we believe that letting Bland die was a morally justified act. I believe it was so, for the reasons considered above by the presiding judges.
We now turn to the question of ‘would it be all right to legalize acts of active euthanasia?’, and two common reasons presented by pro-euthanasia advocates for why it would be: (1) people have the right to die; and (2) the criminalization of euthanasia disrespects the autonomy of those who want to be euthanized, and people have the right to have their autonomy be respected. I will attempt to answer this question by arguing that ‘it would not be all right to legalize acts of active euthanasia,’ for the reasons presented by euthanasia advocates that are presented here.
We now turn to reason (1): people have the right to die.
Right to die
Hohfeld viewed ‘X has a right to do R’ as meaning one of four things: (1) X has a claim that Y do R (opposite no-right): Y has a correlative duty to X to do R; (2) X has a privilege (or liberty) to R (opposite duty): X is free to do R, and Y has a correlative no-right that X do R; (3) X has a power (opposite disability): X is free to alter his or another’s legal relations, and Y has a correlative liability to having his legal relations being altered; and (4) X has an immunity (opposite liability): Y has a correlative disability to change X’s legal position.10
Each right has an opposite and a correlative, as can be seen above, and can be distinguished between rights that are active and passive; positive and negative. An active right concerns the “holders’ own actions” (i.e. privilege and power rights); and a passive right regulates the “actions of others” (i.e. claim and immunity rights); a positive right entitles one to “provision of some good or service”; and a negative right entitles one to “non-interference.”11
In this debate, the ‘right to die’ can be distinguished as meaning either the ‘right to be allowed to die’ or the ‘right to be killed’: both are active power rights, because both concern the right holders’ own powers to alter their own or another’s legal relations.3 However, while the former is a negative right, the latter is a positive right: i.e. the former right holder exercises “the right not to be touched without their informed consent” (non-interference), while the latter demands euthanasia (provision of some good or service).3
Because both are power rights, the non-power right holders have a correlative liability to having their legal relations being altered by the power right holders: i.e. both power right holders impose a claim right-like duty on others to either kill or let die. However, the notion that someone could impose a duty on someone else to kill them is absurd: no one has that right or power. Therefore, ‘the right to die,’ in the sense of ‘the right to be killed,’ is a misconception, and should not be appealed to in arguments for active euthanasia.
We now turn to reason (2): the criminalization of euthanasia disrespects the autonomy of those who want to be euthanized, and people have the right to have their autonomy be respected.
Respect for autonomy
Autonomy is the capacity “to live one’s life according to reasons and motives” that are “one’s own and not the product of manipulative or distorting external forces.”4 It should be distinguished from freedom, which concerns “the ability to act, without external or internal constraints,” whereas autonomy concerns “the independence and authenticity of the desires (values, emotions, etc.) that move one to act in the first place.”4
Therefore, criminalizing euthanasia does not disrespect our autonomy, nor would legalizing euthanasia respect autonomy, for it is not our autonomy that is affected by euthanasia’s criminalization or legalization; rather, it is our freedom, and our freedom is different from our autonomy.
To clarify, autonomy is the “various capacities for rational thought, self-control, and freedom from debilitating pathologies, systematic self-deception, and so on”; it is “the capacity to reflect upon and endorse (or identify with) one’s desires, values, and so on.”4
Thus, although people do have the right to have their autonomy be respected, criminalizing euthanasia does not affect our autonomy, because it does not affect our mental capacities for autonomy in a relevant way, if at all, such as in the case of brainwashing. Therefore, I reject the notion that ‘criminalizing euthanasia disrespects our autonomy’ as another misconception.
In conclusion, I argued that there are some acts of (passive) euthanasia that are justifiable, but that it would not be all right to legalise (active) euthanasia for two common, misconceived reasons that are presented by pro-euthanasia advocates: (1) the right to die; and (2) respect for autonomy. First, I began by defining euthanasia. Second, I discussed the case of Anthony Bland. Third and fourth, I discussed the misconceptions of both reasons presented by pro-euthanasia advocates.
1Airedale NHS Trust v Bland  AC 789 (HL)
2Beauchamp, T. L. and A. I. Davidson, ‘The Definition of Euthanasia’, The Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine, vol. 4, no. 3, 1979, pg. 294.
3Boudreau, J. D. and M. A. Somerville, ‘Euthanasia and assisted suicide: a physician’s and ethicist’s perspectives’, Medicolegal and Bioethics, vol. 4, 2014, pg. 4.
4Christman, J., ‘Autonomy in Moral and Political Philosophy’, The Stanford Encyclopedia of Philosophy, [website], 2018, Autonomy in Moral and Political Philosophy, https://plato.stanford.edu/entries/autonomy-moral/.
5Cica, N., ‘Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia’, Parliament of Australia, [website], 1996, para. 14, https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp3.
6Criminal Code Act Compilation Act 1913 (WA) s279
7Draper, H. and A. Slowther, ‘Euthanasia’, Clinical Ethics, vol. 3, no. 3, 2008, pg. 113.
8Dworkin, R., ‘Dying and Living’, in An Argument about Abortion and Euthanasia, London, Harper Collins Publishers, 1993, pg. 188.
9Jackson, E. and J. Keown, Debating Euthanasia, Oxford, UK; Portland, OR, 2012, pg. 87.
10Wacks, R., ‘Natural law and morality’, in Understanding Jurisprudence: An Introduction to Legal Theory, 3rd edn, Oxford University Press, 2012, pg. 38.
11Wenar, L., ‘Rights’, The Stanford Encyclopedia of Philosophy, [website], 2015, 2.1 The Form of Rights: The Hohfeldian Analytical System, https://plato.stanford.edu/entries/rights/
Cover image from Flickr.