The Evelyn Martens’ case illustrates the terrible inadequacy of our Canadian law on assisted suicide; she was vigorously prosecuted, over a period of two and a half years, for committing acts of human kindness. Throughout that period of time she was faced with the very real possibility of a 28-year prison sentence (14 for each offense).
This case was an illustration of the flagrant injustices and human cruelty that are embraced by the Canadian Criminal Code section 241 b:
241. Every one who
(a) counsels a person to commit suicide, or
(b) aids or abets a person to commit suicide,
whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
This law assumes that any sort of help in assisting a suicide is based upon malice. This assumption is almost always false — most instances of wanting to help end lives come from human compassion for the suffering. And rare cases where malice might be involved — where grandma is being urged to end her life so that family members can more quickly get the inheritance — could easily be caught and avoided by an independent screening process as part of a process of legalized, physician-assisted suicide.
Section 241 (b) is unjust because it not only leads to prosecution for acts of compassion, it is cruel because it presents a major societal obstacle to showing mercy to the most wretched among us. Most Canadians want this law changed, and it is time something was done about it. There have been a number of private members bills on this matter brought to the Canadian parliament, but none have gone anywhere. These are mentioned in the Latimer book.
The Latimer case, involving non-consensual euthanasia, is a much more difficult one to deal with in legislation. Can ending the life of a person who is unable to give consent ever be justified? Perhaps not. But what about Tracy? What about others who like Tracy were never able to speak, or those who descend into hopeless, morbid, terminal disease and lose the ability to give consent? Are such people to be excluded from the mercy we would show, indeed demand, for any other similarly-afflicted creature?
A review of international law on assisted suicide and euthanasia is given in the Latimer book so will not be repeated here, except to say that Canada falls well behind a number of other jurisdictions in this regard. In the United States three states, Oregon, Washington and Montana, and at least three European countries, The Netherlands, Switzerland and Belgium, permit physician-assisted suicide, whereby lethal doses of drugs can be prescribed to patients and then used at the patient’s discretion. The Netherlands and Belgium also allow euthanasia, where by a physician may directly administer a lethal injection. Switzerland is the only jurisdiction that will provide assisted suicide to non-residents.
Of the various possibilities for new legislation the least controversial would be to permit physician-assisted suicide specifically for terminally ill patients, as is the case in the three American states. The provision of even this minimal service would meet the needs of many dying people who want to take some control over what is about to happen to them. This would prevent not only some highly unpleasant and prolonged dying processes, something many people dread much more than dying, but it also help avoid both grisly deaths —such as shooting oneself — and bungled attempts at suicide. The latter sometimes leave a person in worse condition than before, perhaps with brain damage.
The availability of physician-assisted suicide would provide peace of mind to many dying people, some of whom, as has happened in the three American states, would never actually find it necessary to resort to taking the drugs. But they rest more easily knowing they could do so.
It is difficult to imagine any rational arguments against the provision of such a benign, non-coercive and desirable service to Canadians. But of course there are objections — I will not call them arguments. There are certain religious groups that adamantly oppose any form of suicide, an opposition which presumably lie behind Canada’s reluctance to pass any sort of progressive legislation on assisted suicide. The “anti-death” lobby is small but it is fierce. It is perfectly all right, of course, for these groups to hold and to express their views; it is not all right for the opinion of these groups, often derived from arbitrary interpretations of ancient religious documents, to outweigh the opinion of the large majority of Canadians who want progressive end-of-life legislation.
But what sort of legislation should it be? Simply adopting the model used in the three American states would be a major advance for Canada. It would not be a big additional step to move from the basic right to physician-assisted prescriptions to physician-administered direct lethal injection, on request from a patient, as is permitted in The Netherlands. This is something that is called voluntary euthanasia, something that is slightly different but, I would argue, morally equivalent to assisted suicide. Permitting either assisted suicide or voluntary euthanasia, or ideally both, would then take care of situations like that faced by Sue Rodriguez who was diagnosed with ALS in 1991. Rodriguez wanted to live only as long as she had some control over her body, but knew that once this happened she would no longer be able, on her own, to commit suicide. She appealed for legal sanction to get assistance, but in 1993 the Supreme Court of Canada denied her appeal by a vote of 5 to 4, even though all the Justices, even those voting against her, recognized that their decision was discriminatory in that suicide is possible for the able-bodied, but not so for the severely disabled. Apparently the five Justices feared that the public danger of allowing assisted suicide outweighed the discrimination.
Notwithstanding the fears, not supported by any evidence, permitting of assisted suicide seems like an obvious way we could markedly improve Canadian law. Much more problematic is the matter of involuntary euthanasia, where the decision is made to end a life without direct consent, as in the cases of those in a coma or those who, like Tracy Latimer, could never even understand the question. This is obviously a much more difficult matter, and the possibility of it bothers many people, including many of those who favour more progressive end-of-life legislation.
But I believe that we should have provision for non-voluntary euthanasia as well, albeit a carefully controlled one. The main argument for this is that we ought to have a provision or at least a mechanism for looking at cases of hopeless suffering where informed consent is impossible (cases like that of Tracy Latimer). Otherwise, any law permitting assistance in dying would discriminatory: just as it is discriminatory to have suicide available only for the able-bodied, so would it be to have assistance in dying available only to those who are fully aware. While it is obviously better to have informed consent, it still is the case that at least some people unable to give such consent would prefer to die, were they able to make such a decision, and such people ought not to be denied similar rights to those of competent people. We ought to be able to try to assess what such people might reasonably want for themselves were they able to give informed consent. Ideally this would be in the form of an advance directive, or statements given to friends or relatives before losing the ability to communicate, but these of course are impossible in cases like that of Tracy Latimer. Her case, then, is the hardest of hard cases. But are people like her then just to be left to suffer according to the law? Are they to be denied the possibility of mercy, as least insofar as the law is concerned?
It would seem to be better to have a procedure whereby the merits of proposed cases of non-voluntary euthanasia could be considered through some carefully-controlled disinterested process. It is problematic, to be sure, but it is not such a large step from what we already do, which is to allow what is called passive non-voluntary euthanasia. This is the removal or failure to employ life-support systems when they are needed to keep someone alive. I can see no real moral distinction between active and passive euthanasia. And I can see that the legalization of active euthanasia will allow for the merciful ending of some lives that otherwise will continue in a manner that no rational person would want, other than those holding absolute convictions precluding any sort of induced death. Such people should of course be allowed their preferences.
One other reason for having a process defined for active non-voluntary euthanasia is that it would allow for a legally-sanctioned way for a desperate person like Robert Latimer to explore the situation he faced with Tracy. Had such a possibility been open to him he might have been able to explore this legal route to providing his daughter with what she needed. Then, even if the case failed to meet whatever high standards had been set for such action, and euthanasia was disallowed for Tracy, at least Latimer would have been able to feel he had tried. And, if unsuccessful with his application, he might have been helped to find other options for Tracy. And if Latimer’s application for euthanasia for his daughter was successful then Tracy’s hopeless suffering could have been legally ended. Such a process seems to me vastly more civilized than the blanket prohibition we now have, which forced Robert Latimer into an impossible dilemma. He could let his daughter’s agonizing existence continue to deteriorate, or he could put his own freedom in jeopardy. He had no other choices.
In June of 1995 a Special Senate Committee on Assisted Suicide and Euthanasia filed its final report called “Of Life and Death”. This report is useful in that it relates much information from witnesses about how Canadians feel about assisted suicide and euthanasia, but it is disappointing in its failure to make any recommendations for changing the law (other than a modest one about introducing “compassionate homicide” into the Criminal Code, as reported in the next section). A minority of members was in favour of various progressive changes, but the majority was not. While it is clear from national polls that a large majority of Canadians is in favour of progressive legislation, this majority was not reflected in the number of witnesses who appeared. By my count 27 witnesses spoke against even a modest change in assisted suicide legislation; 18 are listed as speaking in favour.
Following is brief, critical analysis of the arguments against progressive assisted suicide legislation, as presented by the opponents to progressive legislation in the Senate Report. There is obviously much more that can be said about these arguments, but my observation is that while the arguments are heartfelt they clearly are not good ones. And they should be exposed as such. But perhaps I am missing something. I invite commentators, with views similar or different from mine, to add to this discussion. Those wanting to read the Report themselves can readily find it on the internet.
The argument is that “society cannot survive if this value is not protected.” And “societies are judged by their treatment and protection of life.” But life is not devalued by permitting assisted suicide and euthanasia; progressive laws simply would recognize the reality that some lives reach a point where they really are not worth living — they entail horrific and unnecessary suffering and loss of human dignity. Mindless preservation of life at all costs does nothing to enhance the values of a society; it does the reverse. Another similar expression of this argument against assisted suicide is that it is “contrary to the basic respect for human life which is at the core of societal values.” But it is a very odd sort of respect that entails, let us say, prolonging intense and hopeless suffering of a terminally ill person. The core of our societal values ought to be something more like respecting human autonomy, where it is reasonable to do so, and respecting human compassion. Those core values would not allow us to treat dying humans with the cruelty we would not bestow upon a dying animal of any other sort.
Similar to argument #1 this claim is that “all human life is sacred as reflected in … religious principles.” Essentially if one chooses to believe religious teachings that claim only God may end life then there is not much one can argue except to question the validity of such a belief. Is it reasonable to assume there is good reason to hold this absolute belief? Is it reasonable to assume that if there is a God that he/she/it would wish people to suffer needlessly? One of course must be allowed to hold such beliefs, but we should try harder to prevent such people from imposing their views on the majority who want progressive end-of-life legislation.
The argument is that we as a people are interdependent and whatever we do affects others, and this is perfectly true. We have obligations to our family and friends and to citizens of our country and to people of other lands. But we also ought to have certain personal rights — the right to our own thoughts for one and the right to our own expressions, so long as those expressions do not unduly harm others. Since 1972 committing suicide has, in Canada, been acknowledged as something an individual has the right to do — it is a personal autonomy we have already agreed to. But banning assistance with this right only creates unfairness and discrimination in the carrying out of this right.
This argument has probably been used against every proposal for progressive social change in the history of humanity, but other than being used a scare tactic, it is of dubious logical value. It may have some limited value as a concern in some aspects of life — that starting one course of action may lead to worse ones — but as a blanket concern it is meaningless. Do “soft” drugs lead to “hard ones”? If so, why do we ban marijuana and not alcohol? Did giving the vote to women make it easier to give the vote to racial minorities? If so, good. Does approving gay marriage lead to bestiality (as some actually claim)? Should we ban kissing — is there a sexual predator out there who did not start out by kissing someone? The weakness of this basically very limited, but often used, argument is covered more fully in the Latimer book.
“It is the whole question of allowing death to occur naturally versus causing it.” But it is ludicrous to talk now of allowing death to occur naturally. Who dies naturally these days, without some sort of hospital intervention to try to keep them alive? Tracy Latimer would have died at birth were it not for “unnatural” hospital interventions. If withholding life support will cause death, often for someone who does not know it is being done to them, how is that morally superior to assisting a terminally ill person who clearly wants to die?
It is clear that at least some palliative strategies, in addition to relieving suffering, also shorten life, and this is understood by care givers. How is this morally superior to, say, the administration of a lethal drug? Some claim it is qualitatively different because of the intention of the former is to relieve pain while the intention of the latter is to terminate life. The argument is that accidental consequences that result in merciful dying are better than intentional acts of mercy. Does this really make sense? Moreover, in the former case there is no screening process or assessment required for doctors to make this decision — usually involving lethal doses of morphine. How is this morally superior to, or even morally equivalent to, an assessment process whereby an open decision is made to terminate a life?
“We have not exploited all possibilities in palliative care. Let’s exploit all the possibilities and then perhaps we’ll say ‘Yes’ or ‘No’ to euthanasia.” Well, suppose a day would come when all suffering of the terminally ill could be completely eliminated? Would that also eliminate the wish of many terminally ill people to die? As many have pointed out, the wish of the terminally ill to die may not be just a matter of pain but a matter of the quality of their life. Many people do not want live if hopelessly disabled. Many people do not want their dying process, unpleasant even without pain, to be prolonged. And what about the pain endured before this imagined miraculous universal pain relief is found? And will this be ten years, or fifty, or more? Would it not make more sense to permit assisted suicide now, and offer improved pain relief as an option as it becomes available?
“The frail, poor, elderly and others who are vulnerable will be subject to pressure from third parties or even themselves if an earlier death is an option. This pressure could increase as health care resources decrease. At what point does the possibility of choosing death become an obligation?” This argument has a disingenuous ring to it, being made at the Commission by the Canadian Conference of Catholic Bishops. How can their concern really be about creating problems for the vulnerable amongst us, when they refuse to support, for example, safe sex programs in AIDS-ravaged Africa. They as Catholics are resolutely against any form of induced death and they seize on various pretexts to support their belief. But let us grant that their concern about pressuring people to die is a real one — similar concerns have been expressed by others. The underlying fear is that doing in old people will become a way of saving money. Can we really imagine this happening? Can we suppose that legislation to prescribe eliminating the infirm could actually be passed? This is a shibboleth, trotted out by those with other agendas. The movement for progressive end-of-life legislation has nothing to do with imposing death; it is about enabling a good death for those who want it. It is not about removing personal autonomy but enhancing it. And, for the record, there is no evidence that there has been any sort of this imagined abuse from those jurisdictions that allow assisted suicide and euthanasia.
“It is necessary, and I firmly believe this, to have suffered oneself in order to understand the suffering of others.” If this is so, why is it important for a dying person?
Having a definite time to die seems much more likely to bring about meaningful family gatherings than do prolonged episodes of unwanted suffering.
Eike Kluge, one of Canada’s foremost Bio-ethicist, has written a proposed law that would put Canada first in the world in terms of end-of-life legislation. Read the proposed law here (pdf).