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Reflections on the Intriguing Issue of the Right to Die in Dignity*

Published online by Cambridge University Press:  04 July 2014

Raphael Cohen-Almagor
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This study compares how four countries, the United States, Canada, Britain and Israel, conceive active and passive euthanasia and the right to die in dignity. I start the discussion by clarifying the scope of the analysis and by shedding light on the concepts of autonomy and dignity. Section II proceeds by drawing attention to the familiar distinction between active and passive euthanasia, reviewing the current legal positions in the United States, Canada and England. Section III addresses Ronald Dworkin's distinction between experiential and critical interests, and further contemplates the analogy he draws between the destruction of life and the destruction of masterpieces of art. The section continues by contrasting Dworkin's assertion that what we seek is life in earnest, not any form of life, with Leibowitz's view that human life is sacred. In this context I also refer to the recent Scheffer decision, the only ruling at this time by the Israeli Supreme Court on the issue of death with dignity. Section IV considers the Eyal case, involving an amyotrophic lateral sclerosis patient who expressed his wish not to be connected to a respirator. I assert that in such instances, the patients' autonomy would be sustained and their dignity better served by helping them die. It is not always true that keeping a person alive is to treat her best. In some situations we respect a person and her dignity when we help her cease living. My justification for helping such patients fulfill their request rests on the assumption that they freely and genuinely expressed their will to die, and that they persist in expressing that desire.

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Israel Law Review , Volume 29 , Issue 4 , Autumn 1995 , pp. 677 - 701
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1995

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References

1 For further discussion regarding PCU patients see Cohen-Almagor, , “Autonomy, Life as an Intrinsic Value, and Death with Dignity”, (1995) 1 Science and Engineering Ethics 261–272CrossRefGoogle Scholar, and “Some Observations on PCU Patients: An Israeli Perspective” (in preparation).

2 Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) 204Google Scholar. See also Cohen-Almagor, , The Boundaries of Liberty and Tolerance (Gainesville, FL.: University Press of Florida, 1994)Google Scholar, esp. chap. 1.

3 Cf. Lowental, U., “Euthanasia: A Serene Voyage to Death”, in Carmi, Amnon (ed.), Euthanasia (Berlin: Springer-Verlag, 1984) 180–184CrossRefGoogle Scholar.

4 Kass, Leon R., “Death with Dignity and the Sanctity of Life”, in Kogan, Barry S. (ed.), A Time to Be Born and a Time to Die (N.Y.: Aldine DeGruyter, 1991), at 133Google Scholar. Kass argues that one has no more right to dignity than one has to beauty, courage, or wisdom. While it is puzzling to speak of a right to beauty, courage, or wisdom, I think all have a right to dignity. It is part of the fundamental principle of respect for others that underlies liberal democracies.

5 Haim Cohn believes that human dignity is the source from which human rights are derived and it is, along with human rights, the foundation of freedom, justice and peace. Cf. Cohn, Haim H., “On the Meaning of Human Dignity”, (1983) 13 Israel Yearbook of Human Rights 226–251Google Scholar, at 226.

6 Euthanasia is a Greek term meaning easy death (eu = good, easy; thanatos = death).

7 For contrasting views regarding whether the distinction between killing and allowing to die is valid see Rachels, James, “Active and Passive Euthanasia”, (January 1975) 292 New England J. of Medicine 78–80Google Scholar, and “Killing and Letting People Die of Starvation”, (April 1979) 54 Philosophy 159–171Google Scholar. See also Tooley, Michael, “An Irrelevant Consideration: Killing Versus Letting Die”, in Steinbock, Bonnie (ed.), Killing and Letting Die (Englewood Cliffs, New Jersey: Prentice Hall, 1980) 56–62Google Scholar. While Rachels and Tooley hold that the distinction is invalid, Ramsey and Callahan endorse it as valid. See Ramsey, Paul, The Patient as Person (New Haven, Conn.: Yale University Press, 1970)Google Scholar, and Callahan, Daniel, The Troubled Dream of Life (N.Y.: Simon and Schuster, 1993) 76–82Google Scholar. It is beyond the scope of this article to delve into this controversy. Let me only say that, on the whole, I accept Callahan's moral reasoning that the distinction is valid for the reasons he mentions. However, this is not to say that doctors should always abstain from taking upon themselves the heavy moral burden of performing active euthanasia upon the request of patients.

8 In February 1993 these provisions were accepted by the Second Chamber of the Dutch Parliament. See Battin, Margaret P., The Least Worst Death (New York: Oxford University Press, 1994) 130–131Google Scholar. See also Gevers, Sjef, “Physician Assisted Suicide: New Developments in the Netherlands”, (1995) 9 Bioethics 309–312CrossRefGoogle ScholarPubMed, and RDMA, Euthanasia in the Netherlands (Utrecht, 4th ed., December 1995)Google Scholar.

9 Cf. Lowy, Frederick H. et al. , Canadian Physicians and Euthanasia (Ottawa: Canadian Medical Association, 1993) 3Google ScholarPubMed.

10 State of Michigan v. Kevorkian, Michigan CirCt (Oakland Cty), verdict 8 March 1996. Kevorkian outlines his rationale for assisted suicide in Prescription: Medicide (N.Y.: Prometheus Books, 1991)Google Scholar.

11 R. v. Adams, [1957] Criminal Law R. 365-377.

12 See “GMC Tempers Justice with Mercy in Cox Case”, (Nov. 1992) 305 British Medical Journal 1311Google Scholar.

13 Airedale NHS v. Bland (1993) 1 All ER 821, at 894.

14 Nancy B. v. Hotel-Dieu de Quebec et al. (1992), 86 DLR (4th) 385 (Que Sup Ct). For criticism of this ruling see Fish, Arthur and Singer, Peter A., “Nancy B.: The Criminal Code and Decisions to Forgo Life-Sustaining Treatment”, (September 1992) 147 Can. Med. Ass. J. 637–642Google Scholar.

15 See, for instance, Tune v. Walter Reed Army Medical Hospital (602 F. Supp. 1452 D.D.C 1985); In re Gardner, 534 A.2d 947 (Me. 1987) (Maine); Gray v. Romeo (697 F. Supp. 580 D.R.I. 1988); Elbaum v. Grace Plaza of Great Neck Inc. (148 A.D.2d 244, 544 N.Y.S.2d 840, 1989); Gammon v. Albany Memorial Hospital (N.Y. Sup. Ct. Apr. 3, 1989); In re Hallahan (NO. 16338/1989, N.Y.Sup. Ct. Aug. 28, 1989); In re Swan, 569 A.2d 1202 (Me. 1990).

16 In re Conservatorship of Wanglie, No. PX-91-283 (Minn. Dist. Ct., June 28, 1991, reviewed in 16 [1] MPDLR 46).

17 In the Matter of the Welfare of Bertha Colyer 660 P.2d 738 (Wash. 1983). See also In re Lawrance, 579 N.E. 2d 32 (Ind. 1991).

18 Cf. Hayner v. Child's Nursing Home (RJI No. 0188015609, N.Y.Sup. Ct. 1988); Wickel v. Spellman (552 N.Y.S.2d 437, 1990).

19 The anxiety over the slippery-slope syndrome was probably foremost in the minds of the participants of the 39th World Medical Assembly, held in Madrid in October 1987. In the World Medical Association Declaration on Euthanasia it was contended that euthanasia, “that is the act of deliberately ending the life of a patient, even at the patient's own request or at the request of close relatives, is unethical. This does not prevent the physician from respecting the desire of a patient to allow the natural process of death to follow its course in the terminal phase of sickness”, For critical discussion of the slippery-slope syndrome see Dworkin, Ronald, “When Is It Right to Die?”, The New York Times (17 May 1994), at A19Google Scholar.

20 Dworkin, Ronald, Life's Dominion (New York: Knopf, 1993) 201–213Google Scholar.

21 For further discussion see Cohen-Almagor, , “The Patients' Right to Die in Dignity and the Role of Their Beloved People”, (1996) 4 Annual Review of Law and EthicsGoogle Scholar.

22 Williams, Bernard, “Persons, Character and Morality”, in Moral Luck (Cambridge, England: Cambridge University Press, 1981) 1–19CrossRefGoogle Scholar.

23 Dworkin, Life's Dominion, supra n. 20, at 71-84. A further distinction that can be made is between objective and subjective values. Objective values are values we all share and support, such as knowledge, love and friendship. Subjective values are connected to a certain “significant other” with whom people identify: country, ethnic affiliation, etc.

24 For a different view see Heyd's, David critique of Life's Dominion in (1995) 3 European J. of Philosophy 105–109Google Scholar.

25 Leibowitz, Yeshayahu, “Medicine and Values of Life”, in Faith, History, Values (Jerusalem: Acadmon, 1982, in Hebrew) 243–255Google Scholar.

26 Yael Scheffer, through Talila Scheffer v. The State of Israel (1993) 48(i) P.D. 87, para. 6.

27 For a critical halakhic response see Zohar, Noam, “The Person As Property of God”, in Statman, Daniel and Sagi, Avi (eds.), Between Religion and Morality (Ramat-Gan: University of Bar-Ilan Press, 1993, in Hebrew) 145–156Google Scholar.

28 Binyamin Eyal v. Lichtenstaedter Hospital (1991) (3) P.M. 187.

29 For a contesting view see Justice Elon in Yael Scheffer, through Talila Scheffer, supra n. 26, at para. 20.

30 I thank Dr. Nachman Wilensky for showing Rabbi Lau's letter to me.

31 Haim H. Cohn, “On the Meaning of Human Dignity”, supra n. 5, at 246.

32 Cf. Higashi, K., Hatano, M., Abiko, S. et al. , “Five-Year Follow Up of Patients with Persistent Vegetative State”, (1981) 44 J. Neurol Neurosurg Psychiatry 552–554CrossRefGoogle ScholarPubMed; and Arts, W., van Dongen, H.R., van Hof-van Duin, J., and Lammens, E., “Unexpected Improvement after Prolonged Posttraumatic Vegetative State”, (1985) 48 J. Neurol Neurosurg Psychiatry 1300–1303CrossRefGoogle ScholarPubMed. See also Steinbock, B., “Recovery from Persistent Vegetative State?: The Case of Carrie Coons”, (1989) 19 Hastings Center Report 14CrossRefGoogle ScholarPubMed.

33 See the Cruzan case in which both the Supreme Court of Missouri and the United States Supreme Court held that no sufficiently reliable evidence was given to support the parents' claim to exercise substituted judgment on behalf of Cruzan. Nancy Cruzan v. Robert Harmon 760 S.W.2d 408 (1988); Nancy Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990), 110 S. Ct. 2841. I have dedicated a separate article to the discussion of the special case of PCU patients. See Cohen-Almagor, “Some Observations on PCU Patients: An Israeli Perspective” (in

34 This scenario draws from discussions conducted by Dworkin, Ronald in his seminar on Abortion, Dementia and Euthanasia (Oxford University, Hilary 1991)Google Scholar. See also Cohen-Almagor, “The Patients' Right to Die in Dignity and the Role of Their Beloved People”, supra n. 21.

35 An advance directive (AD) is a document that allows patients to express what life-sustaining treatments they want and whom they want to make these decisions for them. In the United States, more than 40 states have enacted legislation supporting the use of ADs. For further discussion see Fins, Joseph J., “The Patient Self-Determination Act and Patient-Physician Collaboration in New York State”, (November 1992) 92 N.Y. State J. of Medicine 489–493Google ScholarPubMed; Kohut, Nitsa and Singer, Peter A., “Advance Directives in Family Practice”, (May 1993) 39 Canadian Family Physician 1087–1093Google ScholarPubMed, and Reinders, Maarthen and Singer, Peter A., “Which Advance Directive Do Patients Prefer?”, (January 1994) 9 Journal of General Internal Medicine 49–51CrossRefGoogle ScholarPubMed.

36 A Do Not Resuscitate (DNR) order is a directive by a physician to withhold cardiopulmonary resuscitation in the event that a patient experiences cardiac or respiratory arrest.

37 Robertson, John A., “Second Thoughts on Living Wills”, (November-December 1991) 21 Hastings Center Report 6–9CrossRefGoogle ScholarPubMed, at 7.

38 John A. Robertson, “Second Thoughts on Living Wills”. Childress stresses the necessity to continue to appraise a person's degree of autonomy over time to determine whether he or she is autonomously revoking previous consents or dissents. He maintains that for patients who have never been autonomous or for previously autonomous patients whose prior preferences and values cannot be reliably traced, it is more defensible to rely on a best-interests standard, based on nonmaleficence and beneficence, rather than on a substituted judgment standard, based on autonomy. Childress categorically asserts that the standard of substituted judgment should be rejected in such situations as an illegitimate fiction. Cf. Childress, James F., “The Place of Autonomy in Bioethics”, (January/February 1990) 20 The Hastings Center Report, 12–17CrossRefGoogle ScholarPubMed. Kadish argues that an advance competent choice has force, but not the conclusive moral force of a contemporary choice and not so much force as to preclude consideration of the possibly conflicting experiential interests of the patient. Kadish, Sanford H., “Letting Patients Die: Legal and Moral Reflections”, (1992) 80 Calif. L.R. 857–888CrossRefGoogle ScholarPubMed.

39 John A. Robertson, “Second Thoughts on Living Wills”, supra n. 37, at 8.

40 Dworkin, Life's Dominion, supra n. 20, at chap. 8.

41 Dworkin, ibid., at 231.

42 Superintendent of Belchertown v. Saikewicz, Mass., 370 N.E.2d 417 (1977), at 426.

43 Schloendorff v. Society of New York Hospital 211 N.Y. 125, 105 N.E. 92, 93 (1914).

44 In re Conroy 486 A.2d 1209, 1223 (1985), emphasis mine. See also In re Estate of Longeway 549 N.E.2d 292 (1989).

45 In re Quinlan 70 N.J. 10, 355 A.2d 647 (1976), at 663.

46 Quinlan 70 N.J. at 41, 355 A.2d (1976) at 664.

47 As a matter of fact, Karen Quinlan did not die. She continued breathing without the help of the respirator for a further nine years.

48 See also Stanley v. Georgia 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed.2d 542 (1969); Eisenstadt v. Baird 405 U.S. 438, 92 S. Ct. 1029, 31 L.Ed.2d 349 (1972).

49 In re Hier 464 N.E.2d 959 (Mass.App. 1984), at 961.

50 Dworkin made this point in his seminar on Abortion, Dementia and Euthanasia, supra n. 34.

51 Cf. Daniel Callahan, The Troubled Dream of Life (supra n. 7), Setting Limits (New York:Simon and Schuster, 1987)Google Scholar, and “Response to Roger W. Hunt”, (1993) 19 J. of Medical Ethics 24–27CrossRefGoogle Scholar.

52 Finnis made this point in Dworkin's seminar on Abortion, Dementia and Euthanasia, supra n. 34.

53 See Dworkin, Ronald, “The Right to Death”, (1991) 38 The New York Review of Books, 14–17Google Scholar, at 15.

54 The rationale for the two-year period is explained in my forthcoming paper “Some Observations on PCU Patients: An Israeli Perspective”.