1. Contested language
How we name our actions is central to all moral reasoning. This is nowhere more apparent than in debates over euthanasia. The term “euthanasia” already points to a contest over the interpretation of the acts involved. Derived from Greek, the term “euthanasia”, literally means “good death”. What it refers to in our time, though, is something like “a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering”.1 This falls within the normal meaning of the word “killing”. To call this act “killing”, though, seems to proponents of euthanasia to lose everything that is important about this act, and all the things that make it morally defensible and even praiseworthy in their eyes.
Struggle over language appears constantly in debates about this issue. Are we talking about “euthanasia” and “physician assisted suicide”, or are we talking about “voluntary assisted dying”, or even “dying with dignity”? Each of these names encodes more or less freighted ways of construing the acts involved. Sometimes these can appear morally decisive, such as when acts of euthanasia are referred to, on the one hand, as “providing relief”, or on the other hand, as “murder”.
This contest over language might lead us to an initial sigh of relief at the recent use of the term, “voluntary assisted dying” in legislation around Australia. Such legislation has just passed in the Queensland Parliament, and has been announced in the NSW Parliament by Alex Greenwich MP.2 This language is, at least, not as baldly partisan as some previous proposals (such as the Medical Services [Dying with Dignity] Bill that was floated in Federal Parliament in 2014).3 However, this relief quickly gives way, for the term “voluntary assisted dying” trades on ambiguities. On the one hand, it works by blurring any distinction between euthanasia and physician assisted suicide (PAS).4 An act in which a person is assisted to end their own life and an act in which a physician actively ends a patient’s life upon request are both considered “voluntary assisted dying”. While this is, to a certain extent, understandable, the distinction remains important from a moral perspective, because the agency of the physician in each case is importantly different. One is the “mercy-killing” of one person by another; the other is a form of suicide.5
Yet the term “voluntary assisted dying” seeks to do away with such distinctions. For on the other hand, it also works by strenuously avoiding the term “suicide”. In contrast, even to some scholars in favour of legal euthanasia and PAS, who admit that these are “species of suicide”,6 Mr Greenwich’s statement to the NSW Parliament functions rhetorically by contrasting “suicide among people with a terminal illness” with “voluntary assisted dying”. The Draft Act defines voluntary assisted dying as not suicide “for the purposes of the law of the State” (§4.12). The term “voluntary assisted dying” thus aims to define a new moral category: a way of dying that is self-willed, and perhaps even self-executed, but not suicide.
However, the categories of suicide and euthanasia are avoided only through a grammatical oddity that reflects a loss of descriptive clarity. To say that someone “voluntarily died” might be true in a sense, but it would also be a name for what happened that left important things in the dark. This is because we cannot “voluntarily die” in the sense of simply willing it to happen; the verb “die” does not work that way in English. We may submit to death, or we may kill ourselves, or be killed by someone else. The phrase “voluntary assisted dying” arguably works precisely by refusing to look too directly at these realities. This vagueness should worry us, because, as this essay will argue, problems of transparency and ambiguity are precisely why we ought to have grave concerns with the legalisation of euthanasia and PAS.
It is easy to think that debates about the legalisation of euthanasia and PAS (this essay will retain this terminology) are primarily a contest of moral principles. This is true to a certain extent. There are fundamental differences in outlook that ought not to be avoided, but understood. This essay will begin by briefly exploring Christian thought about suicide by reference to some instructive points in the tradition. Christians have consistently regarded suicide as an evil, yet, in part because of the shape of the Bible’s testimony about suicide, they have differed over how to describe this. This complexity should allow Christians to understand, even if they cannot accept, the idea of a “right to die” as a moral and existential claim. Nevertheless, a deep, in-principle opposition opens up over euthanasia and PAS. Although Christians may have sympathy for those wishing to end their own lives, they cannot support this course of action, and are committed to opposing resolutely the idea that anyone should assist another person to do so. These ideas are important to understand, because they explain why Christians and Christian organisations will go on refusing to participate in euthanasia and PAS even where these practices become lawful. Although many of these convictions are shared by others, especially many Jews and Muslims, no attempt will be made here to hide distinctly Christian aspects of these arguments. It is important for these distinctives to appear, not least so that Christians do not blithely expect others to agree with them. There are, and will remain, clashes of principle.
However, to think that a question of principle is all that is at issue is to oversimplify. Christians have their own proper reasons for thinking about a public policy question such as this in terms that are more straightforwardly communicable. The bulk of this essay seeks to discuss such reasons, arguing that the reasons urged for regulation of euthanasia and PAS within the law are unpersuasive. There remain weighty arguments against legalisation that are supported by evidence from jurisdictions around the world. We will continue to disagree over the idea of a “right to die”, but we should, even at this late hour, continue to resist the idea of a right to die lawfully by assisted suicide or euthanasia.
2. Suicide and euthanasia in Christian theology
Let us set out, then, by observing some key features of Christian thinking about suicide. Christian thinking about suicide begins from the fact that, according to the Bible, human life has a special preciousness that belongs to it because human beings are “made in the image of God”. Because of this, the taking of human life is set down as a boundary that is utterly foundational to human community, and that must be decisively protected. “Whoever sheds human blood, by humans shall their blood be shed; for in the image of God has God made humankind” (Gen 9:6).
Within the Bible, this consciousness produces a twofold affect. On the one hand, it leads to a clear and resolute prohibition on private killing. Hence the sixth of the Ten Commandments: “You shall not kill” (Exod 20:13; Deut 5:17). On the other hand, it leads to the authorisation of political authority to defend this boundary by force. Governing authority “does not wield the sword in vain”, as the Apostle Paul puts it (Rom 13:4). In the Christian tradition, when it has not been drawn to pacifism, this in-principle authorisation of government to kill in war or in judicial punishment has been understood not as a freedom to ignore the preciousness of human life, but as a commission to defend it against threats. For this reason, the Christian tradition reflected very carefully on the conditions that might make a war “just”—that is, a use of lethal force aimed at defending the preciousness of human life. It also recognised the tragedy of such extremity: just wars are waged only with grief, as Augustine put it.7
Where does this leave suicide? The Bible, in fact, contains no explicit prohibition of suicide. Like modern law in many countries, suicide and attempted suicide do not appear within the criminal codes of the Old Testament. Nor do they feature in the moral instructions of the New Testament. Yet the Bible does report several suicides and assisted suicides in terms that are at best ambiguous and often clearly negative. The deaths of Abimelech (Judg 9:52–4), Samson (Judg 16:28), Saul and his armour-bearer (1 Sam 31:1–6; 1 Chr 10:1–6), Ahithophel (2 Sam 17:23), Zimri (1 Kings 16:18), and Judas Iscariot (Matt 27:3–5) are all deeply coloured by a sense of shame and failure. By contrast, Paul and Silas are portrayed in Acts 16:27–33 as preventing the suicide of a jailer and his household.
In the light of this biblical witness, the Christian tradition has mostly maintained that suicide is unlawful, a forbidden breach of the commandment not to kill, a kind of “self-murder” that usurps the prerogative of God to take human life (see e.g. Deut 32:39). Suicide is, of course, not straightforwardly “murder”, yet it still represents an assault, albeit it a uniquely tragic one, upon the preciousness of human life. Although some, such as Ambrose of Milan, maintained that it was virtuous for a Christian to take his or her own life in very dire circumstances—namely, to avoid enduring rape—mostly this was regarded as a mistake. Ambrose’s pupil Augustine, notably, argued forcefully that, “if no one has a private right to kill even a guilty man … then certainly anyone who kills himself is a murderer”.8
This said, there has also often been a sense that to say that suicide was wrong was necessary, but less than adequate. Martin Luther emphasised the tragedy of suicide. He is quoted as saying, “It is very certain that, as to all persons who have hanged themselves, or killed themselves in any other way, ’tis the devil who has put the cord round their necks, or the knife to their throats”.9 Preaching on the book of Job, John Calvin acknowledged the despair that leads to a desire for death, yet maintained that it is “good for us to continue here still in this world … To the end that God may be glorified in us, to the end that our faith may be tried, to the end we should call upon him, and profess him to be always our Father, notwithstanding that he scourge us, and to the end that by means thereof we may be prepared to the heavenly life”.10
Some Christian reflection on suicide has also pointed to the limits of a legalistic approach. Dietrich Bonhoeffer, for example, thought the Bible’s silence about suicide reflected an important insight: “A man who is on the brink of suicide no longer has ears for commands or prohibitions”.11 Suicide is indeed “wrongful”, Bonhoeffer thought, but not in a way that can be usefully expressed in terms of law. Christian thought about the ethics of suicide, argued Bonhoeffer, must begin from its character as a tragic attempt “to give a final human meaning to a life”. Suicide represents, for Bonhoeffer, a kind of negative form of self-justification, a refusal of God’s “right to determine the end of life”.12 As such, suicide was something to which only the good news of Jesus, and not the law, could speak. “One who despairs of life”, wrote Bonhoeffer, “can be helped only by the saving deed of another, the offer of a new life which is to be lived not by his own strength but by the grace of God”.13
Reflections such as these are sometimes regarded as a bad starting point for thinking about euthanasia and PAS. Advocates of “voluntary assisted dying”, as we have seen, sometimes hope to distance euthanasia and PAS from suicide. Others see any attempt to talk about the wrongfulness of suicide as remote from and insensitive to the suffering of those seeking euthanasia or PAS.
However, these objections are unpersuasive. As we have argued above, “voluntary assisted dying” can be demarcated from suicide rhetorically, but not in substance. Objections to the relevance of these ideas for euthanasia and PAS on the basis of compassion also often oversimplify. There is no doubt that the terrible suffering of the terminally ill at the end of their lives does indeed make a claim upon us. And if we are not moved by it to anything more than moralising, then we should not be taken seriously.
In what direction we should be moved, however, is not a simple question. Suffering and the relief of suffering are always tied up within a moral frame that shapes the way they are experienced. Reflecting on the experience of euthanasia in Flanders, Paul Vanden Berghe et al. ask,
Which is prior: unbearable suffering for which euthanasia is the ultimate solution? Or does the suffering become unbearable because, henceforth, there is such a way-out as euthanasia? Could it be that, in the long term, unbridled euthanasia thus enhances the suffering it pretends to relieve?14
Euthanasia and PAS are also rarely just about the relief of pain. In the words of one scholar in favour of assisted dying laws, “pain, the evidence shows, is usually not the most important reason for seeking assistance in dying. More frequently, it is the desire to be in control of the dying process, fear of loss of dignity, concern about a progressively diminishing quality of life, and not wanting to be a burden”.15 “The importance of the desire for control”, he goes on, “is brought out by the fact that many of those who request a lethal medication never use it, and die a natural death”.16 The average rate of such non-use in the US state of Oregon, was 35 per cent between 2000 and 2010.17 In his statement to the NSW Parliament, Mr Greenwich MLA emphasised this point both in the specific example he drew on, and in general. Reporting the story of “Tony”, he noted that Tony “said it would help him to cope with the pain, discomfort and deteriorating health to know that he has control over his body if the situation gets intolerable. It is this control at the end of life”, Mr Greenwich went on, “that people seek”.18 To claim a “right to die”, similarly, is to make a principled claim that extends far beyond the relief of suffering.
The categories with which Christian thought has tended to approach suicide are not, then, as remote from the personal realities of euthanasia and assisted suicide as is sometimes assumed. To speak of a desire for control over one’s death or of a right to die is to speak in terms that make direct contact with the idea that it is God’s prerogative to give and take life. Willem Lemmens observes that in Belgium, euthanasia is constantly defended by reference to self-determination, with a common phrase being about the right “to write the last script of one’s life oneself”.19 These are precisely the terms in which Bonhoeffer, for example, opposed suicide as a form of self-justification.
Bonhoeffer’s reflections on suicide illustrate how the Christian tradition has the resources to appreciate at some depth what is at stake in the idea of a “right to die”. To understand suicide in terms of an act of self-justification is to understand it in terms that lie at the centre of all Christian self-understanding. Even if the Christian tradition cannot endorse this course of action—indeed, is fundamentally opposed to it—it is significant that there is here an important point of contact between opposing moral positions. The heart of the Christian faith is the drama of God’s refusal of our self-determination unto death. Christian faith is built upon this refusal. Yet precisely because of this, it ought to have the resources to understand deeply the desire “to write the last script of one’s life oneself”. It ought also to be able to understand deeply why not all will agree with it.
That said, because Christian faith is founded on turning away from our attempts at self-justification, a profound, in-principle opposition inevitably opens up over the practices of euthanasia and PAS. The judgement that suicide is fundamentally wrong for human beings will decisively shape Christian involvement in euthanasia and PAS, and Christian responses to the suffering of the terminally ill. For if suicide itself must finally be judged wrongful, then assisting in suicide and actively killing someone who desires to end their life must be even more decisively rejected. If suicide is, finally, an assault upon the preciousness of human life and a self-asserting rejection of God’s prerogative in relation to it, then no version of euthanasia or PAS can be acceptable for Christians as such. “Voluntary assisted dying” should be called what it is: a form of wrongful killing and as such, an evil to be avoided. Christians ought to refuse to practise euthanasia or PAS, and be steadfast in their commitment to a pastoral practice of suffering alongside the dying, and of palliative care. Christian churches ought to uphold this commitment through their preaching and disciplines. Exactly how to do this, and what it means for those involved in aged care, will require ongoing, careful reflection as circumstances change. But there is a sharp clarity in Stanley Hauerwas’s statement that deserves attention from Christians: “If in a hundred years Christians are identified as people who do not kill their children or the elderly, we will have done well in our pastoral care”.20
3. Euthanasia and public policy
It would be easy to assume at this point that there can be no room for meaningful public conversation about public policy. Christian reasons for opposing euthanasia and PAS are weighty for them, but inaccessible to those who do not share their convictions and believe, for example, that people have a right to die. We are left only with a clash of incommensurable outlooks, to be decided by numbers, strength, and tactics. If they believe suicide is wrong, then Christians should oppose any law to make euthanasia and PAS lawful. By the same token, those who cannot share their reasoning may safely ignore it.
This assumption, however, would be a mistake. The reason to say this is that, for genuinely theological reasons, questions of public law cannot be answered so simply, but require Christians to attend to a wider range of considerations. But this also makes Christian reflection on such questions more widely accessible, as a consideration of the common good.
Christian political thought makes—and must make—a distinction between the rule of Christ and the kingdom of God, on the one hand, and secular government, on the other. To identify the two is a fundamental error that leads, in the end, only to tyranny. What this distinction produces, and has produced repeatedly in Christian thought about politics, is a conception of politics characterised by modest aspirations. Practically, this means a recognition that good government and good public law require attention not only to what is true, but also to what is possible and will be effective within a particular public context. Political judgement, as Oliver O’Donovan puts it, is necessarily “imperfectible”.21 Public law and judgements cannot establish the kingdom of God or give life to the dead, but must be content with a provisional, imperfect witness to the truth. This is because the authority of government and public law depends on representation. When laws exceed the possibilities of community discourse, their authority evaporates. In O’Donovan’s words:
[T]here is a limit to the extent to which we are capable of accommodating a disclosure of right as the basis for our public freedoms … It is not only that there is more truth to be known than [public judgement] can know; there is also more judgement to be given than it can give. Its work lies on the surface of things, and only anticipates the deep judgements of God by not pretending to forestall it. To the extent that it exceeds its limits it loses credibility as a community undertaking.22
A consideration of a proposal relating to public law, therefore, must involve discussion of the particular context in which proposals are made, and how they bear upon the possibilities for good political judgement that are available to us.
This is important because a range of arguments are made today to say that the law as it relates to euthanasia and PAS is currently dysfunctional. We may group these arguments into three kinds. The first alleges that current end-of-life care frequently involves what amounts to a form of euthanasia. “[D]ecisions not to start or to withdraw treatment are common”, Guenter Lewy points out, “and are made in full awareness of their life-shortening effect”. “Terminal sedation”, he goes on “is usually accompanied by the withholding of nutrition and hydration”. This, Lewy argues, is equivalent to a kind of euthanasia, for “the doctrine of double effect … may justify sedation but hardly the withholding of food and liquids”.23
There are ideas here that require further explanation, and to which we will return. For the moment, however, let us simply observe the key argument being made, which is that current end-of-life practices already often involve deliberate interventions aiming to end lives in order to bring relief from suffering. This is an argument that must be taken seriously. If it is in fact the case that “deep” or “palliative sedation”, which is an important practice in palliative care, often intends to end the life of the patient, then this might well make the exclusion of other forms of euthanasia hypocritical and therefore unsustainable.
In the second place, it is argued that the legal prohibition of euthanasia and assisted suicide does not effectively prevent the practice, but either sends it underground, where it is unregulated, or forces people towards other forms of suicide.24 There is evidence to support this claim. Societies have formed that give advice on forms of suicide and support people in the process. Studies have also indicated that a small but significant number of doctors and nurses have assisted patients to commit suicide or performed euthanasia. In Timothy Quill’s words, “Studies in the United States consistently show the existence of an underground, illegal practice that is undocumented and unregulated, lacks the benefit of a second opinion, is not prosecuted, and is not rare”.25 A study of HIV/AIDS patients in Australia published in 2002 found troubling evidence of a “euthanasia underground” in which there was no training, frequent, distressing “botched attempts”, and no accountability.
The medical profession for the most part turns a blind eye to the practice of illicit euthanasia by its members. There are no norms or principles guiding involvement. Rather, participation is shrouded in secrecy and deception, triggered by highly idiosyncratic factors, with evidence of casual and precipitative involvements. In place of a tradition of disinterested service to patients, there is evidence of a complete lack of “professional distance”, sharp conflicts of interest, and examples of euthanasia without consent.26
In the light of these realities, it is argued, the only real choice is, in the words of Margaret Otlowski, “whether we seek to regulate and control the practice of euthanasia or whether it is left unregulated and unchecked, which creates greater risks for both doctors and patients”.27
Finally, it is also argued that the community does not support current legal arrangements. Courts have shown compassion in cases of mercy killing, juries have been unwilling to convict doctors with whom they sympathised, and various polls have indicated growing support for legal euthanasia. In such a context, it is argued, maintaining the current laws is unsustainable.
These arguments amount to a serious challenge to the sustainability of the law as it currently stands, even for those who object to euthanasia in principle. If euthanasia is, in fact, commonly practised, widely supported, and yet currently exposed to serious risks of abuse because of its underground nature, then perhaps the best we can hope for is to regulate it, seeking mechanisms to ensure consent and protect the vulnerable.
There are, however, significant reasons to call this conclusion into question. The arguments above are problematic, and can, in fact, be taken in a different direction: as showing the acute need in our day for clarity about the distinction between foresight and intention, and for widespread and serious commitment to high-quality palliative care. It is to this different direction, and the serious problems with legalising PAS and euthanasia, that we now turn.
4. Foresight, intention, and palliative care
Let us first review the first argument noted above: that current end-of-life care frequently involves what amounts to a form of euthanasia, sometimes called “slow euthanasia”. This argument works by calling in question a distinction that has been important in a range of areas of ethics, namely, a distinction between “foresight” and “intention”. There is a difference, the argument goes, between intending to do something and merely foreseeing it. In the textbook example, the death of a foetus in an operation aiming to save the life of a pregnant woman may be foreseen as an inevitable consequence, but in an important sense not intended. The intention of the operation is to save the mother; the death of the foetus is a tragic, foreseen consequence. This is often known as “the principle of double effect”. This distinction has been applied in the context of end-of-life care to argue that certain medical interventions—in particular doses of morphine—that are understood to lead to death should, nevertheless, not be characterised as acts of euthanasia, because what they intend is not to kill the patient, but to relieve pain. The patient’s death may be foreseen, but it is not what the act intends, and so should not be seen as determinative of the act.
As we have seen, the argument made above is that the actual practice of end-of-life care does not sustain this nuanced distinction. In Guenter Lewy’s words, again, the “decision not to start or to withdraw treatment is made in full awareness of its life-shortening effect, and this fact appears to call into question the distinction made by some ethicists between killing and letting die”.28
There are, however, a range of problems both with the deployment of this principle of double effect in this context, and with its rejection. First, and most importantly, these arguments have dubious relevance to the practices of palliative care, certainly as practised in Australia. There is good evidence that therapeutic doses of morphine do not, in fact, shorten life, which means that death is not necessarily a foreseen effect of these interventions in any sense.29 Furthermore, in Australia at the present time, food and drink are never withheld from patients in high quality palliative care settings. This means that in palliative care in Australia, there is generally no need to invoke the principle of double effect, and therefore, in this context, no weight whatsoever to an argument such as Lewy’s that the distinction between killing and letting die is unsustainable.
That said, it is worth pausing over these arguments, because this is an area beset by obfuscation. Ultimately, what these arguments bring to the surface is a clash between two profoundly different visions of end-of-life care.
Let us first contrast two kinds of example. On the one hand, there are forms of medical intervention that do not merely foresee death, but appear to intend it. A meaningful difference between intention and foresight, for example, might be hard to sustain in the case of a physician who moved precipitously to a very high dose of morphine and withdrew nutrition and fluids. Margaret Somerville has written that,
It bears always keeping clearly in mind when discussing withdrawal of artificial hydration and nutrition that it can be employed unethically, when it does become a form of euthanasia—which is to say, when it’s used with a primary intention to cause death. This is most likely to occur when it is paired with an unwarranted use of “palliative sedation”, where the patient is unjustifiably deeply sedated until they die.30
Such examples remind us that the double effect principle is not a get-out-of-jail-free card that can allow us to avoid the challenges of moral discernment; it is a way of identifying a morally significant aspect of certain profoundly difficult decisions.31 Christian ethics has known for a long time that knowing what an action amounts to is not a simple business, and requires consideration of both the objective reality of an action and the intention of the agent.32
On the other hand, though, there are also clearly times at which distinctions between foresight and intention, and between killing and letting die, do throw light on an action. Intuitively, there remains a profound difference between a death caused by a disease and a death caused by lethal injection. This intuitive difference is clearly relevant in the cases, mentioned by Lewy, of decisions “not to start or to withdraw treatment”. A patient who dies when their life support is turned off, because they had no prospect of recovery, is not killed by an active medical intervention, but by the disease or injury that caused them to be on life support in the first place.
In between these examples lies the complex ground of palliative care, in which death clearly is foreseen, but primarily as the effect of underlying disease, and not straightforwardly as the effect of any intervention. Here the technological possibilities of life support and pain relief produce a moral field in which actions may be characterised in more than one way. Margaret Sommerville, for instance, has argued that “there can be situations where it is justified to withdraw artificial hydration and nutrition”, because there are situations, especially after a patient can no longer take food and water orally, in which the continuation of hydration and nutrition should be understood as a form of medical life-support treatment, and not simply basic care.33 In such circumstances, an ability to distinguish between intention and foresight may be a helpful tool for the task of moral discernment, rather than a disingenuous way of evading responsibility. And in the end, there may be an area in which the actions of palliative care physicians are not entirely open to public scrutiny, but must be left between them and God.
It is striking to note, as David Albert Jones et al. do in the concluding reflections of their 2017 study on the impact of euthanasia in Belgium, that there appear to be significant differences between different jurisdictions in the use of continuous deep sedation. They observe that there is “evidence that, in Belgium, where euthanasia is legal, continuous sedation at the end of life is sometimes intended as a form of euthanasia”. By contrast,
Doctors in the United Kingdom rarely, if ever, prescribe sedatives with a life-shortening intention. This difference in intention is demonstrated not just by what doctors say but by differences of practice. Doctors in the United Kingdom attempt to increase the dose of sedatives gradually in proportion to symptoms, whereas in Belgium doctors frequently make a particular decision at a particular moment in time to “sedate to unconsciousness”.34
The distinctions between intending to end a life and foreseeing the end of life, and between killing and letting die, will not be useful if we cease to make use of them, even in the complex terrain of palliative care. Yet within that context, they remain meaningful conceptual tools for discerning the character of actions. To dismiss such distinctions is a serious mistake.
5. Problems with legal euthanasia and PAS
Turning now to the other arguments in favour of legalising euthanasia, we should not dismiss the dangers associated with an unregulated “euthanasia underground”. However, these must be weighed carefully against the problems and prospects of legalisation. There are a number of serious problems with the path of legalisation.
a. Lack of transparency
We may begin with the argument that what is needed is to bring euthanasia out into the open. There is now significant evidence from multiple jurisdictions that legalisation of euthanasia and PAS does not effectively achieve this goal. In Belgium, for instance, Jones et al. conclude simply that “the change in the law seems to have brought neither transparency nor control to the practice of euthanasia”.35 Euthanasia laws often rely on the self-reporting of doctors, and the evidence shows this to be deeply problematic. According to Jones et al., independent research in Belgium shows “that only 50 per cent of cases of euthanasia are reported, and the unreported cases are those that are more ethically and legally problematic”.36 Etienne Montero, reflecting on the Belgium experience after 15 years, draws attention to the clear admissions by the Commission tasked with oversight of the practice that it relies on the compliance of medical professionals, and “does not have the ability of assessing the number of reported euthanasia cases versus the number of euthanasia cases actually performed”.37
Euthanasia practice in the US state of Oregon, likewise, suffers from an ongoing lack of transparency. John Keown reports, “The Oregon Health Authority has candidly acknowledged that its role is essentially that of a data repository, and that it does not know how many cases which are reported have actually complied with the Act or how many cases have not been reported”.38 Where there is better data, such as in the Netherlands, they show that, in Keown’s words, “thousands of cases have been illegally covered up as death by natural causes and that thousands of patients have been killed without an explicit request”.39 The actual experience of jurisdictions in which euthanasia is legal makes the argument that legalisation will ensure transparency very tenuous.
b. Problems with safeguarding
This leads us to another decisive problem with legalisation, which is the profound difficulty of adequately safeguarding the practice. Multiple jurisdictions, including Belgium and the Northern Territory, demonstrate that it is entirely possible for laws to appear extremely strict, but in fact allow for an alarming flexibility in practice.40 Reflecting on the way the initial intention in Belgium to exclude psychiatric disorders and dementia from eligibility for euthanasia has given way to an increasing number of cases in such categories, Montero comments, “The Belgium experience demonstrates how extremely difficult it is to stick to the initial statements and intentions of the legislators and to ensure that the original very strict statutory conditions have been met”.41 John Keown’s assessment is that in the Netherlands, “guidelines for VAE have long been widely breached, and with impunity”. “The Dutch system of control”, he concludes, “has remained intrinsically ineffective”.42
The difficulty arises in large part from the fact that on a whole range of questions, including the patient’s consent, the meaningfulness of secondary opinions, the quality of a person’s suffering and its unrelievable nature, there are, in Montero’s words, “no measurable parameters for objectivity”.43 The inherent subjectivity in terms such as “unbearable suffering” has led, in every jurisdiction in which euthanasia is legal, to the expansion of the practice to include groups that were previously excluded. In relation to the Netherlands, for example, Keown’s conclusion is striking: “the Dutch system has failed to ensure effective control. It could claim to be a textbook illustration of euthanasia’s empirical and logical slippery slopes”.44
Even advocates of legal euthanasia recognise the inherent difficulties. Guenter Lewy, who concludes that an adequately safeguarded regime is possible, acknowledges that the four regimes he has examined (the Netherlands, Belgium, Oregon, and Switzerland) display “difficulties and unresolved problems”.45 In some cases, these problems have been alarming. Lewy comments that “in Switzerland, the strong commitment to patient autonomy has at times also led to a disregard of safeguards designed to prevent abuse”. “There prevails”, he goes on, “a right-to-die mentality that has been shown to exert psychological pressure upon vulnerable persons with serious psychological problems”.46
In less problematic contexts, there remain intractable difficulties in safeguarding. Chief among these are the problems posed by depression. The diagnosis of depression is notoriously difficult, and is especially complex in this case because a desire for death is a standard indicator of depression. The difficulty general practitioners have in recognising depression is, as Lewy comments, “well-known”. Yet psychiatrists, too, have been reticent to act as a screen for depression, especially on the basis of a single consultation,47 which is all that the “model statute” commended by Lewy recommends, and more than is required by the Greenwich Bill.48
c. Tendency to dangerous expansion
This leads to the next critical difficulty with legalisation, which is the tendency of the practice to expand in ways that pose serious risks to vulnerable people. John Keown, again, sums up the Dutch experience:
The original focus of Dutch euthanasia advocates was on the agonal suffering of the dying. It has gradually expanded to embrace the grieving mother; the healthy grandmother losing her sight; “duo euthanasia”; minors; the psychiatrically ill (such as the young woman who had suffered sexual abuse); the unemployed autistic person, and the alcoholic. Demented patients, whether in the early or the late stages, are now also eligible, in the late stages on the basis of an advance directive, something that Dr van Delden described in 2004 as both unethical and unfeasible. In 2012, the itinerant doctors from the “End-of-Life Clinic” started offering their services, undermining previous assurances that a close relationship between doctor and patient was an essential prerequisite. And in 2016 the government announced its proposal to allow assisted suicide for the elderly with “completed lives”.49
Many scholars have now observed the way the practice of euthanasia has tended to expand in every jurisdiction in which it has been allowed, to take in categories of people previously ruled out. In Belgium, the previous exclusion of patients with psychiatric disorders, dementia, or depression has now given way.50 Jones et al. comment, “the expansion of euthanasia among people who are physically disabled, or who suffer from a psychiatric condition, or are “tired of life”, is already occurring on a large scale”.51
In 2013, Paul Vanden Berghe, Director of the Federation of Palliative Care in Flanders, wrote that, “There is an indication that euthanasia, once the barrier of legalisation is passed, tends to develop a dynamic of its own and extend beyond the agreed restrictions, in spite of earlier explicit reassurances that this would not happen”.52 That examples now abound should, perhaps, be unsurprising, given the explicit desire of some euthanasia advocates to change culture and move, “from one perspective on death and dying to another, a far more autonomist and directive one much as we have seen changes in reproduction”.53 However, this tendency of the practice to expand should be cause for the gravest concern, because it clearly puts at risk many of the most vulnerable people in our community. How will we prevent the misuse of legal euthanasia in relation to people whose lives are already regularly disparaged? Reflecting on the Belgian experience, Jones et al. comment,
It is undoubtedly the case that these [people with physical disabilities, psychiatric conditions or older people who are tired of life] represent vulnerable groups and that their ability to cope with their condition is dependent on the support they receive as well as on the cultural messages being articulated about how and which lives are valued. It is undoubtedly the case that in Belgium more people in these vulnerable groups are dying of euthanasia.54
d. Corruption of medicine
A final, serious objection to the legalisation of euthanasia and PAS has to do with its impact upon the practice of medicine. As has often been observed, euthanasia represents a fundamental shift away from the Hippocratic oath, which disallows a doctor from deliberately seeking the death of his or her patient.55 The close association of euthanasia with palliative care is, in the opinion of many physicians, particularly damaging for the latter, because palliative care was intended to be a form of medicine that “intends neither to hasten nor to postpone death”.56 In the words of Belgian oncologist Benoit Beuselinck,
It is not the core business of doctors to answer the existential questions of their patients and fellow human beings and even less if the answer is the administration of death. It is the core business of doctors to offer genuine palliative care and to alleviate the physical suffering of a patient while taking care for the mental, social and spiritual aspects of his or her suffering. It is my personal opinion that a law on euthanasia is not necessary but, rather, is a threat to the genuine practice of medicine.57
Willem Lemmens draws special attention to the way the priority of respect for autonomy in euthanasia legislation impacts negatively upon wholistic medical care, which includes engagement with the patient’s family. He draws attention to a number of well-documented cases in Belgium, in which patients were offered euthanasia without consultation with their families. The complaints of these family members show, Lemmens comments, “that these family members feel traumatised not only by the attitude of the physicians involved, but also by society because it ignores by its very laws the genuine nature of their traumatic suffering”.58 Lemmens writes that by focusing on the duty of the physician to respect the patient’s autonomy and only recommending consulting the family, “the law here probably undermines an ethics of due medical care”.59
6. Conclusion: A right to die lawfully?
This paper began by outlining traditional Christian understandings of the ethics of suicide, and suggesting why they remain relevant to Christian practice in relation to euthanasia and PAS. It then moved on to the question of public policy, making clear that there could be no simple conclusion about public law on the basis of principle. It is possible, in fact, to imagine a case for legalising euthanasia as a matter of public law despite a principled opposition to it. D. A. Jones makes the same point in his discussion of the form debates have taken in Belgium: “If the legalisation of euthanasia were shown to prevent abuse, and if this practice could be circumscribed as an exception without adversely affecting medicine or other aspects of society, then to this extent the evidence would provide a reason for legally tolerating the practice, even for someone who remained opposed to it in principle”.60
However, the available evidence does not support the conclusion that legalisation has achieved these outcomes elsewhere, or is likely to do so here. On the contrary, the weaknesses of the arguments in favour of the legalisation of euthanasia, and the profound problems that accompany such a path, ought to lead us to regard legalisation as a dangerous mistake to be avoided if possible.
For many advocates of legal euthanasia, however, none of these arguments will be sufficient, because of a deeply held principle of their own: that people have a “right to die”, which ought to be protected in law. In concluding, therefore, it is important to clarify that, in opposing the legalisation of euthanasia, one is not primarily making a claim about the ethics of suicide, but a claim about the scope of public law. The language of rights tends to collapse this distinction because it uses a legal concept—subjective rights—to navigate all moral terrain; but it is a meaningful distinction nevertheless, especially in this case. For it is one thing to ask whether it is open to me morally to kill myself. It is quite another thing to ask whether it should be open to me legally—whether I should have a right to kill myself lawfully. For in the first question, I am asking a fundamental spiritual question that I can only finally ask about myself, and that moves me, inevitably, beyond concern for the law. In the second question, though, I am claiming a right for all within a public context, and that is something that can only have far-reaching consequences. Christians may believe that the right to determine the end of life belongs to God, not to us. Yet they understand that this is a conviction of faith, and cannot, and do not, expect everyone to think the same. What they may oppose, however, out of concern for others and especially for very vulnerable people, is the insistence that a right to die be recognised by law, and so be extended to all. To do so is not imposing their view on others, but maintaining that certain views ought not, for a whole range of reasons, become public law.
Rev Dr Andrew Errington is rector of Newtown–Erskineville Anglican Church and a research fellow of the Centre for Public and Contextual Theology, Charles Sturt University.
1 This definition is taken from the Australian Medical Association, which in turn is reliant on the British House of Lords Select Committee on Medical Ethics.
2 NSW Legislative Assembly Hansard for 25 March, 2021.
3 See Exposure draft of the Medical Services (Dying with Dignity) Bill 2014.
4 Physician assisted suicide (PAS) is a term used when a competent patient requires help to enact the desire to end his or her life, and receives this help from a doctor. (A normal form of this help might be the provision of a lethal dose of a drug for the patient to take.)
5 Willem Lemmens, “Psychiatric Patients and the Culture of Euthanasia in Belgium”, in Jones et al., Euthanasia and Assisted Suicide, p. 260–1, highlights that the relevant laws in Belgium contain no provision for PAS, but only for the active ending of a person’s life by a physician (euthanasia).
6 Guenter Lewy, Assisted Death in Europe and America: Four Regimes and Their Lessons (Oxford, 2010), p. 3.
7 Augustine, City of God XIX.17.
8 Augustine, City of God I.17 (trans. H. Bettenson; Penguin, 1984), p. 27.
9 Martin Luther, Table Talk 584.
10 John Calvin, Thirteenth Sermon on the Third Chapter of Job.
11 Dietrich Bonhoeffer, Ethics (Simon and Schuster, 1995), p. 168.
12 Bonhoeffer, Ethics, p. 166–7.
13 Bonhoeffer, Ethics, p. 168.
14 Paul Vanden Berghe, Arsène Mullie, Marc Desmet, and Gert Huysmans, “Assisted Dying: The Current Situation in Flanders: Euthanasia Embedded in Palliative Care”, in David Albert Jones, Chris Gastmans, and Calum MacKellar, eds., Euthanasia and Assisted Suicide: Lessons from Belgium (Cambridge University Press, 2017), p. 85.
15 Guenter Lewy, Assisted Death in Europe and America: Four Regimes and Their Lessons (Oxford, 2010), p. 150.
16 Lewy, Assisted Death, p. 150.
17 Lewy, Assisted Death, p. 150.
18 See the NSW Legislative Assembly Hansard for 25 March, 2021.
19 Willem Lemmens, “Psychiatric Patients and the Culture of Euthanasia in Belgium”, in David Albert Jones, Chris Gastmans, and Calum MacKellar, eds., Euthanasia and Assisted Suicide: Lessons from Belgium (Cambridge University Press, 2017), p. 271.
20 William H. Willimon and Stanley Hauerwas, “The dangers of providing pastoral care”, Christian Century, 27 July, 2021
21 O’Donovan, The Ways of Judgment, pp. 13–30.
22 O’Donovan, The Ways of Judgment, p. 27.
23 Lewy, Assisted Dying, p. 151.
24 See Lewy, Assisted Dying, pp. 10–15.
25 Quoted in Lewy, Assisted Dying, p. 11.
26 Roger S. Magnusson, quoted in Lewy, Assisted Dying, p. 12.
27 Quoted in Lewy, Assisted Dying, pp. 14–15.
28 Lewy, Assisted Dying, p. 10.
29 P. Good, P. Ravenscroft and J. Cavenagh, “Effects of opioids and sedatives on survival in an Australian inpatient palliative care population”, Internal Medicine Journal 35(9), 2005, pp. 512-517. F. J. Brescia, R. K. Portenoy, M. Ryan, L. Krasnoff, G. Gray, “Pain, opioid use, and survival in hospitalized patients with advanced cancer”, Journal of Clinical Oncology 10 (1992), pp. 149-55.
30 Margaret Somerville, “The ethical complexities of decisions to withdraw artificial hydration and nutrition”.
31 See the lucid discussion of this point in Oliver O’Donovan, Resurrection and Moral Order (IVP, 1994), pp. 192–3.
32 This was one of the most significant aspects of Thomas Aquinas’s theory of action in Summa Theologiae IaIIae, qq. 18–21. See Andrew Errington, Every Good Path: Wisdom and Practical Reason in Christian Ethics and the Book of Proverbs (Bloomsbury, 2020), pp. 48–59.
33 Margaret Somerville, “The ethical complexities of decisions to withdraw artificial hydration and nutrition”.
34 David Albert Jones, Chris Gastmans, and Calum MacKellar, eds., Euthanasia and Assisted Suicide: Lessons from Belgium (Cambridge University Press, 2017), p. 280.
35 Jones et al., eds., Euthanasia and Assisted Suicide, p. 278.
36 Jones et al., eds., Euthanasia and Assisted Suicide, p. 278.
37 Etienne Montero, “The Belgian Experience of Euthanasia Since Its Legal Implementation in 2002”, p. 28.
38 John Keown, Euthanasia, Ethics and Public Policy: An Argument against Legalisation (2nd ed.; Cambridge University Press, 2018), p. 462.
39 Keown, Euthanasia, Ethics and Public Policy, p. 463.
40 For the case of Belgium, see especially Etienne Montero, “The Belgian Experience of Euthanasia Since Its Legal Implementation in 2002”; for a discussion of the Northern Territory’s experience in 1995–96, see Keown, Ethics and Public Policy, pp. 329–41.
41 Montero, “The Belgian Experience”, p. 33, emphasis original.
42 Keown, Euthanasia, Ethics and Public Policy, p. 459–60.
43 Montero, “The Belgian experience”, p. 34.
44 Keown, Euthanasia, Ethics and Public Policy, p. 461.
45 Lewy, Assisted Death, p. 151.
46 Lewy, Assisted Death, p. 153.
47 See Keown, Euthanasia, Ethics and Public Policy, p. 340.
48 See Lewy, Assisted Death, p. 157.
49 Keown, Euthanasia, Ethics and Public Policy, p. 460.
50 See Montero, “The Belgian Experience”, pp. 33, 35.
51 Jones et al., eds., Euthanasia and Assisted Suicide, p. 281.
52 Quoted in Jones et al., “Final Conclusions”, p. 279.
53 Margaret P. Battin, quoted in Keown, Euthanasia, Ethics and Public Policy, p. 467.
54 Jones et al., “Final Conclusions”, p. 282.
55 See the discussion in D. A. Jones, “Euthanasia and Assisted Suicide in Belgium: Bringing an End to Interminable Discussion”, in Jones et al. eds., Euthanasia and Assisted Suicide, pp. 246–9.
56 Jones, “Euthanasia”, p. 248.
57 Benoit Beuselinck, “2002–2016: Fourteen Years of Euthanasia in Belgium: First-Line Observations by an Oncologist”, in Jones et al. eds., Euthanasia and Assisted Suicide, p. 113.
58 Lemmens, “Psychiatric Patients”, pp. 264, 268. Some of the cases Lemmens refers to were the subject of an essay in the New Yorker in 2015: Rachel Aviv, “The Death Treatment”.
59 Lemmens, “Psychiatric Patients”, p. 269.
60 Jones, “Euthanasia”, p. 244.