Dr. Eike-Henner Kluge
Startling as that statement may seem coming from someone who has long been an advocate for changing the law on assisted suicide and euthanasia, I beg you to consider that it is simply a matter of common sense. And more strongly still, I want to suggest that to agitate for a change in the law by arguing that the law against assisted suicide and euthanasia violates the right to die is ultimately counterproductive—because it is to argue for the wrong thing in the wrong way, and it opens the door to irrelevant, prejudicial and politically correct counterarguments.
Let me begin with the claim itself. It is based on a very simple point. We will all die. That is an inescapable fact about all higher biological organisms. Our organs, our cells and even our genetic machinery age and ultimately cease to function in a way that can preserve life. This happens naturally—it is the second law of thermodynamics acting on living things.
The next point is also very simple: One cannot have a right to what occurs naturally—for what follows from a law of nature. Which brings me to an important ethical point about rights: A right is a justified claim that we may exercise if we wish but we don’t have to. If we have a right, then we have a choice. But we do not have a choice about whether to die. We will die—just as we will fall when the support under us is removed. The universal law of gravitational attraction gives us no choice. Gravity sucks, whether we want it or not—and death occurs, whether we like it or not.
However, we do have a choice about how we will die: whether we will die betubed, sedated, glucosed, aerated, decrepit, vegetating and unaware of our surroundings and living in a state that is a constant violation of our values—or die in a way and in a manner that is reflective of our values and that is in keeping with our understanding of the dignity of a person. We do have that choice—at least, accidents excluded and in principle. It is only current law that prevents us from putting that choice into action in a meaningful way that is reflective of our values. That does not mean that everyone has such values; but that is another issue.
The second major claim that I made at the beginning is that it is counterproductive to argue that the law should be changed because it violates our right to die. This not only misrepresents what is really at stake, it also gives those who insist on keeping the law as it stands the opportunity to sidetrack the debate. For what is really at stake is not death but autonomy—the right to self-determination. What is really at stake is the right to conduct our lives and to shape our fate in keeping with our values as persons.
Autonomy is a fundamental principle of ethics: “Everyone has the right to self-determination subject only to the equal and competing right of others.” It is the right to be free in what we think and what we do. Autonomy is integral to a democratic society. It is also what underlies the notion of moral and legal responsibility—only people who are free, who have autonomy, can be held responsible for what they do; and lack of autonomy is characteristic of a society that controls the behaviour of its members—of a society that is oppressive.
The right to self-determination, underwritten by the Principle of Autonomy, is the right to shape our existence in accordance with our values. Of course the right has limits. The Principle of Autonomy has a second part: “where the exercise of autonomy it is limited by the equal and competing rights of others.” That only makes sense—because others are also persons and also have a right to self-determination. But wishing to end our existence in accordance with our values—in accordance with our concept of the dignity of a person—does not infringe on any else’s right to self-determination. Others do not have to shape their deaths the way we do, and they do not have to die in accordance with our values. Therefore there is no infringement of their right when we wish to die under certain circumstances and in a certain way.
There is another ethical principle that should really be core to the discussion but that is ignored when it is framed as an issue of the right to die. It is the Principle of Beneficence. This Principle says that everyone has the duty to advance the good of others if it is possible to do so without undue harm to oneself. However, the Principle says more than that. It has a second part, which says “where the nature of the good is determined by the competently-held values of the recipient of the action and not the values of the actor.” This means that if we cannot follow our competently-held values because of disability or because we lack the means to put them into practice, then others have a duty to assist us—as long as assisting us does not infringe on their competently-held values and their right to self-determination. In practical terms this means that no-one has a duty to help us die according to our conception of human dignity if that violates their values. That follows from the Principle of Autonomy. But it does mean that if others share our values and wish to help us—to engage in assisted suicide or euthanasia—they should be free to do so, and they would be acting ethically because they would be acting in keeping with the Principle of Beneficence.
There is a third ethical principle that should be core to the discussion. It is the Principle of Non-Malfeasance: “Everyone has a duty to prevent harm to others insofar as this is possible without undue harm to oneself.” It is the flip side of the Principle of Beneficence; and like that Principle it also has a second clause: “where the nature of harm is determined by the competently-held values of the recipient of the action, not of the actor.” When continued life is a violation of the dignity of the person—when it is an affront to the competently-held values of the individual—then continued life is a harm, and to insist that other cannot help the individual to die is to insist that the individual be harmed. And that is unethical.
Of course there is that crucial phrase: “competently-held values.” Not all values are ethically defensible—for instance, the values that underlie ethnic cleansing or that lead to discrimination on the basis of sex, age or disability. Even the Canadian Charter of Rights and Freedoms recognizes that. But the value of personal dignity that centres in one’s capacity to function as a rational being with a sense of self, of an existence that is free of incurable or irremediable pain or suffering: that conception of dignity is not irrational because it centres in what it is to be a human persons. Such a value is not irrational. In the words of Pope Pius XII, if continued life is possible only by “means that … involve a grave burdens for oneself or another” and that are “too burdensome for most men and would render the attainment of a higher, more important good too difficult,” then not wishing to continue that life is not to be held captive by an unethical value.
And just as not all values are ethical, so not all values are competently held. Mentally disabled persons, persons who are conditioned, oppressed or the subjects of coercion do not have competently-held values because they are not competent. But there are ways of identifying such persons. The law does it all the time—and there is no reason to believe that the legal process is negligent in this regard. So the rider which governs the Principles of Beneficence and non-Malfeasance does not rule out that there may be persons who competently wish to die in a way that is in keeping with their values.
There is no right to die—but there is a right to shape and end our lives in keeping with our competently-held values. And for reasons that I have just outlined, laws that prevent us from doing so are unethical. It is all a matter of autonomy, beneficence and non-malfeasance. And to shape the discussion differently is to fundamentally misrepresent what is at stake.
Eike-Henner W. Kluge
Biography
History: B.A. (Calgary), A.M., Ph.D. (Mich.), professor and departmental ombudsman. Taught at various universities in the US and Canada before coming to the University of Victoria. In 1989 he was asked by the Canadian Medical Association to establish the Department of Ethics and Legal Affairs, and was its first Director. He was the first expert witness in medical ethics recognized by Canadian courts, and has acted in that capacity in Alberta, British Columbia and Ontario. He has been a consultant to Health Canada, various provincial Ministries of Health and Health Regions, as well as to the Office of the B.C. Police Complaint Commissioner and has presented invited testimony to Royal Commissions and Parliamentary Committees. From 2004 to 2010 he was the Canadian Bioethics Society’s delegate to the Canadian Council on Animal Care. He is a member of WG4 (Security in Health Information Systems) of the International Medical Informatics Association, was the lead author of its Code of Ethics (translated into 9 languages) and wrote the accompanying Handbook of Ethics for Health Informatics Professionals. In 2005 he received the Award for Research Excellence of the UVic Faculty of Humanities, and .in 2007 he was awarded the Abbyann Lynch Medal in Bioethics by the Royal Society of Canada. Current research interests include medical informatics, human tissue banking and genetic engineering.
Interests: biomedical and information ethics, topics in the history of philosophy.
Publications: books and articles on topics ranging from medieval philosophy and metaphysics to health care and information ethics.
Choices In Dying Victoria 