Upon the completion of this chapter and with further self-directed learning you are expected to be able to:
Discuss critically the nature of morality policy and what it involves.
Examine critically the distinction between morality policy and other commonplace policies.
Examine critically the primary concern of morality politics.
Compare and contrast the moral politics of abortion and euthanasia.
Examine critically the definitions of abortion used respectively by pro-abortionists and anti-abortionists.
Identify two key issues upon which the abortion issue has traditionally turned.
Discuss critically the following three positions on abortion:
the conservative position
the moderate position
the liberal position.
Outline at least six contemporary developments informing the ‘new ethics of abortion’ and its possible implications for the abortion debate generally.
Discuss briefly the common arguments advanced both for and against the view that the fetus is not a person.
Discuss at least three instances in which the rights of a fetus (once granted) might come into conflict with the rights of others.
Define and differentiate between the terms ‘euthanasia’, ‘assisted suicide’ and ‘mercy killing’.
Differentiate between six types of euthanasia commonly discussed in the bioethics literature.
Discuss critically arguments commonly raised for and against euthanasia.
Discuss critically the nature and moral implications of ‘psychiatric euthanasia’.
Discuss critically the issue of palliative sedation.
Examine critically the distinction between palliative sedation and euthanasia.
Examine critically the ethical implications of withholding or withdrawing clinically assisted nutrition and hydration at the end stage of life.
Examine critically the issue of patients with serious advanced illness voluntarily stopping eating and drinking.
Construct critical arguments for and against the proposition that the nursing profession should adopt a definitive position (e.g. for, against, or a neutral position) on these issues.
Discuss critically the emerging role of nurse practitioners in providing assisted deaths.
Abortion and euthanasia are arguably among the most controversial bioethical issues to have captured the public’s attention in Western liberal democracies. Because people have deeply held personal values and beliefs about these issues, when they are raised in public forums they tend to elicit highly emotive responses and a deep polarisation between those who are ‘for’ and those who are ‘against’ their public acceptance and legitimisation.
It is widely recognised that both these issues are extremely divisive and, as such, are unlikely to be resolved to the satisfaction of all concerned. This, in turn, has given rise to an extremely sophisticated ‘moral politics’ aimed at securing partisan support for the respective positions at stake. This situation is largely driven by one of the confounding factors in the abortion and euthanasia debates – notably, that both these issues constitute ‘morality policy’ issues.
In this chapter, attention will be given, first, to providing a brief overview of the nature of ‘morality policy’ and ‘moral politics’ and the core objectives of stakeholders who seek to use these processes to advance their respective stances on controversial moral issues such as abortion and euthanasia. Following this, an in-depth examination will be made of the respective issues of abortion and euthanasia, and the philosophical arguments that are commonly raised for and against their legalisation. Finally, brief attention will be given to the vexed question of whether the nursing profession ought to adopt a formal and definitive stand on these issues and the emerging role of nurse practitioners in directly providing ‘medically’ assisted deaths.
Morality policy 1
‘ Morality policy ’ is a relatively new field of scientific inquiry, with focused scholarship on the subject emerging around 2012 ( Hurka et al 2018 ; Studlar & Cagossi 2018 ). Although a consensus has yet to be reached on the nature of morality policies, it is generally agreed that ‘there is a core of political issues that contain more potential for moral contestation than others’ ( Hurka et al 2018 : 430). In western democracies such ‘core political issues’ have been identified as primarily involving birth, sex and death – namely abortion, same-sex marriage, euthanasia, stem cells / assisted reproduction technology and capital punishment ( Studlar & Cogossi 2018 ).
In practice, morality policy basically involves an interest group, first, framing an issue as a ‘public policy’ issue and then, once positioned as a public policy issue, further framing it as a morality issue to engender public and ultimately political support for the position desired by its advocates. In other words, morality policy involves taking a highly strategic approach to framing a public policy whereby emphasis is placed on ‘adherence to principle above instrumental rationality as a way of advocating for or against policies’ ( Mucciaroni 2011 : 201). Morality policy is generally distinguished from other commonplace policies (such as economic policies) on grounds that they concern conflicts and disagreements about a polity’s basic moral values, are not amenable to compromise, are widely salient and generally easy to understand, and tend to be determined more by values and moral argument than by expertise ( Mooney 1999 ; Mooney & Schuldt 2008 ; Mucciaroni 2011 ; Norrander & Wilcox 1999 ). It is theorised that the reason the core political issues identified above generate intense (even violent) moral contestation is because they fundamentally involve a clash between public and private values, as opposed to a conflict over ‘tangle resources’ ( Budde et al 2018a : 427). To put it another way: these issues centre on ‘conflicts over principles rather than material interests’ ( Budde et al 2018b : 45). Of relevance to this discussion is that morality policies – for example, abortion, euthanasia – tend to be adopted in greater congruence with public opinion than are other more ideological (e.g. economic) policies.
Linchpin to the success of morality policy is favourable public opinion (see discussion on public opinion in Chapter 2 ). The influence of public opinion may not always succeed in securing a policy change, however. This is because public opinion on morality policy issues might be mitigated, for example, when ‘policy makers themselves hold highly salient personal positions, influenced by religion, interest groups distort aggregate public opinion significantly, and parties position themselves to attract the energies of interest group activists rather than the median voter’ ( Norrander & Wilcox 1999 : 709). In such instances, politicians who are otherwise the gatekeepers to public policy reform are able to (and mostly prefer to) sidestep taking action (see also Studlar & Cagossi 2018 ).
Like other morality policy issues (e.g. gay marriage, stem cell research), abortion and euthanasia involve a conflict in the polity’s basic moral values (in this case about autonomy, life and death), are controversial and ‘newsworthy’ (have the capacity to generate media hype), are not amenable to compromise (tend to involve polarised views and intractable disagreements), are widely salient with nearly everyone having an opinion (the issues quickly elicit intense personal points of view), and rely on the mass media rather than on professional literature in moving the issue onto the public (moral) policy agenda (after Glick & Hutchinson 1999 ). Further, and like other morality policy issues, whether or not abortion and euthanasia will ultimately be adopted and legitimated as a public policy will depend largely on its level of congruency with public opinion.
In the case of abortion, it has always been the ultimate objective of abortion politics to achieve a high level of congruency between a pro-abortion stance and public opinion on its permissibility as a public policy. Likewise euthanasia politics ( Johnstone 2013a ); it too aims to achieve a high level of congruency between a pro-euthanasia stance and public opinion on its permissibility as a public policy. Just where health professional groups (including nursing) ought to ‘sit’ in relation to these politics, however, is open to question and also a matter of some controversy. It is an important aim of this chapter to assist nurses to navigate these politics and decide whether, how and where to position themselves in the debates that these issues continue to engender.
Moral politics 2
Politics is fundamentally concerned with ‘who gets what; how resources and people are organised; and who is licensed to take these decisions’ ( Louw 2010 : 8–9). It is also about the disagreements and struggles that occur in relation to these things. According to Dupré (2011) , disagreement constitutes the very essence of politics. He goes on to contend that without disagreement there would be no incentive to ‘cooperatively establish the laws and build the institutions on which social order and justice depend’ ( Dupré 2011 : 3).
Like ‘basic’ politics, abortion and euthanasia politics are fundamentally concerned with who gets what (e.g. abortion as a medical regimen in preference to other options such as adoption, ectogenesis; euthanasia as a medical regimen in preference to other medical regimens such as palliative care, terminal sedation and the like), how resources and people are organised (e.g. providing abortion / euthanasia services, which could include public and private hospital resources; in the case of euthanasia this could also involve ‘mobile’ and domiciliary services providing assisted deaths in a patient’s own home), and who is licensed to take these decisions (e.g. the patient in consultation with his or her attending physician). The primary objective of both abortion and euthanasia politics is political in that it also seeks to cooperatively establish pro-abortion / pro-euthanasia laws and the institutions needed to enable the safe enactment of those laws.
Unsafe abortion has been identified as one of the most easily preventable causes of maternal ill-health and death, yet it continues to threaten the health and lives of women and girls globally. For instance, in countries that have restrictive abortion laws, maternal mortality rates are estimated to be three times higher than in countries where women and girls have access to safe abortion services ( Johnson B et al 2017 ). The well-documented and longstanding risks of unsafe abortion to women and girls has led some commentators to declare that ‘ending the silent pandemic of unsafe abortion is an urgent public-health and human-rights imperative’ ( Grimes et al 2006 : 1908). In response to the issues and challenges raised by this situation, in 2012 the WHO deemed preventing unsafe abortion a strategic priority underpinned by the following two goals:
in circumstances where abortion is not against the law, to ensure that abortion is safe and accessible
in all cases, women should have access to quality services for the management of complications arising from abortion ( WHO 2012d ).
In 2017, this stance was underscored by a collaborative of international organisations which included, among others, the United Nations Development Program (UNDP), World Health Organization (WHO), Development and Research Training in Human Reproduction (HRP) and the United Nations Department of Economic and Social Affairs (UN DESA) launching a new database designed to ‘strengthen global efforts to eliminate unsafe abortion by producing an interactive open-access database and repository of current abortion laws, policies, and national standards and guidelines’ (available: www.srhr.org/abortion-policies/ ). It is hoped that, despite its acknowledged limits, this new database will provide comprehensive information on the laws, health standards, policies and practices of different countries and thereby improve transparency and enabling initiatives aimed at improving the status quo to be better informed ( Johnson B R et al 2017 ).
Even though the WHO has identified safe abortion as a strategic global priority, abortion as such remains a deeply contentious and divisive issue. Of all the bioethical issues that command public attention today, next to the ethics of euthanasia (to be considered later in this chapter) the ethics of abortion is among the most controversial. Although abortion has been legal in many countries for several decades, its moral permissibility and legal status continue to be the subject of heated public and academic debate. Some notable examples include debates surrounding:
The restrictive abortion laws in the Republic of Ireland, which, up until the success of the historic 25 May 2018 referendum to repeal that country’s constitutional ban on abortion, were regarded as being amongst the most restrictive in the world. However, the landmark success of the referendum, which saw a resounding majority (almost 67%) of people vote in favour of repealing the ban, created a major political problem for the minority Conservative UK government of Theresa May ( Koubaridis 2018 ). Following the success of the referendum, May faced increasing pressure to ‘allow a free vote on the abortion issue in Northern Ireland’ where strict laws ban abortion even in cases of rape and severe fetal genetic abnormalities. The problem she faced (and faces) is that her minority Conservative government is in power only because of the support of Northern Ireland’s Democratic Unionist Party, ‘which is staunchly in favour of keeping the strict laws in place’ ( Koubaridis 2018 ). It is reported that the issue created a rift in the Conservative party, with a number of May’s colleagues pushing for reform. Meanwhile, in June (just a few weeks after the Republic of Ireland referendum) an appeal brought by the Northern Ireland Human Rights Commission (NIHRC) against Northern Ireland’s anti-abortion laws was dismissed by the Supreme Court, despite a majority of the judges indicating that the laws needed to be reformed. At the time of writing, the Northern Ireland government is reportedly ‘not obliged to change the law’ ( BBC News 2018 ).
Three controversial judgments by the European Court of Human Rights addressing the issue of access to abortion, declining in one case to affirm abortion as a human right per se ( Westeson 2013 ).
The legal case of Right to Life New Zealand Inc. v Abortion Supervisory Committee  challenging the lawfulness of the way in which the mental health exception in New Zealand abortion law was being applied ( Leslie 2010 ).
Significantly, over the years, the polarity of values and views underpinning the abortion controversy has threatened to divide nations, has seen abortion clinics firebombed and abortion workers fatally shot by pro-life fanatics, and has even brought down governments ( Hadley 1996 ).
Despite the legislative and moral reforms of the past six decades, women’s so-called ‘ reproductive rights ’ (including the right to safe abortion) are still constantly being challenged. Also, despite being ‘sensationally and bewilderingly public’, abortion for many women remains a deeply private, personal and even taboo subject ( Hadley 1996 : xi). Even in so-called ‘liberal’ democratic countries where individualism and a person’s right to make important life choices (including the right to choose death) is highly respected and enshrined in law, women are often forced to justify their need of an abortion in a way ‘that many find to be degrading and intrusive’ ( Greenwood 2001 : ii3). Further, although there is much rhetoric about women having ‘reproductive autonomy’, it is governments, members of the medical profession and the courts legitimating their authority that ultimately have the power to decide if, when, how and under what circumstances a woman’s reproductive rights will be exercised ( Greasley 2017 ; Sifris & Belton 2017 ; see also essays by Goodwin (2017) and Andaya & Mishtal (2017) on the erosion of women’s rights to abortion care in the US following the election of Donald Trump). Women can also face other significant barriers when seeking access to safe reproductive health services – for example, availability of services (particularly for women in rural and remote areas), waiting times for an appointment, travelling distance to a clinic (which can include having to travel from rural to metropolitan areas as well as interstate), abortion stigma (i.e. perceived stigma of attending a clinic and having the procedure; staff can also experience being stigmatised for their work), financial barriers, and conscientious objection by doctors ( Cockrill & Hessini 2014 ; Harris et al 2018 ; Kumar et al 2009 ; Lowe & Hayes 2018 ; Martin, Hassinger, Debbink, Harris, 2017, Martin, Hassinger, Seewald, Harris, 2018 ; Regan & Glasier 2017 ; Sifris & Belton 2017 ).
Over the past two decades, a ‘new ethics of abortion’ has emerged ( Gillon 2001 ; Greenwood 2001 ; Wyatt 2001 ). This ‘new ethic’ has rekindled the fires of old controversies surrounding the moral status of the fetus and has posed new challenges to contemporary moral thought about the permissibility and impermissibility of abortion (see, for example, Martin T 2001 ). Processes informing the ‘new ethics of abortion’ include the following five developments, which Wyatt (2001 : ii15–ii18) believes ‘have irreversibly altered the ethical debate about abortion in Western societies’:
advances in fetal physiology (these have made it possible to confirm that fetuses have ‘a range of sophisticated abilities with well-developed sensory perception in all systems: vision, hearing, touch, taste and smell’; it is now known that even very young fetuses have the capacity to imitate facial expressions, breathe and initiate hand–face contact, startle, sucking and swallowing movements)
development of fetal medicine as a specialty (making it possible to discern major abnormalities and to ‘provide seamless medical care for the fetus through the intrauterine period and on into the critical first hours and days of birth’; it is now possible to provide such intrauterine treatment as blood transfusions and curative surgery for congenital defects)
development of neonatal intensive care and improved survival of extremely preterm infants (with developments in specialised neonatal intensive care techniques, it is now commonplace for preterm babies of just 23–4 weeks of gestation to survive; the survival of preterm babies of just 22 weeks weighing less than 500 g at birth has also been described)
changed perspective on the rights of the disabled (many in the disabled rights movement regard the abortion of fetuses with genetic disorders or other disabling conditions to be discriminatory and as being prejudicial against disabled people)
changes in professional counselling (research has shown that the way information is given to parents can significantly influence the choices they make; this, in turn, has given rise to a new imperative for so-called ‘non-directive counselling’).
Other developments prompting new debate and bioethical controversies on the abortion issue are the global growth of ‘wrongful conception’, ‘wrongful life’ or ‘wrongful birth’ lawsuits as well as ‘wrongful abortion’ suits driven largely by advances in preimplantation and prenatal diagnostics ( Fox 2017 ; Frati et al 2017 ; Yakren 2017 ). In the case of wrongful conception, action is taken by a parent or parents to recover damages for the birth of an unplanned child, such as an unsuccessful sterilisation procedure ( Forrester & Griffiths 2015 : 216).
Wrongful birth / life suits, in turn, are based broadly on the argument that a pregnancy should never have been enabled to go full term and ipso facto the resulting infant should never have been born. For example, a baby may have been born with severe and irremediable disabilities in circumstances where, if appropriate medical advice and care had been provided, a decision not to continue the pregnancy would have been made ( Forrester & Griffiths 2015 ; Frati et al 2017 ). In such cases, an infant’s mother generally seeks compensation on grounds that she was deprived of the opportunity to have an abortion within a relevant time because of a health worker’s (e.g. a doctor’s or a counsellor’s) negligence (e.g. failed abortion, misdiagnosis of fetal abnormality after screening, misdiagnosis of maternal illness which could have resulted in fetal abnormality) ( Frati et al 2017 ). ‘Wrongful abortion’ lawsuits, in contrast, concern situations in which a pregnant woman is ‘induced to undergo an abortion by a negligent conduct (usually a medical misrepresentation)’ ( Perry & Adar 2005 : 507). For example, a woman might decide to have an abortion based on advice received from her attending medical practitioner that her fetus is at risk of being born with severe birth defects because of a drug she has taken. After the abortion is performed, however, she learns that the medical advice she was given about the risks to her fetus ‘was a negligent misrepresentation, and that the termination of the pregnancy was unnecessary’ ( Perry & Adar 2005 : 507). In such cases, the woman might sue for compensation for the catastrophic loss she has suffered, notably, the ‘nonbirth of a wanted child’ ( Fox 2017 : 167).
The above issues help to demonstrate the complexities of the abortion issue and the tensions involved. Just what the outcome of the ‘new ethics of abortion’ will be remains an open question. What is clear, however, is that there is ‘no Olympian perspective from which these issues can be viewed in benign and omniscient neutrality’ ( Wyatt 2001 : ii19).
The abortion issue is not ‘new’ to the nursing profession. As shown by the examples given in the previous editions of this book, nurses historically have had to face a range of personal, political and professional difficulties on account of moral disagreements in the workplace concerning the abortion issue. Research has also revealed that nurses (including those who choose to work in abortion services) may face a range of other complexities, tensions and dilemmas inherent in abortion work on account of trying to ‘accommodate the requirements of society, the women patients, and their own beliefs’ ( Huntington 2002 : 276; see also Chiappetta-Swanson 2005 ; Martin et al 2017 ). To help gain a better understanding of the complexities of the issues involved, a critical examination of the ethics and politics of abortion is warranted. It is to providing such an examination that this chapter will now turn.
What is abortion?
Before advancing this discussion, it is important first to clarify the meaning of the term ‘ abortion’ . In keeping with lay dictionary definitions, abortion may be defined simply as the ‘premature termination of a pregnancy by either spontaneous or induced expulsion of a nonviable fetus from a uterus’ ( Collins Australian dictionary 2011 : 4), and usually entails the death of the fetus ( Warren 2014 ). Greasley (2017 : 2) offers the following more definitive definition of abortion, notably: ‘as the deliberate ending of a pregnancy with the known or desired result that the embryo or fetus will die’. Not all participating in the abortion debate subscribe to such ‘simple’ or ‘definitive’ definitions, however. Instead, most lean towards definitions of abortion that, although appearing to be value-neutral (objective), are in essence ethically loaded and hence at risk of misleading moral debate on the issue. For instance, those who are opposed to abortion tend to use the following terms in their discourse: ‘unborn child’ / ‘unborn human life’ (versus fetus) and ‘mothers’ (instead of pregnant women) ( Greasley 2017 ). Accordingly, they typically define it in such terms as ‘artificially causing the miscarriage of an unborn child’, or ‘killing an innocent human being’. Definitions of abortion using these or similar terms are not just defining the ‘act’ of abortion, however. They also seem to be conveying the conclusion that abortion is morally wrong (at the very least, the terms used – ‘unborn child’ / ‘innocent human being’ – seem to appeal to our moral intuition that killing another person who is a non-aggressor is a morally terrible action). In contrast, those who support abortion tend to use the terms ‘pregnancy’ and ‘fetus’ (versus ‘child’ / ‘unborn human being’) in their discourse. Accordingly, they tend to define abortion in such terms as ‘terminating pregnancy’ or ‘ridding the products of unwanted / unviable conception’. Definitions of abortion using these and similar terms seem to imply that abortion is not only not morally wrong but may even be morally neutral (the term used ‘ridding the products of unwanted conception’ seems to invite the ‘reasonable’ question: ‘What is so morally terrible about getting rid of something that is ‘unwanted’ and / or incapable of normal growth and development?’).
It is unlikely that a consensus will be reached among contesting parties on a working definition of abortion and that various ethically loaded definitions will continue to be used. This is so despite research suggesting that both the terms ‘abortion’ and ‘termination of pregnancy’ are distressing even to those providing abortion services, although use of the term ‘termination of pregnancy’ is less so ( Kavanagh et al 2018 ). Either way, it is important to remember that the issues at hand need to be decided by careful deliberation, not by definitions; they also need to be examined in a manner that will question rather than reinforce the status quo.
Arguments for and against the moral permissibility of abortion
Arguments for and against abortion have tended to be advanced from three distinctive positions: a conservative position, a moderate position and a liberal position. These three positions are considered briefly below, noting that little has changed since they were first debated in the early 1970s and 1980s, with foundational works on the subject still being widely cited and / or reprinted in contemporary anthologies today.
The conservative position
According to the conservative position (see, for example, Brody 1982 ; Noonan 1983 ), abortion is an absolute moral wrong, and thus something which should never be permitted under any circumstances – not even in self-defence, such as cases where a continued pregnancy would almost certainly result in the mother’s death. A common concern among conservative anti-abortionists is that, if abortion is permitted, then respect for the sanctity of human life will be diminished, making it easier for human life to be taken in other circumstances. Arguments typically raised against abortion here are almost always based on the sanctity-of-life doctrine. One example of the kind of reasoning which might be employed to argue against abortion is as follows:
It is wrong to kill innocent human beings; fetuses are innocent human beings; therefore it is wrong to kill fetuses. ( Warren 1973 : 53)
Or, to use another example:
Human beings have a natural right to life; fetuses are human beings; therefore fetuses have a natural right to life and killing them is wrong. ( Pojman & Beckwith 1994 )
Whether human beings do in fact have a natural right to life, and whether fetuses are in fact human beings, are matters of ongoing philosophical controversy.
The moderate position
According to the moderate position (see, for example, Bolton 1983 ; Werner 1979 ) abortion is only a prima-facie moral wrong, and thus prohibitions against it may be overridden by stronger moral considerations. Werner (1979) , for example, argues that abortion is permissible provided that it is procured during pre-sentience (i.e. before the fetus has the capacity to feel). Since a pre-sentient fetus cannot feel, it cannot be meaningfully harmed or benefited. Thus, as with other non-sentient or pre-sentient entities, it makes no sense to say a fetus has rights, much less a right to life. In the case of post-sentience, Werner argues that abortion may still be justified on carefully defined grounds, namely: self-defence (e.g. where the life or health of the mother would be at risk if the pregnancy were allowed to continue); or unavoidability (e.g. where abortion cannot be avoided, such as in the case of ectopic pregnancy or accidental injury). Abortions performed on lesser grounds are, according to Werner, unjustified. A more recent articulation of this position similarly holds that abortion is ‘seriously wrong’, except in rare instances – for example, after rape, during the first 14 days after conception when the fetus ‘is definitely not an individual’, where the woman’s life is threatened by the continuation of the pregnancy and where the fetus has anencephaly or, if born, is highly likely to have a life of prolonged unrelievable suffering ( Marquis 2014 : 141; Nuccetelli 2017 ).
Bolton (1983) takes a slightly different line of reasoning. She argues that, as fetuses are not undisputed persons, they do not have the same rights not to be killed as do actual undisputed persons. Thus, in the case of life-threatening pregnancy, at least, a woman’s right to life overrides that of the fetus. Bolton also argues, controversially, that if women are not permitted to have abortions, the community might find itself deprived of the beneficial contributions that a woman freed of the burdens of child rearing would otherwise be free to make (p 335). She concedes, however, that there are also cases ‘in which others stand to benefit from the pregnant woman’s bearing a child’ (p 337), and that this too might contribute to the community’s benefit. The bottom line of Bolton’s position is that abortion is morally permitted in some situations, and might even be ‘morally required’ in others, but it is not morally permitted in some other types of situations. Either way, the facts of the matter need to be carefully assessed and analysed before an abortion decision is deemed justified.
Another moderate argument raised in defence of abortion is that a woman is under no moral obligation to bring a pregnancy to term, particularly in instances where the pregnancy has been forced upon her (as in the case of rape), or where the pregnancy has not resulted from a voluntary and informed choice (as in cases involving contraceptive failure or ignorance). In her classic and still widely cited article ‘A defence of abortion’ (reproduced in LaFollette 2014 : 124–31), Judith Jarvis Thomson (1971) contends, for example, that even if it is conceded, for the sake of argument, that a fetus is a person, this still does not place an obligation on a woman to carry it to full term. This is because morality does not generally require individuals to make large sacrifices to keep another alive. Thus, if pregnancy requires a woman to make a large sacrifice – and one which she is not willing to make – it is morally permissible for her to terminate the pregnancy.
A more recent moderate argument in defence of the permissibility of abortion takes an entirely different stance. Some philosophers, for example, have rejected the ‘competing rights’ view of the permissibility of abortion, and its basis in, what one scholar describes as, a ‘profoundly misleading view of gestation and a deontological crude picture of morality’ ( Little 2014 : 151). What is primarily at issue in the abortion debate, they contend, is not a ‘fetus’s rights’ or a ‘woman’s rights’ as has been conventionally argued, but having the ‘right attitude’ to parenthood and family relationships ( Hursthouse 2014b ; Little 2014 ). This includes recognising that, although pregnancy is one of many physical conditions a woman can experience, it does not mean it is without vice (e.g. women can be in very poor health and / or have to deal with extremely demanding circumstances that make continuing a pregnancy intolerable). In such instances, women who decide to have an abortion are not ‘self-indulgent, callous, irresponsible, or light-minded’; indeed, they are often quite the opposite ( Hursthouse 2014b : 166).
Little (2014) takes a similar stance, arguing that abortion can be justified on grounds of ‘decency’ and the norms of ‘responsible and respectful creation’ and ‘stewardship’. By this view, a woman might choose to abort a pregnancy – not because she is selfish or irresponsible or indecent, but because her circumstances do not permit her to provide love and care to a child, or to protect a child from a life of rejection and burdensome struggle. Here the worry is ‘not that the child would have been better off never to have been born’, but that, were the woman to continue her pregnancy, she would violate her integrity and commitment to responsible and respectful creation and stewardship of life (p 158). Little contends that due recognition needs to be given to the fact that gestation is ‘not just any activity’, and that burgeoning human life is not just ‘tissue’ but the valuable germination of human life (p 151). Moreover, there is a ‘right way’ to value this early human life and also to value what is involved with its development and, accordingly, why abortion is both ‘morally sober and morally permissible’ (p 151). She concludes that were abortion viewed in the more contextual terms of ‘stewardship’ rather than ‘dominion’, it could be properly situated as a ‘sober matter, an occasion, often, for moral emotion such as grief and regret’, not as an act of vice. Further, where there is grief and regret, this should be taken as a signal ‘not that the action was indecent, but that decent actions sometimes involve loss’ (p 158).
It could be objected, however, that the kinds of sacrifices a woman might ultimately be required to make by giving birth could be avoided by her allowing the unwanted child to be adopted. Indeed, many view the adoption option as a respectable way out of the abortion dilemma – even in cases involving severely disabled fetuses or severely disabled newborns. Thomson (1971) , however, rejects the adoption option, arguing that it can be utterly devastating on relinquishing mothers. Although adoption practices have improved significantly over the past decade, adoption research continues to show that, for many women, the relinquishment of a child is a profound life experience that can have ‘life-long emotional and interpersonal effects’ ( Madden et al 2018 ). It can also have a lifetime impact on adopted children, who may grow up ‘wondering who they are’ and spend a lifetime searching for their unknown biological parents. Although social processes (e.g. open adoptions, social media) have increasingly enabled adoptees to know / search for and locate their biological parents, adoption research has found that adoptees may nonetheless experience psychosomatic problems related to their adoption experience. In one study, for example, researchers found that adoptees were over-represented in clinical settings for externalising disorders (e.g. attention and learning difficulties, behaviour problems) ( Wiley 2017 ).
In some countries, babies who are born out of wedlock (especially ‘rape babies’) can face a lifetime of shame and rejection ( Doder 1993 : 8). Babies conceived as a result of war rape are particularly vulnerable to being stigmatised, discriminated against, rejected, abandoned and even killed. In Rwanda, for example, children conceived as a result of war rape are referred to as ‘devil’s children’ or ‘sons of the enemy’ ( Banyanga et al 2017 : 34). At the time of the Rwandan conflict (and in its aftermath) the pregnant mothers of these babies reportedly wanted to kill them after birth because ‘they were not conceived in love’ and ‘they were ashamed of carrying the children of bad memories’ ( Banyanga et al 2017 : 34). This shame was due not only to the fact that the children were ‘illegitimate’ or ‘stood as reminders of sexual torture and national humiliation’, but because they were perceived as carrying the ‘bad blood’ (violent genes) of their fathers and, as such, stood as ‘potential future enemy combatants growing up within the community’ ( Banyanga et al 2017 : 34).
In some countries, ‘rape babies’ have even been prevented by law from being adopted. After the Bosnia war, for example, it was reported that the government of the day prohibited adoption of the children of rape victims, in the hope that their natural mothers would one day accept them ( Williams 1993 : 8). Many infants were neglected, abandoned and even killed because of these policies ( Banyanga et al 2017 ). As these examples show, the adoption option is not as straightforward as its advocates have perhaps assumed.
The liberal position
The third stance on abortion, the liberal position (see in particular Thomson 1971 ; Tooley 1972 ; Warren, 1973, Warren, 1977, Warren, 1997, Warren, 2007, Warren, 2014 ), holds that abortion is morally permissible on demand. Michael Tooley (1972) argues, for example, that as fetuses are not persons they cannot meaningfully claim a right to life. He points out that the notion ‘person’, in this instance, is a purely moral concept, and that the unfortunate tendency by some to use it as if it were synonymous with the notions of ‘ human being ’ and ‘human life’ is grossly misleading. Warren (1973) argues along similar lines. She contends that a fetus is not a human being and to claim that it is only begs the question. She points out that it is one thing to use human to refer ‘exclusively to members of the species Homo sapiens ’, but quite another to use it in the sense of being ‘a full-fledged member of the moral community’ ( Warren 1973 : 53). In other words, it is one thing to be human in the genetic sense, but it is quite another to be human in the moral sense. These two senses are quite distinct, and care must be taken to distinguish between them. She concludes ( Warren 1973 : 53): 3
In the absence of any argument showing that whatever is genetically human is also morally human … nothing more than genetic humanity can be demonstrated by the presence of the genetic human code.
The consequence of this is unavoidable. It has yet to be demonstrated that the genetic humanity of fetuses alone qualifies them to have fully fledged membership of the moral community. Further, were this to be demonstrated convincingly, it then leaves unanswered the question of what moral status ought to be accorded human–animal chimeras – that is, other non-human species (e.g. pigs, sheep, mice, etc.) into which human genes have been cloned (see debate on the subject advanced by: Behringer 2007 ; Chan 2014 ; DeGrazia 2014 ; Fox 2005 ; Harvey & Salter 2012 ; Hui 2014 ; Piotrowska 2014 ). For example, ought a mouse or other animal into which human genes have been successfully planted (see Behringer 2007 ) be accorded the same moral status as a human fetus at least, if not a fully fledged human being? If genetic humanity is sufficient to accord moral humanity then human–animal chimeras ought also to be accorded moral status.
Judith Jarvis Thomson (1971) also argues that a fetus is not a person. She contends that it is nothing more than a ‘newly implanted clump of cells’ (p 48). In defence of this claim, she argues that a fetus is ‘no more a person than an acorn is an oak tree’ (p 48). The analogy can be extended further to show that, just as stepping on an acorn is significantly different from cutting down an oak tree, so too is aborting a fetus significantly different from killing an actual person.
The conclusion of these and similar views is that, once it is admitted that a fetus is nothing more than a clump of genetically human cells, the abortion issue becomes a non-issue. It would make no more sense to speak of the right of a fetus to life than it would be to speak of some other piece of genetically human tissue’s right to life – say a strand of human hair or a piece of human toenail (both of which are genetically human).
The three positions on abortion discussed so far can be expressed diagrammatically as shown in Fig. 10.1 .
Abortion and the moral rights of women, fetuses and fathers
In considering further the above three positions on abortion, it can be seen that the abortion issue rests on two key points: (1) the moral status of the fetus, and (2) the moral rights of pregnant women to control their bodies and their lives (also referred to as ‘ reproductive autonomy ’) ( Greasley 2017 ). To recap, anti-abortionists argue that the human fetus is a human being, and therefore has a right to life at least equal to that of the mother’s. Pro-abortionists, however, reject this view, arguing that, although a human fetus is genetically human, this in no way implies that it is morally a human being with a full set of rights claims. Neither, they argue, is a fetus a person. In defence of this position, pro-abortionists contend that in order for a fetus to be a person it must satisfy the moral criteria of personhood (which are very different from the criteria of fetalhood) – something that a fetus simply does not do. Let us consider this claim further.
The much-cited North American philosopher, Mary Anne Warren, has classically argued that, for an entity to be a person, it must satisfy a number of criteria, namely:
( Warren 1973 : 55)
consciousness (of objects and events external and / or internal to the being), and in particular the capacity to feel pain
reasoning (the developed capacity to solve new and relatively complex problems)
self-motivated activity (activity which is relatively independent of either genetic or direct external control)
the capacity to communicate, by whatever means, messages of an indefinite variety of types, that is, not just with an indefinite number of possible contents, but on indefinitely many possible topics
the presence of self-concepts, and self-awareness, either individual or racial, or both.
Warren admitted that there were numerous difficulties involved in formulating and applying precise criteria of personhood. Even so, it could be done. Commenting on the criteria she had formulated, Warren argued that an entity does not need to have all five attributes described, and that it is possible that attributes given in criteria 1 and 2 alone are sufficient for personhood, and might even qualify as necessary criteria for personhood. Given these criteria, all that needs to be claimed to demonstrate that an entity (including a fetus) is not a person is that any entity which fails to satisfy all of the five criteria listed is not a person. She concluded that if opponents of abortion deny the appropriateness of the criteria she has identified, she knows of no other arguments which would convince them, stating: ‘We would probably have to admit that our conceptual schemes were indeed irreconcilably different, and that our dispute could not be settled objectively’ ( Warren 1973 : 56).
Michael Tooley (1972) , like Warren, also interpreted ‘person’ in rationalistic terms. He argued that in order for something to be a person it must have a serious moral right to life, and, in order to have a serious moral right to life, it must possess ‘the concept of self as a continuing subject of experience and other mental states, and believe that it is itself such a continuing entity’ (p 44). Since fetuses do not satisfy this basic ‘self-consciousness requirement’, as Tooley called it, they are not persons – they do not have a serious moral right to life, and therefore to kill them is not wrong.
More recently, in a revised version of her earlier work, Mary Anne Warren (2014 edn) has expanded on and refined the characteristics which she believes are central to the concept of personhood, namely:
( Warren 2014 edn: 140)
sentience – the capacity to have conscious experiences, usually including the capacity to experience pain and pleasure;
emotionality – the capacity to feel happy, sad, angry, loving, and so on;
reason – the capacity to solve new and relatively complex problems;
the capacity to communicate, by whatever means, messages of an indefinite variety of types; that is, not just with an indefinite number of possible contents, but on indefinitely many possible topics;
self-awareness – having a concept of oneself, as an individual and / or as a member of a social group; and finally
moral agency – the capacity to regulate one’s own actions through moral principles or ideals.
Although conceding that it is difficult to define these traits precisely, or to specify ‘universally valid behavioural indications that these traits are present’, Warren (1997 : 84) nevertheless holds that these criteria of personhood are functional – pointing out that an entity ‘need not have all of these attributes to be a person’. She explains:
It should not surprise us that many people do not meet all the criteria of personhood. Criteria for the applicability of complex concepts are often like this: none may be logically necessary, but the more criteria that are satisfied, the more confident we are that the concept is applicable. Conversely, the fewer criteria are satisfied, the less plausible it is to hold that the concept applies. And if none of the relevant criteria are met, then we may be confident that it does not [apply]. ( Warren 1997 : 84)
For some, the personhood argument does little to settle the abortion question. For example, it might be claimed that, even if it is true that a fetus is not a person, it nevertheless has the potential to become one, and therefore it has rights (see also Warren 1977 ). Thus abortion is still wrong on the grounds of the potentiality of the fetus ( Glover 1977 : 122) – or, to borrow from Warren’s analogy cited earlier: even though an acorn is not an oak tree, it nevertheless has the potential to become one; therefore crushing an acorn is tantamount to chopping down an oak tree.
There are a number of difficulties with this view. First, the argument tends to presume that what is potential will in fact become actual. In the case of zygotes, however, this is quite improbable. As Engelhardt points out, only ‘40–50% of zygotes survive to be persons (i.e. adult, competent human beings)’ ( 1986 : 111). It might then be better, suggests Engelhardt, to speak of human zygotes as being only ‘0.4 probable persons’.
Second, the argument strongly suggests that it is not the fetus per se that is valued, but rather what it will become ( Glover 1977 : 122). It is difficult to interpret just what kind of moral demand this creates. As Glover (1977 : 122) points out:
It is hard to see how this potential argument can come to any more than saying that abortion is wrong because a person who would have existed in the future will not exist if an abortion is performed.
If we take the potentiality argument to its logical extreme, we are committed to accepting, absurdly, that contraception, the wasteful ejaculation of sperm, menstruation and celibacy are also morally wrong, since these too will result in future persons being prevented from existing ( Warren 1977 : 277).
The main unresolved question, however, is: ‘Can a potential person be meaningfully said to have actual rights and, if so, can these rights meaningfully override the existing rights of actual persons?’ or, to put this another way: ‘Can a fetus (a potential person) have actual rights and, if so, can these meaningfully override the existing rights of its mother (an actual person)?’ The crux of the dilemma posed here is whether the more immediate and actual rights of the pregnant woman should be recognised before the more remote and potential needs of the fetus, or vice versa.
One answer is that, given our understanding of the nature of moral rights and correlative duties, there is something logically and linguistically odd in ascribing rights to fetuses (non-persons), particularly during the pre-sentient stage. If we were to accept that non-sentient fetuses have moral rights, we would be committed, absurdly, to accepting that all sorts of other non-sentient things have moral rights – including human toenails, strands of hair or pieces of skin. For argument’s sake, however, let us accept that the fetus does have moral rights and, further, that these can meaningfully conflict with the mother’s moral rights. The question which arises here is: ‘Which fetal / maternal rights are likely to conflict?’
The most obvious is the fetus’s and the mother’s common claim to a right to life . This is particularly so in cases where the mother’s life would almost certainly be lost if the pregnancy were allowed to continue. In such situations it seems reasonable to claim that the mother’s right to life must at least be as strong as the fetus’s right to life. Further, since both stand to die unless the pregnancy is terminated, then surely it is better, morally speaking, that only one life is lost instead of two? It is difficult to see how anyone could reasonably and conscientiously choose an outcome which would see both the mother and the fetus die. Furthermore, as stated elsewhere in this book, morality does not generally require us to make large personal sacrifices on behalf of another, and thus it would be morally incorrect to suggest that the mother has a duty to sacrifice her life in defence of the fetus. In the case of life-threatening pregnancies, then, it seems reasonable to conclude that the pregnant woman’s right to life has the weightier claim.
A second set of rights which may conflict is the mother’s right to have control over her body and life’s circumstances versus the fetus’s right to life . It might be claimed, for example, that a woman’s right to choose her lifestyle, career, economic circumstances, standard of health and similar override any claims the fetus might have to be ‘kept alive’. The mother may then withdraw her ‘life support’ even if this means the fetus will die in the process (an unfortunate, but nevertheless unavoidable, consequence). Against this, however, it might still be claimed that the inconveniences and other psychological, physical or social ills caused by an unwanted pregnancy are still not enough to justify killing the fetus and violating its right to life ( Brody 1982 ; Noonan 1983 ). The demand not to kill the fetus becomes even more persuasive when it is considered that there are alternatives available for helping to prevent or alleviate the ills of unwanted pregnancies, such as child welfare and other social security benefits, adoption, counselling, medication, or ectogenesis. Ectogenesis, which involves extracting the embryo or fetus and placing it in a surrogate or an artificial uterus, would essentially allow an extracorporeal pregnancy to occur (also called ‘extrauterine fetal incubation’ or EUFI) ( Bulletti et al 2011 : 126; see also Coleman 2004 ; Gelfand & Shook 2006 ; Yuko 2012 ). It should be noted that ectogenesis, described as the ‘third era of human reproduction’ ( Abecassis 2016 ), is not as far-fetched as it might seem and can no longer be dismissed as ‘just the stuff of science fiction’. Such ‘theoretical devices’ are already used in experimental animal science ( Adinolfi 2004 ). For example, in 2017 it was reported that scientists had sustained the lives of lamb fetuses in a ‘plastic womb’ for between 105 and 115 days ( Cohen 2017 ; Winter 2017 ). As Winter (2017 : 416) noted, reports of this experimental success ‘invited inference’ that human ectogenesis may soon be a reality. Although the technical problems remain formidable, some scientists contend that it is only a matter of time before efficient artificial uteri in humans will be available – especially for late-term fetuses where it would be easier to connect embryonic umbilical arteries and veins to equipment designed to pump, filter and nourish blood ( Abecassis 2016 ; Adinolfi 2004 ; Bulletti et al 2011 ). Moreover, research dating back to the 1990s has already been carried out on ‘maintaining uteri extracted from women outside of a woman’s body’, and implanting embryos into these wombs ( Rowland 1992 : 288–9). Aborted fetuses were ‘kept alive for up to forty-eight hours’ in these early research projects ( Rowland 1992 : 289; see also Caplan et al 2007 ; Coleman 2004 ; Gelfand & Shook 2006 ; Yuko 2012 ). In light of these alternatives (notwithstanding the complex ethical issues raised by ectogenesis in particular – for example, see Cohen 2017 ; Reiber 2010 ), some critics contend that the claim that a mother’s rights ought to be given overriding consideration over those of the fetus becomes increasingly difficult to sustain ( Langford 2008 ). Notwithstanding the ethical and legal concerns raised by ectogenesis, scientists are of the view that successful human ectogenesis will be achieved within the next two decades ( Abecassis 2016 ). Commentators also foresee that, if achieved, human ectogenesis will radically change the parameters of the conventional abortion debate including rendering it a non-issue ( Cohen 2017 ; Coleman 2005 ).
A third set of rights which might conflict is the mother’s right to health (and to a quality of life) versus the fetus’s right to life . In this instance, the mother’s health and quality of life are threatened not by her pregnancy but by a progressive debilitating disease, such as Alzheimer’s, Parkinson’s or diabetes. The mother might, for example, contemplate getting pregnant for the sole purpose of growing tissue which can be harvested and transplanted into her brain or pancreas in an attempt to restore her health. The issue of fetal tissue transplantation has long been the subject of intense debate ( Engelhardt 1989 ; Sandel 2004 ). Although governments are striving hard to prevent this type of scenario from occurring, there have already been cases of women getting pregnant and / or having abortions for the sole purpose of supplying fetal tissue for transplantation – if not for themselves, then for others especially a fetus’s siblings (e.g. ‘saviour sibling’ or ‘donor sibling’ pregnancies / abortions) ( Deech 2017 ; Morrow 1991 ; Raz et al 2017 ).
A fourth set of rights which may cause conflict involves not only the competing claims of a fetus and its mother, but also the paternal rights of the father (also called ‘male abortion’) ( McCulley 1988 ). During the 1980s there were a number of legal cases (notably in the United Kingdom (UK), the United States (US), Canada and Australia) involving fathers undertaking legal action in an attempt to stop their (ex-)wives and (ex-)girlfriends from having abortions ( AFP 1989 ; Beyer 1989 ; Leo 1983 ; Lowther 1988 ; McCulley 1988 ; PA 1987 ).
Court challenges brought by biological fathers against their partners have tended to be viewed with little sympathy from women who historically have been left alone with the burden and hardships of child rearing after the fathers of their children have long abandoned them. Some even worry that, if the paternity rights debate is allowed to progress to its logical extreme, it could have paved the way for rapists to prevent their victims from having abortions, and to press for access rights after the baby has been born.
To date, Australian courts have tended to deny the injunctions sought by biological fathers preventing their partners from having an abortion on the grounds that there is ‘no rule in common law or statute which gives the father the right to be consulted about a termination’ ( Forrester & Griffiths 2015 : 216). In the US, one Supreme Court stated that when a father and mother disagree on whether an abortion should go forward:
The obvious fact is that […] the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor. ( Planned Parenthood of Central Missouri v Danforth 1976 : 72)
Abortion, politics and the broader community
As noted in the introduction to this discussion, the abortion issue is extraordinarily complex; it is also extremely political, as some spectacular overseas incidents have shown. For example, in 1990, Belgium was thrown into a constitutional crisis after King Baudouin, Belgium’s reigning monarch, stepped down from his throne temporarily ‘because his conscience would not let him sign a law legalising abortion’ ( Reuters 1990a : 7). As a result, the government had to take over the King’s powers and pass the abortion law. It is reported that once the abortion law was passed the King’s inability to reign ceased, and he resumed his position on the throne ( Reuters 1990a : 7).
In the same year, it was reported that disagreement over abortion law threatened to ‘derail a treaty on German unity’ ( Reuters 1990b : 7). The disagreement was primarily over whether ‘West German women may take advantage of East Germany’s liberal abortion laws after unification’ ( Reuters 1990b : 7).
In 1992, Ireland witnessed political uproar and large public demonstrations after the High Court banned a 14-year-old rape victim from travelling to Britain for an abortion (the girl had been raped repeatedly by a friend’s father over a 1-year period) ( Barrett, 1992a, Barrett, 1992b ; Holden 1994 ; Makri 2018 ). It was reported that many European constitutional lawyers considered the ban a breach of the Treaty of Rome, which had brought the European Community (EC) into being almost four decades earlier, and, among other things, ‘permitted the right to free movement within the EC’ ( Barrett G 1992a ). The situation reached crisis point when it was evident that the ban threatened the European Community’s Maastricht Treaty on European political union, which Irish voters were due to vote on a few months later ( Barrett, 1992c, Barrett, 1992d, Barrett, 1992e, Barrett, 1992f ; Independent 1992 : 6).
In 2007, Ireland’s abortion laws once again threatened to erupt into a political crisis when a pregnant 17-year-old began court proceedings to enable her to travel to Britain for an abortion. The teenager decided to have an abortion upon learning that the fetus she was carrying had a rare brain condition (anencephaly) and was not expected to live longer than a few days after being born ( Bowcott 2007 : 14). Although abortion was illegal in Ireland at the time (and the subject of a constitutional ban, overturned only in May 2018), it was permitted to be performed in cases where the risks to the mother were substantial. Neither the law nor the constitution allowed abortion to be performed on grounds of fetal abnormality, however, and it was this point that threatened to cause a constitutional crisis. The case is reported to have prompted ‘fresh calls for constitutional reform’ and for the provision of ‘safe, free, and legal abortion in Ireland’ ( Bowcott 2007 : 14). Other notable cases prompting calls for constitutional reform included the much-publicised case of Savita Halappanavar, who died on 28 October 2012 as a result of being refused an abortion for a non-viable pregnancy even though her life was at serious risk, and the 2014 case of ‘Miss Y’, a suicidal pregnant asylum seeker who revealed to authorities that her pregnancy was the result of being raped in her country of origin ( Berer 2013 ; McCarthy et al 2018 ; Makri 2018 ; Quinlan 2017 ).
Abortion was also a major issue in the American presidential election of 1992, with the then presidential contenders Bill Clinton and Ross Perot both trying ‘to lure pro-choice voters to their side’ ( Barrett L I 1992 : 54). During the campaign, the Bush camp (whose law reforms saw the loss of civil rights protection for US abortion clinics ( Denniston 1993 ) and the banning of abortion counselling at federally funded clinics ( Toner 1993 )) admitted publicly that anything raising the profile of the abortion issue was ‘a problem for us’ ( Barrett L I 1992 : 54).
The abortion debate in the US took a dramatic and historic turn in 1993, when an anti-abortion protester shot and killed a doctor during a pro-life demonstration outside a lawful abortion clinic ( Rohter 1993 : 7; see also Hadley 1996 ). Abortion rights groups took the shooting of the doctor as a ‘symbol of the increasing harassment’ of health workers involved in abortion work, which has since seen abortion clinics increasingly vandalised and destroyed by arsonists.
According to Robinson (2004) of Ontario Consultants on Religious Tolerance, since harassment and violence first began to be levelled at abortion clinics in the early 1970s, there have been literally tens of thousands of incidents directed against abortion clinic personnel. Citing US National Abortion Federation (NAF) figures, Robinson estimates that, in the 16-year period from 1989 to 2004, anti-abortion protesters were implicated in 24 murders and attempted murders; 180 (actual or attempted) bombings and arson attacks; 3349 incidents of invasion, assault and battery, vandalism, trespassing, death threats (including over 554 anthrax hoaxes), burglary and stalking; 11 448 instances of hate mail, harassing phone calls and bomb threats; 516 blockades; and 80 305 episodes of picketing across the US ( Robinson 2004 ). Although the number of seriously violent crimes against abortion clinics (e.g. murders and attempted murders) has declined over the years, the NAF reports there has nonetheless been a steep rise in clinic invasions, obstructions and blockades by anti-abortion extremists emboldened by the current political environment ( NAF 2017 : 1). Specifically, for the period 2016–17, trespassing has more than tripled, death threats / threats of harm have nearly doubled and incidents of obstruction have risen from 580 to more than 1700 ( NAF 2017 : 1). It should be noted, however, that this situation is not unique to the US. Countries such as Australia, Canada, New Zealand and the UK have all had to grapple with anti-abortion protestation against women in need as well as abortion service providers. Women seeking an abortion in these countries often must run the gauntlet of anti-abortion protesters stationed outside reproductive health clinics handing out anti-abortion pamphlets, conducting ‘pavement anti-abortion counselling’ and harassing the women (and their partners) as they attempt to enter the clinic ( Lowe & Hayes 2018 ; Regan & Glasier 2017 ; Sifris & Belton 2017 ; Whyte 2018 ). The problem of anti-abortion protestors stationed outside reproductive health clinics has become so serious that new legislation establishing ‘safe access zones’ (also called ‘buffer zones’) to protect women from harassment has had to be introduced ( Lowe & Hayes 2018 ; Paxman 2017 ; Regan & Glasier 2017 ; Sifris & Belton 2017 ).
Australia has also experienced the politicisation of abortion, with a small number of politicians over the years attempting, unsuccessfully, to introduce legislation aimed at restricting abortion services for women. Arguably the most dramatic event to occur in Australia’s abortion history, however, occurred in July 2001 when Steve Rogers, a security guard at the Fertility Control Clinic in East Melbourne, was fatally shot by a man intent on destroying the clinic ( Dean & Allanson 2003 ). As already discussed in Chapter 5 , this attack was the first of its kind in Australia and sparked fury and dismay at the vulnerability of abortion clinic personnel and the failure by law enforcement bodies to protect those attending and working at such clinics ( Dean & Allanson 2003 ; Rees & Head 2001 ). Significantly, in 2006, another man attempted to kill – and was subsequently charged with threatening to kill – another security guard at the clinic, underscoring the risks and potential threats to the safety of abortion personnel in Australia ( Nader 2007 ) and the tensions that exist between the right to access and the right to protest abortion ( Dean & Allanson 2003 ). Also in 2009 a medical clinic in Mosman Park, Western Australia, was daubed with graffiti with the words ‘Baby Killers’ and subjected to an attempted firebombing using Molotov cocktails ( Sapienza 2009 ).
Anti-abortion violence against individual workers and services continues in Western liberal democracies such as the US, UK, Canada, New Zealand and Australia. Occurring as a result of either strategic activism or one-off random attacks, anti-abortion violence includes, but is not limited to, stalking, assault, kidnapping, attempted murder, murder and the vandalism of property (including arson and bombing) ( Wikipedia 2018e : www.wikipedia.org/wiki/Anti-abortion_violence ).
Euthanasia, like abortion, is also regarded as one of the most controversial bioethical issues to have captured the public’s attention in Western liberal democracies. Like the abortion issue, it is unlikely to be resolved to the satisfaction of all concerned. A significant distinguishing feature of the euthanasia issue, however, is that, despite media-generated public opinion polls suggesting a global majority support for euthanasia, in reality it is a minority issue. As Johnstone (2013a) notes in her comprehensive critique of the politics of euthanasia, the actual practice of euthanasia affects only a small percentage of people – even in jurisdictions in which euthanasia has been legalised (e.g. the Netherlands). Moreover, the World Federation of Right to Die Societies (founded in 1980) has affiliated organisations in only 26 (13%) of the world’s 195 recognised countries ( www.worldrtd.net/ ). In light of this, as Johnstone (and others) have concluded elsewhere, ‘the development and implementation of what has been termed “death policy” is neither a universal phenomenon nor a public policy imperative. Despite this reality, euthanasia is falsely promoted “as if” it is of universal importance and priority’ ( Johnstone 2013a : xvii).
Another distinguishing feature of the euthanasia issue is the extent to which pro-euthanasia activists have successfully used propaganda and ‘dirty tricks fallacies’ to advance their cause ( Johnstone 2013a ). Although anti-abortion campaigners have used similar devices, their efforts have tended to be less sophisticated and less well organised. As an examination of these devices has already been made elsewhere (see Johnstone 2013a ), no further attention will be given to them here.
Euthanasia and its significance for nurses
Euthanasia and the so-called ‘right to die’ are not new issues for nurses. In Australia, one of the first articles addressing the subject was published as early as 1912 in the Australasian Nurses Journal . Reprinted from the British Medical Journal , the article contained concerns and viewpoints which remain current – including the question of whether euthanasia should be legalised.
Although euthanasia may not be a new issue for nurses in Australia, it has nevertheless become a more complex and significant one. For example, in 1996, Australia became the subject of international attention when it became the first country in the world to fully legalise active voluntary euthanasia. This followed the passage, in May 1995, of the Northern Territory’s controversial Rights of the Terminally Ill Act 1995 (NT) , which came into effect on 1 July 1996. Almost 1 year later, however, the Act was overturned by the Australian Federal government – although not before five people had sought assistance to die under the Act. Recognising the possible implications of Rights of the Terminally Ill Act for members of the nursing profession, the Royal College of Nursing, Australia (RCNA) (now the Australian College of Nursing (ACN)) took the unprecedented step of releasing for comment a discussion paper entitled Euthanasia: an issue for nurses ( Hamilton 1995 ). The RCNA received over 70 responses to this discussion paper from concerned and interested nursing organisations, groups and individuals from around Australia. The responses received represented nurses working in a variety of clinical areas and fields of nursing (including education) and reflected a wide diversity of knowledge, opinion, values and beliefs about euthanasia as well as the need for guidance on how best to respond the issue. Perhaps most confronting of all, however, was the emerging difficult question of whether the nursing profession should take a definitive stance in either supporting or opposing the legalisation of euthanasia and adopt a formal position statement clarifying its stance.
Recognising the complexity and perplexity of the issue, the RCNA subsequently commissioned, as part of its professional development series, a monograph entitled The politics of euthanasia: a nursing response ( Johnstone 1996a ). The purpose of this monograph was not to provide nurses with definitive answers to the difficult questions posed by the euthanasia debate. Rather, it was to advance a discussion that would enable nurses ‘to formulate their own thinking and viewpoints on the subject and to be able to contribute to broader professional discussion on the whole issue of the right to die’ ( Johnstone 1996b : 22). In July 1996, the RCNA also issued its first position statement on voluntary euthanasia and assisted suicide – subsequently revised and reaffirmed respectively in 1999 and 2006 ( RCNA 1996, RCNA 1999 , 2006). This position statement primarily focused on clarifying the illegal status of euthanasia / assisted suicide in Australia, acknowledging that there exists a diversity of moral viewpoints on the euthanasia issue, reminding nurses of their professional responsibility to be reliably informed about the ethical, legal, cultural and clinical implications of euthanasia and assisted suicide, and recognising and supporting the appropriateness of nurses taking a ‘conscientious’ position on the matter.
Significantly, in May 1996, less than 2 months before the Rights of the Terminally Ill Act 1995 (NT) came into effect, the then Nurses’ Board of the Northern Territory took the unprecedented step of formulating and ratifying a formal position statement on euthanasia (see Nurses’ Board of the Northern Territory Position statement on the nurse’s role in euthanasia , included in full as Appendix 5 in Johnstone 1996a ). This position statement was keyed to the Rights of the Terminally Ill Act 1995 (NT) and sought to clarify the role and function of nurses in relation to the Act’s provisions. Specifically, the position statement supported:
( Johnstone 1996a : 36)
the role of nurses assisting in the voluntary euthanasia of competent patients; and
the rights of nurses to conscientiously refuse to participate in the euthanasia of patients.
The position statement also outlined the obligations of nurses in regard to the ethical and legal aspects of euthanasia, employment policies, professional competence and education ( Johnstone 1996a : 36–7).
Currently, with the notable exception of the Australian State of Victoria, 4 it is an offence in Australian jurisdictions ‘to assist, encourage or aid a person to commit suicide or attempt to commit suicide’ ( Forrester & Griffiths 2015 : 247). Thus, although the term ‘euthanasia’ as such is not a legally recognised word for the purposes of criminal law, 5 the term ‘assisted suicide’ (aiding someone to die) is ( Forrester & Griffiths 2015 : 244). Similarly in New Zealand, in which, as in Australia, there have been convictions for assisting the suicide of another.
Emboldened by the passage of the Victorian legislation, proponents of euthanasia / assisted suicide in Australia speculate that it will only be a matter of time before euthanasia and assisted suicide will be legal in all jurisdictions in Australia.
Definitions of euthanasia, assisted suicide and ‘mercy killing’
The term euthanasia 6 is generally used to refer to an instance in which a legally competent patient / client makes an informed and voluntary choice to have a medically assisted death, explicitly requests assistance to die and gives an informed consent for the actual procedure of euthanasia to be performed. In short, the patient / client explicitly requests, and voluntarily consents to, a medical practitioner to administer a lethal substance (e.g. by intravenous injection) so as to bring about immediate death . This form of euthanasia is also sometimes called active voluntary euthanasia because: (i) it involves actively bringing about death (e.g. by the deliberate administration of a lethal injection), as opposed to passive euthanasia encompassing passively bringing about death (e.g. by wilfully withholding or withdrawing clinically assisted nutrition and hydration), and (ii) it is chosen voluntarily – that is, in a manner that is free of coercive or manipulative influences (as opposed to being imposed under duress or when unable or incapable of giving a free and informed consent). Euthanasia of the active voluntary type is also sometimes referred to as ‘consensual euthanasia’. This is generally contrasted with non-voluntary euthanasia (sometimes referred to as ‘non-consensual euthanasia’) as this type of euthanasia involves the act of killing a patient / client whose wishes cannot be known because of either immaturity, incompetence, or both.
Over the decades, the bioethics literature has variously drawn a distinction between six different types of euthanasia: (1) voluntary active euthanasia, (2) voluntary passive euthanasia, (3) involuntary active euthanasia, (4) involuntary passive euthanasia, (5) non-voluntary active euthanasia and (6) non-voluntary passive euthanasia. The six types of euthanasia just outlined can be expressed diagrammatically, as shown in Fig. 10.2 .
In the case of voluntary euthanasia , as already stated, a fully competent patient makes an informed and voluntary decision to have a medically assisted death, asks for assistance to die and gives an informed consent for the actual procedure of euthanasia to be performed. Involuntary euthanasia (or non-consensual euthanasia), in contrast, involves the exact opposite – namely, killing a patient without the patient’s informed consent and / or contrary to that patient’s expressed wishes (where these are known or could be known). The involuntary killing of patients as part of the Nazi medicalised killing programs during World War II is an example of this. Non-voluntary euthanasia (also a form of non-consensual euthanasia) stands in contrast again and involves the act of killing a patient whose wishes cannot be known because of either immaturity or incompetency, or both. As McGuire (1987) explains, whereas the term ‘involuntary’ implies an action which is carried out against the wishes of the patient, ‘non-voluntary’ simply implies that there is no voluntariness – in the sense that the patient is not capable of either denying or giving consent (as in the case of the permanently comatose or brain-injured patient). In the case of the permanently comatose, McGuire contends, euthanasia would be ‘neither voluntary nor involuntary, but is simply non-voluntary’ ( McGuire 1987 : 12).
Despite the above categorisations, contemporary debate on the legalisation of euthanasia as a medical procedure primarily has as its focus just two forms: voluntary euthanasia and non-voluntary euthanasia. The reasons for this are threefold:
The distinction between active and passive euthanasia is held to be unsustainable and effectively collapses once it is admitted that, whether actively administering a lethal substance or passively withholding a life-prolonging therapy (including food and fluids), the intention is still the same – namely, to hasten the foreseeable death of the patient.
Involuntary euthanasia (euthanasia against a person’s will) is regarded by proponents of active voluntary euthanasia as an act that could never be justified on moral grounds and hence as unconscionable and beyond the pale; accordingly there is nothing to debate (both proponents and opponents are agreed: involuntary euthanasia is wrong and impermissible).
Non-voluntary euthanasia (euthanasia of entities without the capacity to request or consent to euthanasia – e.g. children and adults who are cognitively impaired, have a serious brain injury, etc.), in contradistinction to involuntary euthanasia, is regarded by proponents of active voluntary euthanasia as an act that could be justified on moral grounds (e.g. the alleviation of unbearable and intractable suffering) and hence morally worthy of debate as to its moral permissibility or impermissibility.
The term ‘ assisted suicide ’ (and variations thereof, e.g. physician-assisted suicide (PAS), medically assisted suicide (MAS), medically assisted death (MAD)) is sometimes used interchangeably with the term euthanasia, even though this is not, strictly speaking, correct. With assisted suicide, a qualified medical practitioner supplies the patient / client with the means of taking his / her own life (e.g. provides a prescription for a lethal dose of drugs), but, unlike in the case of euthanasia, it is the patient / client (not the doctor) who acts last . To put this another way, in the case of euthanasia it is the qualified medical practitioner who kills the patient / client, whereas in the case of assisted suicide the patient / client kills him- or herself. There is a presumption here that, because the patient is the person ‘who acts last’, assisted suicide is more defensible than and hence preferable to active euthanasia since:
the willingness by the patient to action their own suicide ‘gives compelling evidence of the patient’s desire to die’ ( Dixon 1998 : 29)
the medical practitioner is able to gain some ‘moral distance’ and hence be exculpated from full moral responsibility for the act since his or her finger is ‘not on the button’ ( Johnstone 1999a : 282).
A notable US example of assisted suicide can be found in the Oregon State’s Death with Dignity Act (known as ‘Measure 16’), which, upon coming into effect in 1997, legalised physician-assisted suicide in the form of prescribing a lethal dose of medication, but not active voluntary euthanasia ( Magnusson 2002 : 64). (Oregon has the distinction of being the first US state to legalise assisted dying ( Parliamentary Library & Information Services, Department of Parliamentary Services 2017 : 9).)
A third terminology which has found usage in discussions on euthanasia is that of ‘ mercy killing ’. Although this term is also sometimes used interchangeably with the term ‘euthanasia’ it can nevertheless be distinguished from euthanasia on a contextual basis. Specifically, as Glick explains ( 1992 : 81–2):
Mercy killing is not the same as voluntary active euthanasia since many killings are committed without patient request or consent – typically an elderly husband shoots his terminally ill and unconscious or Alzheimer’s disease-stricken wife. But the cases almost always exhibit wrenching long-term personal suffering and sacrifice and financial ruin … They evoke sympathy for both killer and victim and perpetuate interest in the legalisation [sic] of voluntary active euthanasia, which some believe might eliminate the compelling need that desperate people feel for killing their hopelessly ill spouses.
Views for and against euthanasia / assisted suicide
Like other controversial bioethical issues, euthanasia and assisted suicide have proponents and opponents. Attitudes towards them range from liberal and moderate acceptance to absolute conservative prohibition. It is to examining some of the various viewpoints for and against euthanasia and assisted suicide that this discussion will now turn.
Views in support of euthanasia
Those who support euthanasia typically take the view that it is morally wrong to allow people to suffer unnecessarily. Popular views traditionally advanced in support of euthanasia (and, in particular, in support of legalising it) fall under four main augmentative categories:
(adapted from Beauchamp & Perlin 1978 : 217).
arguments from individual autonomy and the right to choose
arguments from the loss of dignity and the right to the maintenance of dignity
arguments from the reduction of suffering
arguments from justice and the demand to be treated fairly.
A fifth and controversial category of argument raised in support of euthanasia is that, in some instances, patients have an altruistic ‘duty to die’ ( Cooley 2007 ; Hardwig, 2000, Hardwig, 2014 ) and, furthermore, that it might even be a violation of a person’s ‘freedom of conscience’ not to respect this duty ( Lewis 2001 : 60–2).
Arguments from individual autonomy and the right to choose
It is generally accepted that people have a right to choose, and, as discussed in Chapter 3 , the moral principle of autonomy demands that people’s choices ought to be respected, even if we consider them to be mistaken or foolish. The only grounds upon which a person’s autonomous choices can be justly interfered with are if they stand to impinge seriously on the significant moral interests of others. Proponents of voluntary euthanasia argue that the right to choose includes the right to choose death (reframed as ‘the right to die’). Given the ‘right to die’, this means that others (including the state) should not interfere with a person’s decision to die, and in some instances may even entail a positive duty to assist a person to die – as in cases where a person desires death but is physically unable to end his or her own life. Voluntary euthanasia is thus thought to be justified here on grounds of autonomy and the demand to respect a person’s autonomous wishes.
Arguments from the right to dignity
Related to the demand to respect a person’s autonomous choices is the further demand to respect and maintain a person’s dignity. Advances in medical technology have increased the capacity of the medical profession to prolong a person’s life using clinically assisted means. Its methods, however, are not always humane, and can seriously erode a person’s self-concept, character, sense of self-worth and self-esteem, and the like. In instances of dignity violations euthanasia is a justified option.
Arguments from the reduction of suffering
Suffering may be defined as a state of severe distress that people experience when some crucial aspect of themselves, their being or their existence is threatened ( Cassell 1991 ; Kahn & Steeves 1986 ). It is important to clarify that, although pain is a major cause of suffering, suffering itself is ‘not confined to physical symptoms’ (i.e. people can be suffering yet not be in physical pain) ( Cassell 1991 ). Suffering may, for example, derive from other aspects of ‘personhood’ – including the cognitive, emotional, spiritual, social and cultural aspects of a person’s identity – and not just their physical aspect. Moreover, when any one or a combination of these aspects is threatened, a person may simultaneously give cognitive, emotional, spiritual, social and other (cultural) meanings to that threat and respond accordingly.
Suffering is generally regarded as morally unacceptable and, as discussed in Chapter 3 , morality demands that, where possible, people across the life span should be spared or prevented from suffering unnecessarily. In cases where patients’ suffering is intense, protracted, unendurable and intractable, it seems cruel to deny them the choice of death as a means of release from their suffering. Euthanasia in these kinds of cases is said to be justified on grounds of ‘prevention of cruelty’ or ‘mercy’ ( Beauchamp & Perlin 1978 : 217). It is also thought to be justified on the grounds that people have the indisputable right to judge their suffering as unbearable, and the concomitant right to request euthanasia to end their unbearable suffering (see, for example, Admiraal 1991 : 11). This, in turn, is grounded in the reality that, despite the achievements of modern medicine, doctors still cannot relieve all suffering (notwithstanding its highly subjective nature, making it difficult for clinicians to accurately access and treat ‘suffering’ ( Bozzaro & Schildmann 2018 )). Due in no small way to disparities in pain management and palliative care across and even within different countries, people’s pain states are also not always successfully managed, despite research showing marked improvements in pain management strategies ( Are et al 2017 ).
Arguments from justice and the demand to be treated fairly
It is argued that everybody is entitled to be treated fairly and to share equally the benefits and burdens of life. To deny patients the option of being spared intolerable and intractable suffering is to treat them unfairly, and to make them carry a burden which others do not have to carry. Furthermore, to deny patients the right to die (i.e. in a manner and time of their choosing) is to impose unfairly on them the values of others. Only patients, or those intimately involved with them (e.g. family and friends), can judge what is in their own best interests. For others to deny patients the right to choose death is therefore to violate unfairly these patients’ autonomy, dignity and entitlement to be spared the harms that will flow from experiencing intolerable and intractable suffering. Where euthanasia is the only thing that can end patients’ intolerable and intractable suffering, it stands as a morally just alternative.
Arguments from altruism and the ‘duty to die’
It is argued that in certain circumstances (such as in the case of old age, chronic illness, when medical treatment is futile, or when developing a ‘rationality-eroding condition’ such as dementia) it may be a person’s duty to volunteer for euthanasia ( Budić 2018 ; Cooley 2007 ; Hardwig 2014 ). Budić (2018) , for example, states:
I see no reason in sustaining someone’s biological life if that being will no longer live as a person with moral life, and at the same time they may contribute to loss or poor quality of life of others to whom they may pose a burden (p 112).
One commentator argues controversially that it might also be a violation of a person’s right to freedom of conscience to interfere with the exercise of their duty to die ( Lewis 2001 : 60–2).
In situations where a person’s primary caregivers are burdened to the point where they cannot live their lives fully and are themselves beginning to suffer as a result of their burden of care, some argue that euthanasia is not only permissible, but required and ‘simply the only loving thing to do’ ( Hardwig 2014 : 104). In defence of this stance, Hardwig contends:
I may well one day have a duty to die, a duty most likely to arise out of my connections with my family and loved ones. Sometimes preserving my life can only devastate the lives of those who care for me. I do not believe I am idiosyncratic, morbid or morally perverse in believing this. I am trying to take steps to prepare myself mentally and spiritually to make sure that I will be able to take my life if I should one day have such a duty … Tragically, sometimes the best thing you can do for your loved ones is to remove yourself from their lives. And the only way you can do that may be to remove yourself from existence. ( Hardwig 2014 : 104, 105)
Counter-arguments to views supporting euthanasia
People who are opposed to euthanasia tend not to be persuaded by these kinds of arguments. In responding to pro-euthanasia arguments, opponents tend to take two main approaches: (1) to assert a number of counter-claims and counter-arguments against the views put forward in support of euthanasia; and (2) to assert a number of distinctive arguments against euthanasia.
Autonomy and the right to choose death
The moral principle of autonomy is well established in Western moral thinking. Nevertheless, it is not without limits (see, for example, the comprehensive analysis of the limits of autonomy in assisted suicide by Campbell (2016) ). Whether the principle of autonomy was ever meant to stretch so far as to impose a moral duty on others (e.g. a doctor or a nurse) to comply with a patient’s request for euthanasia – to intentionally and actively assist that patient to die – is another question. If complying with a patient’s request for euthanasia has the foreseeable consequence of harming or affecting prejudicially the significant moral interests of others (e.g. the doctors or nurses receiving the request, or the patient’s family and friends), there is considerable scope for arguing that the doctors and nurses in question have no duty to perform euthanasia, no matter how autonomous the patient’s request for it. Further, given the complex nature of the ethics and politics of euthanasia, it is rather simplistic to hold that euthanasia can be justified on the grounds of patient autonomy alone without taking into account other important moral considerations (including the autonomy interests of others) which might also have a significant bearing on a patient’s choosing euthanasia / assisted suicide, and the supposed ‘duty’ of others to provide it ( Johnstone 2013a ).
Appeals to autonomy to justify euthanasia and assisted suicide are, however, problematic on another account. Paradoxically, acts of euthanasia / assisted suicide carried out in response to a patient’s autonomous request destroy the very basis of their justification. According to Safranek (1998) , whereas autonomy is necessary for the existence of a moral act, it is not sufficient to justify an act. As he explains (p 34):
The justification of the act will hinge on the end to which autonomy is employed: if for a noble end, then it is upheld; if depraved, then it is proscribed. It is not autonomy per se that vindicates an autonomy claim but the good that autonomy is instrumental in achieving. Therefore an individual cannot invoke autonomy to justify an ethical or legal claim to acts such as assisted suicide; rather he [or she] must vindicate the underlying value that the autonomous act endeavours to attain.
Since autonomous requests for euthanasia and assisted suicide are socially threatening (they threaten human survival), it is appropriate that the autonomy of individuals requesting such threatening acts be circumscribed – at least until such time as it is clarified and agreed just what kinds of ‘good’ autonomy should be invoked to achieve ( Safranek 1998 : 34; see also Campbell 2016 ).
It is important to note here that autonomy discourse is extremely powerful, making challenges to it difficult. So successful has been the promotion of autonomy, and the assumed sovereign rights of individuals to exercise self-determining choices, that the imperatives of these things – especially in the case of euthanasia / assisted suicide – have come to seem ‘so self-evident to all “right thinking people” that to question them seems almost perverse’ ( Moody 1992 : 50). Those who do question them risk being publicly ridiculed and dismissed by opponents as ill-informed and ‘illogical’, or worse as being ‘insulting’ to people who are vulnerable and oppressed ( Johnstone 2013a ).
Dignity and the right to die with dignity
Dignity and dying with dignity does not necessarily entail choosing death over the clinically assisted prolongation of life. The demand to respect and maintain a person’s dignity might equally entail respect for a person’s autonomous wish that ‘everything possible be done’ to prolong or sustain her or his life – and to sustain a sense of hope that is fundamental to living that life meaningfully, even though (and when) dying. Here, it is important to understand that the ethical controversies surrounding the care of dying patients are not just about management at a technological, medical or institutional level. Rather, as Campbell (1992 : 255) points out, they should also be seen ‘as a sign of a deeper crisis of meaning in our culture’, and as an indication of how impoverished our society has become in ‘assessing the significance of suffering, dying and death as part of a whole human life’. Given this, as Campbell goes on to explain (p 255):
The emergence of the individual asserting inviolable rights to self-determination becomes intelligible in this void as a way to create meaning through a freely-chosen style of life and an authentic manner of death.
One way to respond to this crisis of meaning is to ‘provide compassionate presence to the sufferer’, not to ‘end the suffering by killing the sufferer’ ( Campbell 1992 : 269, 276). Another is to deny altogether the philosophical bases for the so-called ‘right to die’ ( Kass 1993 ).
The idea that euthanasia imbues death with dignity is problematic on another account – notably, that it stands as a contradiction in terms. As has been argued elsewhere, this is because ‘there can be no dignity in death since the dignity or worth or self-esteem of an individual is rendered void by death’ ( Johnstone 2013a : 165). It is for this reason that ‘dignity’ per se can be neither promised nor delivered, either by the self (‘self-deliverance’) or by others (physicians / nurses) willing to provide assistance to die. Thus claims that euthanasia (or its counterpart, physician-assisted suicide) ipso facto ‘endows a death with dignity’ and that dignity ‘depends on choice and control’ cannot be sustained ( Callahan 2009 ). In the final analysis, ‘death can never be imbued with dignity since death itself calls into question the very meaning and value of human life’ ( Johnstone 2013a : 166).
Suffering and the demand to end it
Suffering is not just a medical problem; it is also an existential problem involving profound questions concerning the meaning and purpose of human life and destiny ( Amato 1990 ; Bozzaro & Schildmann 2018 ; Campbell 1992 ; Klemke 1981 ; Neimeyer 2001 ; Spelman 1997 ; Starck & McGovern 1992 ). To ‘end suffering by killing the sufferer’ is, to borrow from Campbell (1992 : 276), to misunderstand ‘both suffering and ourselves in a way that threatens our moral integrity’. The ‘suffering argument’ also seems to beg and leave unanswered the question of whether death can (and does) meaningfully ‘relieve’ suffering; as pointed out elsewhere ‘while euthanasia certainly kills the sufferer , this is not the same as relieving suffering per se since there is no longer a living being around to experience and give testimony to the relief that has ostensibly been bestowed’ ( Johnstone 2013a : 92).
Justice and the demand to be treated fairly
To deny patients the right to choose treatment – including the clinically assisted prolongation of ‘hopeless life’ – is as unjust as to deny patients the right to choose death. Denying patients’ requests for ‘everything possible to be done’, where this conforms with their notions of dignity, meaning, value and quality of life, is to impose unfairly on them the values of others. As in the case for euthanasia, only patients (or those close to them) can judge what is in their best interests, and they must be permitted to make these judgments.
Altruism and the ‘duty to die’
Not all agree that people with certain conditions have an altruistic ‘duty to die’. Cholbi (2015 : 607), for example, argues against the proposition that people with dementia or other ‘rationality-eroding conditions’ have a duty to die, on the following grounds: first, that there is no duty to self-destruct when anticipating the development of or developing a rationality-eroding condition such as dementia, and, second, that it is a mistake to assume that duties are owed to people only while they are free of a rationality-eroding condition, such as dementia.
Others argue that, in some circumstances, people may have a conscientious ‘duty to live’ in order to spare the pain of their grieving loved ones, who desire their ill loved one to live ‘as long as possible’. Being dependent on others is not necessarily being a burden on them. Even if dependency does become burdensome – either for the dependent person or her / his carers – it is not clear how, if at all, this gives rise to a so-called ‘duty to die’. At best, it may only substantiate ‘our basic human predicament’ that:
the very experience of illness, and more fundamentally the process of aging that inevitably culminates in death, not only reveals our shared vulnerability and dependency, but also that we are all subject to some kind of ultimate powers beyond our control. Through our knowledge and technology we may aspire to a mastery of nature and the immortality of the gods, but we continually receive reminders of our dependency and finitude. From this it follows that any control we assert over our dying is already limited, and that dependency and dignity are not mutually exclusive. ( Campbell 1992 : 270)
At worst, to embrace a ‘duty to die’ may be to embrace an all-pervasive sense of pessimism and hopelessness which would blind people to understanding that ‘the lives of even the terminally ill are precious and matter, right up to the last second of breath’ (Mirin, reported by Gibbs 1993 : 53). It may also risk blinding people to the fundamental insight which has been articulated so well by the late French philosopher and feminist Simone de Beauvoir (1987 : 92) that, although all people must die, death is still an accident, and that, even if people know this and consent to it, death remains ‘an unjustifiable violation’ ( de Beauvoir 1987 : 92).
Specific arguments against euthanasia
Specific arguments commonly raised against euthanasia (and the need to legalise it) include:
arguments from the sanctity-of-life doctrine
arguments from prognostic uncertainty and misdiagnosis
arguments from the risk of abuse
arguments from non-necessity
arguments from discrimination
arguments from irrational or mistaken or imprudent choice
the ‘slippery slope’ argument.
Arguments from the sanctity-of-life doctrine
A strong conventional argument raised against euthanasia draws on the tenets of the sanctity of life , a doctrine which derives from Roman Catholic moral theology. The basic premise of the sanctity-of-life doctrine is that, as human life is sacred and inviolable, nothing (not even intolerable and intractable suffering) can justify taking it. Sanctity-of-life arguments against euthanasia tend to take the following form:
human life is sacred, and taking it is wrong
euthanasia is an instance of taking human life, therefore
euthanasia is wrong.
Whether human life is sacred, and whether taking it is always wrong, is, however, a matter of long-standing philosophical controversy ( Kuhse 1987b ). If applied consistently, then any form of killing (including killing in self-defence, ‘just wars’ and state-sanctioned capital punishment for heinous crimes) would, under the sanctity-of-life doctrine, all be deemed morally wrong.
Arguments from prognostic uncertainty and misdiagnosis
An argument often used against euthanasia is that which speaks to the risks of prognostic uncertainty, misdiagnosis and the possibility of recovery. Doctors diagnosing life-threatening medical conditions are not infallible and can (and do) make mistakes. Furthermore, patients can sometimes recover spontaneously and unexpectedly from devastating and / or terminal illnesses – for reasons not always understood or accepted by medical scientists. A poignant example of this can be found in the case of the noted best-selling author of The women’s room , Marilyn French. In 1992, French was diagnosed belatedly with metastasised oesophageal cancer. Her treating doctor at the time was extremely pessimistic about her prognosis, advising French that she had ‘terminal cancer, that there was no hope for cure or remission, and that [she] was not to think of that’ ( French 1998 : 34). Of this moment, French (1998 : 34) writes:
What was he saying? Hope, but not too much? Hope, but don’t expect a cure? What was I to hope for, then? He emphasised that mental attitude was crucial to anything they did. I spoke up, assuring him that I had strong powers of concentration and that I wanted to hope … But he wasn’t listening; he was talking over me. There was no hope for a cure, he said …
French, however, rejected the pessimism of her physician and simply ‘decided’ to survive. Accordingly she ‘twisted’ what medical information she had on oesophageal cancer to her purpose. For example, she seized on an article that stated ‘one in five people treated with extreme measures survive non-metastasised esophageal cancer for five years’ and decided those figures applied to her (despite her metastases). In French’s words, ‘I decided I had one chance out of five. I simply made it up’ ( French 1998 : 35). By the end of that day, she had obliterated the word ‘terminal’ from her memory; and within a couple of days, she had increased her odds of survival to one in four and had ‘repressed any sense that [she] was deluding herself’ ( French 1998 : 35–6). After going through what French describes as a ‘season in hell’ involving years of pain, dread and severe illness, she reached ‘a plateau of serenity’ ( French 1998 : 237). At the time of writing an autobiographical account of her experience of survival (published in 1998), French stated that, although suffering from a number of symptoms related to the damage caused to her bodily systems by the intense radiotherapy and chemotherapy treatment she had received, she was feeling ‘relatively well’ and secure in the knowledge that the aches and pains she felt were not an indication of cancer (which had been cured).
There is also the possibility that new cures might be found for certain life-threatening conditions. For example, stem cell research and nanotechnology regenerative medicine research are heralding a new era of medicine, together with renewed hope for the remedial treatment (including permanent cures) of such conditions as spinal cord injuries, diabetes, Parkinson’s disease and Alzheimer’s disease. If a cure was found for the serious medical conditions from which people suffer (e.g. conditions that are incurable, progressive and will ultimately cause premature death) then people living with these conditions might, for example, not request assistance to die, as they are now doing.
Finally, an important example of how a misdiagnosis can misinform the choice of euthanasia as a ‘treatment option’ can be found in the much-publicised Australian case of Nancy Crick. Mrs Crick, a 69-year-old grandmother, died in a blaze of media publicity after having ‘one last smoke, a sip of Bailey’s Irish Cream liqueur and a drug overdose’ ( Griffith 2002 : 4; see also Davies 2002 ; Hudson 2002 : 1). Her death (witnessed by 21 relatives who were at her bedside) followed a campaign by pro-euthanasia supporters ‘to allow Mrs Crick, who had suffered bowel cancer, the right to die at a time of her own choosing’ ( Franklin et al 2002 : 1; see also Hudson 2002 ). The case took an unexpected turn after her death when a forensic pathology report following autopsy revealed no evidence of bowel cancer ( Franklin et al 2002 ).
What is of concern about the euthanasia option (and what the above case highlights) is that once euthanasia is performed it cannot be reversed. Irreversible death in this instance is a catastrophic event that could otherwise have been prevented. The risk of error is thus unacceptable and overrides any other considerations which might favour euthanasia in a particular case.
Arguments from the risk of abuse
The possibility of euthanasia being abused is an argument frequently raised against euthanasia. Some people are especially concerned about legislation giving one group (notably doctors) the power to terminate life. Such power could be particularly problematic in contexts heavily influenced by coercive (negative) social and political processes. For those opposed to euthanasia, the risk of abuse is unacceptable and underscores the need to reject the moral permissibility (as well as the legalisation) of euthanasia.
An instructive example of how doctors might be seen as ‘abusing’ their lawful authority to perform euthanasia can be found in a 2013 Belgium case involving a 44-year-old female (born Nancy Verhelst) with a gender identity disorder who successfully sought euthanasia following botched sex-realignment surgery. Although the 44 year old (known as Nathan Verhelst after his sex-realignment treatment) was not terminally ill, he was deemed by his consulting doctors to be experiencing ‘unbearable psychological suffering’ and thus as meeting the criteria to be euthanised ( Mortier 2013 ). The journalist reporting the case observed:
some doctors have discovered an easy way to dispose of some of their medical failures. They can kill them. Legally. […] Nancy Verhelst’s doctors – her psychiatrist, urologist, gynaecologist, and cosmetic surgeon – had destroyed her life. But they weren’t the ones who paid the price. She did. ( Mortier 2013 : 1)
Arguments from non-necessity
Some contend that it is simply ‘not necessary’ to legislate or to support euthanasia. The reason commonly offered (particularly by those working in palliative care) is that the medical, nursing and allied health professions have been increasingly successful over the years in allowing patients to ‘die with dignity’. Furthermore, euthanasia is not and should not be regarded as a substitute for the proper provision of palliative care services. Since patients who have access to proper palliative care are ‘dying well’ and are already having ‘good deaths’, why take the matter any further?
Arguments from discrimination
It is sometimes suggested that euthanasia entails blatant discrimination, notably by treating some lives as less worthy than others. Some disability advocates have been particularly troubled by the use of the criteria ‘competent adults who are terminally ill or “severely disabled” [quotation marks original]’ in physician-assisted suicide proposals and legislation ( Scoccia 2010 : 479). Others worry that, were euthanasia and assisted suicide to be legitimated, people with disabilities will be ‘pressured to end their lives prematurely’ ( Wicks 2015 : 3). Also of concern is that doctors may not have a clear understanding of the perspectives of people with disabilities relating to their health and care and may wrongly conclude that, in the case of treatment refusals (a common theme in disability care), euthanasia or assisted suicide is the only option ( Tuffrey-Wijne et al 2018 ). By this view, just as any other act of discrimination is morally offensive, so too is euthanasia.
Arguments from irrational, mistaken or imprudent choice
It is sometimes argued that any person requesting euthanasia is not really exercising a rational or prudent choice, and that, for this reason, among others, an individual’s request for euthanasia should not be taken seriously. One of the staunchest supporters of this view is the Vatican. In its 1980 Declaration on euthanasia , it states (1980: 7):
The pleas of gravely ill people who sometimes ask for death are not to be understood as implying a true desire for euthanasia; in fact it is almost always a case of an anguished plea for help and love.
There is also the risk that a person’s lawful representative might ‘get it wrong’. Just as someone who is in unbearable and untreatable misery might make irrational or imprudent choices, so too might their proxies – who, even though well intended, might nevertheless be misguided in their beliefs and actions. For example, Professor Peter Singer, one of the world’s most controversial philosophers and foremost advocates of euthanasia, has long argued that it is morally justifiable and even morally desirable (on utilitarian grounds) to kill severely disabled newborns and other ‘non-persons’ (e.g. children, adults and older people who, because of being brain injured or suffering from a severe organic brain disease such as end-stage Alzheimer’s, are incapable of making rational and autonomous life choices) ( Kuhse & Singer 1985 ; Singer 1993 ; Wikipedia 2018f ). In 1999, however, it was reported that Professor Singer’s beliefs about euthanasia and the grounds upon which euthanasia might be justified and / or morally required in certain cases were seriously challenged by a personal tragedy – notably, that of his mother becoming a ‘non-person’ (by his own definition) on account of developing advanced Alzheimer’s disease ( Churcher 1999 ). When asked whether his personal situation would cause him to abandon his beliefs, he is reported to have replied ( Churcher 1999 : 19):
I think this has made me see how the issues of someone with these kinds of problems are really very difficult. Perhaps it is more difficult than I thought before, because it is different when it’s your mother.
The question of whether a death request is necessarily the product of irrational or imprudent or mistaken choice, however, is likely to remain a matter of controversy (see also discussion on the ethics of suicide in Chapter 8 ).
‘Slippery slope’ argument
A core anti-euthanasia argument is the ‘ slippery slope ’ contention. As in the case of the abortion debate, slippery slope arguments hold that, once the taking of human life is permitted under a given policy initiative, there will be a decline in society’s moral standards and a slippery slope: it will not be long before the taking of life will be permitted under other policy initiatives. For example, if abortion is permitted today, infanticide will be permitted the next day, and euthanasia the next.
In the case of euthanasia, a slippery slope argument might be structured as follows: once euthanasia is allowed for consenting adults, eventually it will be permitted for unconsenting and non-consenting adults (e.g. those who are cognitively impaired, who have a catastrophic brain injury, who are believed to be permanently comatose), and then those who have not reached adulthood (e.g. infants and children). Likewise, once euthanasia is permitted for people with serious somatic life-threatening or life-ending illnesses, it will soon be permitted for people with less-serious and non-life-threatening or non-life-ending and non-somatic conditions. Then, once permitted for people who currently meet lawful criteria to be euthanised, eventually it will also be permitted for people who ‘anticipate’ meeting the criteria at some future point in time. Given this risk, euthanasia should never be justified.
There are many instructive examples of what might be construed as a slide down the slippery slope. Notable among these (and arguably among the first to receive public attention) is the 1991 Dutch case involving a psychiatrist who medically assisted the suicide of a female patient who was suffering emotionally but who was otherwise physically healthy; that is, she had no somatic illness ( Klotzko 1995 ; Ogilvie & Potts 1994 ). Although deemed by her psychiatrist not to be suffering from a psychiatric illness, the patient was nevertheless regarded as being clinically depressed. The social history of this woman is as follows and worth quoting at length:
She was a 50-year-old social worker. She was also a painter in her spare time. She was divorced. She had been physically abused by her former husband for many years. She had two sons. One son, Peter, died by suicide in 1986, at the age of 20. She then underwent psychiatric treatment for a marriage crisis following his suicide. At the time, she strongly wished to commit suicide, but decided that her second son, Robbie, age 15, needed her as a mother. Her son, Robbie, died of cancer in 1991, at the age of 20. Before his death, she decided that she did not want to continue living after he died. She attempted suicide, but did not succeed. On July 13, 1991, she wrote to a social worker at the academic hospital where her second son died of cancer; she asked for a contact and for pills, so that she could kill herself. She had bought a cemetery plot for her sons, her former husband, and herself; her only wish was to die and lie between the two graves of her sons. ( Klotzko 1995 : 240–1)
Subsequently, the patient wrote to Dr Boudewijn Chabot, a psychiatrist, requesting assistance to die. On 28 September 1991, Dr Boudewijn Chabot, after assessing the patient, provided her with a lethal dose of medication and remained with her while she swallowed the medication and died ( Klotzko 1995 : 239). He subsequently reported the death to the relevant authorities, following which he was prosecuted by the Supreme Court of the Netherlands. On 21 June 1994, in what has been described as a ‘historic ruling’, the Supreme Court of the Netherlands found Dr Chabot guilty, but declined to punish him. In reaching its verdict, the court rejected the contention that ‘help in assistance with suicide to a patient where there is no physical suffering and who is not dying can never be justified’ ( Ogilvie & Potts 1994 : 492). As Ogilvie and Potts report (p 492), the court:
explicitly accepted that euthanasia and assisted suicide might be justified for a patient with severe psychic suffering due to a depressive illness and in the absence of a physical disorder or terminal condition.
Significantly, the court found that Chabot’s guilt lay not in his providing a medically assisted death to his patient, but in his failure to obtain a second psychiatric opinion on the woman, and his failure to secure independent expert evidence that an ‘emergency situation existed’ – regarded as providing ‘the normal mitigating defence in such cases’ ( Ogilvie & Potts 1994 : 492).
Responses to the Chabot case have been mixed. Some have cited the case to underpin their sympathy for the view that ( Ogilvie & Potts 1994 : 493):
in severe and persistent depressive illness, when all appropriate physical treatments, including polypharmacy, electroconvulsive therapy, and psychosurgery, have apparently been exhausted, voluntary euthanasia may sometimes seem to be as justifiable an option as it does in intractable physical illness.
Others, however, take the Chabot case as underscoring the fears of those advancing the slippery slope argument. As Ogilvie and Potts (1994 : 493) point out, the Chabot case of ‘ psychiatric euthanasia ’ has demonstrated that the ‘slippery slope’ exists. They conclude:
However well any legislation is hedged about with guidelines and protections against abuse, the slippery slope predicts an inevitable extension of those practices to other, more vulnerable, groups, such as those who are demented, mentally ill, chronically disabled, frail, dependent, and elderly – and perhaps even simply unhappy.
Since the Chabot case, other examples have gradually emerged of the slippery slope leading to an ‘inevitable extension’ of euthanatic practices. For example, in the Netherlands, under its 2002 euthanasia laws, children of 12–18 years of age can legally request euthanasia; in addition, since 2005, the neonatal euthanasia of infants less than 1 year old has also been permitted under a policy known as ‘The Groningen Protocol’ ( Brouwer et al 2018 ; Cuman & Gastmans 2017 ). There is now a move by several parent groups and Dutch paediatricians to extend the age criterion of paediatric euthanasia to include children who are between 1 and 12 years of age, arguing that the exclusion of this age group is unreasonable ( Brouwer et al 2018 ).
Another example of ‘a slide down the slippery slope’ from adult euthanasia to child euthanasia can be found in the 2014 amendment of Belgian legislation making it ‘the first country in the world to remove any age restrictions on euthanasia’ paving the way for terminally ill children with a desire to end their lives to be euthanised ( Cuman & Gastmans 2017 ; McDonald-Gibson 2014 ; Raus 2016 ; Samanta 2015 ). Belgium has also led the way in enabling pre-emptive euthanasia in cases of ‘non-terminal conditions’. In 2013, for example, identical twins Mark and Eddy Verbessem were lawfully euthanised by their doctors. Born deaf, the 45-year-old brothers lived together and worked as cobblers. They learned, however, that they would soon go blind from glaucoma. Reported to be unable to bear the thought of ‘never seeing one another again’, the brothers successfully requested ‘pre-emptive’ euthanasia – euthanasia that pre-empted their actually developing the life-conditions they feared ( Waterfield 2013 ).
The practice of pre-emptive euthanasia, which may also take the form of advance euthanasia directives, is not new. In the Netherlands, for example, advance euthanasia directives have long been permitted on grounds of a person’s ‘unbearable and hopeless suffering’ ( Hertogh 2009 ; Rurup et al 2006 ; van Delden 2004 ). In some cases, as in the Verbessem brothers case, the mere anticipation of suffering by a person together with his or her desire for death as a ‘preemptive strike against the terrors of dying’ has also been accepted as a circumstance under which euthanasia may be performed by a qualified medical practitioner ( ten Have 2005 : 163). ‘Typical’ cases put forward in debate about the feasibility of advance euthanasia directives have involved patients with dementia ‘especially when they have become so demented that admittance to a nursing home is required’ ( van Delden 2004 : 447; see also Johnstone 2013a ).
Some argue that the evidence of ‘good practices’ sliding down the slippery slope is at best limited and that slippery slope arguments overall ‘often make distinctly unhelpful contributions to debates over legalisation’ ( Lewis 2007 : 205). This, however, is not entirely correct. A 2012 analysis by Canadian legal scholar Mary Shariff of the possible slippery slides in jurisdictions that have permissive assisted death laws has shown, for example, that there have been demonstrable shifts in the ‘means, justification and logic’ allowing euthanasia and assisted suicide to be made available to individuals. Shariff’s comprehensive analysis shows that this shift encompasses allowing euthanasia / assisted deaths for those who:
( Shariff 2012 : 147)
have terminal or non-terminal conditions,
have physical or non-physical illnesses,
are conscious or unconscious,
have competence or incompetence, or
have reached or not reached adulthood.
Arguably one of the most confronting slides down the slippery slope, however, has been the growing movement to allow people who are otherwise healthy but are simply ‘tired of life’ (also called ‘life fatigue’) to qualify for assisted deaths. For example, in an early article on the subject, Huxtable and Möller (2007) cite the Dutch case of Brongersma, an elderly man who was ‘tired of life’ and who had his suicide assisted by his general practitioner. Since this case was published there has been a burgeoning of literature on the subject arguing in favour of the extension of euthanasia laws to include ‘life fatigue’ as an eligibility criterion (see, for example, Bolt et al 2015 ; Florijn 2018 ; Miller 2016 ; van Wijngaarden et al 2015 ). As with the abortion debate, terminology is also emerging as an important issue. Of significance is the shift in using the term ‘tired of life’ to terms that might be regarded by some as less provocative – i.e. ‘a sense that life is completed and no longer worth living’ (see, for example, Florijn 2018 ; Miller 2016 ; van Wijngaarden et al 2015 ).
Closer to home, the Australian-based organisation Exit International (a self-described euthanasia advocacy organisation; see below) has been at the forefront of advocating the assisted deaths of ‘healthy people’ who have become tired of life (‘life tired’). Its stance is dramatically depicted in the controversial iKandy Films documentary (directed by Janine Hosking and sold through Exit International) Mademoiselle and the doctor (2009) . This documentary depicts the story of Lisette Nigot, a healthy 79-year-old woman who wanted to take her own life because she was ‘tired of life’.
Another example of the slide down the slippery slope is the move to ‘demedicalise’ euthanasia, with its proponents calling for legislative reform that will allow non-physicians to provide the means of an assisted death for people with and without a medical diagnosis ( Hagens et al 2017 ). Their advocacy for reform relates to three key areas, notably to remove legislative criteria mandating:
(1) the prerequisite of a medical condition in granting assistance in dying, (2) the role of the physician in distributing or administering the means to end life, and (3) the presence of the physician during the termination of life. ( Hagens et al 2017 : 543)
Thus, whereas the compulsory involvement of physicians and a medical diagnosis were originally proposed (and have been promoted) as a ‘rock solid’ safety check in euthanasia legislation, it is now being framed as an unnecessary impediment to those not wishing to have physician assistance in dying and to those who do not have a medical diagnosis ( Hagens et al 2017 ). A notable example of an organisation taking this position and which has already attracted media attention for its role in supporting people to achieve an assisted death without the direct involvement of medical practitioners is Exit International ( exitinternational.net/ ). Founded in Australia in 1997, it now has affiliates in the UK, USA and the Netherlands.
Another challenge to the mandated involvement of physicians in assisted dying is the emerging role of nurse practitioners in this area. The most notable example of this can be found in Canada, where on 17 June 2016 royal assent was given to the Medical Assistance in Dying (MAiD) Act ( Downie 2017 ; Lemmens et al 2018 ). Under the Act, medical assistance in dying is defined as:
( MAiD 2016 : Section 241.1).
the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or
the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death ( aide médicale à mourir ).
The MAiD (2016) legislation is the first in the world that permits nurse practitioners to diagnose, obtain consent for, prescribe and administer assistance in dying ( Stokes 2017 ). Nursing colleges and associations in Canada are reported as applauding the passage of the MAiD legislation. Given the new role of nurse practitioners in assisted dying it leaves open to question why the nomenclature of ‘medical’ assistance (versus nurse assistance) has been retained. It also leaves open the possibility of the pool of eligible healthcare professionals to provide assistance in dying being expanded to include others such as registered nurses and paramedics. This possibility is not far fetched considering recent legislative reforms in North Carolina apropos its Restoring Proper Justice Act . Under this Act the pool of eligible healthcare professionals to perform state executions of prisoners on death row has been expanded to include nurse practitioners, registered nurses and paramedics ( Dodds 2017 ). Meanwhile, in the US state of New York, a proposed MAiD bill before the assembly is proposing to qualify nurse practitioners for involvement in medically assisted dying ( Stokes 2017 ).
The doctrine of double effect
The doctrine of double effect is a Catholic doctrine developed by Catholic theologians that is appealed to when seeking to resolve the well-recognised dilemma posed by intolerable pain and the use of potentially lethal doses of narcotics as a means of suppressing pain. Although the Vatican prohibits euthanasia, it nevertheless permits the use of narcotics as a means of alleviating pain – and, furthermore, permits dosages that might suppress a patient’s level of consciousness and even shorten a patient’s life ( Vatican 1980 ). There are, however, clearly defined conditions that must be met. First, there must be no other means of alleviating the patient’s pain; in other words, potentially lethal doses of narcotics must never be prescribed except as a last resort. Second, the intention of using narcotics must be only to alleviate pain , and not to cause death. It is the second condition encompassing the intentionality of an act that finds its force in the doctrine of double effect.
The doctrine of double effect basically prescribes that it is always wrong to do a bad act for the sake of good consequences, but that it is sometimes permissible to do a good act even knowing it might have some bad consequences. To illustrate this doctrine, consider the case of a patient suffering intolerable and intractable pain. In this case, ending the patient’s life would also result in ending the patient’s intolerable and intractable pain. Whereas ending the patient’s pain would be a ‘good thing’, ending the patient’s life would not. Moreover, accepting the sanctity-of-life doctrine, deliberately ending an innocent patient’s life would be a morally evil thing to do. Thus, in keeping with the doctrine: it would always be wrong to end an innocent patient’s life (a bad act) in order to alleviate that patient’s pain (a good consequence).
Given the ‘good’ of alleviating pain, however, giving the patient analgesia is morally permissible – even though this might have the foreseeable and unfortunate consequence of shortening the patient’s life. This is permitted because, even though the act of narcotic administration is associated with the foreseen possibility of hastening death, ending the patient’s life is not the conscious intention behind the act . In short, the decision and action of giving the narcotics was not done with ‘murder in your heart’. To express the doctrine of double effect another way: it is always wrong to end patients’ lives for the sake of alleviating their pain, but it is sometimes permissible to give potentially lethal doses of narcotics to alleviate pain, even though this might result in the patient’s death – as long as the patient’s death is not the intended outcome .
It is noteworthy that although primarily originating from Roman Catholic religious tradition, the doctrine of double effect has influenced secular legal reasoning in regard to end-of-life decision-making ( McStay 2003 : 53–6; Mendelson 1997 : 112). One US legal commentator has even suggested that:
the double effect principle represents sound public policy to the extent that it allows physicians to provide adequate palliative care without engaging in clearly illegal conduct. ( McStay 2003 : 54)
The doctrine of double effect has been the subject of much philosophical criticism, most notably on account of its over-reliance on what is called the foreseeability / intentionality distinction and the hypocritical manoeuvres used by some to ‘hide, rather than reveal, their true intentions’ ( Watt 2017 : 15). This distinction holds roughly that foreseeing that a bad consequence will occur as a result of a given act is not the same thing as intending that bad consequence. For example, foreseeing that a patient will die as a result of being given large doses of narcotics (or other medical regimen such as that used in palliative sedation) is not the same thing as intending to end that patient’s life; therefore the person who administers the narcotic is not morally culpable.
Critics reject this, however, and argue that the distinction drawn here is misleading. They contend that foreseeing a bad consequence of an action is exactly the same as intending it, since the agent knows that a bad consequence is pending but deliberately refrains from preventing it. At the very least, intentions are relevant to determining the moral permissibility and impermissibility of given acts, just as they are to determining culpability in criminal law ( Nelkin & Rickless 2016 ). There is also concern that the recent ‘stretching’ of double-effect reasoning in end-of-life cases ‘requires ethical contortions about distinguishing intent and about treating death as a side effect’ and, in so doing, moves a step closer to providing a ‘shield to hide what is in effect assisted dying’ ( Duckett 2018 : 36).
The issue of palliative sedation (PS) is believed to date back to the 1990s, when discussion first emerged in the scholarly literature about the practice of ‘terminally sedating’ dying patients in palliative care ( Tännsjö, 2004a, Tännsjö, 2004b ). The practice became the subject of debate for two reasons: first, because the methods in palliative care to control symptoms had improved substantially and thus it was no longer necessary to comatose patients with sedation in order to treat their refractory symptoms, and second, the system of ‘terminal sedation’ was being construed as ‘euthanasia in disguise’ or ‘slow euthanasia’, which many regarded as impermissible ( Tännsjö 2004b : xiii). Some still hold the view that PS is merely ‘slow euthanasia’ and ‘euthanasia in disguise’ owing in no small way to the use of double-effect reasoning to justify its moral permissibility (discussed above) ( Smith 2015 ).
The grounds on which palliative sedation is generally distinguished from euthanasia include:
(1) The intent of the intervention is to provide symptom relief; (2) the intervention is proportionate to the symptoms, its severity and the prevailing goals of care; (3) finally and most importantly, the death of the patient is not a criterion for the success of treatment. ( de Graeff & Dean 2007 : 77)
The nature of PS and the clinical as well as philosophical bases on which it can be distinguished from euthanasia have been more comprehensively clarified since the 1990s and made the subject of guidelines, frameworks and regulations developed by various medical and palliative care associations around the world (for a detailed analysis of the distinction between PS and euthanasia as held by the world’s various medical and palliative care associations, see Shariff & Gingerich (2018) and also: American Medical Association 2008 ; Australian and New Zealand Society of Palliative Medicine ( Australian and New Zealand Society of Palliative Medicine Inc (ANZSPM), 2017a, Australian and New Zealand Society of Palliative Medicine Inc (ANZSPM), 2017b ; Cherny et al 2009 ; Dean et al 2012 ; Royal Dutch Medical Association 2009 ).
Definition, purpose and intention of palliative sedation
Palliative sedation (a term that has superseded the less-appropriate and misleading term ‘terminal sedation’) has been variously defined as ‘the monitored use of medications to reduce consciousness in order to relieve otherwise intractable suffering at the end of life in a manner ethically acceptable to patients, their families and healthcare providers’ ( Abarshi et al 2017 : 223). Although there is no international consensus on the definition of PS, there is general agreement that it fundamentally involves:
(1) the use of (a) pharmacological agent(s) to reduce consciousness; (2) reserved for treatment of intolerable and refractory symptoms; and (3) only considered in a patient who has been diagnosed with an advanced progressive illness. ( Dean et al 2012 : 870)
A ‘refractory symptom’, in turn, has been defined as ‘a symptom that cannot be adequately controlled despite aggressive efforts to identify a tolerable therapy that does not compromise consciousness’ ( Cherny & Portenoy 1994 – cited in Schildmann et al 2015 : 734). Palliative sedation is considered to be a ‘last-resort’ treatment in cases involving patients with refractory symptoms such as pain, dyspnoea, nausea and vomiting, delirium and terminal restlessness ( ANZSPM 2017a ; De Vries & Plaskota 2017 ; Gurschick et al 2015 ).
Although the ‘prevalence, indications, monitoring, duration and choice of drugs’ in PS ( Maltoni et al 2013 : 360), as well as the standards and guidelines for the practice and monitoring of PS, vary across and within different jurisdictions (see Abarshi et al 2017 ; Claessens et al 2008 ; Dean et al 2012 ; Maltoni et al 2013 ; Schildmann & Schildmann 2014 ; Schildmann, Schildmann, Kiesewetter, 2015, Schildmann, Pörnbacher, Kalies, Bausewein, 2018 ), it is nonetheless regarded as an ‘important therapeutic intervention’ ( Bruera 2012 : 1258) and an ‘integral part of a medical palliative care approach’ ( Maltoni et al 2013 : 360). Moreover, despite the variations in PS guidelines and the controversies these sometimes invite, there is nonetheless a consensus on the key purpose and intention of PS – namely: to relieve refractory symptoms through reducing consciousness, not to hasten death ( Claessens et al 2008 ; de Graeff & Dean 2007 ; Dean et al 2012 ). As noted above, it is this intention (i.e. to alleviate the patient’s refractory symptoms) that is taken as distinguishing PS from an act of euthanasia – the intention of which is not to alleviate a patient’s refractory symptoms but rather to end the patient’s life . Evidence in support of this conclusion can be found in Shariff and Gingerich’s (2018) comprehensive analysis of termination-of-life (assisted death) laws, court determinations involving termination-of-life cases, and the position statements and guidelines of medical and palliative care associations from around the world. It concludes:
The preponderance of evidence reveals a critical difference between the practices of palliative care and termination of life [euthanasia]: between care that is directed toward a pain-free life, however long it may continue, and care directed toward the ending of pain and suffering through death (p 291).
The administration of PS is proportional and individually tailored (known as ‘proportionate palliative sedation’ or PPS). For these reasons, palliative sedation can be highly variable in terms of ‘depth of sedation, continuity, drug used, speed of instauration’, with its most intense form being practised as ‘deep continuous sedation’ (DCS) ( Imai et al 2018 ; Maltoni et al 2014 ). In keeping with this approach, three distinguishable levels of sedation may result:
( de Graeff & Dean 2007 : 73–4)
Mild (somnolence): the patient is awake, but the level of consciousness is lowered.
Intermediate (stupor): the patient is asleep but can be woken to communicate briefly.
Deep (coma): the patient is unconscious and unresponsive.
In either case, a titrated regimen of drugs is used. Although regimens vary, the drug midazolam is considered the ‘front-line choice’ for initiating PS – primarily because ‘it is easy to titrate, has rapid onset and offset (the latter being very important in cases of intermittent sedation), can be combined with other drugs used in palliative care, and has an antidote’ ( Claessens et al 2008 : 320; see also Schildmann, Schildmann, Kiesewetter, 2015, Schildmann, Pörnbacher, Kalies, Bausewein, 2018 ). Other ‘preferred drugs’ (following the use of midazolam) are benzodiazepines, neuroleptics or sedating antipsychotics ( Claessens et al 2008 ; de Graeff & Dean 2007 ; Dean et al 2012 ; Maltoni et al 2013 ). Significantly opioids tend not to be used for sedation purposes since, although these may cause drowsiness, they do not lead to a loss of consciousness ( Claessens et al 2008 : 330; see also Schildmann, Schildmann, Kiesewetter, 2015, Schildmann, Pörnbacher, Kalies, Bausewein, 2018 ).
When receiving PS, patients require close monitoring. In particular, clinical vigilance is required to ascertain whether the patient has, in fact, been relieved of suffering, that the desired depth of sedation and level of consciousness have been achieved, and whether the patient is suffering from any adverse side effects of the drugs administered ( Dean et al 2012 ; Maltoni et al 2013 ). In addition, the emotional, spiritual and psychological state of family members and staff also need to be monitored and any distress noted, and managed appropriately ( Bruinsma et al 2012 ; Dean et al 2012 ).
Of moral significance to practitioners is that, when correctly performed, PS – including deep continuous sedation – does not have a detrimental effect on survival rates; that is, it does not shorten life ( Barathi & Chandra 2013 ; Claessens et al 2008 ; Maltoni et al, 2012, Maltoni, Scarpi, Nanni, 2013 ; Prado et al 2018 ). One study found that PS not only had no negative impact on the patients receiving it, but also that the patients actually survived longer than those who did not receive it ( Prado et al 2018 ). The absence of its impact on survival rates is taken by some as refuting ‘conceptual analyses that tend to equate palliative sedation with euthanasia’ ( Maltoni et al 2014 ) – that is, terminating life ( Shariff & Gingerich 2018 ).
As palliative sedation neither negates the need for nor interrupts the administration of clinically assisted hydration, ethical issues associated with withholding or withdrawing clinically assisted nutrition or hydration (CANH, discussed below) are also sidestepped and are no more pressing than they are in non-sedated patient groups ( Maltoni et al 2014 ). Moreover, there is a consensus that, as decisions to withhold or withdraw CANH from a patient receiving palliative sedation could have a life-limiting effect, these ought to be made independently of any decisions to administer palliative sedation ( Claessens et al 2008 ; de Graeff & Dean 2007 ). These considerations have led some to conclude that, as palliative sedation does not shorten life (either actively through the provision of sedating drugs or passively through the unwarranted withdrawal of CANH), there is no ethical basis for restricting its use as a bona fide medical regimen ( Berger 2010 ).
Palliative sedation in existential suffering
In recognition that people can also suffer refractory ‘existential pain’ (defined broadly as emotional or spiritual suffering) at the end of life, some writers have argued that palliative sedation should also be made available in such patients, on the basis that accords equal importance to the ‘psychosocial and spiritual aspects of suffering’ as that given to its physiological aspect ( Sadler 2012 : 195). The possible use of palliative sedation to treat existential suffering (e.g. refractory depression, death anxiety) is, however, highly controversial ( Maltoni et al 2014 ; Rodrigues et al 2018 ; Sadler 2012 ). Underpinning this controversy is the problem that ‘existential suffering’ is not well defined, is based on philosophical theorisation rather than evidence and, related to these things, is vulnerable to being misdiagnosed and wrongly treated ( Rodrigues et al 2018 ; Sadler 2012 ). Moreover, being more akin to the controversial practice of deep sleep therapy (DST) ( Wikipedia 2018g ), its justification as a therapeutic measure remains unfounded.
Nurses’ attitudes and experiences
It is being increasingly recognised and demonstrated that nurses play an active and crucial role in the communication, administration and monitoring of palliative sedation ( Abarshi et al 2014 ; Arevalo et al 2013 ; Claessens et al 2008 ; De Vries & Plaskota 2017 ; Engström et al 2007 ; Inghelbrecht et al 2011 ; Maltoni et al 2014 ). Specifically, as Inghelbrecht and colleagues (2011) point out:
Nurses usually remain at the bedside, administer drugs, look after the patient’s comfort, monitor possible symptoms, and answer the questions and concerns of relatives. ( Inghelbrecht et al 2011 : 871)
In a systematic review of the literature on nurses’ attitudes and practice of palliative sedation it was found that nurses tended to have a ‘positive but cautious’ attitude to the practice. Further, although nurses were generally willing to administer palliative sedation on the basis of its ‘anticipated benefit in controlling unbearable symptoms and suffering’, most nonetheless regarded it as a ‘last resort’ measure for the relief of refractory symptoms only – that is, not to hasten death ( Abarshi et al 2014 : 923). Some studies have found, however, that nurses are sometimes troubled emotionally by the practice of palliative sedation on account of their perceptions that its administration is tantamount (at least partially) to ‘hastening death’ ( Arevalo et al 2013 ; Inghelbrecht et al 2011 ; Raus et al 2014 ; Sadler 2012 ; Woods 2004 ). The extent to which nurses have found the practice emotionally burdensome, however, has depended on a range of variables including ‘their level of education, expertise and the roles they played per setting’ ( Abarshi et al 2014 : 915) as well as the degree of emotional and causal ‘closeness’ or ‘disengagement’ they have felt in terms of being morally responsible for both the practice and outcomes of the sedation ( Raus et al 2014 ).
Like others working in palliative care, some nurses have resolved their qualms about palliative sedation by appealing to the doctrine of double effect (discussed above), which they have found helpful in terms of justifying the distinction between ‘palliative sedation’ and ‘euthanasia’. Others, however, have regarded appeals to the doctrine as problematic and unsustainable on account of the fact that the doctrine itself is problematic (i.e. as per the reasons discussed above). It is contended that once the nature, intention, practice and outcomes of palliative sedation are fully understood, it can be seen for what it is: a legitimate palliative care option that is morally defensible. Accordingly nurses need not feel emotionally burdened by its practice or their role in assisting with it ( Gallagher & Wainwright 2007 ; Woods 2004 ).
Withholding or withdrawing clinically assisted nutrition and hydration
When seriously ill and / or nearing the end of their lives, many patients reach a point where they cannot take food and fluids ‘naturally’ – that is, voluntarily by mouth, with or without assistance, in order to satisfy their hunger and thirst. Because of this, their intake of food and fluids reduces. Reasons for this situation are varied but may include one or more of the following:
physical obstruction, anorexia / cachexia syndrome, generalised weakness, bowel obstruction, nausea, decreased levels of consciousness, loss of desire to drink or no specific cause may be identified. ( Good et al 2014 : 2)
When patients are unable or unwilling to take food and fluids, clinicians and proxies may be faced with the difficult decision of whether to withhold or provide the patient with clinically assisted nutrition and hydration (referred to by the acronym CANH). In the case of patients who voluntarily stop eating and drinking (referred to by the acronym VSED), decision-making in clinical contexts may be particularly fraught clinically, ethically and legally. This is because, theoretically, VSED (regarded as distinct from illness-associated anorexia–cachexia) does not require the involvement of a medical practitioner ( Quill, Ganzini, Truog, Pope, 2018a, Quill, Ganzini, Truog, Pope, 2018b ; Wax et al 2018 ). With VSED a patient voluntarily chooses not to eat or drink even though physically able to do so ( Mueller et al 2018 ; Rodriguez-Prat et al 2018 ; Wax et al 2018 ).
CANH may be delivered by several methods:
intravenous fluids (noting that, although sufficient to sustain hydration, this route cannot deliver substantial nutrition)
parenteral nutrition (the provision of a nutritional formula though a vein – e.g. central venous nutrition (CVN); types include total parenteral nutrition (TPN) and peripheral parenteral nutrition (PPN))
hypodermoclysis (the subcutaneous infusion of fluids for minimal hydration purposes only)
nasogastric tubes (for temporary feeding)
percutaneous endoscopic gastrostomy (PEG) tubes (for long-term feeding)
CANH may be provided for two reasons: first, to prolong life (or at least to prevent the patient from experiencing a premature death) and, second, to improve quality of life – that is, alleviating the symptoms associated with the patient’s declining condition ( Caccialanza et al 2018 ; Ganzini 2006 ; Good et al 2014 ; Hui et al 2015 ; Malia & Bennett 2011 ). There invariably comes a point, however, where the burdens of CANH outweigh the benefits, making it necessary for a decision to be made to either withdraw or withhold CANH as a treatment option. Even so, because of the strong emotional and cultural meanings attached to the intake of food and fluid as a ‘basic’ element of human comfort and survival, such decisions can be a source of emotional distress for families and care providers ( Baillie et al 2018 ; del Río et al 2012 ). They can also invite moral controversy and intervention by the courts ( English & Sheather 2017 ; Geppert et al 2010 ; Rady & Verheijde 2014 ; Richards & Coggon 2018 ; Willmott & White 2017 ). Right-to-life groups, for example, often equate the withdrawal of CANH with ‘slow euthanasia’ ( Heuberger 2010 ) and may sloganeer the removal of a PEG tube as being tantamount to ‘murder’ ( Ganzini 2006 : 137).
Despite over three decades of established agreement about the ‘appropriate use’ of CANH, the issue of withholding or withdrawing nutrition and hydration from patients at the end stage of life remains highly contentious. During the early years of debate, there were two key points of view at issue:
Those who argued that hydration and nutrition should continue to be provided – even at the end stage of life – contended that if fluids were to be withheld or withdrawn from patients then the patients would inevitably enter into a state of dehydration, which, in turn, would result in ‘circulatory collapse, renal failure, anuria and death’ ( Craig 1994 : 140). In short, without hydration and nutrition, patients who are heavily sedated would die – whatever the underlying pathology ( Craig 1994 : 140). Furthermore, dehydration could lead to severe complications that may unacceptably alter the patient’s quality of life while they are dying; such complications were identified to include: ‘increased asthenia, nausea, postural hypotension, fever with no underlying infectious process, increased risk of bed sores, and constipation’ as well as the ‘accumulation of opioid metabolites, grand-mal seizures, and hyperalgesia’ ( Steiner 1998 : 8, 12).
Another complication believed to be associated with dehydration was that of patients suffering from thirst and hunger during the terminal phase of their illness. On this, Craig argued ( 1994 : 142):
It is widely assumed that a terminally ill patient is not troubled by hunger or thirst but this is difficult to substantiate as few people return from the grave to complain.
Finally, some worried that doctors might ‘get it wrong’ (i.e. make diagnostic errors) and accordingly patients might not only die ‘poorly’, but needlessly. On this point Craig argued ( 1994 : 140):
Diagnostic errors can also occur. A reversible psychosis or confusional state can be mistaken for terminal delirium, aspiration pneumonia for tracheal obstruction, obstruction [of the bowel] due to faecal impaction for something more sinister, and so on. The only way to ensure that life will not be shortened is to maintain hydration during sedation in all cases whereby inability to eat and drink is a direct consequence of sedation, unless the relatives request no further intervention, or the patient has made his / her wishes known to this effect.
Despite – or perhaps because of – the growing body of research in recent years, these issues remain unresolved. For example, some continue to argue that failure to provide assisted hydration during the last days of life will give rise to a range of common complications such as: thirst, hunger, discomfort, agitation, delirium, urinary tract infections, kidney failure, cardiovascular collapse, and the diminished efficacy of drugs such as analgesics and sedatives otherwise administered to treat symptoms of distress ( Rady & Verheijde 2014 ). In the case of the latter, distress can manifest as various spontaneous and reflex movements such as roving eye movements, chewing, teeth-grinding, tongue-pumping, groaning, facial grimaces, and crying, which maybe become more pronounced as the patient’s condition deteriorates ( Royal College of Physicians 2013 : 5).
Others, however, argue to the contrary, reminding clinicians of the risk associated with certain methods of CANH – for example, in the case of enteral nutrition, this can include ‘gastrointestinal issues (e.g. constipation, diarrhea, bloating, nausea, vomiting), pulmonary aspiration with or without pneumonia, [negative] drug–nutrient interactions, and clogged or dislodged tubes’ ( Kozeniecki et al 2017 ). One study has suggested that the use of PEG tubes in older populations can also lead to higher mortality rates, particularly in those with co-morbidities ( Tabuenca et al 2018 ).
These views concur with earlier research which has shown that clinically assisted hydration (particularly intravenous infusions) can lead to a range of associated medical conditions and complications including: vital organ failure from fluid overload (this can lead to such conditions as pulmonary and cerebral oedema and their associated complications); infection and bacteraemia from catheter and cannulation sites; arterial perforation, thrombosis, cardiac arrhythmias, cardiopulmonary arrest and pneumothorax during / following insertion of central venous lines; and pulmonary emboli ( Steiner 1998 ). Intriguingly, there is some suggestion that the ‘risks’ of dehydration during the actual death process may in fact be beneficial, with research suggesting that, due to their respective ‘sedative properties’, dehydration and ketosis are in effect mechanisms that help protect people against the ‘potentially painful symptoms of dying’ ( Kozeniecki et al 2017 : 263).
Although tools are being developed enabling the conduct of randomised feasibility trials of CAHN during the last days of life ( Davies et al 2018 ), there remains a lack of high-quality studies examining the symptom benefits and / or adverse effects of CANH – including its impact on improving either the length or quality of life of those who are in the end stages of their lives ( Good et al 2014 ; Hui et al 2015 ; Royal College of Physicians 2013 ). What evidence is available is regarded as being at best ‘inconclusive’ ( Forbat et al 2017 ; Good et al 2014 ; Raijmakers, Fradsham, van Zuylen, Mayland, Ellershaw, van der Heide, 2011a, Raijmakers et al, 2011b ). Because of the lack of high-quality studies there is a related paucity of evidence-based guidelines to inform and guide CANH practices, particularly regarding the mode and quantity of hydration that should be administered during the last days of life ( Forbat et al 2017 ). Even so, some still assert that the advantages of clinically assisted hydration, at least, outweigh the disadvantages in terms of its ease of application, low economic costs and fewer complications (e.g. infection) ( Caccialanza et al 2018 ).
Disputes aside, CANH remains a substantial part of medical and nursing care. There is also some suggestion that the controversies over decisions about CANH may ‘have less to do with ambiguous data, and more to do with differing judgments about the ethics of providing or withholding nutrition [and hydration] from patients with advanced illness or severe cognitive deficits’ ( Wolenberg et al 2013 : 1052) and the point at which a decision ought to be made (i.e. when death is imminent). Whether this is so, only time will tell.