"If you allow it to occur," said Dr. Chris Feudtner of Children's Hospital of Philadelphia, "it will occur in cases where it is not ethical, period." Feudtner was referring to the Netherlands' legalization of euthanasia of newborns and infants pursuant to the Groningen University Protocol. The Protocol prescribes the killing procedures. The child must be in "hopeless and unbearable suffering," so that "the parents and the physicians ... concur that death would be more humane than continued life." The Protocol codifies the informal Dutch practice under which newborns had been euthanized, usually for spina bifida, with no physicians prosecuted.
The Netherlands were the first nation to legalize euthanasia for adults, allowing the physician to "terminate life on request or to provide assistance with suicide." That law, which took effect in 2002, allows a person of 12 years or older to be killed if he had made an advance written request for termination of his life if his suffering becomes "unbearable" with "no prospect of improvement." If the patient is between 12 and 16, the parent or guardian must agree to the killing. If the patient is between 16 and 18, the parent or guardian must be consulted.
The Dutch get undeserved credit as trail-blazers in euthanasia. The United States may be the front-runner, even though our law does not permit a physician to kill the patient. Oregon allows assisted suicide, but that merely allows the physician to give the patient the means by which the patient can kill himself. While the law in the United States stops short of legalizing intentional, direct and active killing of patients, as permitted in Holland (and Belgium), it broadly permits intentional killing by terminal sedation or by withholding food and water.
In 1997, in Vacco v. Quill, the Supreme Court upheld New York's prohibition of assisted suicide but gave the green light to physicians to provide "aggressive palliative care," in which the physician is supposed to intend only to relieve the patient's pain. His undisclosed intent, however, may be to kill the patient by "terminal sedation." Palliative care can be morally justified even if it unintentionally shortens life. But, in the absence of exceptional proof of intent, the law cannot effectively determine whether the physician acted with the intent to relieve pain or to cause death.
If the family and physician concur that the patient should die, terminal sedation, under the guise of pain relief, can be a convenient and practically undetectable means of homicide, beyond the effective reach of the law.
The second, and legal, form of homicide of patients is withdrawal of nutrition and hydration. In American law, a competent adult has the legal right to refuse to take food and water whether administered normally or artificially. Incompetent patients may be denied nutrition and hydration if they had, when competent, expressed their desire to be so denied or, in some states, if such denial is in the best interests of the patient. In cases where the family and the physician agree that the patient should die, the issue never gets to court and the patient can be quietly starved and dehydrated to death.
We have not formally legalized it, but we are further down the slippery slope of euthanasia than are the Dutch. We have, in effect, legalized homicide of patients by starvation and dehydration, when the family and physicians agree, without even the minimal procedures required in the Netherlands.
Moreover, we have progressed beyond the allowance of private killing to killing by order of the state. In Roe v. Wade, the Court authorized the mother to kill her unborn child. The law does not mandate the killing. In the Terri Schiavo case, the state itself, in the person of Judge Greer, ordered that Michael, her husband, "shall cause the removal of nutrition and hydration" from Terri. The court mandated Terri's execution. The only reason we heard about the Schiavo case is because Michael Schiavo and Terri's parents disagreed and the court became involved. What Michael did to Terri happens routinely, without public notice, when the "caregivers" agree that the patient should be killed.
As this practice becomes embedded in the culture, we can expect judges to rule that defective, incurable or even simply aged patients, can be presumed to desire what the Nazi theorists called a "merciful release." We can expect that sedation, starvation and dehydration will give way to the painless injection. And Schiavo already establishes that PVS, the persistent vegetative state, is an accepted excuse for execution of a patient whose consent can be inferred even from the testimony of a hostile witness. We can expect the justifications to go beyond PVS.
So the Dutch may be the amateurs here. We are smarter, allowing the killing of the burdensome or unwanted without even the paperwork required in Holland. And maybe we will be smart enough to explain it all to our final Judge, who has a soft spot for babies and helpless people.
Professor Emeritus Charles Rice is on the Law School Faculty. His column appears every other Thursday. He can be contacted at plawecki@nd.edu
The views expressed in this column are those of the author and not
necessarily those of The Observer.
