Final frontiers

August 18, 1995

Science has obscured the once clear line between life and death and it is time our ethics developed in response, argues Peter Singer.

After ruling our thoughts and our decisions about life and death for nearly 2,000 years, the traditional sanctity of life ethic is at the point of collapse. Consider the following five signs of this impending collapse, drawn from four different countries: *In February 1993, when deciding the fate of a young man named Tony Bland who was in a persistent vegetative state, Britain's highest court threw out many centuries of traditional law and medical ethics when it allowed his doctor to undertake a course of action explicitly intended to end Bland's life, even though Bland had never expressed any wishes regarding whether he would want to be kept alive if he were to be in such a state.

*In November 1993, the Netherlands parliament finally put into regulations the principles under which Dutch doctors have for some years been openly giving lethal injections to patients who suffer unbearably without hope of improvement, and who ask to be helped to die. Although the Dutch parliament did not legalise voluntary euthanasia, it specified that doctors would not be prosecuted for acting in accordance with a request from a patient, provided specified conditions were met.

*In May 1994, 12 Michigan jurors acquitted Dr Jack Kevorkian of a charge of assisting Thomas Hyde to commit suicide. Their refusal to convict Kevorkian was a major victory for the cause of physician-assisted suicide, for it is hard to imagine a clearer case of assisting suicide than this one. Kevorkian freely admitted supplying the carbon monoxide gas, tubing and a mask to Hyde, who had then used them to end a life made unbearable by the rapidly progressing nerve disorder ALS.

*In November 1994, the electors of Oregon voted in favour of allowing physicians to help competent adult patients who are terminally ill to commit suicide if they wish to do so. Although the change in the law has been delayed by a court injunction taken out by the measure's opponents, the vote remains a sign of changing public opinion.

*In May 1995 the Legislative Assembly of Australia's Northern Territory became the first parliament in the world to legalise voluntary euthanasia. Members of legislative bodies in several other Australian states and territories have also announced their intentions to introduce similar bills, and the premiers of Australia's two most populous states, New South Wales and Victoria, have indicated their personal support for voluntary euthanasia.

These events are the surface tremors resulting from major shifts deep in the bedrock of western ethics. We are going through a period of transition in our attitude to the sanctity of human life. Such transitional periods are times of confusion and division. Many factors are involved in this shift, but the constant factor that has pushed us to the brink of change has been our growing technical capacity to keep human beings alive. This has forced us to face up to some implications of the sanctity of life ethic that we previously could evade. Now we find that when we must squarely face these implications, we are unable to stand firmly behind the old ethic.

The first step was the acceptance of brain death - that is, the permanent loss of all brain function - as a criterion of death. This has been widely regarded as one of the great achievements of bioethics, one of the few issues on which there has been virtual consensus; and it has made an important difference in the way we treat people whose brains have ceased to function.

This change in the definition of death has meant that warm, breathing, pulsating human beings are not given further medical support. If their relatives consent (or in some countries, as long as they have not registered a refusal of consent), their hearts and other organs can be cut out of their bodies and given to strangers.

It is curious that the change in our conception of death that excluded these human beings from the moral community met with virtually no opposition. One possible explanation for this is that supporters of the traditional view of the sanctity of life, from the Pope down, were conned into believing that the definition of death is a purely "scientific" or "medical" matter.

The prevailing view at the time when the switch in the definition of death took place was that those who are brain dead have suffered total systems breakdown, and can at best only be supported for a few hours or a day or two. Now, 25 years later, Trisha Marshall, a pregnant Californian who was shot in the head by a disabled man she was attempting to rob, has been kept breathing and warm for more than three months after she had been declared brain dead, in order to allow her foetus to develop enough to survive. Obviously it is an ethical judgement, not a medical one, that says that Trisha Marshall was "dead" when she was warm, pink and breathing, when her heart was beating and her body was nourishing the foetus that was growing inside her.

The kind of judgement we make in cases like this points directly to a further judgement that we need to make in different tragic situations like that of Tony Bland. Bland was a 17-year-old soccer fan who was caught in a crush at Hillsborough Football Stadium in Sheffield in 1989. He was deprived of oxygen, and the parts of his brain associated with consciousness were irreversibly destroyed; but he was not brain dead, because he had some brain stem function. He needed to be fed through a tube, but he did not need a respirator to enable him to breathe, as Marshall did. But why should that make the crucial difference between life and death? Surely it is an ethical judgement, not a medical one, that we need to make in both cases. And from an ethical perspective, it is the capacity for a return to consciousness that is really important, not what kind of machines one needs to keep bodily functions going. In deciding Tony Bland's fate, the British courts made no pretence that they were merely protecting the autonomy of the patient. On the contrary, Sir Thomas Bingham, Master of the Rolls of the Court of Appeal said bluntly: "At no time before the disaster did Mr Bland give any indication of his wishes should he find himself in such a condition. It is not a topic most adolescents address." In the House of Lords, Lord Keith of Kinkel simply concluded that "to an individual with no cognitive capacity whatever, and no prospect of ever recovering any such capacity in this world, it must be a matter of complete indifference whether he lives or dies." The other Law Lords, and indeed all the British judges who considered the case as it went through the various levels of appeal, agreed.

The Bland case pushed British law to accept the concept of quality of life, rather than sanctity of life, as the basis of decision-making, because the alternative was the horrific prospect of keeping Tony Bland alive, but unconscious, for perhaps another 50 years. This acceptance of the role of quality of life assessments in life and death decisions is one of the two central planks of the new ethic that is being forged in the hospitals, courts and parliaments of the western world. The other central plank - applicable to patients who, unlike Tony Bland, can say what they want, or have said it in the past - is the desire for greater autonomy. We want to be able to say how we die, just as we want to be able to say how we live.

It is this that has led the push for medically assisted dying in the Netherlands, in Oregon, and now in Australia. While opponents of what is happening in the Netherlands produce a welter of confusing and often misleading statistics, one fact that stands out clearly is that in the Netherlands there is widespread support for the continuation of the present situation, in which doctors can, without fear of prosecution, act on their patients' requests for assistance in dying. The regulations relating to this came from a Christian Democrat government headed by a Roman Catholic prime minister, and had broad cross-party support - in fact the major opposition came from those who thought the regulations did not go far enough. Polls show that 80 per cent of the Dutch population supports the present policy. Both Protestant and Roman Catholic hospital chaplains support terminally ill patients in their decisions to ask a doctor to end their lives when they have had enough.

The Dutch experience may not be applicable to every other western nation. Dutch physicians are still family doctors, practising medicine in a way that has disappeared in some parts of the United States. They know their patients well, and have usually treated them for many years. As in Britain - but not as in the US - Dutch citizens are covered by universal health insurance, so there is no financial pressure on Dutch doctors to end life rapidly, before a patient runs up health care bills that could be ruinous for a patient's family.

But none of this affects the fundamental ethical question of whether an adult, competent, terminally ill patient should have the right to decide when he or she has had enough. There can be little doubt that over the next decade, other nations and provinces will follow the example of the Netherlands and the Northern Territory in granting this right to its citizens.

There are some who will deplore these changes. Many of them will be religiously-motivated. Religions often have difficulty in assimilating change. Others will no doubt drag out the old slippery slope argument, and will tell us that once we judge some lives to be not worth living, we are again on the road to the gas chambers. But unless we are to rescind the idea of "brain death" and try to maintain the lives even of those whose brains have totally ceased to function, we are already committed to making quality of life judgements. Instead of bemoaning this fact, and uttering dire predictions about where it will lead us, we should face the future and discuss how to make better quality of life judgements, with adequate safeguards against abuse. To revive the sanctity of life ethic is no longer possible; instead we need to develop a new ethic, one that will lead to more responsible and self-aware decision-making about life and death.

Peter Singer is the deputy director of the Centre for Human Bioethics at Monash University, Melbourne, Australia. This essay is based on his most recent book, Rethinking Life and Death, which has just been published in Britain by Oxford University Press.

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