15 Feb, 14 | by Iain Brassington
With any luck, the nuts real-world work schedule of the past few months* will begin to ease in a few days, so I should be able to start blogging more frequently soon; but I thought I’d take a moment out from writing jurisprudence lectures to do some thinking out loud about Belgium’s recent change to its euthanasia law, which legalises it for children. This is partly because it’s interesting in its own right, and partly because I’m debating it on Radio 4’s Sunday programme this week. I’ve drafted this post before the interview’s recorded, but I’m not publishing it until after (though before the broadcast); let’s see how my thoughts here pan out on air…**
For reference, the text of the law is available here in French, and here in Dutch – thank goodness for A/S levels. A decent précis provided by AP is hosted here; and Christian Munthe has an unofficial translation here.
OK: so, what should we think about it?
I suspect that there’s two lines of objection that are pretty obvious, and pretty broad. The first is that euthanasia is wrong in principle, and its availability should therefore be minimised, not extended. The other is a worry about creep, or slippery slopes: that if x is legalised, then we’ll find the law being stretched to cover y, and then z, and before we know it, we’ve accidentally given legal cover to all kinds of things. This is not an objection in principle, but one about the practicality: that the law will have a much bigger impact than anyone anticipates. Obviously, neither of these lines of argument implies the other; but you could fit them together quite happily, and say that it’s wrong to allow euthanasia (for children, or tout court), AND that it’ll have a bigger impact than anticipated.
Interestingly, perhaps, I think my position is completely the opposite. I think that extending euthanasia to children is probably OK in principle, but that it’ll probably have a minimal impact in practice.
The argument here doesn’t require making any claims about the permissibility of euthanasia in general. Rather, I’m inclined to take as my starting-point something much more syllogistic: that if euthanasia is going to be allowed, we should be prepared to allow it for children. The reason for this is pretty straightforwardly an anti-ageism appeal. To have a law that prevents someone from accessing assisted dying of whatever sort on Monday, but allows it on the following day because it happens to be the birthday that tips him over the line that marks the allowed from the forbidden, seems to me to be indefensibly arbitrary. If someone can make the decision on the Tuesday, the chance that he was incapable the day before is small. The same applies to his incapacity on the Monday: quite why it should vanish magically on the stroke of midnight is a bit of a mystery.
What seems to me to be much more important is capacity. This will, we could predict, be correlated with age – a 12-year-old is likely to be more capable of sophisticated decisionmaking than her 6-year-old sibling – but age per se wouldn’t matter. What matters is that a person is capable; the number of days spent on the planet is neither here nor there.
And that’s pretty much what the Belgian law says – except that even it doesn’t even things out completely. The new law modifies the law as it’s stood since 2002, in essence by stipulating that it applies to minors who have capacity, and are suffering from an incurable illness with death imminent. The slight qualification here is that the parents do have a role:
f) dans le § 4, la phrase « La demande du patient doit être actée par écrit » est remplacée par ce qui suit:
« La demande du patient ainsi que l’accord des représentants légaux si le patient est mineur doivent être actés par écrit. »
f) in § 4, wordt de zin « Het verzoek van de patiënt moet op schrift zijn gesteld » vervangen door wat volgt:
« Het verzoek van de patiënt, alsook de instemming van de wettelijke vertegenwoordigers indien de patiënt minderjarig is, moeten op schrift zijn gesteld »
in §4 of the 2002 law, the phrase “the patient’s request must be in writing” becomes “the patient’s request and the assent of his legal guardians if he is a minor must be in writing”. That is, children still have to jump through administrative hoops that adults don’t. That may be defensible; it may even be morally required. Given the possibility that younger people are not as sophisticated as older, we perhaps would want to advert to someone who knows them well for reassurance that the request is authentic.
The general point, though, is that the law has been reformed so that it applies in more like the same way to adults and children. In many ways, that strikes me as a good thing.
Right: so I don’t share the concern in principle. What about the practical concern?
I don’t share that, either. In fact, I suspect that very few people will find their situation altered by the legal shift. This is for a couple of reasons.
First, as a matter of fact, there’s no guarantee that there will be many minors deemed capable of requesting euthanasia. I may be wrong on this, of course; there have been cases in which the courts have been asked to decide whether a child is capable of refusing life-saving treatment, and have come down in support of that refusal. It might be that there are children capable of requesting euthanasia; but I don’t think that the numbers will be high.
But the other thought has to do with the way the law is drafted. It says that
c) le § 1er, alinéa 1er, est complété par un quatrième tiret rédigé comme suit:
« — le patient mineur doté de la capacité de discernement se trouve dans une situation médicale sans issue entraînant le décès à brève échéance et fait état d’une souffrance physique constante et insupportable qui ne peut être apaisée et qui résulte d’une affection accidentelle ou pathologique grave et incurable. »
or, if you prefer,
c) paragraaf 1, eerste lid, wordt aangevuld met een vierde streepje, luidende :
« — de minderjarige patiënt die oordeelsbekwaam is, zich in een medisch uitzichtloze toestand bevindt van aanhoudend en ondraaglijk fysiek lijden dat niet gelenigd kan worden en dat binnen afzienbare termijn het overlijden tot gevolg heeft, en dat het gevolg is van een ernstige en ongeneeslijke, door ongeval of ziekte veroorzaakte aandoening. »
The stipulation is that the child with capacity must be in a hopeless medical situation, with death imminent, and reporting constant and unbearable physical suffering that cannot be eased.
And I think that that puts a very tight limit on the number of people who’d qualify, irrespective of age. After all, constant and unbearable suffering is likely to be precisely the sort of thing that clouds capacity; and so the demand that the child must be suffering unbearably and have the right kind of decisionmaking capacity seems like its demanding two antagonistic things. I’ve been banging on about this for ages – I’m inclined to the thought that if euthanasia is going to be available, it ought to be available without reference to suffering, bearable or not.
One might also ask whether any suffering is untreatable: there are those who think that continuous deep sedation is an alternative to euthanasia. I’ve my doubts about that for a couple of reasons – not the least of which is that I think that a patient might prefer to be dead than comatose and being gawped at should they be unaware of it for reasons of dignity. But the point stands that, if you really want to end suffering, there are ways to end it without killing. (This is why I think that the necessity claim in respect of Nicklinson and related cases is doomed.)
That doesn’t make a difference to the idea that euthanasia should be available in principle for those who do satisfy all the criteria. But I just don’t think there will be many.
Finally, in respect of the claim that we’d be opening the door to killing those who don’t quite fit the criteria, and so risking a kind of creeping killing – well, that might be happening already; at least this way it’s more likely to be judicially scrutable.
Upshot: I don’t think that the Belgian law is crazy; and this is a position that I think one can defend, and possibly should accept, without having to defend euthanasia. But I think that the actual impact will be small.
It’s a hell of a prediction to get wrong, though. We shall see.
* I know, I know. It’s a pathetic excuse. But it’s all I have.
** I think I more-or-less guessed correctly…