The ruling, and a summary, are available here.

I wouldn’t want to say that I told you so… but I did.  Twice.

And I can’t help but to wonder if this case should ever have come to court.  Sympathetic as I am to the moral arguments in favour of assisted dying, whether those arguments can be successfully translated into law is another matter (I mean: I think they probably can, but that doesn’t follow naturally even if the moral arguments are watertight) – and whether that law is something that the courts are in a position to determine is another one still.  Judge-made law is often perfectly fine – but there’s a world of difference between a judge tweaking the law in respect of section 17(1)(a) of the Arcane and Obscure Insurance Regulations Act 1957, and altering the law on murder, which is what the judges in this case were being asked to do.

Saimo Chahal, Tony Nicklinson’s solicitor, admitted in a Channel 4 News item earlier in the year that the arguments being presented on his behalf were “extremely novel and far-reaching” (skip to about 2:05).  In the same way, a lot of the coverage of the last 24 hours has mentioned that the case was described as “a full-frontal assault on the law of murder”.  I can’t actually find where that turn of phrase was used, or by whom (The Guardian quotes Andrew Fergusson of Care not Killing as saying that this is how the case had been described in court – a quotation that seems to come from his piece on the CMF blog but which isn’t currently linked there; I’d welcome any other pointers) - but in a Dispatches film in June, the narrator did call the case “a fundamental challenge to the law on murder” (go to about 9:20).

Irrespective of the precise phrasing, though, the fact that the case would have generated such a huge change in the law – that it was novel and far reaching, and was a fundamental challenge to the extant law – is pretty obvious.  And it’s for that reason that, I suspect, the case was doomed before it was opened.  The courts can only work within the law as it stands, and even when judges create law, they tend to do so only in the context of established law.  Anything more, and they’re likely to say, “Whoa, matey: this ain’t my role.”

Thus Toulson at para 150 in the ruling:

To do as Tony wants, the court would be making a major change in the law.  To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role.  These are not things which the court should do.  It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place.  Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases.

And thus Royce at para. 151:

Some will say the Judges must step in to change the law.  Some may be sorely tempted to do so.  But the short answer is that to do so here would be to usurp the function of Parliament in this classically sensitive area.

And that’s why – as I predicted on this blog before – irrespective of the moral merit of the ruling, it was pretty much inevitable.  And that being the case, you have to wonder what the point was of bringing the case to begin with.

… read this from Current Oncology - ”Pereira’s Attack on Legalizing Euthanasia or Assisted Suicide: Smoke and Mirrors” – if you haven’t already.

(via the Bioethics International FB group… and a million others.)

A Court in British Columbia has ruled that the law against assisted suicide (AS) in Canada cannot be reconciled with the country’s Charter of Rights and Freedoms - notably item 7 -

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

- and item 15 -

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The full ruling is available here (H/T to Ophelia Benson for the link): it’s long, and I’ve not had a chance to read it, so contributions in the comments below this post would be welcome.  From what I can tell, the decision is still liable to go to appeal, so it might yet turn out to be a false start; but it’s highly notable nonetheless.

Though I’ve made no bones here about my broad support for the legalisation of assisted dying, both as assisted suicide and euthanasia, I do wonder if in this case some of the judge’s reasoning may be a bit iffy.   more…

I know it’s not long since I last posted about the Christian Medical Fellowship’s blog, and I would ordinarily leave it a bit longer… but I’m about to go off on one.  Forgive me.  I’ve had a hard week marking exam scripts, and I’m tired and stressed and cranky, and this is just… well…  Look: I hear that ginger is quite a good anti-emetic.  You might want to go and find some.

You will, of course, be aware of the recent killings in Houla: 108 civilians shot at close range or stabbed in what the UN says may amount to a crime against humanity.  You may also have read about the arrest of Mick and Mairead Philpott, suspected of the murder of their six children in a housefire.  Peter Saunders, on the CMF blog, under the title “There are Few Things More Horrifying than the Slaughter of Innocent Children”, writes that

Every child’s death is a tragedy but there are few things more reprehensible than the killing of children by adults. Children are rightly seen as amongst the most vulnerable and defenceless members of society and deserving of special protection.

It is therefore not surprising that Western governments are acting quickly at the highest level to expel Syrian diplomats and impose sanctions and the police are giving high priority to investigating the Derby fire for which the children’s own parents are now suspects.

Whether or it turns out that the Syrian government was directly involved in the latest atrocities, or whether or not the parents are charged with starting the fire, it is nonetheless deeply ingrained in the human psyche that public authorities have a duty to protect the vulnerable and that the strongest advocates for children should be their own parents.

As I read that, I had a horrible feeling about what was going to come next.  I suspect many people reading this now will have the same feeling.  The same creeping nausea.  He’s used the phrase “slaughter of innocent children”.  He’s not going to say… is he?

Reader, he is. more…

It was reported a couple of weeks ago that researchers had found a link between certain forms of assisted conception and an increased risk of birth defects.  The paper, published in the NEJM, suggested that ICSI (intra-cytoplasmic sperm injection) correlated with defets in just about 10% of births.  The base rate is about 5.8%, rising to around a 7.2% defect rate from IVF.

Does this tell us anything of any great moral import?

Several things spring to mind.  One is that, granted the claim that it’s better not to be born with a defect, it’s presumably also better for assisted reproduction not to elevate the risk of defects above the natural level.  There might even be an obligation to do more research into assisted reproduction, so that we can ensure the fewest possible birth defects (and maybe get better at generating healthy babies than nature: even a rate of 5.8% looks a bit slapdash).  Slightly more radically, some might claim that there ought to be a moratorium on certain assisted reproduction procedures – ISCI in particular – for the sake of minimising the number of birth defects.

Let’s deal with the radical claim first (what can be said about that will also speak to the less radical one). more…

Remember a little while ago there was a rash of proposals in the US that’d force women to see a sonogram of the foetus, or to listen to detailed descriptions of it, before having an abortion?

Yeah: them.  Well, via Ophelia, here’s an account of what really happens.

Halfway through my pregnancy, I learned that my baby was ill. Profoundly so. [...] “I’m worried about your baby’s head shape,” she said.  “I want you to see a specialist—now.”

[... B]efore I’d even known I was pregnant, a molecular flaw had determined that our son’s brain, spine and legs wouldn’t develop correctly.  If he were to make it to term—something our doctor couldn’t guarantee—he’d need a lifetime of medical care.  From the moment he was born, my doctor told us, our son would suffer greatly.

So, softly, haltingly, my husband asked about termination.  The doctor shot me a glance that said: Are you okay to hear this now?  I nodded, clenched my fists and focused on the cowboy boots beneath her scrubs.

She started with an apology[...]

That’s not a good start, is it?  An expression of sympathy, maybe.  But an apology?  It’s as if she knows that things are about to get worse.  And they are. more…

It’s just been reported that Tony Nicklinson has won the right to have his right to die case heard before the courts.  This is the result of a hearing in which the Ministry of Justice’s contention was that any such case would potentially re-write the murder laws, and that this is a matter for Parliament, rather than the courts.

Nicklinson has had “locked-in syndrome” since a stroke in 2005: he’s capable of communication, but little else.  (His wife was interviewed on the Today programme this morning: it’s well worth a listen.)

As I understand it, what makes his case different from that of, say, Diane Pretty is that his argument rests on an appeal to necessity: his wife claims that ”the only way to relieve Tony’s suffering will be to kill him.  There’s absolutely nothing else that can be done for him” (skip to about 3:30 in the interview for that bit).  There’s also a dignity aspect to the petition.

This being news that’s only broken in the last couple of minutes, further details are slightly sketchy.  (I suspect there’ll be a statement from the MoJ, but I can’t see anything on their website just yet.)  However, I’m prepared to stick my neck out to make a prediction.  It’s this:  more…

I did mention last week that I’d post links to sites that mentioned Giubilini and Minerva’s paper as they crossed my radar; but it turned out very quickly that there’d be no way to keep up.  And, to be frank, a lot of the blogosphere’s response has been fairly scattergun outrage rather than dispassionate engagement with the paper, and directed at Giubilini and Minerva themselves rather than at the argument they put forward.  There’s been much more heat than light.

This is perhaps unsurprising, as considered responses are almost certainly going to take a while to materialise.  However, they have begun to appear.  Here’s the first that I’ve spotted; I’ll post links to more in this thread as and when.  And if any readers have responses on academia.edu or SSRN that they’d like mentioning, or if anyone spots anything of interest, do let me know. more…

Rev Prof Ken Boyd, Associate Editor, Journal of Medical Ethics, writes:

Coming up to me at a meeting the other day, an ethics colleague waved a paper at me. “Have you seen this ?”she asked,  “It’s unbelievable!” The paper was ‘After-birth abortion: why should the baby live?” by two philosophers writing from Australia, Alberto Giubilini and Francesca Minerva. Well yes, I agreed, I had seen it: in fact I had been the editor responsible for deciding that it should be published in the Journal of Medical Ethics; and no, I didn’t think it was unbelievable, since I know that arguing strongly for a position with which many people will disagree and some even find offensive, is something that philosophers are often willing, and may even feel they have a duty, to do, in order that their arguments may be tested in the crucible of debate with other philosophers who are equally willing to argue strongly against them. Of course for that debate to take place in the Journal of Medical Ethics, many of whose readers, doctors and health care workers as well as philosophers, may well disagree, perhaps strongly, with the paper’s  arguments,  we needed first to make sure that the paper, like any other submitted to the Journal, was of sufficient academic quality for us to publish; and the normal way in which we determine this is to invite academics in relevant disciplines to review the paper critically for us, so that we can eventually make an informed decision about whether or not to publish it, either in its original or (as in this case) a form revised in the light of the reviewers’ reports. Satisfied by the reviewers’ reports and my further editorial review that the paper was of sufficient academic quality to be published in the Journal of Medical Ethics, and being charged with making the decision as an Editor with no conflict of interest in the matter, since unlike my fellow-editors in the relatively small world of international academic medical ethics I have never met the authors, and indeed personally do not agree with the conclusions of their paper, I decided that it was appropriate to publish it in the interest of academic freedom of debate.  It has subsequently been suggested to me that people whose lives might have been ended by ‘after-birth abortion’ were this legal, might be deeply offended by this paper. If that is the case I am sorry, but I am also confident that many of these people are equally capable of mounting a robust academic reply to the paper which, again subject to peer-review, the Journal of Medical Ethics will be very willing to consider for publication.

(IB adds: the paper in question is here; Julian Savulescu defends publication in the next post down.  I’ll add relevant links, both pro and contra, as I find them.)

Guest post by Dominic Wilkinson

(Cross-posted from Practical Ethics)

On the BBC’s Moral Maze this evening, the question of elective ventilation was discussed at some length. (For those who missed it, the programme is still available here). There were several striking features of that discussion, but one argument that stood out was the argument against elective ventilation based on the importance of respecting the autonomy of patients, and the absence of consent, This has been the basis of previous ethical concerns about Elective Ventilation.

But actually, it seems to me that the consent/autonomy argument is completely upside down.* Patient autonomy provides one of the strongest arguments in favour of elective ventilation. So strong, in fact, that the proposed form of Elective Ventilation should arguably not be ‘elective’. It is morally obligatory that we embrace Elective Ventilation.

Why should this be the case? It is based on a simple, and intuitively plausible idea: more…