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\u2019d take a moment out from writing jurisprudence lectures to do some thinking out loud about Belgium\u2019s recent change to its euthanasia law, which legalises it for children.\u00a0 This is partly because it\u2019s interesting in its own right, and partly because I\u2019m debating it on Radio 4\u2019s Sunday<\/i> programme this week.\u00a0 I\u2019ve drafted this post before the interview\u2019s recorded, but I\u2019m not publishing it until after (though before the broadcast); let\u2019s see how my thoughts here pan out on air\u2026**<\/p>\n
For reference, the text of the law is available here<\/span><\/a><\/span><\/span> in French, and here<\/span><\/a><\/span><\/span> in Dutch – thank goodness for A\/S levels.\u00a0 A decent pr\u00e9cis provided by AP is hosted here<\/span><\/a><\/span><\/span>; and Christian Munthe has an unofficial translation here<\/span><\/a><\/span><\/span>.<\/p>\n OK: so, what should we think about it?<\/p>\n I suspect that there\u2019s two lines of objection that are pretty obvious, and pretty broad.\u00a0 The first is that euthanasia is wrong in principle, and its availability should therefore be minimised, not extended.\u00a0 The other is a worry about creep, or slippery slopes: that if x<\/i> is legalised, then we\u2019ll find the law being stretched to cover y<\/i>, and then z<\/i>, and before we know it, we\u2019ve accidentally given legal cover to all kinds of things.\u00a0 This is not an objection in principle, but one about the practicality: that the law will have a much bigger impact than anyone anticipates.\u00a0 Obviously, neither of these lines of argument implies the other; but you could fit them together quite happily, and say that it\u2019s wrong to allow euthanasia (for children, or tout court<\/i>), AND that it\u2019ll have a bigger impact than anticipated.<\/p>\n Interestingly, perhaps, I think my position is completely the opposite.\u00a0 I think that extending euthanasia to children is probably OK in principle, but that it\u2019ll probably have a minimal impact in practice.<\/p>\n The argument here doesn\u2019t require making any claims about the permissibility of euthanasia in general.\u00a0 Rather, I\u2019m inclined to take as my starting-point something much more syllogistic: that if<\/i> euthanasia is going to be allowed, we should be prepared to allow it for children.\u00a0 The reason for this is pretty straightforwardly an anti-ageism appeal.\u00a0 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.\u00a0 If someone can make the decision on the Tuesday, the chance that he was incapable the day before is small.\u00a0 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.<\/p>\n What seems to me to be much more important is capacity.\u00a0 This will, we could predict, be correlated with age \u2013 a 12-year-old is likely to be more capable of sophisticated decisionmaking than her 6-year-old sibling – but age per se<\/em> wouldn’t matter.\u00a0 What matters is that a person is capable; the number of days spent on the planet is neither here nor there.<\/p>\n And that\u2019s pretty much what the Belgian law says \u2013 except that even it doesn\u2019t even things out completely.\u00a0 The new law modifies the law as it\u2019s 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.\u00a0 The slight qualification here is that the parents do have a role:<\/p>\n f)<\/i>\u00a0dans le \u00a7\u00a04, la phrase \u00ab\u00a0La demande du patient doit \u00eatre act\u00e9e par \u00e9crit\u00a0\u00bb est remplac\u00e9e par ce qui suit:<\/p>\n \u00ab\u00a0La demande du patient ainsi que l’accord des repr\u00e9sentants l\u00e9gaux si le patient est mineur doivent \u00eatre act\u00e9s par \u00e9crit.\u00a0\u00bb<\/p><\/blockquote>\n or<\/p>\n f)<\/i>\u00a0in \u00a7\u00a04, wordt de zin \u00ab\u00a0Het verzoek van de pati\u00ebnt moet op schrift zijn gesteld\u00a0\u00bb vervangen door wat volgt:<\/p>\n \u00ab\u00a0Het verzoek van de pati\u00ebnt, alsook de instemming van de wettelijke vertegenwoordigers indien de pati\u00ebnt minderjarig is, moeten op schrift zijn gesteld\u00a0\u00bb<\/p><\/blockquote>\n that is:<\/p>\n in \u00a74 of the 2002 law, the phrase \u201cthe patient\u2019s request must be in writing\u201d becomes \u201cthe patient\u2019s request and the assent of his legal guardians if he is a minor<\/i> must be in writing\u201d.\u00a0 That is, children still have to jump through administrative hoops that adults don\u2019t.\u00a0 That may be defensible; it may even be morally required. \u00a0Given 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.<\/p>\n 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.\u00a0 In many ways, that strikes me as a good thing.<\/p>\n Right: so I don\u2019t share the concern in principle.\u00a0 What about the practical concern?<\/p>\n I don\u2019t share that, either.\u00a0 In fact, I suspect that very few people will find their situation altered by the legal shift.\u00a0 This is for a couple of reasons.<\/p>\n First, as a matter of fact, there\u2019s no guarantee that there will be many minors deemed capable of requesting euthanasia.\u00a0 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<\/span><\/a><\/span><\/span>.\u00a0 It might be that there are children capable of requesting euthanasia; but I don\u2019t think that the numbers will be high.<\/p>\n But the other thought has to do with the way the law is drafted.\u00a0 It says that<\/p>\n c) le \u00a7 1er, alin\u00e9a 1er, est compl\u00e9t\u00e9 par un quatri\u00e8me tiret r\u00e9dig\u00e9 comme suit:<\/p>\n \u00ab \u2014 le patient mineur dot\u00e9 de la capacit\u00e9 de discernement se trouve dans une situation m\u00e9dicale sans issue entra\u00eenant le d\u00e9c\u00e8s \u00e0 br\u00e8ve \u00e9ch\u00e9ance et fait \u00e9tat d’une souffrance physique constante et insupportable qui ne peut \u00eatre apais\u00e9e et qui r\u00e9sulte d’une affection accidentelle ou pathologique grave et incurable. \u00bb<\/p><\/blockquote>\n or, if you prefer,<\/p>\n c)<\/i>\u00a0paragraaf\u00a01, eerste lid, wordt aangevuld met een vierde streepje, luidende\u00a0:<\/p>\n \u00ab\u00a0\u2014 de minderjarige pati\u00ebnt 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.\u00a0\u00bb<\/p><\/blockquote>\n 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.<\/p>\n And I think that that puts a very tight limit on the number of people who\u2019d qualify, irrespective of age.\u00a0 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<\/i> have the right kind of decisionmaking capacity seems like its demanding two antagonistic things.\u00a0 I\u2019ve been banging on about this for ages<\/span><\/a><\/span><\/span> \u2013 I\u2019m inclined to the thought that if euthanasia is going to be available, it ought to be available without reference to suffering, bearable or not.<\/p>\n One might also ask whether any suffering is untreatable: there are those who think that continuous deep sedation is an alternative to euthanasia.\u00a0 I\u2019ve my doubts about that for a couple of reasons \u2013 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.\u00a0 But the point stands that, if you really want to end suffering, there are ways to end it without killing.\u00a0 (This is why I think that the necessity claim in respect of Nicklinson<\/i> and related cases is doomed.)<\/p>\n That doesn\u2019t make a difference to the idea that euthanasia should be available in principle for those who do satisfy all the criteria.\u00a0 But I just don\u2019t think there will be many.<\/p>\n Finally, in respect of the claim that we\u2019d be opening the door to killing those who don\u2019t quite<\/i> fit the criteria, and so risking a kind of creeping killing \u2013 well, that might be happening already; at least this way it\u2019s more likely to be judicially scrutable.<\/p>\n Upshot: I don\u2019t 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.\u00a0 But I think that the actual impact will be small.<\/p>\n <\/p>\n It\u2019s a hell of a prediction to get wrong, though.\u00a0 We shall see.<\/p>\n <\/p>\n <\/p>\n * I know, I know.\u00a0 It\u2019s a pathetic excuse.\u00a0 But it\u2019s all I have.<\/p>\n ** I think I more-or-less guessed correctly…<\/p>\n","protected":false},"excerpt":{"rendered":" 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\u2019d take a moment out from writing jurisprudence lectures to do some thinking out loud about Belgium\u2019s recent change to […]<\/p>\n\n
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