Published online by Cambridge University Press: 09 June 2015
Modern medicine has been enormously successful in saving and extending lives. No one can reasonably regret this, but it exacerbates a problem which has always been with us, namely, how to treat those who are alive, but not living lives they think worthwhile, and have no prospects for anything better. Under current Canadian law, one who wants to die can either commit suicide, or, if he is competent, refuse all treatment necessary for life. But one does not always have the ability and opportunity to do the former, and the latter does not always bring about a gentle and easy death for either the patient or his loved ones. The question thus arises as to whether we should make legal provision for assisted suicide - providing the means of suicide - and active voluntary euthanasia - killing the patient on request. The Canadian Law Reform Commission1 has recently taken up this question, and answered with a clear “No.” I shall argue in what follows that the answer should be “Yes.”
1. Euthanasia. Aiding Suicide and Cessation of Treatment(Working Paper 28)(Ottawa:Minister of Supply and Services,(1982), at 43–55;Google ScholarPubMed Report on Euthanasia, Aiding Suicide and Cessation of Treatment(Report No. 20)(Ottawa:Minister of Supply and Services,(1983), at 17–21;Google Scholar Some Aspects of Medical Treatment and Criminal Law(Report No. 28)(Ottawa:Minister of Supply and Services,(1986), at 13.Google ScholarPubMed
2. For a review of legislative positions on assisted suicide and active voluntary euthanasia, see Helen Silving, “Euthanasia: A Study in Comparative Criminal Law” (1954), 103 U. Pa. L. Rev. 350, on which I have relied heavily.
5. LaFave, Wayne R.&Austin W. Scott,Handbook on Criminal Law(St. Paul:West Publishing Co.,(1972)sec 74 at 568–569write: “In America today the forfeiture-of-goods and ignominious-burial forms of punishment have been abolished, so that no penalty attaches to a successful suicide; but some states [e.g. Alabama, Oregon and South Carolina] which retain common law crimes nevertheless speak of suicide as a 'criminal' or 'unlawful' act though, not being punishable, not strictly-speaking a crime.... In states which have abolished common law crimes… suicide can be no crime in the absence of a statute making it so.... No state has a statute making it so.... No state has a statute making successful suicide a crime.”Google Scholar
6. See State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961). North Carolina maintains attempted suicide as a misdemeanour. See also Stale v. Levelle, 34 S.C. 120, 12 S.E. 310 (1891). S.C. Code Ann. sees 17-122 ascribes the common character of felony to attempted suicide.
7. Swiss Penal Code art. 115 provides: “Whoever, from selfish motives, induces another to commit suicide or assists him therein shall be punished, if the suicide was successful or attempted, by confinement in a penitentiary for not more than five years or by imprisonment.”
8. Italian Penal Code art. 580 reads: “Whoever instigates another to commit suicide or reinforces his intention to do so or in any manner promotes the execution of suicide shall be punished, where the suicide is successful, by confinement from five to twelve years. Where the suicide is not successful, such person shall be punished by confinement from one year to five years, provided that the attempt at suicide results in a serious or very grave personal injury.”New York Penal Code sees. 2304, 2305 (1944) provides that assisting suicide is manslaughter in the first degree or just a felony depending on whether the suicide was successful or remained in the stage of an attempt.
9. The Texas legislature has determined that suicide is not a crime and, therefore, has decriminalized the act of assisting another in suicide. Avert v. State, 102 Tex. Crim. 478, 277 S.W. 1080 (1925). Defendant furnished the means for committing suicide but the court held no crime existed
10. See, e.g., (1) McMahan v. State, 168 Ala. 70, 53 So. 89 (1910). Pursuant to a suicide pact, the deceased shot himself in the presence of the defendant; however, the defendant did not shoot himself. The court held that since suicide is self-murder, the defendant who encouraged was guilty as a principal to, murder. Id.; (2) Burnett v. People, 204 111. 208, 68 N.E. 505 (1903). Both the deceased and the defendant admitted to having taken poison as a result of a suicide pact. The defendant survived. The court concluded that this would be murder on the defendant’s part; (3) Commonwealth v. Hicks, 118 Ky. 637, 82 S.W. 265 (1904). The court held that one who aided another in the commission of suicide was guilty of homicide as an accomplice; (4) Commonwealth v. Bowen, 13 Mass. 356 (1916). The defendant, a prisoner, advised a fellow prisoner who was to be executed the following day to “cheat” the hangman, i.e., to commit suicide. The Supreme Judicial Court instructed the jury that if the advice was the persuading element, then the fellow prisoner would be guilty of murder; (5) People v. Roberts, 211 Mich. 187, 178 N.W. 690 (1920). The defendant-husband in this case prepared Paris greens (a poison) for his wife and placed it near her bedside at her request. The court convicted Roberts of murder as an accomplice to her suicide.
11. Connecticut and New York treat the aiding and abetting of a suicide as manslaughter. Conn. Gen. Stat. Ann. sec. 53–13 (West 1949); N.Y. Penal Law sec 125.15 (McKinney 1965).
12. Currently twenty-six states and the Commonwealth of Puerto Rico have statutes expressly outlawing suicide assistance. See Marzden et al., supra note 3 at 97.
13. Kan. Stat. Ann. sec. 21-3406 (1970)
14. Minn. Stat. Ann. sec. 609.215 (1963).
15. Article 63 of the Swiss Penal Code provides: “The judge shall mete out punishment in accordance with the guilt of the actor; he shall consider the motives, the prior life and the personal circumstances of the guilty person.” And art 64 allows: “The judge may mitigate the punishment… where the actor was induced to commit the act (acted) by honourable motives....“ German Penal Code sec. 213 (1943) provides: “Where the manslayer was aroused to anger by ill treatment or by a grave insult inflicted upon him or upon one of his relatives–without his fault-by the deceased and was thereby instantly moved to commit the act, or where there are other extenuating circumstances, the punishment shall be imprisonment for not less than six months.”
16. Norwegian Penal Code sec. 235 provides: “Punishment according to sections 228 and 229 (bodily injury and rendering a person unconscious) shall not be applied where the action was committed with consent of the victim. Where a person was killed or suffered considerable damage to his body or health with his own consent, or where an actor motivated by mercy takes the life of a hopelessly ill person, or assists in such act of killing, the punishment may be reduced below the minimum fixed by statute and a milder form of penalty may be imposed.”
17. Section 460 of that Code provided as follows: “A person guilty of homicide performed at the (urgent) request of the person killed and out of compassion for him shall be punished by confinement in a fortress [custodia honesta] for a term not exceeding three years.”
18. Polish Penal Code art. 227 (1932) provides: “Whoever kills a human being a his request and under the influence of compassion for him shall be punished by imprisonment up to five years or by detention.”
19. Penal Code of Uruguay art. 37 (Law No. 9155), promulgated Dec. 4, 1933, effective as of July 1, 1934, provides: “The judges are authorized to forego punishment of a person whose previous life has been honourable where he commits a homicide motivated by compassion, induced by repeated requests of the victim.”
20. See Ruth Russell, O.,Freedom to Die(New York:Dell Publishing Co.,(1975)at 237–245and Silving,supranote 2 at 353-354.Google Scholar
21. See Timothy, Harper,“Where Euthanasia is a Way of Death”(1987),64Medical Economics(Nov. 23) at23.Google Scholar
22. Ibid, at 24.
23. John Stuart Mill gives an account of why all restraint, qua restraint, is an evil:“To be prevented from doing what one is inclined to, or from acting according to one’s own judgment of what is desirable, is not only always irksome, but always tends, pro tanto, to starve the development of some portion of the bodily or mental faculties, either sensitive or active....” Principles of Political Economy (London: Longmans, Green and Co., 1923)Bk. V, Ch. xi, sec. 2 at 943.Google ScholarPubMed
25. See Glanville, Williams“ ‘Mercy-Killing’ Legislation–A Rejoinder”(1958),43Minn. L.R. 1 at 1-2, develops this argument.Google Scholar
26. The Canadian Law Reform Commission notes that a strict reading of section 199 of the Canadian Criminal Code, according to which anyone who undertakes medical treatment must continue providing it if failing to do so may threaten human life, implies that one cannot always refuse treatment. However, it argues’that any treatment given against the patient’s wishes should constitute an assault in law, and recommends: “That the ambiguity created by the provisions of section 199 of the present Criminal Code be resolved, and that the Criminal Code provide for the right of any competent person to refuse medical treatment or to ask for its suspension or termination, and that therefore no one shall be required to provide it against the patient’s wishes.” Some Aspects of Medical Treatment and Criminal Law, supra note 1 at 17. Fran Camerie, “Euthanasia and Self-Determination: Is There a Charter Right to Die in Canada?” (1987), 32 McGill LJ. 299, argues that subsection 2(a), and more precariously sections 7 and 12, of the Canadian Charter of Rights and Freedoms indirectly yield a constitutional right to choose death, when to refuse the patient’s request would effectively deny the right to life, liberty, and the security of the person, freedom of conscience, or the right to be free from cruel and unusual treatment.
27. There is a vast literature on the moral significance of the killing/letting die distinction. A collection of essays airing both sides of the question is Bonnie Steinbock, ed., Killing and Letting Die(Englewood Cliffs, N.J.:Prentice-Hall,1980).Google ScholarPubMed My sympathies lie with the argument first presented by James Rachels in “Active and Passive Euthanasia” (1975) 292 The New England Journal of Medicine (Jan. 9) at 78-80 Google Scholar, and developed further with replies to critics in his The End of Life: Euthanasia and Morality(Oxford: Oxford U.P.,1986), c. 7 and 8, according to which the distinction is morally irrelevant. But a full defense of this view is too complex to undertake here. It is also unnecessary, for even if one rejects that view, and hence the prima facie case for active voluntary euthanasia based on it, there are still three other arguments which will make out such a case.Google ScholarPubMed
28. See Wolhandler, Steven J.“Voluntary Euthanasia for the Terminally 111 and the Constitutional Right to Privacy”(1984),69 Cornell L. Rev.363 at369presents this argument: “It is legally inconsistent to honour a terminal patient’s request that life support equipment be removed, but to deny a similarly situated patient’s request for an immediate and painless end merely because a second party’s active assistance is needed to implement the latter request. Prohibiting a second party from helping a patient commit self-euthanasia by imposing legal sanctions on that party is effectively equivalent to denying the patient the right to make that decision in the first place.”Google Scholar
29. This argument is presented by Shari, O’Brien,“Facilitating Euthanatic, Rational Suicide: Help Me Go Gentle into that Good Night”(1987),31St. Louis U.LJ. 655at670–671.“Further, because the right to commit euthanatic suicide is constitutionality insulated from governmental intrusion, protection should extend to any third party assistance necessary to exercise that right. A corollary precept is that the dissemination of information (for example, on minimum, lethal drug dosages), which abets rational euthanatic suicide, also falls within the ambit of speech protected by the first amendment. In addition, the term ’necessary’ assistance need not be construed parsimoniously so as to exclude all but indispensable conduct and information from others. Many candidates might never opt for rational euthanatic suicide without the moral support of loved ones.” See also Wolhandler, supra note 28 at 383: “The constitutional right to privacy protects a competent terminal patient’s right to determine for himself the time and manner of his death. It is inconsistent to recognize a terminal patient’s legally protected right to make a decision in favour of self-euthanasia but deny that patient the means of implementing that decision.”Google Scholar
30. The view that difference in species is morally irrelevant is defended by Peter, Singer,Animal Liberation(New York:Random House,(1975)c. 2.Google Scholar
31. For a discussion of other religious viewpoints (as well as the Judaic-Christian) on suicide and euthanasia, see Joseph, Fletcher,Morals and Medicine(Boston:Beacon Press,(1960)c. 6.Google Scholar
32. The classic discussion of this view is David, Hume,“Of Suicide”first published posthumously in 1784.It is conveniently reprinted in Alasdair Maclntyre, ed.,Hume’s Ethical Writings(New York:Collier Books,(1965)at 297-306. See 297-304 for Hume’s discussion of the religious arguments.Google Scholar
33. This assumption is made by (among others) Saint Thomas Aquinas,Summa Theologiae, II-II, Q. 64, A.5.
34. This view is presented by Norman St. John-Stevas, ,The Right to Life(London:Hodder & Stoughton,(1963)at 50.Google Scholar
35. See, for example, Joseph Sullivan, Bishop,“The Immorality of Euthanasia”in Marvin Kohl, ed.,Beneficient Euthanasia(Buffalo, N.Y.:Prometheus Books,(1975)at 14.Google Scholar
36. Groundwork of the Metaphysic of Morals, trans. H.J. Paton, Ak. 421.
37. Groundwork, Ak. 421–422.
38. See further Robert Paul Wolff, ,The Autonomy of Reason,(New York:Harper & Row,(1973)at163–165.Google Scholar
40. See further Lectures on Ethics,trans.Infield, Louis,(New York:Harper & Row,(1963)at147–148.Google Scholar
41. Groundwork, Ak. 429.
43. See further Eike-Henner, W. Kluge,The Practice of Death,(New Haven:Yale University Press,(1975)at141–142.Google Scholar
44. See George Singer, Marcus,Generalization in Ethics,(New York:Alfred A. Knopf, Inc.,(1961)at311–318.Google Scholar
45. John, Stuart Mill,On Liberty,(Everyman’s Library ed.:New York:E.P. Dutton and Company,(1910)Ch. IV, Par. 6, atl35.Google Scholar
46. Aquinas, supra note 33, II–II, Q. 64, A. 5, also presents this argument.
47. See further Hume, supranote 32 at 304–306.
48. This objection is presented by The Canadian Law Reform Commission in Euthanasia, Aiding Suicide and Cessation of Treatment supra note 1 at 46; also by Yale Kamisar, ,“Some Nonreligious Views against Proposed ‘Mercy-Killing’Legislation”(1958),42 Minn. L. Rev.969 at 993–1005;Google Scholarsee further Gregory, Gelfand,“Euthanasia and the Terminally 111”(1984),63 Neb. L. Rev.741 at 759–760;Google Scholar(mistaken diagnosis) and at 762 (new cures). Kamisar‘s article, which was written in response to Glanville Williams’ The Sanctity of Life and the Criminal Law(London:Farber and Farber,1958),is the locus classicus of the main objections to legalizing active voluntary euthanasia, and the Canadian Law Reform Commission relies heavily on it. Gelfand re-presses most of those objections, with some embellishments, and adds two new ones.Google ScholarPubMed
49. Glanville Williams replies to this objection in his reply to Kamisar, supra note 25 at 5–8, as does Morris, Arval A.,“Voluntary Euthanasia”(1970),45 Wash. L. Rev. 239.Morris, a proponent of legalizing active voluntary euthanasia, replies to the mistaken diagnosis objection at 259–261, and to the possibility of new cures at 261–262.Google Scholar
50. Canadian Law Reform Commission, Euthanasia, Aiding Suicide, and Cessation of Treatment supra note 1 at 46–47; Kamisar, supra note 48 at 985–993; Gelfand, supra note 48 at 757–759.
51. See further Morris, supra note 49 at 257–259.
52. Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment supra note 1 at 46; Kamisar, supra note 48 at 990–991; Gelfand, supra note 48 at 762–763.
53. This is probably the most popular objection to legalizing active voluntary euthanasia. Among its many proponents are The Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment supra note 1 at 46; Kamisar, supra note 48 at 1030-1041; and Gelfand, supra note 48 at 763–766. On slippery slope arguments generally, see Frederick, Shauer,“Slippery Slopes”(1985),99 Harv. L. Rev. 361.Google Scholar
54. TThis version of the argument is used by Bishop Joseph, V. Sullivan,“The Immorality of Euthanasia” in Marvin Kohl, ed., Beneficent Euthanasia(Buffalo, N.Y.:Prometheus Books,1975)at24.Google Scholar
55. This is the version urged by The Canadian Law Reform Commission, Kamisar, and Gelfand.
57. On inadequacy of the Nazi analogy, see further Rachels, The End of Life, supra note 27 at 175–178.
58. See further Williams, supra note 25 at 5, and Morris, supra note 49 at 264–266.
59. Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment, supra note 1 at 54.
60. See further Williams, ,The Sanctity of Life and the Criminal Law supranote 48 at 309.Google Scholar
61. Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment, supra note 1 at 47; Kamisar, supra note 48 at 978–985; Gelfand, supra note 48 at 760–761.
62. See further Williams, supra note 25 at 3–4.
63. Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment, supra note 1 at 47.
64. Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment, supra note 1 at 48; Kamisar, supra note 48 at 1008–1011.
65. See further Williams, supra note 25 at 8-9. and Morris, supra note 49 at 262–264.
66. Gelfand, supra note 48 at 766–767.
67. Gelfand, supra note 48 at 769.
68. Two useful surveys of objections and replies which cover roughly the same ground as the above are Anthony Flew,“The Principle of Euthanasia”in A.B. Downing, ed.,Euthanasia and the Right to Death(Los Angeles:Nash Publishing,1969)at 30–48, and Russell, supra note 20, c. 8.Google Scholar
69. In rejecting the view that mercy killing should be accorded a special status, the Commission in its Report on Euthanasia, Aiding Suicide and Cessation of Treatment, supra note 1, notes at 19-20, “It should be recalled that our legal system has internal regulating mechanisms which offset the apparent harshness of the law. It is possible that in some circumstances the accused would be allowed to plead guilty to a lesser charge. We also feel that our trial system, and the conclusions and verdicts reached by our juries, should be trusted. Finally, in truly exceptional cases, the authorities already have it within their discretion to decide not to prosecute.” A similar view is expressed by the Commission in its Euthanasia, Aiding Suicide and Cessation of Treatment, supra note 1, at 51–52. The extension of this to compassion-motivated assisted suicide would be natural. This laissez-faire approach is also advocated by W.R. Matthews, “Voluntary Euthanasia: The Ethical Aspect,” in Downing, supra note 68 at 25-28, and Kamisar, supra note 48 at 971-973. It is replied to by Williams, supra note 25 at 2–3, and Morris, supra note 49 at 256-257.
70. Euthanasia, Aiding Suicide and Cessation of Treatment, supra note lat 54–55 & 68–69.
71. Report on Euthanasia, Aiding Suicide and Cessation of Treatment, supra note lat 20–21.
72. See supra note 69.
73. Euthanasia, Aiding Suicide and Cessation of Treatment,, supra note lat 48–49.
74. Sayid, Mustafa D.,“Euthanasia: A Comparison of the Criminal Laws of Germany, Switzerland and the United State”(1983),6B.C. Int’l & Comp. L. Rev.533 at 562 writes: “Motive as an element of a crime has worked well for Germany and Switzerland. Contrasting an evil motive with a beneficient or merciful motive as an element of murder raises questions concerning the purpose of making homicide a crime. The answer to these questions should prove helpful in the debate over the legal status of euthanasia. A careful approach would not legalize murder, but would acknowledge that actions of mercy are distinct from the moral reprehension normally associated with homicide.” Sayid at 560–561 isolates three ways the experience of those countries may serve as a model to legislatures considering motive as a device for legalizing euthanasia: “The first approach is for the legislature to vest a broad discretion in judges to classify cases within the various types of homicide based on motive. Legislatures might also enumerate in the statutes themselves particular motives deserving exceptional treatment... Another approach that would mitigate the circumstances of a person who practices euthanasia is to adopt the ’homicide upon request’ provision of the penal codes of Germany and Switzerland. This provision would allow a mitigated sentence for homicide on the grounds that the compassion motivating the actor and the consenting plea of the deceased reduces the reprehensibility of the act... The German provision of ‘manslaughter with extenuating circumstances’ is another approach that the American criminal justice system could incorporate. This provision calls for a mitigation of the sentence of an individual if he commits homicide under ‘extenuating circumstances’...When an individual has performed euthanasia, courts would consider the existence of the euthanasia motive as an ‘extenuating circumstance’. However, if a court finds no extenuating circumstances but rather that an individual has committed murder, the court would have no reason to apply this provision.”Google Scholar
75. The Sanctity of Life and the Criminal Law, supra note 48 at 302. Substantially the same proposal has been recently supported by Rachels, The End of Life, supra note 27 at 182–187.
76. On the history of these proposals in Great Britain and the United States, see Kaplan, Ronald P.,“Euthanasia Legislation: A Survey and a Model Act”(1976),2 Am. J. L. & Med. 41 at 52ff.Google Scholar
77. See Rachels, The End of Life, supra note 27 at 182–184.
78. O’Brien, supra note 29, at 655–656 claims that the most workable schemes to ratify active voluntary euthanasia provide that the party rendering assistance may avoid liability only under the following narrow set of circumstances: “the health of the suicide beneficiary is permanently, implacably, and seriously impaired; the beneficiary has made an informed choice to terminate his or her life and is, by clear and convincing evidence, legally competent to understand the dimensions of ‘this momentous decision’; the incurable’s decision is truly voluntary and not the product of coercion or undue influence; the third party’s rendition of assistance is benignly motivated.” Wolhandler, supra note 28 at 381–382, suggests the following guidelines: (1) the patient must be terminally ill; (2) the decision must be voluntary; (3) the patient must be legally competent; (4) the patient’s decision must be informed; and (5) to further evidence voluntariness, the doctor must prescribe the least active means to effectuate death. I discuss the outstanding disagreement between O’Brien and Wolhandler over whether the patient’s condition must be terminal in the next section.
79. One may argue that the incompetent should be excluded from active euthanasia of any son on the ground that the need for it is less. The incompetent, whether they be minors or the handicapped, frequently do not have feelings of degradation at the loss of physical of mental functioning and the betubed, sedated, and dependent states in which the dying often find themselves. Nor do they always have the acute horrors of anticipation which typically afflict those in full possession of their faculties. Since the withholding of medical treatment, together with suitably aggressive palliative measures, generally brings about an acceptable death, and since allowing active euthanasia on the incompetent substantially increases the possibility of mistake and wrongdoing, we may well be tempted to categorically condemn the practice. On the other hand, patients do not always die a gentle and easy death when medical treatment is withheld, and then we are faced with the choice between keeping them alive contrary to their interests, letting them die of starvation and dehydration, or practicing active euthanasia; and sometimes the last is the most humane for all concerned. When it is, it is arguable that it should be permitted, and hence that there are occasions on which the incompetent are entitled to death on request (as well as sometimes without it).
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