Abstract

While the vast majority of fatally afflicted persons have a powerful wish to remain alive, some stricken persons may, for any of a host of reasons, desire to hasten death. Some persons are afflicted with chronic degenerative diseases that take a grievous toll. Chronic pain may be severe and intractable, anxiety about a future treatment regimen may be distressing, and helplessness may erode personal dignity and soil the image that the afflicted person wants to leave behind.

A dying patient’s interest in hastening death is often said to be in tension with a bedrock social principle that respect for sanctity of life demands suppression of all intentional killing, including suicide (self-killing) and killing motivated by a desire to relieve suffering. Mercy killing has long been anathema in American law. Even though compassion for a dying person may tempt a health care provider or other observer to relieve suffering by any means possible (at least when the patient is requesting such relief), a ban on mercy killing is a symbolic reminder of the preciousness of human life and of the moral worth of every human. Letting die, but not intentional hastening of death, is said to be compatible with the sanctity of life.

This article argues that this pat framework is simplistic and deceptive. Current medical ethics and the jurisprudence of death and dying authorize practices that intentionally hasten death. Lawful forms of hastening death include: a physician who, at a competent patient’s behest, pulls the plug on a life-sustaining medical intervention while sharing the patient’s wish to end a torturous dying process; a physician who cooperates with a gravely afflicted person’s fatal decision to voluntary stop eating and drinking (VSED); a physician who administers deep sedation to a preservable but suffering patient while knowing that the patient has already declined artificial nutrition and hydration (ANH) and hence will soon die; and a physician who administers pain relief in a known lethal dosage (even with the primary intention to relieve intractable suffering). These ways of hastening death (with concomitant physician participation) are probably legal and probably in widespread use.

Do these modes of hastening death make bans on physician-assisted suicide (PAS) and/or voluntary active euthanasia (VAE) anomalous? Do they obviate any strong need for legalization of PAS or VAE? Do they meet the common objective of providing competent, dying persons with a means of shaping a dying process to assure a modicum of dignity? The currently legal modes of hastening death often entail a period when the dying patient lingers in unconsciousness or semi-consciousness before expiring. A short period of insentience or unawareness as a prelude to death – usually lasting for no more than a few days – does not violate intrinsic human dignity. Therefore, publicizing the current availability of legal modes of hastening death and making them readily accessible might make the legal status quo morally tolerable. But then some dying persons will have to undergo an unwanted period of lingering helplessly (for days). And we will continue to live with the hypocritical pretense that physician-assisted death is lawful only in Oregon.

Disciplines

Elder Law | Health Law and Policy | Medical Jurisprudence

Date of this Version

July 2005

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