By Ankit Kapoor
The unending advances in medical technology and unprecedented numbers of aging population, alongside global legal developments,[1] render the debate on euthanasia extremely relevant and important. Euthanasia is the practice of intentionally taking someone’s life, so as to relieve them of pain and suffering.[2] Its practice is traceable as far back as 400 BCE, around the times of Plato and Socrates.[3] However, there has also been immense historical opposition to euthanasia, premised on it undermining the value of life or impugning god’s will.[4]
In this paper, I attempt to analyze where the right to euthanasia is best located. In the first section, I will present Ronald Dworkin’s views on euthanasia. In responding to the criticism leveled against this, I will argue that answers to some proposed objections are implicitly provided for in Dworkin’s earlier works. In the second section, I will enumerate the limitations of Dworkin’s ‘Right to Religious Freedom’ framework for permitting euthanasia. Subsequently, I will demonstrate that the ‘Right to Die with Dignity’ framework escapes these limitations, and thus most effectively confers the right to euthanasia.
I. Assessing Ronald Dworkin’s Views on Euthanasia
Ronald Dworkin argues that euthanasia must be legalized as it falls within the right to freedom of religion.[5] He presents the debate on euthanasia as not whether the sanctity of life should yield to some other value, like humanity or compassion, but how life’s sanctity should be understood and respected. The main difference lies in what one views as the source of life’s intrinsic value.[6] Those who consider divine investment as the source believe that any loss of human life undermines its sanctity. As euthanasia frustrates the divine creativity in life, it is opposed. On the other side, human investment is considered to be the source of sanctity. Thus, this view permits euthanasia when the life lost would not have been fully realized.
Through this, Dworkin demonstrates the inherently religious/spiritual nature of these decisions. He argues that in secular societies, the Constitution assigns these decisions to individuals, not to government as any state interference is necessarily based on its own conception of sanctity.[7] Thus, an individual must be autonomous to make this decision based on his own religious beliefs, free from state coercion. Further, euthanasia’s absence from the black-letter law is not a bar. He argues that while interpreting broad principles in the Constitution, the court is empowered to identify rights not specifically enumerated or intended by the drafters.[8] Accordingly, the right to euthanasia can be derived from the broad principle of religious freedom.
Academic Criticism of Dworkin’s views on Euthanasia, and his Inferred Responses
Given that religious groups constitute the main opposition to euthanasia,[9] the merit in Dworkin’s analysis lies in advocating euthanasia using the very value (sanctity of life) they have used to oppose it. However, Dworkin’s analysis addresses only deontological objections to euthanasia, not consequentialist ones.[10] Critics argue that Dworkin fails to address the risk of abuse, slippery slope, encouragement to die, and impact on medical practitioner. While Dworkin never directly responded to this criticism, implicit responses can be drawn from his earlier work:
1. Abuse: Opponents argue that the decision to euthanize does not reflect the patient’s consent, either because it is uninformed or bypassed/influenced by external pressures.[11] Dworkin would argue that the purpose of a right is to secure the patient’s interests.[12] The violation of such interest would necessitate building a mechanism of safeguards for better execution of the right (like in Australia and Netherlands),[13] not warrant abridging the right altogether.[14]
2. Slippery Slope: It generally asserts that one exception to a law is followed by more exceptions until a point is reached that would have initially been unacceptable.[15] The unacceptable position, in this case, being involuntary euthanasia. Proponents look at the expansion in the scope of permissible euthanasia, which has happened in various jurisdictions,[16] to buttress their claim. Dworkin would argue that the current expansion has only moved towards fully realizing the right to euthanasia. He would look at allowing involuntary euthanasia as merely a “speculative emergency”. If we permit such an unfounded fear to limit euthanasia, then we would be “annihilating rights”.[17]
3. Encouragement to Die: Critics argue that if euthanasia is available then suffering patients will lose hope in the medical treatment, and use this option to take the “easy way out”.[18] Dworkin’s response would be two-fold: Firstly, he would regard such an unfounded fear as merely a speculative emergency which must not abridge rights. Secondly, he would argue that the purpose of a right is to protect a person’s interest at the most controversial junctures. Evincing the subjectivity of pain, he would then argue that a patient would be well-within her rights to terminate her life.[19]
4. Impact on Medical Practitioners: In the context of active euthanasia, it is argued that the doctor’s act of killing violates her Hippocratic Oath and inflicts immense psychological trauma.[20] Dworkin’s response would be two-fold: Firstly, the Oath explicitly empowers the physician to take a life whilst exercising great caution.[21] Secondly, he would look at this scenario as one of competing rights, wherein limitations may be placed. But absolute abridgement is impermissible. Thus, an uncomfortable physician may withdraw from the procedure and entrust another physician to execute the procedure.
II. Arguing Euthanasia under the “Right to Die with Dignity” Framework
Evaluating Dworkin’s “Right to Religious Freedom” Framework
Dworkin argues that the right to euthanasia is justifiable based on religious freedom. However, this framing suffers from several limitations.
Firstly, it rests on the assumption that the state must be necessarily secular, thus refrain from interference in religious issues, which are within the personal domain. Even in secular, liberal, and pluralistic democracies like India, the United States, and the United Kingdom, religious interest groups are politically active, numerically large, and financially powerful.[22] Therefore, they practically manage to influence state policy in their favor, albeit through non-religious justifications. Moreover, Dworkin’s assumption ignores that the vast majority of states are legally allowed to endorse and promote a religion.[23] Thus, Dworkin’s euthanasia argument fails in this major context.
Secondly, even Dworkin’s inferred responses, under the religious freedom framework, to levelled criticism is inadequate:
– First, under Dworkin’s framework, the right to euthanasia is based on the subjective pain of the victim.[24] Thus, a broad construction of the circumstances necessitating euthanasia is undertaken. Despite Dworkin’s stated response, such a construction fails to address the consequentialist charge of encouragement to die. Netherlands, which despite having a narrower construction than Dworkin’s, is an empirical proof of this. In 2017, deaths by euthanasia account for 4.5% of the total deaths per annum,[25] a steep appreciation from the 1.7% in 2005.[26] Intended to cover situations where the patient is terminally-ill or persistently unconscious or in an end-stage condition, euthanasia is being provided to patients even with relatively minor ailments such as depression.[27]
– Second, a broad construction of euthanasia has promoted abuse too. Patients and doctors share a fiduciary relationship, wherein the former, often, blindly relies on the latter for advice. In Netherlands, the consent of patients requesting euthanasia has often been uninformed. Acting out of a lost sense of dignity and hope, patients with relatively minor ailments request euthanasia by approaching a doctor who approves the practice.[28] In several cases, doctors have merely respected the pain of the patient, and upheld their wishes rather than sketching out medical alternatives.[29] In odd cases, the doctor’s advice has been influenced by family members, of the patient, acting in self-interest.[30] By placing the patient’s wishes at a higher pedestal, this approach has undermined the value of life. The reduction in palliative care rendered by hospitals is indicative of this.[31] Thus, regardless of the detailed safeguards posited by the Dutch law, the broad construction of euthanasia has rendered them as mere “illusions”.
– Lastly, Dworkin fails to effectively address the slippery slope claim. He merely dismisses it as inconsequential to the consideration of rights. However, the response to the possibility of this danger is still left unaddressed. The broad construction of euthanasia under Dworkin’s approach does not provide any safeguard per se against unjustified expansion of euthanasia. Therefore, in countries undertaking such a broad construction, religious freedom may be used as a ground to expand the scope of permissible euthanasia. This can happen officially, through increased political pressure among secularists, or more prominently, unofficially, through increased sympathies among selected medical practitioners and family members.[32]
Merits of the “Right to Die with Dignity” Framework
The right to die with dignity recognizes the right of an individual to terminate her life but only in limited circumstances, such as terminal illness, persistent unconsciousness, or end-stage conditions.[33] It begins with the premise that life is sacred and must be protected at all costs but only exceptional circumstances may override this. This framework provides independent benefits and escapes the limitations suffered by Dworkin’s framework:
Firstly, the exercise of this right draws from the personal autonomy of an individual, independent of any religious discourse. Thus, it makes a strong case for euthanasia even when the state is not secular.
Secondly, this framework more effectively addresses the consequentialist objections. By limiting euthanasia to an extreme and narrow set of circumstances, it rejects the subjectivity of the patient’s pain in determining permissibility. Accordingly, it limits exercise to only the most affected stakeholders, which even consequentialist critics of euthanasia would cede to.[34] This narrow construction prevents abuse and the encouragement to die. Stakeholders requesting euthanasia on an impulsive sense of lost dignity and hope can no longer request euthanasia, even with their doctor’s assent. Consequently, there is greater value for life as doctors cannot bypass palliative care. A narrowly defined euthanasia also goes farer in assuaging fears of a slippery slope. Additionally, the exceptional circumstances required to exercise this right make it more acceptable for conservative medical practitioners.
Thirdly, it holds greater strategic value in persuading adversaries. While Dworkin does a commendable job in inverting the sacredness value, this does little in persuading opponents who doggedly refuse to broaden their understanding of sacredness. Instead, a higher threshold helps gather more consensus by enlisting support of consequentialist critics and religious moderates. Further, under Dworkin’s framework, the intrinsic sacredness of life and the subsequent duty of the state to protect it is undermined, as the individual is sole arbiter of her life and death. Liberals arguing for euthanasia must realize the implications of this argument on other progressive debates. For instance, the state’s reduced duty in protecting life renders arguments against capital punishment weak.
Lastly, this framework recognizes the value of limited paternalism. Under Dworkin’s framework, what is to prevent a depressed middle-class man from euthanizing himself and abandoning his dependent family? Thus, the state’s interference in individuals’ choice to die is not necessarily bad, as such choices have consequences on their dependents.[35] As dependents cannot act themselves, the state is entitled to represent their interests.
Conclusion
Ronald Dworkin’s ‘Right to Euthanasia as a Religious Freedom’ is set in a paradigm of a secular state, and thus necessarily limited in its scope. While Dworkin’s earlier works provide inferred responses to consequentialist criticism, it does so only superficially. Instead, the ‘Right to Die with Dignity’ escapes both these limitations. It does not depend on religious abstinence of the state for its validity. Further, the narrow construction of euthanasia endorses greater value for life among the patient and doctor, which reduces abuse, the encouragement to die, and promotes palliative care. This framework also provides two independent benefits. It establishes a higher threshold for euthanasia and a consistency in conception of the value of life, which provide strategic value for persuading opponents. Lastly, it recognizes the value of paternalism in justified circumstances, which is lost in Dworkin’s framework.
The author, Ankit Kapoor, is currently a law student at the National Law School of India University (NLSIU), Bangalore.
[1] Including, but not limited to, the Common Cause v. Union of India judgment of the Indian Supreme Court, and the Voluntary Assisted Dying Act, 2017 passed in Victoria, Australia.
[2] There is variance in euthanasia’s definition, but this serves as a working definition based on most essential elements. See Helga Kuhse, ‘Euthanasia Fact Sheet’ (1992) 11(4) Bioethic News <https://www.worldrtd.net/euthanasia-fact-sheet> accessed 19December 2020.
[3] The Editors of Encyclopaedia Britannica, ‘Euthanasia’ (Britannica) <https://www.britannica.com/topic/euthanasia> accessed 19December 2020.
[4] John A Robertson, ‘Autonomy’s Dominion: Dworkin on Abortion and Euthanasia’ (1994) 19 Law & Soc Inquiry 457, 459-462.
[5] Robertson (n 4) 462.
[6] Ronald Dworkin, Life’s Dominion (Vintage 1994) 194-196.
[7] Ibid.
[8] Robertson (n 4) 461.
[9] Roger S. Magnusson, ‘The Sanctity of Life and the Right to Die’ (1997) 6(1) Pacific Rim Law & Policy Journal 1, 26-28.
[10] Robertson (n 4) 458, 482-483.
[11] Nancy S Jecker and Courtney S Campbell, ‘Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom’ (1994) 3 Cambridge Q Healthcare Ethics 303, 304-305.
[12] Ronald Dworkin, Taking Rights Seriously (HUP 1977) 198-201.
[13] Bregje Onwuteaka‐Philipsen, Lindy Willmott and Ben P White, ‘Regulating voluntary assisted dying in Australia: some insights from the Netherlands’ (2019) 211(10) Med J Australia <https://www.mja.com.au/journal/2019/211/10/regulating-voluntary-assisted-dying-australia-some-insights-netherlands> accessed 30 December 2020.
[14] Ronald Dworkin, ‘The Right to Death’ (1991) 38(3) The New York Review of Books 60, 65.
[15] J Pereira, ‘Legalizing Euthanasia or Assisted Suicide: The illusion of control’ (2011) 18(2) Current Oncology 38, 40.
[16] These jurisdictions have gone from allowing suffering patient to refuse medical treatment to now permitting non-voluntary euthanasia.
[17] Dworkin (n 12) 195-196.
[18] S. Douglas-Scott, ‘Review of Life’s Dominion’ (1994) 2 MLR 255, 256-257.
[19] Dworkin (n 14) 68.
[20] Rachel Hajar, ‘The Physician’s Oath: Historical Perspectives’ (2017) 18(4) Heart Views 154, 154-155.
[21] William C. Shiel, ‘Medical Definition of Hippocratic Oath’ (MedicineNet, 6 March 2018) <https://www.medicinenet.com/script/main/art.asp?articlekey=20909> 19December 2020.
[22] ‘Lobbying for the Faithful: Religious Advocacy Groups in Washington, D.C.’ (2012) Pew Research Center Report <https://www.pewresearch.org/wp-content/uploads/sites/7/2011/11/ReligiousAdvocacy_web.pdf> accessed 30December 2020; Christophe Jafferlot, ‘The Fate of Secularism in India’ in Milan Vaishnav (ed), The BJP in Power: Indian Democracy and Religious Nationalism (Carnegie Endowment for International Peace 2019).
[23] Benjamin Elisha Sawe, ‘What is a Secular State?’ (WorldAtlas, 8 March 2018) <https://www.worldatlas.com/articles/what-is-a-secular-state.html> accessed 19December 2020.
[24] Dworkin (n 14) 68.
[25] ‘Euthanasia deaths becoming common in Netherlands’ (CBS News, 3 August 2017) <https://www.cbsnews.com/news/euthanasia-assisted-suicide-deaths-netherlands/> accessed 19December 2020.
[26] Ibid.
[27] Christopher de Bellaigue, ‘Death on demand: has euthanasia gone too far?’ (The Guardian, 18 January 2019) <https://www.theguardian.com/news/2019/jan/18/death-on-demand-has-euthanasia-gone-too-far-netherlands-assisted-dying> accessed 19December 2020.
[28] Pereira (n 15) 43.
[29] Pereira (n 15) 39-40.
[30] Pereira (n 15) 39.
[31] Pereira (n 15) 40.
[32] Bellaigue (n 27).
[33] Common Cause v. Union of India (2018) SCC Online SC 945 [108] (Chandrachud J.).
[34] Magnusson (n 9) 38.
[35] Antal Szerletics, ‘Paternalism and Euthanasia’ (Semantic Scholar, 2010) <https://www.semanticscholar.org/paper/Paternalism-and-Euthanasia%3A-The-Case-of-Diane-the-Antal/e5274890b160749ad3a86cdec74425638ee6c449> accessed 19December 2020.
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