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Hasty euthanasia? Don't believe everything 'The New Yorker' writes. 

According to The Death Treatment, a long essay of nine pages by Rachel Aviv in The New Yorker (circulation over a million!) mentally diseased Belgian patients are given hasty and careless euthanasia by ‘cowboy’ professors Distelmans and De Deyn. The Belgian quality daily De Morgen reported it (DM 17/6). The essay was disturbing for everyone, and discredited doctors and the Belgian model of end-of-life care. 

The New Yorker didn't publish the following response.

by Professor Jan Bernheim and Professor Etienne Vermeersch

June 26, 2015 I De Morgen

— Rachel Aviv introduced herself to us as an investigative reporter on the “history, development and philosophy of Belgian end-of-life care.” The Belgian model interested her as being a unique system where euthanasia is embedded in palliative care and aims to provide “integral end-of-life care.” We sent her many informative documents and she came to Belgium for several weeks to interview scientists and practitioners.

"The imperfections of end-of-life care are dwarfed by the reasonable assurance that Belgians will die according to their wishes after good palliative care."

Aviv had done her homework and asked pertinent questions. Only in passing did she ask what we thought of “the Tom Mortier case.” She learned a lot about, among many other things, "When should people with a non-terminal illness be helped to die?", the subtitle of her article. [Added: She also attended a scholarly symposium on this subject where one of us (JB) acted as her interpreter.] But what you got [in her New Yorker article] was Tom Mortier’s crusade against the alleged illegitimate euthanasia of his mother, who after decades of treatment-refractory depression did not want to go on living.

We read [in Aviv’s article] that Mortier, who lives nearby to his mother, had a conflictual relationship with her and was estranged from her. When [several months before her death] she informed her children that a euthanasia procedure was underway, he did not answer. His sister, on the other hand, who was working in Africa as a human-rights lawyer, expressed her grief, but accepted her mother’s decision. The process lasted eight months, with numerous consultations with Distelmans, multiple psychiatric opinions and the intense involvement of a priest.

A right to empathy, compassion and therapy

Tom Mortier gives his version of the family saga. One of the traumas was the suicide of his father. If anything, Aviv’s story clearly shows that this is a multigenerational psychologically very disturbed family.

Mortier also enrols two similar cases where, like himself, one of the children resented having been excluded from the euthanasia procedure. The clinician among us (JB) knows case details that reassure him, but he, like the accused doctors Distelmans and De Deyn, cannot disclose them because of professional confidentiality. But one doesn’t need to know clinical details, or to be an expert to understand from Aviv’s text what Tom Mortier suffers from: pathological bereavement, a well-known clinical entity that occurs mostly in people who had a troubled and guilt-ridden relationship with the deceased. This is sad but should not obscure the wider picture: a large-scale Dutch study found less pathological mourning among the relatives of patients who died by euthanasia than after 'natural' death.

Tom Mortier deserves empathy, compassion and therapy. Instead, he chose self-treatment, with lawsuits to the European Court of Human Rights. We hope that by reaching millions of readers, including those of De Morgen [in his own country], his suffering is eased.

Euthanasia, like suicide, is in the first place individual, but can also have relational aspects. As there may be an element of aggression in a suicide, so it can also be in euthanasia. Clinicians like Distelmans and De Deyn are extra cautious when the family background is disturbed. They invite their patients to get their relatives involved as much as possible in the euthanasia process. Patients may reject family involvement, but need to know that their next of kin may suffer, and doctors must ascertain that this is not the goal of their patient’s euthanasia request.

We are not only concerned for Tom Mortier but also for millions of readers that are likely to have been misled and distressed [by Aviv’s alarming information]. Certainly, the Belgian model of end-of-life care has shortcomings. However, the imperfections of end-of-life care are dwarfed by the reasonable assurance for Belgians that they will get appropriate palliative care and will die according to their wishes. The Canadian province of Quebec has recently adopted a law on end-of-life care that largely emulates the Belgian model.

What if a Belgian journalist would set out to study the American organisation of—say—scientific research, and come up with the more sensational story of a few disgruntled scientists? She would be entitled to her personal views (e.g. aversion to science), but she should not disguise them under a misleading flag. Aviv’s discredit of doctors and the Belgian model was then just collateral damage. 

To paraphrase her subtitle: “when should a journalist be allowed to produce smoke and mirrors?” 

Jan Bernheim Professor em. of Medicine and researcher in the End-of-Life Care Research Group (Free University Brussels and Ghent University). 

Etienne Vermeersch is Emeritus Professor of Philosophy and Bio-Ethics (Ghent University).

------------------------------

This article was written in response to Rachel Aviv’s article “The Death Treatment: When should people with a non-terminal illness be helped to die?” which was published in the June 22nd 2015 edition of The New Yorker, pages 56–65.

The New Yorker didn't publish this response.

• Link: Article New Yorker 'The Death Treatment' by Rachel Aviv : https://www.newyorker.com/magazine/2015/06/22/the-death-treatment  
• Reaction (in Dutch) by Jan Bernheim and Etienne Vermeersch: 'Overhaaste euthanasie? Geloof niet alles wat 'The New Yorker’ schrijft’ - De Morgen, 26 Juni 2015 http://www.demorgen.be/opinie/overhaaste-euthanasie-geloof-niet-alles-wat-the-new-yorker-schrijft-b4c8f813

The Bible Myths

Joseph Ratzinger And The Nativity Legends

Etienne Vermeersch I Free Inquiry Vol 34, No. 1
December 2013 / January 2014

While conceiving Siddhartha (the young Buddha), his mother Maya saw in a dream that he entered her womb in the shape of a little white elephant. All of nature rejoiced: trees and plants blossomed, rivers stopped flowing, and musical instruments played without being touched. At the end of the pregnancy the child came forth painlessly from her right side; he could walk immediately and at each step a lotus flower appeared on the ground.

When Jesus was born in Bethlehem [!] in Judea, as a child of a virgin from Nazareth [!], in the time of King Herod, Wise Men [magoi] from the East came to Jerusalem and asked, “Where is the new born king of the Jews? For we have seen his star in the East and we have come to worship him.” Herod sent them to Bethlehem and then the star that had disappeared for a while [to render the visit to Herod inevitable, and so enable his murderous decree?] reappeared and guided them until it stood still above the place where the child was. (Matthew, 2)

We consider stories of miracles from other cultures to be fantasies, but when it comes to the Bible, even sensible people lose their critical faculties. Etienne Vermeersch

No botanist ever wondered how those lotus flowers could grow under the little feet of Siddhartha. But Western astronomers did investigate whether the Wise Men might have seen a supernova, a comet, or a conjunction of planets, as if such a “star” could accompany human beings on a journey and then stand still over a particular place.

We consider stories of miracles from other cultures to be fantasies, but when it comes to the Bible, even sensible people lose their critical faculties. In 2012 (yes, in the twenty-first century) Joseph Ratzinger published—not as Pope Benedict XVI, whom he still was, but as a biblical scholar—Jesus of Nazareth: The Infancy Narratives, the third and final volume of his Jesus of Nazareth series. One reads eagerly to find out what Ratzinger has to say about the star of Bethlehem, the slaughter of the innocents, and the flight to Egypt. He could have kept it short (“those are legends”); instead, he devotes roughly a quarter of the book to their discussion. The relevant texts of Matthew (1 and 2) and Luke (1:5–80; 2:1–52) raise critical issues, and Ratzinger knows it. Yet he does not consider them as “meditation in narrative guise” (which is what the best Christian exegetes, including Catholic ones, think nowadays). No, Matthew gives us “factual history” (historische Geschehnisse), Ratzinger writes, that is interpreted theologically.

Twelve Years Old, Pregnant, and on a Journey

As an extreme illustration of this gullibility, let us consider the story of the Visitation (Luke 1:39–56). According to Jewish practice of the time, a girl’s betrothal was arranged around her twelfth birthday, and, hence, so was Mary’s. Nevertheless, immediately after the “annunciation by the angel,” she visits her niece Elizabeth in Judea. Imagine that! In a culture where women, not to mention unmarried women, were barely allowed to leave the house on their own, a pregnant twelve-year-old girl sets off, on foot, on a journey of more than one hundred kilometers through a dangerous region. And for what purpose? To pronounce the Magnificat—inspired by a biblical passage (1 Samuel 2:1–10), although in those days girls were poorly instructed concerning the Scriptures.

Another typical aspect of stories of this type: they confront readers who accept the possibility of miracles with so many anomalies as to induce total perplexity. Let us assume that an angel did announce the virgin conception; that thanks to a dream, Joseph believed this; that the birth did take place and was announced to the shepherds by a choir of angels; that a star did lead the Wise Men with their gold, frankincense, and myrrh to Bethlehem; that Jesus’s messianic character was emphasized in the temple by Simeon and Hannah; that in a dream Joseph was ordered to go to Galilee; and that “Mary kept all these things in her heart” (Luke 2:19). Is it not strange, then, that Joseph and Mary, desperately seeking their wandered-off son, did not understand the words of the then–twelve-year-old Jesus when they finally found him in the temple (“Didn’t you know I had to be in my Father’s house?,” Luke 2:50)? If all of these miracles did happen, then how can it be that Joseph and Mary had not realized during twelve years of parenting that their son was actually the Messiah, the son of God? According to Mark 3:21, Jesus’s family (hoi par’ autou) “went out to lay hold on him for they said ‘he is beside himself,’” and according to John 7:5, his own brothers did not believe in him. The angels, the shepherds, the prophets in the temple: Was it all to no avail? Had all of this completely escaped Mary’s mind, or had she never bothered to tell her other children?

An Inconspicuous Preacher from Galilee

Ratzinger also does not seem to realize that often a “mythopoetic” tendency arises around famous characters. This concerns the need to narrate myths and legends, either in order to shed light on the significance of these persons or to fulfill a deeply human longing for the miraculous. In many cultures, these kings, prophets, or saints perform miracles, and their births and deaths are accompanied by rare natural phenomena: earthquakes, new stars, comets, or solar or lunar eclipses. Their mothers may be nonnaturally impregnated by a god. Especially in relation to religion, this tendency seems to know no limits. Quite fittingly did Goethe say: “Das Wunder ist des Glaubens liebstes Kind” (Wonder is the dearest child of faith).

But such stories are also used to support particular doctrines. After their visions of the resurrected Jesus, his disciples considered him the Messiah. But how could an inconspicuous preacher from Galilee claim this title? Well, as a descendant of David, he could! Paul (around 56 CE) already knew the tradition that Jesus was born of the seed of David (ek spermatos Dauid) (Rom. 1:3). Later traditions prefer a virgin conception—which if true precludes this continuity of the male line. That is why Matthew and Luke (around 90 CE) try to emphasize Jesus’s kinship to David by situating the birth in David’s city of Bethlehem (in Judea). They do so in quite a bungling way, however. According to Matthew, Jesus’s parents lived in Bethlehem; the Wise Men met them in their house (elthontes eis tên oikian) (Matt. 2:11); and after their return from Egypt an angel has to encourage them to go to Galilee. According to Luke, they live in Nazareth, but Augustus’s census sent them to Bethlehem. A “census” in the city of the ancestors (Luke 2:4)—in the case of David, in the city of one’s ancestors as of about a thousand years earlier—is preposterous beyond imagination. There was indeed a “census” in Judea around 6 CE, but it affected only current residents and concerned property taxes.

Ratzinger’s imagination resolves this by assuming that Joseph owned real estate in Bethlehem. Why, then, was Jesus born in a stable? Luke and Matthew argue for the same thing (birth in Bethlehem) but with incompatible stories; this is proof of their utter incredibility. The same applies to the family trees that have “father” Joseph descended from David: they diverge nearly completely, both in the names and in the number of generations. In my opinion, even the linking of Jesus’s birth with Herod may have been determined by the desire to present him as the legitimate successor of this last great king of all Jews, the temple builder.

In short, Jesus was not born in Bethlehem, and we do not know when he was born. The virgin conception arranged by God has no biological significance. A human being has two pairs of twenty-three chromosomes each, half from the mother and half from the father. If Jesus was a real human being, he would have received this second sequence either from his father or through (divine) genetic manipulation. In either case, these chromosomes (their DNA sequences) would have to code for the normal proteins. “Divine” chromosomes do not exist, for by definition the Christian God is immaterial. Because DNA was unknown in antiquity, a belief in virgin conception, however enigmatic, was not absurd. But in our own day?

Jesus’s Brothers

Furthermore, Ratzinger’s book is striking in what it omits. Whoever discusses Mary’s virginity cannot ignore that according to Roman Catholic doctrine, Mary remained “always a virgin” after Jesus’s birth (semper virgo). This dogma has no grounds in the New Testament; according to Matt. 12:46, Luke 8:19, John 2:12 and 7:3–5, and 1 Corinthians 9:5, Jesus had brothers. Mark (3:31 and 6:3) attests that he had sisters as well. In Mark 6:3 and Matt. 13:55, the four brothers are referred to by name. One among them, James, played an important role in the early church and Paul (Gal. 1:19) calls him “the Lord’s brother” (ton adelphon tou kuriou). Moreover, the Jewish historian Flavius Josephus stated that in 62 CE, James, “the brother of Jesus, who was called Christ,” was stoned.

The objections to these statements have been invalidated time and again. How odd that a pope does not find it fitting to address them.

This brings us to the question: Is Ratzinger foolish or ignorant? Neither, in my view. He bases his beliefs on an unwavering faith in the factual reliability of the Holy Scriptures, and if necessary, its truths must be defended in a shrewd way. Some Catholic exegetes solve the problems by distinguishing the “deeper message” from a time-bound myth or legend. Ratzinger is unable to do so, and odd as it may seem, some respect is still due him.

A second question regards the way in which our culture, traditionally drenched in Christianity, has to accommodate this “demythologizing.” In my opinion, we must distinguish between the strictly scientific question of truth and the myths, rites, and other cultural expressions that have grown up a tradition I consider intrinsically valuable. Handel’s Messiah and Bach’s Christmas Oratorio do not lose any of their value in consequence of my remarks. “Peace on earth to all men of good will” remains a meaningful message, even if it is an incorrect translation of eirênê en anthrôpois eudokias.

__________

Etienne Vermeersch

Free Inquiry

From: Volume 34, No. 1
December 2013 / January 2014

Opinion - NATURE I volume 459 I 25 June 2009

SIR - In his Essay 'Is free will an illusion?' (Nature 459, 164–165; 2009), Martin Heisenberg suggests that belief in free will is supported by quantum events. However, the concept of free will may become confused if it is linked with an absence of determinism.

As an example, let us consider three schoolgirls, X, Y and Z, confronted with the proof of Pythagoras's theorem: X has a talent for mathematics and enjoys working out proofs; Y is weak in this domain and is unquestioning; Z has average ability but her decisions are capricious. The teacher instructs them to believe the theorem because it is correct. Y accepts it immediately, X first confirms for herself that the proof is valid, but Z (possibly influenced by a 'quantum event' in her brain) refuses to agree. Although the behaviour of X and Y is predictable and determined, given their personalities and abilities, Z's is not.

Heisenberg's suggestion would support the conclusion that only Z's decision was 'free'. But X could be judged as the one who made the really free (autonomous) decision. Y's decision is formally free, having been determined by her accepting nature, but it is undermined because it stems from the teacher's authority. Z's reaction is not free at all, because it was not determined by Z herself but by a random event in one or more of her brain cells.

In short, deciding freely does not imply a lack of determinism — rather, it is determined by central aspects of our personality: our long-term needs, the emotions accompanying their non-fulfilment, and our rational thinking about the means to satisfy those needs. Our decisions may therefore not be completely free, because they are not always exclusively determined by these central (core) factors. A person who stops smoking on rational grounds is freer than another who makes a decision to stop but fails to do so.

Quantum events have no relevance here: the question is whether we are influenced more by our core factors than by drives that are not rationally founded, such as habit, addiction or external pressure. Consciousness and the experience of positive or negative emotions could well play a part in our decisions: in my opinion, these are not epiphenomena — mere parallel events — but essential for bringing about determining factors that underlie our free will. This would not exclude a purely naturalistic explanation of the processes that we experience as consciousness.

Etienne Vermeersch

Nature volume 459, pages 1052–1053 (25 June 2009)

The ethical and historical background of the Belgian and Dutch laws on euthanasia 

After a general introduction to ethics and the ethics of euthanasia, a survey is provided of the genesis of the euthanasia laws in Belgium and the Netherlands, with the intent to provide a clear idea of the concepts involved and of the rationale for their introduction.  The role of the Belgian Consultative Committee on Bioethics in the development of the ethical discussion in Belgium is explained as well as the essence of the profound ethical divide between the ‘coalition’ and the Christian Democrats. After a summary of the basic points of the Belgian law, a comparison is made between the Belgian and the Dutch laws and their ethical foundations.

ETIENNE VERMEERSCH

Kurt Pavlic & Burkhart Bromm (ed.), Neurologie und Philosophie zum Schmerz, Göttingen, Vandenhoeck & Ruprecht, 2004.

1. The ethics of euthanasia: general introduction

 1. 1.  Since the discussions concerning euthanasia engage some of the most fundamental values and norms of our individual and social life, it seems necessary to say a few words about the questions what these values and norms are and how we can find a foundation for our ethical views.

Morally relevant conduct, as distinguished from behav­iour in general, consists of activities that cause approval or dis­ap­proval. Such conduct can sometimes be governed by explicit maxims lear­ned from others or formulated for ourselves; but most­ly the rules are interiorized as ‘values’ or ‘norms’. They may then elicit either a posi­tive emo­tion or a moral pain when we are confronted with the results of our own acti­ons, or they may provoke feelings of admir­ation or indig­nation when we obser­ve the doings of others. Values and norms, which control the acti­vities of indi­viduals and groups, are of a fac­tual nature: their presence or absence can be ascertained by empirical pro­cedures.

Ethical research may consist of looking for information about the existence (or absence) of particu­lar norms (or values) wit­hin a group, but it is concer­ned primarily with the ques­tion of how a foun­dation can be laid for them. Such founda­tional pro­blems arise when gen­erally ac­cepted norms are sudden­ly chal­len­ged or when the need to intro­duce new ones imposes itself.

1.2.    In the course of the centuries, philosophers have realized that there is a difference between facts and values, between ‘is’ and ‘ought’, ‘Sein’ and ‘Sollen’.  Many of them were also convinced that both domains have an objective character: there is objective truth about facts and there are objective values which should be accepted by everybody. In one opinion, the objectivity of the values and norms was based on the thesis that ethical propositions could be deduced from factual ones (Sollen from Sein); in the other one, both had their own independent foundation.

The thesis proposed here is different from the aforementioned. It starts from the observation that values and norms develop in human societies as a means to organize them and to regulate the partially compatible and partially conflicting drives of the individuals in such a way that the stability and survival of the whole is guaranteed. It follows that morals necessarily change with the development of the economic, social, cultural, etc. components of the society.  There is no absolute foundation for ethics, but it is still sensible to ask which type of ethics is most compatible with a peaceful and prosperous state of a society in a given period, including ours.

 1.3.  More specifically, when studying the his­tory of the et­hical attitudes and prin­ci­ples since the oldest civi­lisa­tions which in­fluenced Wes­tern thought (Egypt, Meso­po­ta­mia, Israel and the Greco-Roman world), one cannot but be struck by the impression of an ever gro­wing im­por­tan­ce and ex­ten­sion of the con­cept of the fel­low human being.

Anthropo­lo­gical stu­dies sug­gest that people of Palaeolithic and early Neolithic tribes only iden­ti­fied with the members of the own tribe or clan: in many cul­tures the term ‘human being’ was only ap­plied to kin­smen or members of one’s own tribe.

But with the development of larger kingdoms (e.g. in Egypt and Meso­po­tamia), in which many tri­bes were uni­ted, the need for broa­der types of identifi­cation with the others gra­dual­ly arose. As a conse­quence, there developed an awa­reness that ethi­cal obli­ga­tions ex­tend to all the inha­bitants of the same king­dom.  In the Bible, we notice that the con­cepts of ‘neigh­bour’ (the ‘nearest’, ‘Nächtste’) and ‘love for one’s neighbour’, which initially only refer­red to the clo­sest re­la­tives or friends, are extended to in­clude all Israe­li­tes.

Near the end of the first millennium BCE, there is a growing tendency in a number of civilisations to widen even more these feelings of solidarity and identification, to human beings in general (e.g. in Buddhism, Maz­deism, Chris­tiani­ty, Greco-Roman Stoi­cism and, somewhat later, in Islam). This attitude was crystalli­sed in a moral norm: the so called Golden Rule, the first for­mu­la­tion of which one finds with Con­fucius (about 500 BCE) but which we know better in the form it took in the Gospel of  Matthew  (7, 12) : “All things whatsoever ye would that men should do to you, do ye even so to them.”

It seems to me that the growing complexity of human societies and the need for pa­ci­fied relationships over ever larger domains, con­tributed to the spread of this moral atti­tude and to its gaining so­li­dity and per­sua­sive­ness.

In the eighteenth and nine­teenth cen­tu­ries, this development has led to a clarification and sys­tematisa­tion of this initially rather vague clus­ter of atti­tudes and fee­lings.

 1.4.   Without going too much into detail, one can safely say that at least three important principles, which I call ‘values in progress’ were cla­ri­fied in the course of this development.

First, we observe the spread of the concept of ‘love of one’s neighbour’ or ‘iden­ti­fying with our fel­low human being’, which leads to acts of solidarity and it means that we consi­der him as our equal.

Second, this notion of equa­li­ty implies that we grant him the same rights we claim for our­selves, especially the rights to life, freedom and self-deter­mination or autonomy. In Kant’s formulation, every per­son has the right to be tre­ated as his own end and not merely as a means to another’s ends. For him, the quintessence of the Enlightenment was the emergence of the right to self-determination. “Aufklärung… ist der Ausgang des Menschen aus seiner Selbstverschuldeten Unmündigkeit…: das Unvermögen sich seines Verstandes ohne Leitung eines anderen zu bedienen”  (1)

In a third, no less important, component the Gol­den Rule re­fers to the idea of caring for other people, especially for those who suf­fer. Already in the Egyp­tian ‘Book of the De­ad’, we find the touching phrases: "I have not made anyone weep, I have not cau­sed any­one suffering”. (2)  This growing sensitivity to pain and suffering  - even of animals -  was beautifully expressed by Bentham: “The question is not, Can they reason? or Can they talk? but, Can they suffer?”. (3)

My first point is that the ‘values in progress’ we observe  in the course of the development of our civilisation are:  (1) the right to autonomy or self-determination of every individual and  (2) the love of one’s neighbour, or solidarity and (3) the obligation to protect from harm all beings liable to suffering.

 1.5.  In the 20th century we witness a number of mentality changes which lead to some adaptations and reformulations of these values.

Because of the desacralisation of the worldviews, the secularisation of the society and the tendency towards a consumer mentality, the ethical attitudes of the large public evolved from what one would call in German, a Jenseitsmoral to a Diesseitsmoral.  There is a growing belief that every human being has the right ‘to pursue happiness’ here and now and to avoid meaningless pain and suffering.

In the same movement of thought, a marked tendency could be observed, especially during the second half of the 20th century, which led to a change of age-old ethical standards and contributed to the break-down of traditional taboos. This manifested itself clearly in the acceptance of new standards concerning contraception, sterilisation, abortion, homosexuality, etc.

A third mentality change was the emergence of the idea of the rights of the patient and the rejection of paternalism. The acceptance of the right to ‘informed consent’ before the medical doctor intervenes for diagnosis and treatment is a major example of this development.

As far as the impact on the discussions about euthanasia is concerned, a very important step was the realisation of the link between paternalism and suffering.

Paternalism consists in the restricting of the self-determination of an individual, without his consent or without adequate information, but with the intention to preserve the individual’s own well-being.  Contrary to a time-honoured tradition in medical circles, there is a growing awareness now that paternalist acts and attitudes are no longer justified towards persons capable of taking autonomous decisions. This is especially the case when pain and suffering is involved.

The most radical arguments for this thesis have been put forward by J.S. Mill  (4) .

• Since pain and suffering can only be experienced by the suffering subject himself, nobody knows better than he does, when and to what extent he suffers.
• Nobody has more interest concerning his own well-being and suffering than the subject himself.

It follows that  - paternalist -  decisions by others may be wrong because they lack adequate information and/or real commitment.

 1.6.  On the basis of the foregoing considerations, the ethical problem concerning euthanasia can be approached as follows. Consider the case of a person, in full possession of his mental capabilities, who endures unbearable suffering due to an incurable illness, and who asks his doctor consistently to terminate his life.

According to the above mentioned  “values in progress”:  ‘human solidarity’,  ‘self-determination’, ‘sensitivity to suffering’;  and the   “mentality changes”:  ‘Diesseitsmoral’, ‘break-down of dated ethical standards’, and  ‘rejection of paternalism’;  it would be an act of high ethical value when the doctor, provided he respects some due care criteria, complies with this request.

 1.7. The possible objections to this approach are the following.

“The ‘right to life’ is a fundamental ethical value which an individual cannot give up.”  But ‘right to life’ has been introduced by societies as a protection of the individual against those who would want to take his life against his will. What could be the rationale of introducing a ‘duty to live’ for persons suffering hopelessly?

“Only God or Society has authority over life.”  But reference to God is not persuasive for those who do not believe in God. Hence, in an enlightened democratic era, society should put forward generally persuasive reasons to forbid euthanasia, which brings us back to the first point.

“It is the duty of the physician to preserve human life, not to terminate it.” But the duties of physicians, as of all professions, are determined by those who ask for their services. The ethical aspects of these duties should be determined by society. Except for reference to professional standards and a ‘clause of conscience’, doctors have to comply with what society asks from them.

“Introducing euthanasia could provoke abuses.”  This objection should be taken seriously and in every specific legislation the advantages and disadvantages should be carefully weighed up against each other.

2. The Belgian and Dutch laws on euthanasia: a brief history

2.1. In Belgium, the ethical and legal problems concerning euthanasia have occasionally been treated in the media since de seventies, there was, for instance, a one hour debate on the Flemish television in 1971. Organized action in favour of legislation started in the eighties with the foundation of the “Association belge pour le droit de mourir dans la dignité” (1981) and its Flemish counterpart “Vereniging voor het recht op waardig sterven” (Association for the right to die with dignity) (1983).

By then, the debate had already been launched in the Netherlands by doctor Geertruda Postma  in 1971.  She had given a lethal dose of morphine to her 78-year-old mother who was deaf and partly paralysed and who had asked her daughter repeatedly to end her life.  Afterwards, doctor Postma reported her act to the authorities. The groundbreaking verdict of the Court of Leeuwarden stated that a medical doctor cannot be blamed for shortening a patient’s life if she/he has observed certain due care criteria and if the following conditions are met:  incurable illness, unbearable suffering, request by the patient.  This ‘shortening of a life’ was not yet equated with euthanasia – the court gave doctor Postma a light sentence – but the debate on the topic was definitely opened.

After some other trials, a State Commission was set up (1982) to give advice on future government policy concerning euthanasia and assisted suicide.  The advice (1985) defined the concept of euthanasia as “the intentional taking of someone’s life by someone else, at his explicit request”. A majority of 13 to 2 advised that some articles of the penal code should be changed to make euthanasia permissible, if it is performed by a medical doctor who is following a specific procedure.

In October 1990, the attorney-generals agreed on a ‘notification procedure’:  the doctors who performed euthanasia, had to report it to the municipal coroner with a detailed account of the circumstances of the act.  The doctor would not be prosecuted if the prescribed conditions were met.  The real euthanasia law was only adopted on April 10th  2001 and became effective on April 1st  2002. (5)

2.2.   The impact of these ten years of factual impunity of a specific euthanasia practice on the ongoing discussion in Belgium was undeniable.  There the political discussion started in the mid 1990’s.  During the parliamentary session 1995-1996, euthanasia bills were submitted to the senate by four members of parliament. In 1996, the Belgian Comité consultatif de Bioéthique  (Consultative Committee on Bioethics) was founded to advice the federal and ‘community’ governments and parliaments on bioethical problems.  This Committee is composed of 35 members and 35 substitute members: medical doctors (two times 11), nurses, magistrates, lawyers, and specialists in the social sciences and moral philosophy and theology.  The very first assignment, proposed by the presidents of the Chamber and the Senate, was to give an ‘advice’ concerning the submitted euthanasia bills.

Two such advices were issued: the first one on May 12th 1997, which dealt with ‘euthanasia’ proper  (on competent people), the second one on February 22nd 1999  on ‘termination of life of incompetent people’ and on ‘advance instructions’ (‘living wills’).

It is very important to notice that, although the members disagreed on the fundamental questions, there was complete unanimity on the following topics.

(a) The Dutch definition was adopted: “euthanasia is the intentional taking of a person’s life by another, on this person’s own request”.  (b)  It follows that this definition does not apply in the case of incompetent people: there the proposed terminology is:  “termination of life of incompetent people”.  (c)  More importantly, the act of stopping a pointless (futile) treatment is not euthanasia and it is recommended to give up the expression ‘passive euthanasia’ in these cases.  (d) What was sometimes called ‘indirect euthanasia’, viz. to increase the use of analgesics with its possible effect on shortening life, is also clearly distinguished from euthanasia proper.

It is a pity that some medical doctors, even among those confronted on a daily basis with the situations falling under (c) and (d), still take the view that the Belgian euthanasia law is relevant for such decisions. There was agreement among the members of the Committee that the ‘end of life decisions’ of this type are not to be considered as ‘taking the life of someone’. Although some of them pleaded for enacting a law prescribing the procedures of decision making in these ‘end of life’ cases, others were confident that the specialists could be trusted when drawing up a system of rules in collaboration with their local ethical committees (e.g. Not To Resuscitate directions).

On the core question, three basic views came to the fore. Some members advanced that euthanasia could be allowed under no circumstances because it would compromise the inviolable value of the life of a fellow human being. Others were of the opinion that, out of compassion and respect for self-determination, euthanasia should be allowed. A middle group  - some of them doubtless of Christian conviction -   proposed that euthanasia should be allowed in cases of ‘force majeure’ where two conflicting duties of the doctor are involved (preserving life and relieving unbearable suffering).

These views were expressed in four proposals: (a) a revision of the law so that euthanasia is no longer punishable; (b) an agreement between the attorney generals not to prosecute in some cases:  i.e. a proposal similar to the regulation prevailing at that moment in the Netherlands. In both cases the doctor should take advice from a colleague and afterwards fill in a certain form describing the circumstances and hand it over to the legal authorities; this is the a posteriori procedure. (c) In what is called the a priori procedure, before any decision is made concerning euthanasia, an ethical debate should take place between the doctor, a second doctor, the family, the nursing team and an ethicist. If euthanasia follows, the doctor gives notice to the legal authorities with a plea of ‘force majeure’.  Of course, in all of these three proposals the euthanasia could only be executed by a medical doctor who made certain that the patient was in a state of unbearable suffering and that his request was completely free and well informed. (d) The fourth proposal rejected every form of euthanasia and hence any change of the law.

This Advice stimulated a debate in the Senate on December 9th and 10th 1997, but the discussion did not lead to any result until the elections of 1999.  The major problem was that the Christian Democrats could not accept a regulation that would change the penal law; they were only prepared to leave room to an appeal to ‘force majeure’ in extreme situations, whereas most of the other parties wanted to go much further.  Only the ultra-right ‘Vlaams Blok’ did not accept any change.

After the elections, a coalition of Liberals, Socialists and Greens formed the government banishing the Christian Democrats to the opposition bench.  Very soon, a number of senators, each representing one of the coalition partners, introduced a bill that was partly inspired by proposal nr 1 of  the two Advices of the Consultative Committee on Bioethics.  The Christian Democrats also introduced a bill inspired by proposal 3 of the first Advice.

Some party leaders feared that this euthanasia law would be the first in the world and therefore they hoped that a compromise was possible in order to arrive at a larger majority. But even a reflection period introduced during the months of April and May 2000, and about forty hearings of experts, only resulted in a number of amendments to the majority bill. The ‘great compromise’ did not succeed.

It is true that proposal 3 of  Advice nr 1 of the Consultative Committee, where the ideas of  a priori procedure and ‘force majeure’ were proposed, did open up a possibility of an agreement with the Christian Democrats.  However, it turned out that part of the rank and file of this party remained opposed to every form of euthanasia and certainly against a change of the law.  It is true that some progressive Christian Democrats were aware of the fact that a rather large majority of the population had a positive attitude towards euthanasia:  many have been confronted with unbearable suffering of relatives or friends.  But the majority of the Christians Democrats wanted to stand by what they considered a basic value of the Christian tradition: the absolute respect for human life.  In the Explanation of the proposal of the CVP (Flemish Christian Democrats) we read: “This age-old tradition of respect for life has become a norm for our Western civilisation, also for those denying the belief in God.  Each life is unique and deserves esteem, respect, protection.  The need to protect life is felt in the keenest way during the process of dying. The value of a life does not depend on its individual assessment.” (emphasis supplied). (6)

2.3.  Characteristic of this approach is a fundamental option for heteronomy  -  in contradistinction to those who see the autonomy of the person as the central value -  : the origin of the value of human life and of the human person is not found in this person himself  (autos), but in another authority (heteros).  Since the thesis that God is the other authority is no longer universally accepted, there is a tendency to replace it by society:  “Like birth, dying is a social event.  When the human being approaches death when a helping hand is missing, there is a denial of the social character of crossing over from life to death.” (ibidem)

Whoever starts from this point of view cannot agree with the proposal that a text with universal impact such as the articles on killing in the penal law could allow the taking of a life.  This would mean that the autonomy, the right to self-determination, would become a value in itself in some circumstances, which would eliminate the prevalence of the heteronomous authority.  “The duty of the authorities to protect human life…is founded on the belief that human life is valuable from the perspective of human dignity alone, that means that it is good in itself, regardless of its endorsement or denial of it by the individual.”  (ibidem).

Even a life that has become meaningless and unbearable for the person concerned, imposes itself on him as an inescapable matter of fact, adorned by the aureole of ‘human dignity’. As far as the foundations are concerned, this is also the view of those absolutely opposed to euthanasia. However, in the aforementioned third proposal of the Advice and in the bill of the Christian Democrats, it received a more humane expression. There it is accepted that, in some exceptional circumstances, the doctor could be confronted with a situation of emergency, which generates a conflict between the two values that he should, but cannot, realize at the same time.  Nevertheless, we have to emphasize that, in this context, the right to self-determination of the patient is not mentioned:  the euthanasia issue is considered essentially as a moral dilemma of the medical doctor. In this way, the basic principle of heteronomy is upheld.

The fundamental disagreement concerning the essence of the human condition: the central role of the heteronomous authority on the one hand, and the emphasis on autonomy and on respect and reserve in front of human suffering on the other hand, explains why a compromise was impossible, unless one of the two groups accepted to become unfaithful to its basic principles.  For, whatever nuances there may have been among the opinions of the members of the majority, there was a general agreement that the admission of euthanasia was founded:  (a) on the fundamental right of everybody to autonomy:  every person has the right to self-determination with regard to his own health and life, especially when confronted with unbearable suffering.  (b)  In so far as the doctor, in performing euthanasia, expresses his compassion and solidarity with the suffering person, this can be considered an act of high ethical standing. (c)  Even those who have a different vision of human life, should, in a pluralistic society, respect the values of the others and let them act according to these values as long as they do not harm others.

Once the latter values are admitted as basic principles, the only problem for the lawmaker is to find a set of rules that take into account the rights implied by them, while ruling out all possible forms of abuse.

The bill in which the majority tried to meet these requirements was approved by the joint Senate commissions of  Justice and Social affairs on March 20th  2001 (after having discussed 687 amendments);  in the Senate  on October 25th  2001 and finally in the Chamber on May 16th  2002  (with 86 votes pro, 51 contra and  10 abstentions). The law came into force on September 23rd  2002.

3. The Belgian law on euthanasia

The essential points of this law are that euthanasia can be performed by a physician (and only by a physician) without committing a crime, when the patient who requests it is of age, legally competent and conscious; when the request is voluntary, well-considered and repeated and the patient is enduring unbearable and consistent physical or psychological suffering as a result of an incurable pathological situation, caused by illness or accident.  The patient needs to be informed about his health situation and his life expectancy and the doctor must be convinced of the authenticity of the patient’s request.  Another physician should be consulted to verify the elements mentioned above.  If possible, the request should also be discussed with the nursing staff and the relatives of the patient.

When the patient is not in a so called ‘terminal’ state, i.e. when it is not expected that he/she will die naturally in the near future, a second doctor should be consulted and at least one month should elapse between the written request of the patient and the act of euthanasia.

Termination of the life of unconscious persons is also possible when the patient has made a ‘living will’ (advance instructions) concerning euthanasia, which is maximally five years old.

After performing euthanasia, the doctor is obliged to report this act to the Federal Commission of Control and Evaluation.

4. Comparison of the Belgian and Dutch laws

Since the ethical discussions  – including the publications concerning the relevant facts and figures –  preceding the approval of the laws in Belgium and in the Netherlands were similar in many respects, it seems instructive to compare the two laws. (7)  In my opinion, the Dutch law is by far the superior one; not only because it is the most ‘liberal’  - a fact which, although undeniable, has been denied repeatedly in the common place political discussion -   but also because it is more consistent from the ethical and the legal point of view.

4.1. The first aspect appears clearly from the divergent treatment of children and minors in general.  According to the Dutch law, a request for euthanasia can be complied with on an autonomous basis from the age of 16;  for people between the ages 12 and 16, the consent of the parents is required.  This takes into account that the senseless suffering of minors might be as horrible as that of adults and that the capacity to self-determination is a variable quality, which gains in relevance the more one progresses in age and the more one is confronted with unbearable suffering.  In Belgium nothing is possible for minors, although no one has ever given an ethically sound reason for that.

4.2. The superiority from the legal point of view lies in the fact that in the Netherlands the concept (although not the term) of euthanasia is clearly introduced in the penal law. Of course, this is the most honest thing to do: if a society decides that there is an important exception to the general interdiction of killing (apart from the case of legal self-defence), it should be added explicitly as a restriction of the general rule. At the same time, this makes it possible to mention specific penalties for negligent application of the rules.  In Belgium, euthanasia is introduced in a separate law with the (less than honest) aim of seeming to uphold the general interdiction and with the undesirable side-effect that every breach of the rule is to be prosecuted as murder.

4.3. Another remarkable distinction between the two laws, which depends on divergent appreciation within the public opinion of the two countries, concerns the so called ‘non terminal’ patients. In the Netherlands, the central issues in the euthanasia discussion have always been the autonomy of the patient and the compassion with his suffering: whether the natural death is close or not does not really matter;  neither does the law introduce this distinction.  In Belgium, the most fierce opposition to the coalition bill was aimed at the fact that euthanasia would also be possible for the ‘non terminal’ patients. Again, the reason seems to be related to the (Christian) attitude towards self-determination. In the ‘terminal’ case, the death is caused by a ‘heteronomous’ agent, viz. Nature, and the sole effect of euthanasia is to accelerate the process of dying. In the ‘non terminal’ case, the decision lies completely with the patient himself. The opposition to this was so strong that the lawgiver had to introduce the requirements of the advice of another physician and a waiting period of one month.

4.4. A final matter of intense debate in Belgium was the clause that the physician could take into account “unbearable and consistent physical or psychological pain or suffering” (emphasis supplied).  The objection, especially in medical circles, was that this proviso would pave the way to the practice of euthanasia in cases of extreme distress or depression without a somatic cause.  This, however, was a misinterpretation, since the law lays down explicitly that an incurable pathological situation, caused by illness or accident should be present. Furthermore, when the patient is not in a terminal phase, a third physician (in cases of depression, a psychiatrist) should give advice and it is clear that in most cases of this type he would have to conclude that there is no incurable illness and hence that euthanasia is not permitted.

Why then does the law take ‘psychological suffering’ into account?  Because, as soon as an incurable illness is diagnosed, whether such a situation is experienced by the patient as unbearable and hopeless depends also on psychological aspects. The prospect of dragging on a tarnished and humiliating form of life for example, can be experienced as a sufficient reason to ask for a mercy death for a number of persons.

The Dutch law does not mention ‘psychological suffering’, but it is evident from the court decisions and from the reports of the evaluation committees that these aspects of the patient’s experience are fully taken into account. (8)

5. Conclusion

It is understandable that the Netherlands, where a thoroughgoing discussion of the euthanasia problem started ten years earlier, could bring about a more consistent and well-considered law.  In Belgium, there is also the opinion that the actual law has serious shortcomings and that a change is advisable, especially as far as children and minors are concerned. Nevertheless, in spite of its inadequacies, we may hope that even as it is now, the law provides the last expedient to most of those who prefer a self-elected death to unbearable suffering.

Notes

1. Beantwortung der Frage: was ist Auklärung (1784)  Akademie-Ausgabe, VIII, 35.
2. Pritchard, James, B. (ed.), Ancient Near  Eastern Texts relating to the Old Testament, 1955, Princeton U.P. Princeton, p. 34.
3. Bentham, Jeremy,  Introduction to the Principles of Morals and Legislation, Chapter 17, footnote.
4. Mill, John Stuart, On Liberty, (1860), Fontana Library Edition, pp. 206-207.
5. For a good detailed exposition of the history of the euthanasia law in the Netherlands, I refer to a study  by Alina Fazal:  Death on Demand, which I received trough E-mail: alina_fazal@hotmail.com.
6. Sénat de Belgique, Session de 1999-2000 ,  Proposition de loi relative à l’euthanasie, déposée par Mr. Hugo Vandenberghe.
7. The debate concerning the euthanasia laws in Belgium and the Netherlands was influenced in a significant way by a series of studies concerning the end-of-life decision making and the practice of euthanasia and physician-assisted suicide. These studies were based on a methodology developed by van der Maas et al. and were characterized by their comprehensiveness and by their rigorous method, which guaranteed complete anonymity to the physicians and the patients, and hence reliable significance.  Before the study of  June 17, 2003, such studies were only available for the Netherlands, the Flemish part of Belgium and part of Australia. It has to be stressed that general statements concerning the frequency of euthanasia in other countries have no sound scientific basis and certainly cannot be used in comparison to the former ones. The most impressive difference between the Dutch and the Flemish results was the following. These studies on euthanasia were undertaken during the period when it was completely forbidden in Belgium, whereas it was admissible in practice in the Netherlands.  Nevertheless, the percentages of termination of life by the physician were comparable, with the remarkable exception that termination of life without request by the patient was four times higher in Belgium than in the Netherlands.

The studies I am referring to are the following.

• van der Maas , PJ, van Delden JJM, Pijnenborg L, Looman CWN,  “Euthanasia and other medical decisions concerning the end of life.” Lancet 1991; 338: 669-74.
• Van der Maas, PJ, van der Wal, G, Haverkate I. et al. “Euthanasia, physician-assisted suicide, and other medical practices involving the end of life in the Netherlands, 1990-1995.” N Engl. J Med. 1996; 335: 1699-705.
• Deliens L, Mortier F,  Bilsen J et al. “End-of-life decisions in medical practice in Flanders, Belgium: a nationwide survey.” Lancet 2000; 356: 1806-11.
• Kuhse H, Singer P, Baume P, Clark M, Rickard M.  “End-of-life decisions in Australian medical practice.” Med.J Aust 1997; 166: 191-96.
• Van der Heide A, Deliens L, Faisst K, Nilstun T, Norup M, Paci E, van der Wal G, van der Maas PJ. “End-of-life decision making in six European countries: descriptive study.” Lancet, published online, June 17, 2003.
• The misunderstanding concerning this ‘psychological suffering’ has led some journalists to the conclusion that a great number of cases of euthanasia in the Netherlands are only psychologically motivated. This is totally wrong. In the yearly report of the Evaluation Commission Euthanasia (www.Minbuza.nl/default.asp?CMS_ITEM=MBZ414060 ), we read that for the year 2000,  2123 cases of euthanasia or physician-assisted suicide were reported to the Commission. In 1893 cases, the illness was cancer; in 28, cardiovascular disease; 51 were diseases of the nervous system; 45 lung diseases other than cancer; 10 cases of AIDS and 96 other diseases. There is no indication of euthanasia in cases without illness.

The Belgian law on euthanasia - The historical and ethical background

Januari 2003 - ACTA CHIRURGICA BELGICA. 102(6). p.394-397

Author: Etienne Vermeersch

 

UGent publication: yes

 

UGent classification: A1
 

Abstract

A survey is provided of the genesis of the euthanasia laws in Belgium and the Netherlands, with the intent to provide a clear idea of the concepts involved and of the rationale for their introduction. The role of the Belgian Consultative Committee on Bioethics in the development of the ethical discussion in Belgium is explained as well as the essence of the profound ethical divide between the 'coalition' and the Christian Democrats. After a summary of the basic points of the law, a comparison is made between the Belgian and the Dutch laws and their ethical foundations.

 

Citation

 

Chicago

Vermeersch, Etienne. 2002. “The Belgian Law on Euthanasia - The Historical and Ethical Background.” Acta Chirurgica Belgica 102 (6): 394–397.

APA

Vermeersch, E. (2002). The Belgian law on euthanasia - The historical and ethical background. ACTA CHIRURGICA BELGICA, 102(6), 394–397.

Vancouver

1. 

Vermeersch, E. The Belgian law on euthanasia - The historical and ethical background. ACTA CHIRURGICA BELGICA. Brussels: Acta Medical Belgica; 2002;102(6):394–7. 

MLA

Vermeersch, Etienne. “The Belgian Law on Euthanasia - The Historical and Ethical Background.” ACTA CHIRURGICA BELGICA 102.6 (2002): 394–397. Print.