TITLE: EUTHANASIA AND THE RIGHT TO DIE.

‘Quem ad modum navem eligam navigaturus et domum habitaturus sic mortem exiturus ex vita’

Translation: Just as I choose a ship in which to sail and a house in which to live so also do I choose the mode of my death.

Lucius Annaeus Seneca.

Roman Stoic philosopher.

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Definition of Euthanasia:

The word euthanasia originates in Greek language and is made up of two words, “eu” which means “good” and “thanatos” meaning “death”.Literary, the word thus means a good death. Contemporary society has diverse definitions of euthanasia.1 The Black’s Law Dictionary define euthanasia as ‘The act or practice of painlessly putting to death persons suffering from incurable and distressing disease as an act of mercy.’

Other acceptable definitions are:

The practice of assisting a severely and terminally ill and/or in severe and chronic pain to die, causing the leastamount of suffering, either at their request or by taking the decision to withdraw life support.

The ending, as painlessly as possible, of life of the personwho is fatally and hopelessly ill, severely injured or incapacitated person who as a result is suffering.

The hastening of the death of a person who is terminally illwith no prospect of recovery or one who is permanently unconscious with no prospect of recovering consciousness.

Euthanasia can take many different forms. These are:2

Active euthanasia: which involves intentionally causing the deathof a person through a direct action, in response to a request from that person. Active euthanasia refers to the positive acts of intending to kill e.g. giving of a lethal injection to a patient whose life is full of unbearable pain.

1 Lewy G. ‘Assisted suicide in US and Europe.’ New York: Oxford University Press, 2011.2 Dowbiggin I. ‘A merciful end: The euthanasia movement in modern America.’ New York: Oxford University Press, 2003.

Passive euthanasia: which can be defined as the hastening of the death of a person by withdrawing some form of life-sustaining support and letting nature to take its cause. Passive euthanasia refers to omissions of a doctor in failing to provide life-sustaining treatment. It is considered in terms of what he has done amounts to an interference with natural course of events.

Physician-assisted suicide, which is a situation in which a physician supplies information and/or means of committing suicide(e.g. a prescription for a lethal dose of sleeping tablets) to a person in order for that person to kill himself/herself.

Involuntary euthanasia, which involves terminating the life of a person against their will (this is regarded as murder no matter how noble the motive).

Voluntary euthanasia, which involves the killing of a patient with their consent or some form of advanced directive such as a ‘living will.’

Non-voluntary euthanasia, which involves the termination of the life of a person without their consent or opposition.

It would also be apt to define a living will/advance directive which is a declaration in terms of which a person, whilst mentally sound and of full legal capacity, declares that if at any time in future she/he should suffer from an incurable diseaseor injury which cannot be successfully treated, artificial life-sustaining treatment should be withdrawn and she should be left to die naturally. May also denounce resuscitation.

The debate on euthanasia is a very topical subject in the presentday society. This has been caused by the advent medical technology, availability and use of artificial measures to prolong life, legalization of mercy killing in some countries, growing population of elderly people and the declining influence of organized religion. Though only legal in Belgium, Switzerland,Netherlands, Luxembourg and some US states like Montana, Oregon &

Washington, the debate rages on. Just for the record, it should be noted that this is a relatively late development, the Bible treats suicide neutrally e.g., Saul’s suicide [1 Samuel 31:4] or Zimri’s [1 Kings 16:18] in defeat, or Judas’ [Matthew 27:5] in remorse. Question may raise of whether Jewish or Christian martyrdom, generally praised even in later periods, can be seen aform of suicide that’s an exception to this general negative attitude.3 Some African societies left the critically ill and dying persons out, expecting them to die slowly as dying inside ahut defiled it. For example the Agikuyu and the Akamba communities of Kenya. The Hindu community practise ‘Prayopavesa’ which is a form of suicide practiced by people who have inabilityto perform normal bodily purification and death appears imminent or the condition is so bad that life's pleasures are nil or who have no desire or ambition left, and no responsibilities remaining in this life. However, the decision must be publicly declared and the action must be done under community regulation. It is really only suitable for elderly ascetics. In most cases, they will fast themselves to death.

The euthanasia debate raises moral, ethical, philosophical, religious and legal issues. All these have to be taken into account in examining the legality or illegality of the use of euthanasia in the context of human rights. The position of euthanasia in the light of ICCPR Article 6(1), the many differentinternational conventions and constitutional provisions that grant and protect the right to life has to be examined. It’s a matter that takes place in almost every country whether legally or illegally therefore worth a critical analysis. However, it’s only after examining all arguments that inform the reasoning of the pro-euthanasia and the anti-euthanasia group can one arrive at a well-reasoned position of euthanasia in the human rights arena.3 Dr. Avital Pilpel and Dr. Lawrence Amsel, ‘What Is Wrong With Rational Suicide?’ The University of Haifa, Mt. Carmel

PROPONENTS.

Those who are in support of euthanasia have forwarded many reasons why they think euthanasia should be allowed.

Individual Autonomy in a democratic society.

John Stuart Mills, one of the vehement believers in democracy, emphasizes that the concept of individualism is a big player in the democratic political theory. Mill stated that ‘Over himself, over his own body and mind, the individual is sovereign’. Every individual has the freedom to pursue their interests, and to makedecisions on what is right for themselves. Mills feels that, ‘theonly purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’

This implies that the individual in the society has the first sayon those matters that affect him only. This first say overrides any other interest that the state may have in that individual’s life. The government may legislate to prohibit larceny, rape and robbery. This actions violates the rights of the others, and those ‘others’ ought to be accorded legal protection. However, the state should have no power to legislate on pre-marital sex, sexual orientation, religious beliefs and voluntary euthanasia. This actions infringe on nobody’s rights. After being diagnosed with amyotrophic lateral sclerosis4 Sue Rodriguez sought legal authority for euthanasia. She made national headlines in Canada and captured the public’s attention by asking these simple questions, “If I cannot give consent to my own death, whose body is this? Who owns my life?” in a video statement prepared for members of Parliament that same year. Rodriguez wanted a choice.

4 Amytropic Lateral Sclerosis also called the motor neuron disease or Lou Gehrig’s disease is a debilitating disease characterized by rapidly progressive weakness, muscle atrophy and fasciculations, muscle spasticity, difficult speaking, difficult swallowing and difficult swallowing.

She said the time and manner of her death shouldn’t be decided byher disease or the law. If she were incapable of taking her own life, she insisted it should be legal for a doctor to provide herwith the means to do so5. This choice she claims she ought to be allowed to make is based on this notion of individual autonomy.

The idea of right to determine how one dies is based on individual autonomy. Autonomy has been defined as one’s claim to have what one is entitled to short of infringing the valid rightsof other individual or of the community. As one American philosopher put it: ‘your right to swing your fist and at the tipof my nose.’6 The argument here is that as long as I do not infringe the rights of others, then I have the right to treat my life as I please. The only qualification of exercising this autonomy seems to be legal competence. This excludes the underageand persons of unsound mind from exercising this autonomy. Otherwise, as a competent adult of a sane mind and acting under no pressure, I have full autonomy over my life, provisio minding myneighbor.

The implication this autonomy argument was manifested in 1994 in USA. A federal district court judge for the first time struck down a state law prohibiting assisted suicide. She relied upon the claim by 3 Supreme Court justices in a recent abortion case that ‘matters involving the most intimate and personal choices a person may make in a life time are central to the liberty protected by the 14th amendment. At the heart of liberty is the right to define one’s own concept of existence, or meaning, of the universe, and of the mystery to human life.’ Governments havealways acknowledged this. That is why the governments grants us the liberty to decide our job, our family, our religion, and evenour sex preference. The government acknowledges that we know whatis best for ourselves. If the government grants us these rights

5 The Windsor Star, February 11, 20146 Dr. Brian Pollard, ‘Human Rights and Euthanasia,’ 1998.

based on our autonomy why should it not give one the right to decide if we want to live or not? It is not logical that we can choose in all those other decisions if we cannot first choose to live or die. Nobody knows better than patient himself the pain and discomfort he is going through. Nobody knows better than the elderly the loneliness and the emptiness they experience in theirold age. Nobody knows better than the invalid the loss of dignityin his life. Nobody knows better than them where these ‘shoes’ pinch. They should be left to exercise their autonomy and the resultant decisions respected. The rights of an individual must prevail.

To be denied the right to make this decision contravenes once democratic rights. Many people think that each person has the right to control his or her body and life and so should be able to determine at what time, in what way and by whose hand he or she will die. Where there are no dependants who might exert pressure on one way or the other, the right of the individual to choose should be paramount. So long as the patient is lucid, and his or her intent is clear beyond doubt, there need be no furtherquestions. Behind this lies the idea that human beings should be as free as possible - and that unnecessary restraints on human rights are a bad thing. And behind that lies the idea that human beings are independent biological entities, with the right to take and carry out decisions about themselves, providing the greater good of society doesn't prohibit this. Allied to this is a firm belief that death is the end7.

This theory encapsulates the libertarian argument. If an action promotes the best interests of everyone concerned and violates noone's rights then that action is morally acceptable. In some cases, euthanasia promotes the best interests of everyone involved and violates no one's rights. It is therefore morally acceptable. On the same latitude is the utilitarianism theory.

7 The Independent, March 2004

The belief that moral rules should be designed to produce the greatest happiness of the greatest number of people.

However, this analogy has received a plethora of criticism.

First, Dr. Brian Pollard opines that the idea of autonomy is normally misinterpreted. ‘Autonomy is normally discussed as though it was about having whatever one freely, informedly and competently requested. But since no one is owed anything just because they ask, autonomy must have limits.’ Further, he clarifies that, ‘if autonomy were as limited as it is commonly supposed when discussing euthanasia, a competently, self-determined request could never be refused, and a competent request for euthanasia would be justified for any stated reason or none, for any person, sick or not, at any time.’8

Secular opponents assert that at times what is in one’s best interest may not be morally acceptable. One may not even realize that committing euthanasia may harm other people. Finally, euthanasia is not a private act, its effects and implications mayhave an impact on the whole society. People may have a diminishedview on the value of life. Terminally ill will be viewed as a burden who ought to do the right thing, commit euthanasia. With regard to this Dr. Pollard asserts that since the common good is for all not a good for each, proposal for the legislation of euthanasia must at the very least, include some attempt to balance between individual choice and the community’s need for good order, social harmony & the protection of its vulnerable members.

Secular philosophy argue on the duty to preserve life because it has value in itself, or the importance of regarding all human beings as ends rather than means. The danger of violating the right to life is so great that we should ban euthanasia even if it means violating the right to die.

8 Dr. Brian Pollard, ‘Human Rights and Euthanasia,’ 1998.

Religious opponents disagree because they believe that the right to decide when a person dies belongs to God. God is the owner andgiver of life, it’s Him who has the discretion to commence or endit.

Political opponents say that our individual right to autonomy against the state must be balanced against the need to make the sanctity of life an important, intrinsic, abstract value of the state. This being a core value of the state, the state has an obligation to protect loss of life, even when the owner wants to end it.

The Right To Die.

It’s been argued that the well-received right to life implies that one has a right to die too. The right to life is no more than a right. A right to life is not a duty to live.

Proponents of this argument assert that one can opt not to exercise his right to life. We are have the freedom of speech albeit with certain limitations. If one opts not to exercise his freedom of speech can any authority be upon his shoulders? The answer is no because you have no duty to exercise this right. Similarly, we all have the right to life but some may opt not to exercise this right. This implies that they have a right to die. This right, the proponents assert, is as natural, inherent and inalienable just like the right to life. Further, they assert that the right to life is not a right simply to exist. The right to life is a right to live with a minimum good quality and value.Death is the opposite of life, but the process of dying is part of life. People have the right to try and make the events in their lives as good as possible. Dying can be good or bad and since dying is part of life people do have the right to try to make their dying as good as possible. If the dying process is unpleasant, people should have the right to shorten it, and thus reduce the unpleasantness.

Dr. Brian Pollard, in examining this argument, acknowledges that there is a common presumption that there is a ‘right to die’ in the sense of autonomous right to choose the time and manner of one’s death, and that an appeal to this right would be sufficientground for legalizing euthanasia. There is an ethical right to die, in the sense of a right to be allowed to die, when one is dying and it is in one’s interest to die by discontinuing or not commencing unwanted burdensome and or futile medical treatment, and by providing all necessary comfort.9 Professor SA Strauss in his book, ‘Doctor, Patient and the Law,’ states that “in principle every person is legally entitled to refuse medical attention, even if it has the effect of expediting his death. In this sense, the individual has a right to die. All that is required is that the declarant at the time of making his refusal known is compos mentis. The declaration remains valid even thoughthe declarant may at a later stage become non compos mentis as a result of physical or mental illness, or for any other reason”10

The arguments settles down to this question; is the right to lifea discretionary right or a mandatory right? If it is mandatory, it is inalienable and accordingly incapable of waiver irrespective of the wishes of the beneficiary of the right. If itis discretionary, the right holder is capable of waiving the right.11 An answer to this question will determine if the pro euthanasia crusader’s argument of the right to die holds any water.

The right to life is the most significant of all human rights. The existence and operation of other human rights are predicated on the effective guarantee of the right to life.12 Dinstein., a prominent human rights activist, puts it thus: ‘Civilized society

9 Dr. Brian Pollard, ‘Human Rights and Euthanasia,’ 1998.10 Professor SA Strauss, ‘Doctor, Patient And The Law’ 3rd Edition. Pretoria: JL van Schaik. 1991.11 Human Rights and Equal Opportunity Commission, Sydney, December 1996.12 Human Rights and Equal Opportunity Commission, Sydney, December 1996.

cannot exist without protection of human life. The inviolability or sanctity of life is, perhaps, the most basic value of modern civilization. In the final analysis, if there were no right to life, there would be no point in the other human rights.’ If all other rights are predicated on the right to life, it means that all other rights are geared towards the recognition, achievement and sustenance of the right to life. No other right can exist outside the right to life and this includes the right to die.

If there were a natural right to die on request, it ought to be able to be validated by reasoned argument, it should always have existed, must apply equally to all who ask, and it must oblige respect. The supporters of euthanasia offer no such arguments that such a right has always existed or that it exists now, they do not think it has universal application because they place limitation on those to whom it would apply, and they are careful to disclaim that such requests would be binding on others.13 Thisattests that the right to die, if it at all exists, is not a natural right. Natural rights are ascertainable by reason, they apply equally to all human beings who seek them and have always existed whether the law granted them or not. The right to die doesn’t fit these characteristics.

The only category that the right to die (if it actually exists) would loosely fit is among the welfare rights. Unlike the original concept of human rights derived from considerations of the nature of mankind, grounded in nature and reason, claimed welfare rights are grounded in the self-creating will, are of variable force and are frequently contentious. They are not universally applicable and many would be thought absurd and or unattainable in many cultures. Genuine welfare rights do oblige compliant by others, even without request. An example is the right to be informed of the significant risks of proposed medicaltreatment. It’s the responsibility of the doctor to provide it

13Dr. Brian Pollard, ‘Human Rights and Euthanasia,’ 1998.

whether there is a request or not. If the right to euthanasia on request were genuine, and a doctor was permitted to take the lifeof a patient who asked for it, the doctor would also be justified, and perhaps obliged out of compassion, in taking the lives of others in similar unfortunate circumstances. This may apply especially when for any reason patients could not ask. It could be thought discriminatory and unjust to withhold such a benefit merely because it could not be requested, if there were also a right to that benefit.14

The right to die cannot be rationally be arrived it. If such a right do exist is highly doubted. This pro-euthanasia argument isthus hard to fathom. In fact a recent decision by Britain’s highest court in determining whether the right to life in the European Convention On Human Rights grants one the right to die concluded that the right to life did not give any right to self-determination over life and death, since the provisions of the convention were aimed at protecting and preserving life.

Freedom of religion, belief, conscience and opinion.

Proponents of euthanasia believe that the freedom to conscience and Christian belief grants us the right to decide how and when to die. This argument is used to counter any religious reason fronted to discredit the use of euthanasia for example the sanctity of life.

The freedom of belief empowers one to disregard any of those Christian beliefs and pursue his/her own belief. That’s why the state should not coerce one into a certain religion or to follow a certain belief. This goes hand in hand with freedom of conscience. One ought to have a free conscience. A conscience that allows him/her to view matters in life clearly with no external pressure from maybe the state. The clergy and many othereuthanasia opponents rely on Christian ethical values. Such

14 Dr. Brian Pollard, ‘Human Rights and Euthanasia,’ 1998.

values include the sanctity of life argument and that God is the only One with discretion over it. They should accept that not everyone subscribe to their religion and their Christian values. A good number believe in no Supreme Being. They should not thrustthese believes and Christian values down the non-believers throats.

The believers seem to have the notion of ‘existence for its own sake’ i.e. cling to life no matter the situation you are in. The non-believers’ values are based on the primacy of the quality of life. That only a quality life is worth living, otherwise it’s better to die with dignity.

The right of individuals to exercise their freedom of belief andconscience, without being constrained by the religious values of others, must be upheld. These freedoms can only be effective if tolerance is upheld. Tolerance of the values of others is an important element of multiculturalism. To avoid a ‘tyranny of themajority’ situation, the values of others, as diverse as they maybe, must be respected. It is hypocritical however to claim that one is tolerant of others but simultaneously decree that their values, such as belief in voluntary euthanasia, are wrong and cannot be practiced.

Economic arguments

Another argument in support of euthanasia is that euthanasia may be necessary for the fair distribution of health resources. In most countries there is a shortage of health resources. As a result, some people who are ill and could be cured are not able to get speedy access to the facilities they need for treatment. At the same time health resources are being used on people who cannot be cured, and who, for their own reasons, would prefer notto continue living. Allowing such people to commit euthanasia would not only let them have what they want, it would free valuable resources to treat people who want to live. One must

question why public money should be spent on keeping hopelessly ill patients alive who do not want to live, in preference to patients who do. ‘Savings to governments could become a consideration. Drugs for assisted suicide cost about $35 to $45, making them far less expensive than providing medical care. This could fill the void from cutbacks for treatment and care with the'treatment of death.’15

Many times we do not have enough money to pay for the needed medical care not knowing if the patient is going to get any better. In a way, we are just wasting time and money on a situation that won’t get better. If the patient wants euthanasia,why not do it. It saves the huge amount of money wasted on a treatment that won’t help.

The proponents pose this poser: would you prefer your estate to be spent on you, in your comatose state from which you won’t and can’t wake up from, leaving your family penniless and in debt or to die in dignity and leave your loved ones economically sound and therefore safe?

Quality of life and dignity in death

Another reason the proponents of euthanasia put forward is that it stops the person from having a bad quality of life. A doctor’sduty is not only to treat diseases but also providing the patientwith a better quality of life. Having a patient suffering is not giving him a better quality of life. A doctor may be unable to maintain a disease or to maintain it with minimum pain. When a doctor reach this point, then he should be allowed to grant the patient whatever he wants since the doctor cannot offer somethingbetter. Helping the patient in having a better quality of life isabout giving the patient what’s best for him as long as he wants it. The kind of quality of life is defined by the patient, not 15 International Task Force On Euthanasia and Assisted Suicide, Frequently Asked Questions, www.internationaltaskforc.e.org

the doctor or government. Consequently, when the patient feels heis not getting the quality of life he wants, the least a doctor can do is grant him what he wants. If the patient’s decision is to die, so be it.

At times, the lack of quality in life does not just result from illness. The lack of purpose that elderly people experience when their family, friends and acquaintances have all passed away, when they feel left behind, unable to escape an empty existence can also signify lack of quality in life. Such should be offered an acceptable means to end their lives. To others the feeling of helplessness and reliance on others is not something they wish tolive with. They prefer to voluntarily die than watch, as others watch too, their body and life slowly fade away e.g. the final stages of HIV/AIDS.

Patients are people with feelings. These people must be treated in a humane and compassionate way. For some people these drugs donot provide a good quality of life, and they may suffer from continuous pain, discomfort or loss of dignity. To deny terminally ill patients the right to euthanasia is to condemn them to a miserable existence, contrary to their wishes. It is hard to establish any difference in moral character between someone who denies a legitimate request for voluntary euthanasia,and who subsequently watches that person die a slow and painful death, and someone who watches a cancer-ridden pet writhe in agony without putting it down. Most people would argue that if you are terminally ill, are of sound mind and not clinically depressed, and choose euthanasia, then it is morally right.

An American activists stated, ‘At the Hemlock Society we get calls daily from desperate people who are looking for someone like Jack Kevorkian to end their lives which have lost all quality... Americans should enjoy a right guaranteed in the European Declaration of Human Rights, the right not to be forced to suffer. It should be considered as much of a crime to make

someone live who with justification does not wish to continue as it is to take life without consent.’16

The gist of the above analogies is that not providing the option of voluntary euthanasia in the above situations is inhumane and callous. In a humane society the prevention of suffering and the dignity of the individual should be uppermost in the minds of those caring for the terminally ill. When the quality of life is more important than the quantity of life, voluntary euthanasia isa good option.

OPPONENTS

For other people, the euthanasia is unethical, inhumane, callous and anti-human rights. The reasons for arriving at such a conclusion are:

The right to life.

Article 6(1) of the international convention on civil and political rights provides: ‘Every human being has the right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his right.’ This right has been inscribedinto the bill of rights of almost, if not all, constitutions worldwide. The Kenyan at Article 26. This is a natural and fundamental right that belongs to every individual and is not granted by the state.17 Suicide, whatever its reason be, is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life.’ It is the duty of the state to protect life. Though this right has some limitations, the baseline is that such exceptions should not be arbitrarily executed. In fact quoting Dinstein 16 Faye Girsh, ‘How Shall We Die,’ Free Inquiry Winter 2001. The constitution of Kenya, Article 19(3) (a). The Government Printer. 2010.17 The constitution of Kenya, Article 26, Government Printers, 2010.

again: ‘civilized society cannot exist without protection of human life. The inviolability or sanctity of life is, perhaps themost basic value of modern civilization. In the final analysis, if there were no right to life, there would be no point in other human rights.’

Those in support of euthanasia downplay the value of this right to life by asserting that the right to life is like any other. Itdoesn’t feature amongst those rights that cannot be abrogated at any circumstance namely the right to fair trial and habeas corpusand freedom from inhumane treatment/punishment and freedom from slavery.18 If the government has the mandate to limit it the great value we attach to this right is farfetched. Further, the proponents opine that the million dollar word here is ‘arbitrary.’ They take the word arbitrary as implying that which is not done according to the law. Therefore, if the state legislates on legalizing euthanasia that would not be arbitrary taking of life. They opine that as long as the euthanasia is conducted according to the procedure set out in a certain act that cannot amount to arbitrariness. What is meant by arbitrariness is left to be determined by individual states.

However, this argument is hard to stomach. First, when the government allows, in some situations, the termination of someone’s life it is always for the protection of the loss of another life or many more lives. Self-defense as one such limitation is always in protection of one’s life. Death penalty for robbery with violence and murder is normally based on the incapacitation rationale. That from your conduct, namely murder or violent robbery, you are a danger to the lives of not only thefree citizens but to your fellow inmates. The only option is to incapacitate you permanent. The only legal way to do so is through capital punishment. The argument that the limitations to human life exercised by governments devalue human life is thus

18 The constitution of Kenya, Article 25, Government Printers, 2010.

baseless. Euthanasia is not carried out in protection of anybody’s life but rather to end one. More so, the meaning of arbitrary accepted by the proponents is too narrow. The Black’s law dictionary defines an ‘arbitrary’ manner as fixed or done capriciously or at pleasure. Without adequate determining principle, not founded in the nature of things, non-rational, notdone or acting according to reason or judgment, depending on the will alone, absolutely in power, capriciously, tyrannical, despotic. This definition sounds more comprehensive. It implies that an action is not arbitrary just because it doesn’t follow the law but because it is not rational and not founded in the nature of things. Dinstein is of a similar opinion. He states: the right to life is the right to be protected against arbitrary killing. Mere toleration of malnutrition by a state is not a violation of article 6 (1) of the ICCPR but purposeful denial of access to food e.g. to a prisoner is a violation. Similarly, failure to reduce infant mortality doesn’t violate article 6 (1) but practicing or indeed tolerations of infanticide would do so. His suggestion is that the use of the term ‘inherent’ suggests that the framers of ICCCPR regarded the right to life as part of international customary law. This rights stand despite municipal legislations that are ‘arbitrary.’

It can thus not be argued that since a municipal legislation allows euthanasia in an irrational way, the subsequent acts of life termination from this legislation are not arbitrary.

There is further fear that legalizing euthanasia would prompt thegovernment to be lax in upholding the right to life. If euthanasia is legalised, then there is a grave apprehension that the State may refuse to invest in health (working towards Right to life). Legalised euthanasia has led to a severe decline in thequality of care for terminally-ill patients in Holland.19

19Caldwell S. Now the Dutch turn against legalised mercy killing. [accessed onAugust 15, 2011].

An incorrect patient diagnosis

Cases of patients being misdiagnosed have occurred even in hospitals with the most apt physicians and for all types of illnesses. The same may arise in situations of terminal illnesses. Situations have occurred where patients diagnosed to die in six months’ time have beaten the odds and survived. Such situations raise serious issues, what if a misdiagnosed patients undergoes euthanasia? Is that not murder?

However, proponents of euthanasia discount this argument. They doacknowledge that incorrect diagnoses and prognoses could occur. However, they refute this as a reason for rejecting the use of euthanasia. Dr. Alistair Browne opines that ‘it is frequently beyond all reasonable doubt that the diagnosis is correct or somecure will not be discovered in time to help, and it is not clear why this should not be sufficient. The law has never taken a “pigs might fly” attitude towards the risks attendant on any activity. We only need to establish “guilt beyond reasonable doubt” to send a person to prison or even to his execution, and it is not possible to require more without making the enforcementof the law impossible. Why a more stringent standard should be demanded in the cases of assisted suicide and active voluntary euthanasia yet needs to be explained.’

The slippery slope argument

This argument opines that introduction of one form of euthanasia (regarded as “acceptable” because of the requirement of consent and the specification of detailed safeguards) will invariably lead, in practical terms, to less acceptable forms (e.g. voluntary euthanasia without proper safeguards, or even non-voluntary or involuntary euthanasia).20 Those who ascribe to thisargument use the Adolf Hitler and his Nazism policy as an 20 George Zdenkowski, An Occasional Paper On Human And People’s Rights, Human Rights Centre of theUniversity of New South Wales, 26th March, 1996.

example. Hitler started by eliminating only the invalids. Once euthanasia was socially accepted, he started eliminating the longterm jobless, the anti-Nazism, the Jews and finally the non-Germans. From euthanasia for the invalids, it progressed all the way to euthanasia for the useless eaters. There is fear that embracing euthanasia would lead us to a similar slippery slope. The argument is that if right to assisted suicide and active voluntary euthanasia were instituted, it would lead to an increased rate of non-voluntary euthanasia, then euthanasia of those who are not attractive to society, those with fanatical political beliefs, extreme religious or cultural values and so on. Thus if we do not draw the line where it is, we will not be able to prevent substantial harm to others.

In a way, the so called ‘right to die’ could become the ‘responsibility to die.’ People may see poor or vulnerable individuals, especially the elderly, as a burden and pressure them into ‘doing their duty’ of dying. The elderly and the invalids may find themselves being pushed into taking their own lives by an unsupportive social circle.

However, those in favour of euthanasia refute this argument. First they assert that like all other crimes, involuntary euthanasia maybe hard to eliminate. The law does prohibit theft but that doesn’t prevent people from stealing. Secondly, they opine that with proper regulation euthanasia can always be controlled. Such regulations should ensure that only the qualified request and receive euthanasia. Proper regulations should ensure that:

Voluntary euthanasia be patient driven the patient must personally initiate the process, endure a cooling off period and can change his mind at any time and stop the process instantly.

The process is carried out by specially trained and certified nurses, psychologists or spiritual professionals

who can confirm the request for assisted suicide via a series of conversations with the elderly or the patient.

Only after a second health care professional has confirmed the patient’s death wish would he be provided with lethal drugs. The same caretaker would finally supervise the patient as he administers these to himself.

The specialists should ensure that the patient is of sound mind and that his or her request is explicit, logical and consistent.

The suicide assistants must make sure the death wish is more than a rash impulse, the product of depression or coercion, or the symptom of another illness, and that the patient has considered the consequences of his actions for those who will survive him.

Once the patient has taken his own life, the suicide assistant must write a report that can be reviewed by the relevant authorities.

In fact, it seems that a well regulated environment for voluntaryeuthanasia, decreases, rather than increases, the number of non-voluntary deaths. This has certainly been the case in the Netherlands. If there were a slippery slope, it is going the wrong way for those opposing euthanasia.

However it’s hard to conceive a euthanasia legislation scheme which is immune from this forms of abuses. This concern is well-expressed by the UK House of Lords Select Committee established following the Bland case: ‘We do not think it is possible to set secure limits on voluntary euthanasia. It would be impossible to frame safeguards against non-voluntary euthanasia if voluntary euthanasia were to be legalised. It would be next to impossible to ensure that all acts of euthanasia were truly voluntary, and that any liberalisation of the law was not abused. Moreover, to create an exception to the general prohibition of intentional killing would inevitably open the way to its further erosion,

whether by design, by inadvertence, or by the human tendency to test the limits of any regulation. These dangers are such that webelieve that any decriminalisation of voluntary euthanasia would give rise to more and graver problems than those it sought to address.21

The risk of creating a slippery slope is a reality that euthanasia poses to human rights.

The palliative care option.

The contemporary world of science is so advanced that there are many ways and medicines to deal with hopelessly ill patient. The palliative care sector offers these patients another option that entails compassionate care for the patients. They do not have to either die slowly in unrelieved suffering or they receive euthanasia. In fact, there is a middle way, that of creative and compassionate caring. With modern science and technology, it’s hard to conceive a situation where such care can’t be effective. This would render euthanasia irrelevant. Many people harshly criticize a medical establishment that they claim is insensitive to or outright fails to provide adequate pain management. In these cases, critics say, relieve the pain (even with addictive drugs) and many patients enjoy life again. Patients who claim they want physician‐assisted suicide may be reasoning through theclouds of depression, which often triggers suicidal thoughts. Treat the depression, and the patient regains the will to live inadequate pain management often causes patients to long for death

In fact, rushing to euthanasia as an option for such pains limitscreativity and innovation in the world of medicine. Euthanasia isa kind of a short cut. It gives doctors, families, friends and the government an escape route from caring for the terminally ill.

21 Airedale National Health Trust v Bland (1993) 1 All ER 821.

The proponents however do not buy this argument. They acknowledgethat in some, perhaps many cases, the need for assisted suicide and active voluntary euthanasia will be reduced through developments in palliative care. But these developments do not obviate the need for voluntary euthanasia nor can they control all aspects of a patient’s illness to the level desired by all patients. There are still numerous illnesses or conditions for which pain, extreme suffering, and loss of dignity are difficult or impossible to eliminate fear of the dependency that would result if all bodily functions, mental and physical, were sufficiently impaired. The feel the only option here would be euthanasia.

The doctor’s duty to do no harm

‘The prohibition against killing patients stands as the first promise of self-restraint sworn to in the Hippocratic Oath, as medicine's primary taboo: 'I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect.' In forswearing the giving of poison when asked for it, the Hippocratic physician rejects the view that the patient's choice for death can make killing him right. For the physician, at least, human life in living bodies commands respect and reverence--by its very nature. As its respectability does not depend upon human agreement or patient consent, revocation of one's consent to live do not deprive one's living body off respectability. The deepest ethical principle restraining the physician's power is not the autonomy or freedom of the patient; neither is it his own compassion or good intention. Rather, it isthe dignity and mysterious power of human life itself, and therefore, also what the Oath calls the purity and holiness of life and art to which he has sworn devotion.’22

22 Leon Kass, ‘Neither For Love Nor Money,’ Public Interest Winter 1989. University of Chicago.

The doctor has a duty to care for the patient and to treat him, if not treatable to reduce his pain. His duty is to make the patient’s quality of life better. Euthanasia does not make a patient’s life better, it ends it. A doctor’s feeling of compassion to a suffering patient should not blind his commitmentto furthering your life. His duty is to help a patient hang on tolife no matter how worthless it may be.

However, some euthanasia proponents feel that this Hippocratic Oath should be no restraint to euthanasia. In fact they believe that in the present society, it ought to be altered. One such person is Philip Nitschke who opines that, ‘Over time the Hippocratic Oath has been modified on a number of occasions as some of its tenets became less and less acceptable. References towomen not studying medicine and doctors not breaking the skin have been deleted. The much-quoted reference to 'do no harm' is also in need of explanation. Does not doing harm mean that we should prolong a life that the patient sees as a painful burden? Surely, the 'harm' in this instance is done when we prolong the life, and 'doing no harm' means that we should help the patient die. Killing the patient--technically, yes. Is it a good thing sometimes, yes! Is it consistent with good medical end-of-life care: absolutely yes!’23 For many terminally ill people, staying alive is doing harm. Those who opt for quantity of life regardless of the pain or suffering might not want voluntary euthanasia. However, many terminally ill patients consider that the quality of their life is more important than staying alive, the option of a peaceful death to alleviate their pain and suffering is a more humane and valid alternative.

A doctor’s function has changed over time their job is not only to prevent death but also to improve their patient’s quality of life. Many times there is nothing a doctor can do to prevent a

23 Philip Nitschke, ‘Euthanasia Sets Sail,’ National Review Online. June 2001.

patient from dying if the patient has a terminal disease; all he/she can do is wait for death to arrive. This waiting time can be very painful for both the patients and the people who surroundthem. Not practicing euthanasia at the request of the dying person interferes with a doctor’s job, and increasing suffering.

The argument is whether killing on request and out of compassion is actually doing any harm or it is letting a patient live in pain that is actually causing harm?

Logic shows that any type of killing, no matter the motive, is causing harm. Human beings inherently cling to life no matter thesituation. Most people who at one moment attempted suicide but failed always say that the failure was a blessing. Most people whose request for euthanasia is turned down will after some time hail the decision to deny them that option. We all at one time oranother undergo the upheavals in life, we feel down but some feelas low as lack of a meaning in their life. However, once this feeling goes away we become vibrant again. Therefore, euthanasia can never be interpreted as an act of not causing harm.

CONCLUSION

In conclusion, I quote Dr. Madaki, a lecturer at the catholic university of Eastern Africa, ‘History has taught us the dangers of euthanasia and that is why there are only few countries in theworld today where it is legal. That is why almost all societies -even non-religious ones - for thousands of years have made euthanasia a crime. It is remarkable that euthanasia advocates today think they know better than the billions of people throughout history who have outlawed euthanasia - what makes the 50 year old euthanasia supporters in 2005 so wise that they thinkthey can discard the accumulated wisdom of almost all societies of all time and open the door to the killing of innocent people? Have things changed? If they have, they are changes that should logically reduce the call for euthanasia - pain control medicines

and procedure are far better than they have ever been any time inhistory.’

Further, euthanasia violates the right to life. All rights are geared towards the attainment of the right to life and preservation of life. Whether first, secondary or third generation, the root idea of any right is making of a better life. No right can exist outside the right to life. It is therefore a mandatory right. One has no discretion to opt to or not to exercise it. There can be no an opposite right to this right of life. The right to die can therefore not exist.

If there were a natural right to be killed on request, it ought to be able to be validated by reasoned argument, it should alwayshave existed, it must apply to all who ask it, and it must obligerespect. The supporters of euthanasia offer no such arguments that such a right has always existed or that it exists now, they do not think it has universal application because they place limitation on those to whom it would apply, and they are careful to disclaim that such requests are binding on others.24

Euthanasia has no place in the present day perception of human rights.

24 Dr. Brian Pollard, ‘Human Rights and Euthanasia,’ 1998.