A Perfection Of Means And Confusion Of Aims: Finding The Essence Of Autonomy In Assisted Death Laws
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2021
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Abstract
"“Assisted death”, that is, death brought about with the assistance of a third party at the individual’s voluntary request, continues to be one of the most controversial and seemingly intractable issues of our time.
The goal of this work is to bring together law using a comparative laws methodology and the definition, construction and usage of the concept of autonomy within the emerging global practice of termination of life or “assisted death”. Specifically, this work explores the overarching philosophical-ethical-medical-legal puzzle of how far can or should assisted death practices be expanded through the logic or rhetoric of autonomy, and, if there ought to be limits to autonomy in driving the termination of life agenda, where might they legitimately lie?
This work examines the assisted death law in the jurisdictions of the Netherlands, Belgium, Luxembourg, Switzerland, Washington, Oregon, Montana, England and Canada. Through examining the political, legislative and judicial reform histories as well as the substantive framework of the assisted deaths laws that have emerged from these processes, this work demonstrates that most, though not all, of the assisted death laws ultimately prescribe an fairly homogenous assisted death model, that is, assisted death for irremediable suffering. The work also finds that despite the external homogeneity, the internal ethical and policy goals of these laws, particularly with respect to how the principle of autonomy and the requirement of suffering are understood, expressed and advanced, are quite different. These internal distinctions operate as internal constraints within respective assisted death models and act as factors of stabilization that can maintain the parameters of the assisted death model as originally contemplated, thus avoiding a process of change that has been described by some as the “Slippery Slope”. This work suggests that there is insufficient attention being paid to the particular construction of autonomy at the foundation of assisted death reform and an over-emphasis on the legal vehicles (such as constitutional protections of liberty, security, privacy and equality and the “right to life”) capable of achieving homogenized external results. Accordingly, constraints inherently logical to and thus intrinsically part of certain assisted death models have the semblance of being superimposed in the assisted death models in other jurisdictions and thus renders the constraints in latter models particularly vulnerable to the same legalistic processes that secured the latter models in the first place.
Accordingly, this work also aims to re-introduce a largely unexplored yet critical perspective on the assisted death debate: that assisted death should not be “treated out of context.” While standardized laws might appear quite similar externally, the internal workings (including cultural, philosophical and ethical underpinnings) of these laws may lead to significantly different and undesirable social consequences. Thus, the socio-political confidence that might be obtained from having achieved a “similar” result should not be confused with having achieved a “good” result.
While the discussion in this work may not help to predict whether the effect of assisted death legalization will ultimately decrease the value with which we ascribe to human life, it is nonetheless critical to think carefully and independently about the aims we are seeking and the means by which the aims are sought.
*(Note to Committee: a part of the work submitted was published as a standalone publication (under the same title as this work) during the research and writing of this work: “ “A Perfection of Means, and Confusion of Aims”: Finding the Essence of Autonomy in Assisted Death Laws” (2011) Health Law in Canada 81-148. )
Keywords to your work: death, end of life, end-of-life, termination of life, assisted death, euthanasia, assisted suicide, physician assisted suicide, autonomy, dignity, slippery slope"
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Bioética, Artes y Humanidades