Academic journal article Issues in Law & Medicine

Euthanasia in the Netherlands: A Model for the United States?

Academic journal article Issues in Law & Medicine

Euthanasia in the Netherlands: A Model for the United States?

Article excerpt

Euthanasia in the Netherlands: A Model for the United States?

The euthanasia debate has escalated dramatically in the United States over the past five years. What is commonly referred to as passive euthanasia has been sanctioned by many courts. Passive euthanasia is commonly understood to be the deliberate killing of the patient by acts of omission, such as the withholding or withdrawal of life sustaining medical treatment. In contrast, active euthanasia is commonly understood to refer to deliberate killing of the patient by acts of commission, such as lethal injection. Those who oppose euthanasia do not deny the moral and legal right of competent persons to refuse useless or excessively burdensome treatments.(1) The key issue is whether the purpose of the act of omission or commission is to terminate the life of the patient. For this reason, much opposition arises from the inclusion of nutrition and hydration in the category of medical treatment which can be refused.(2) With the exception of persons who have an imminent death expectation, or for whom nutrition and hydration are otherwise useless, the withdrawal of nutrition and hydration is an act of killing by omission.

An important case in the trend toward the sanctioning of voluntary passive euthanasia is Bouvia v. Superior Court.(3) In that case a California court of appeals held that a competent person has the right to refuse treatment even when such treatment is "furnishing nutrition and hydration."(4) The court also held that "quality of life" is a significant consideration in balancing the state interests in preserving life and the patient's right to refuse treatment.(5) At the time, Elizabeth Bouvia was twenty-eight years old, and hospitalized with severe cerebral palsy. She was not terminally ill.(6) Thus, the concept of medical treatment was broadened to include nutrition and hydration as subject to a patient's right to refuse treatment.

Although the Bouvia decision constituted a radically new precedent in the law, the concurring opinion of Judge Compton was an even more radical expansion of the euthanasia debate. For the first time, an appellate court judge suggested that active euthanasia (e.g., the administration of a lethal injection) should be sanctioned as preferable to death by starvation and dehydration. Judge Compton wrote:

Elizabeth apparently had made a conscious and informed choice

that she prefers death to continued existence in her helpless

and, to her, intolerable condition. I believe she has an absolute

right to effectuate this decision. This state and the medical

profession instead of frustrating her desire, should be

attempting to relieve her suffering by permitting and in fact assisting

her to die with ease and dignity. The fact that she is forced to

suffer the ordeal of self-starvation to achieve her objective is in

itself inhumane.(7)

At this point in the debate, passive euthanasia and active euthanasia have been distinguished in order to make passive euthanasia more acceptable to reluctant ethicists, physicians, lawyers, and judges.(8) However, once passive euthanasia is generally accepted, as in the Netherlands, the argument is reversed to state that there is no ethical difference between passive and active euthanasia since both actions are intended to result in the death of the patient.(9) Thus, active euthanasia is promoted as more humane, and the ethical equivalent of passive euthanasia.

A recent case illustrating this point is In re Rodas.(10) A thirty-four year old patient, who was a paraplegic with "locked-in" syndrome secondary to a stroke, was found to be competent to refuse nutrition and hydration.(11) Eight days after this decision was handed down, attorneys for the American Civil Liberties Union of Colorado filed a complaint on Rodas' behalf requesting the court to enter a declaratory judgment stating that "under the facts and circumstances of this case, Hector O. …

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