Is Medical Aid in Dying a Human Right?

With that title, in an essay for The Hastings Center, Alan B. Astrow, M.D., concludes that medical aid in dying (MAID) is not a human right, though I will note that it is a state constitutional right in Montana and a legal right for the terminally ill in ten other jurisdictions in the United States.  Astrow is chief of hematology/medical oncology at New York-Presbyterian Brooklyn Methodist Hospital and professor of clinical medicine at Weill Cornell Medical College.  He begins his essay by sharing this concern:

Once legalized, assisted death would become an accepted treatment option. A physician who cares for dying patients would then be obligated to discuss it with all such patients. Even if it were not directly raised, all patients with terminal illness speaking with their physicians about options would know that assisted dying is on the table. This might create subtle pressure on those already burdened with serious illness.

On this point, Astrow is right: If MAID is adopted in a jurisdiction, it would create a standard of medical care that would require clinicians to explain it as one of all options available to a terminally ill patient.  Mostly, such standards of care are set by practitioners themselves, but some are established by law.  When advance directives became widely adopted by legislators in the various states, clinicians became obligated to inquire about the treatment preferences and directives of their patients.  This standard of care was made explicit with the passage of the federal Patient Self-Determination Act (1990).  The same is true of MAID laws.

The question of subtle pressure is one of presentation, not of something inherent in the option.  With most medical problems, there are options.  If clinicians are not able to present all of the options without bias, they are not doing their jobs properly.  The same is true of lawyers, insurance agents, funeral directors, carpenters, and practitioners of most special skills.  The need to present all the options objectively is not a reason to limit them to the personal preferences of the clinicians.

One often-raised issue is the proper role of a physician, and Astrow raises it anew.  He is concerned that prescribing lethal drugs “alters traditional understandings of a physician’s role.”  He is referring, apparently, to the Hippocratic Oath, which, as Janis Landis explains in the current FEN Newsletter, is no longer used to swear in new physicians to the profession. 

Astrow raises the concern that MAID might increase the number of suicides: 

I also take seriously the warning that some have raised that there might be a connection between relaxed attitudes toward hastening death for the terminally ill and our nationwide epidemic of suicide and death from despair. This connection is impossible to prove, or disprove.

If there is no proof one way or the other, the issue adds nothing to the discussion.  Nevertheless, it seems that Astrow fails to understand the clear differences between MAID and suicide recognized by the American Association of Suicidology, which found fifteen distinctions between the two.  When considered thoughtfully, suicide and physician aid in dying are conceptually, medically, and legally different phenomena.  Unlike suicide, MAID exists in a milieu that is reflective, and concerns an anticipated death that a physician may legally help a dying patient facilitate.

Astrow also favors increasing the availability of palliative care and hospice services as an alternative to MAID.  While virtually everyone supports the increased use of palliative care and the availability of hospice services, that would not eliminate the need for MAID.  Palliative care is not always successful, and Astrow’s position ignores the personal autonomy people should have to decide that they don’t want to continue living to the end of a condition from which they will die after many months, weeks, or days of suffering, both physically and existentially, that is, when there is no longer purpose in their lives.  He would deny the terminally ill this choice.

One of Astrow’s weakest arguments is that MAID is a euphemism that hides what is really happening.  But he doesn’t say what it should be called.  Perhaps “physician-prescribed lethal drugs for a person to use in ending their life before their terminal illness runs its course.”  It is hard to come up with an acronym for that description.  In reality, MAID accurately describes what these right-to-die laws are about–receiving medical assistance to die on the patient’s terms.

Astrow does briefly discuss what a human right actually is.  He consulted the Cambridge Dictionary of Philosophy, where he found that human rights– 

are possessed merely by virtue of one’s status as a human being” or “have been incorporated into legal systems by international agreements.”  The United Nations states, “Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.

While he acknowledges that MAID could fall into the category of “and many more,” he fails to appreciate how human rights have come to exist.  In fact, he seems to see human rights as public policy issues to be weighed in terms of how they may affect one person versus another.  If the 4th Amendment’s prohibition against unlawful searches and seizures were subjected to a public policy test, I can imagine a wealthy elderly white person taking the position that he doesn’t need such a right, because in all of his eighty years, he has never been searched by the police.  But an African-American of any age and social standing might have a different opinion about the need for such a right.

Astrow fails to deal adequately with the threshold question of what human rights are and how they came into existence.  In its most straight-forward assertion, human rights are what we decide they are as a society, a culture, a people.  The founders of this country declared that human beings (with some unstated exceptions) have unalienable rights, including the rights to equality, life, liberty, and property.  (While these were ascribed to a “Creator” by a group of mostly Deists, they were actually derived from Enlightenment thought.)

The United Nations “Universal Declaration of Human Rights” (UDHR), adopted in 1948, goes much further than did our founders, even after the Bill of Rights was added to our Constitution.  The UDHR declares that all human beings have rights to dignity, life, liberty, security; to be treated in a spirit of brotherhood; not to be held in slavery or servitude; not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; to equality and fairness before the law; to privacy; to freedom of thought, conscience and religion; and to a host of other rights necessary for people to be free and functioning human beings in modern society.

These are not rights bestowed by some king, god, government, or undefined Creator, but are rights determined by reason and conscience by representatives of the world community.  

Our own Supreme Court, nearly 30 years ago, found that we all have the right to decide what medical care we are willing to accept.  We should also have a right to decide what suffering we are willing to endure and receive medical assistance necessary to avoid the suffering we want to avoid.  Our essential right to take our own lives when faced with unwanted suffering is undeniable–no state prohibits it.  What we don’t yet have everywhere is the right to receive assistance in doing so, an omission that discriminates against the too feeble, the too ill, and the too disabled, who nevertheless know their own minds and deserve the assistance necessary to exercise that essential right.