Neonatal euthanasia without parental consent

A
provocative article soon to be published in the Journal of Bioethical Inquiry
argues that parental consent should not be a prerequisite for neonatal
euthanasia. At present, the only country to permit neonatal euthanasia is the
The Netherlands. Medical personnel there are not prosecuted for actively
euthanizing infants in great suffering, provided that they satisfy the
requirements of the Groningen Protocol, which include obtaining consent from
the infant's parents. In the forthcoming article, Jacob Appel argues that the
requirement for parental consent should be dropped. 

Let's first consider the question of whether it
could be ethically permissible for medical staff to end the life of a child
without the consent of the parents.

I'll come
back to the question of whether this should be legally permitted. Imagine the
case of an infant enduring excruciating and constant pain. Suppose that the
only way to alleviate this pain would be by permanently anaesthetising the
child, which is not, let us suppose, and option. Thus, the child will continue
to experience unbearable pain for as long as he or she continues to live.
Suppose further that letting the child die, without active killing, is also not an option (say because
withdrawing treatment would not result in the infant's death, and withdrawing
nutrition would unacceptably increase the child's suffering). Finally, suppose
that the parents have refused consent to euthanizing the child.

In this
case, there seems to be a very strong moral reason for medical staff to
euthanize the child: this would be in the child's interests. Plausibly, the
child's future life is not one that it would be worth living. However, there
are also three plausible reasons not to euthanize the child:

(a) that
this would amount to killing a child

(b) that
the child has not consented to euthanasia (not being competent to do so)

(c) that
the parents have explicitly refused to consent to euthanasia

Now many
will believe that reason (a) is conclusive: they will believe that it is always
wrong to kill a child. Many of those who do not believe this will think that
reason (b) is conclusive: they will think that it is always wrong to kill a
child without that child's consent. However, there is a reasonable view
according to which reasons (a) and (b), taken separately or together, are not
necessarily conclusive, and the Dutch euthanasia law is presumably premised on
this view. Suppose that this view is correct. Suppose that the reasons to
euthanize the child in his or her own interests could outweigh reasons (a) and
(b) not to do so. The interesting question is whether, in such circumstances,
reason (c) – the fact that parents have refused consent – provides a conclusive
reason not to euthanize. It is not clear that it does. Certainly, reason (c)
may carry some weight, and there may therefore be cases in which it will be the
decisive consideration. But, in other settings, we often think that the best
interests of a child can outweigh the wishes of the parents. Appel mentions the
case of a Jehovah's witness couple who have refused to consent to their child
receiving a life-saving blood transfusion. In this case, most would agree that
the interest of the child in receiving the transfusion may outweigh the wishes
of the parents. Why not think that a similar situation could arise with
neonatal euthanasia?

Consider
now the public policy question of whether, given that a state allows neonatal
euthanasia, it should legally require parental consent. Here, Appel again appeals to
the analogy with life-sustaining treatment, noting the emerging legal consensus
in many countries that medical staff may provide treatment to a child when they
believe it to be (clearly) in that child's best interests, even though the
parents do not consent. Appel also draws a comparison with the removal of
life-sustaining treatment to infants (as opposed to active euthanasia). Again,
there are legal precedents for withdrawing treatment without parental consent.

The
analogies that Appel draws may be less convincing at the level of public policy
than they are at the level of individual ethics. Reasons against permitting
neonatal euthanasia without consent may include:

1. Doing
so might deter parents from seeking medical help for their child

2. Doing
so might undermine the fragile policy of allowing neonatal euthanasia at all,
since it is likely
to inflame those who do not believe that neonatal euthanasia
should ever be permitted

3. Doing
so might lead to the abuse of euthanasia by the medical establishment or state.
For
example, infants may be euthanized because they are regarded as having 'bad
genes' or are likely
to be a burden on society, even though they are also still
likely to have lives worth living.

As Appel
notes, the first consideration seems to apply just as strongly to cases
involving the provision of life-saving treatments or withdrawal of treatment
without parental consent. However, he does not consider whether the second and
third concerns apply equally in his analogous cases. It seems plausible that
they do not apply equally to provision of life-sustaining treatment. For
example, in the case of providing life-sustaining blood transfusions to the
children of Jehovah's witnesses without parental consent, there is no concern
about undermining the policy of providing blood transfusions in general.
Similarly, concerns about inappropriate provision of blood transfusions may
be minimal since society faces no strong incentives to provide blood
transfusions even when they are not required. On the other hand, there may be a
societal incentive to euthanize children who are likely to be a burden
on society, say.          

The
analogy with withdrawal of treatment ('letting die') may be on stronger ground.
In permitting treatment withdrawal without parental consent, it seems that we
may place the policy of allowing treatment withdrawal in political danger (as in concern 2). And
this policy is also open to abuse (as in concern 3). However, it's not clear that these concerns
are as strong in the case of treatment withdrawal as they are in the case of
active euthanasia. Perhaps policies permitting treatment withdrawal are less
open to abuse since, in any case, there are only limited circumstances in which
withdrawal of treatment will actually lead to a child's death, whereas any child
would be 'at risk' from active euthanasia. Policies permitting treatment
withdrawal are also less controversial than policies permitting active
euthanasia, so concerns about inciting opposition and thus undermining a vulnerable policy by rejecting the
parental consent requirement may be weaker.

Of
course, none of this is to say that concerns about abuse or undermining policy
do justify the parental consent requirement on neonatal euthanasia. It is
simply to point out that, at the level of public policy, drawing a parallel
with cases of life-sustaining treatment or treatment withdrawal may not be
straightforward.    

 

REFERENCE

 

Appel JM.
'Neonatal Euthanasia: Why Require Parental Consent?' Forthcoming in the Journal
of Bioethical Inquiry.  

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One Response to Neonatal euthanasia without parental consent

  • Tom Douglas says:

    A comment from an anonymous reader:

    Firstly, although there are legal precedents for treatment withdrawal without parental consent – in practice this largely occurs following judicial review. For example in the UK Re C 1992, Re L (New Zealand) 1998, Re C 1998, Re D 2000, Wyatt 2005, Winston Jones 2005. So one argument that those who proposed the Groningen protocol might cite, is that their protocol does not prohibit euthanasia. It merely stipulates that protection from prosecution is likely in certain restricted circumstances. In a setting where a child were suffering interminably and parents refused to agree to euthanasia the doctors might seek explicit court approval to euthanise the child. Since such cases would be rare, controversial, and (As you point out) at risk of abuse – it seems like this would be an utterly appropriate way of dealing with them at the policy level.

    Secondly, you refer to fracturing the fragile consensus supporting neonatal euthanasia. I think there is a more forceful point. Defending neonatal euthanasia without consent plays directly into the hands of those who oppose it.
    It is a clear example of the type of slippery slope that opponents of euthanasia refer to. Even raising publicly the question of whether it would be permissible to end the life of a newborn without parental consent might undermine any attempt to have non-voluntary euthanasia seriously considered (in jurisdictions that do not permit it). I guarantee that Appel’s article (and potentially your blog post) will be cited by Wesley Smith and the RTL league
    there might be consequentialist reasons for not defending non-consensual, non-voluntary euthanasia – even if in the specific situation it would be justified.

    For similar reasons, even though I can imagine situations in which a consequentialist might defend torture, I don’t think it does the philosopher, or consequentialism any favours to do so…

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