Alberto Giubilini
Oxford Uehiro Centre for Practical Ethics
Medical assistance in dying – or “MAiD”, to use the somehow infelicitous acronym – is likely to be a central topic in bioethics this year. That might not be true of bioethics as an academic field, where MAiD has been widely discussed over the past 40 years. But it is likely true of bioethics as a wider societal and political area of discussion. There are two reasons to think this. First, the topic has attracted a lot of attention the last year, especially with “slippery slope” concerns around Canada’s policies. Second, MAiD has recently been in the news in the UK, where national elections will take place in 2024. It is not hard to imagine it will feature in the heated political polarization that always accompanies election campaigns.
Little can be done to prevent that kind of polarization. However, some clarity about the different issues at stake might help to steer clear of unnecessary quarrels and focus on the relevant points of disagreement. Without claiming to be exhaustive, here I want to try to take some step in that direction.
Canada and the “slippery slope”
Canada is often taken as the best example in support of ‘slippery slope’ arguments against legalizing MAiD. According to these arguments, even assuming MAiD was acceptable in some form, legalization would open the door to clearly wrong or problematic practices down the line. For instance, legalizing physician-assisted suicide in cases of “unbearable suffering” for someone whose death is reasonably foreseeable in the short term might lead to relaxing our attitudes towards MAiD for those suffering only from mental illness. In the bioethics literature, slippery slope arguments against MAiD have often been put forward and traditionally been dismissed as fallacious, overly cautious, or easily addressable (for an overview and a critical appraisal, see Fumagalli 2020). However, contrary to the prevailing view, they are not necessarily fallacious in nature (Walton 1992). To many people, Canada is a case in point, calling for a more nuanced take.
Canada started off by decriminalizing medical assistance in dying in 2016. In 2019, the Superior Court of Quebec found the “reasonable foreseeability of natural death” unconstitutional as an eligibility criterion for MAiD. The criterion was removed in 2021, making MAiD available for patients without terminal illness. From March 2024, patients suffering solely from mental illness will also be able to legally access MAiD. According to Government data, nearly 45,000 people died through MAiD in Canada from 2016 to 2022. Between 2020 and 2022, the number of requests for MAiD increased on average by 28% per year. At the same time, the number of patients found ineligible consistently declined from 8% in 2019 to 3.4% in 2022.
Some would say that even the initial, more cautious legalization was in itself morally wrong because, either on religious or on non-religious grounds (Sulmasy et al 2016, Cholby 2000), seeking death is itself morally wrong. Or because the elderly or the disabled might be or feel pressured into seeking death, when it is easier to access it and the State is there to provide it. However, even those who were somehow on board with that initial legislation might have concerns about the trend. Similar concerns might be raised about Belgium and the Netherlands as well (Lerner and Caplan 2015), where according to a 2015 study, 6.8% of those who successfully obtained MAiD were categorized as simply “tired of living” (Snijdewind et al 2015).
There are two types of slippery slope arguments (Walton 1992) at play here. One is that accepting cautious laws on MAiD makes us more lenient to future laws that extend access to increasingly more people, including people that initially we would not have thought should be included. The other is that once a step is taken towards legalizing MAiD, that will logically entail the future more problematic steps. In Canada, for instance, the fact that the original restrictive eligibility criteria were found unconstitutional suggests that, given the existing Constitution, the first step logically entailed the next. More generally, some have argued that if MAiD is made available for people with physical illness, it might be logically inconsistent and therefore unjustly discriminatory to exclude people with only mental illness from accessing it (Hatherley 2019).
Slippery slope arguments against MAiDs might well be defeasible. For instance, one might think that the very permissive legislation that Canada is implementing in 2024 is morally acceptable after all, so there is no ‘slippery slope’ at all; or that different types of safeguards could prevent that kind of trend in other countries, for example because values other than logical consistency will be taken to be more important. However, defeasible arguments are not necessarily fallacious. They might just be one type of argument providing good reasons to be cautious and to shape any MAiD laws in certain ways. Dismissing them as fallacies might lead to overlook important considerations that should inform the law and public discussion.
The debate in England
English broadcaster Dame Esther Rantzen, who suffers from cancer, recently announced that she joined Dignitas, the Swiss organization that offers legal physician-assisted suicide in Zurich. She wants the option of ending her own life if her situation deteriorates to the point at which her suffering becomes unbearable to her. This has revived a national debate in which current Opposition leader and PM candidate Sir Kier Starmer has been a key actor so far. In his role as director of public prosecutions in 2010, he published guidance that made it more difficult to prosecute people who help someone obtain MAiD abroad, if it could be demonstrated that help was provided for compassionate reasons only. Starmer recently said that he is in favour of decriminalizing MAiD in England, giving people the option of legally obtaining assistance in dying from healthcare professionals within the country. “The important thing is to have safeguards”, he said. However, part of the point of slippery slope arguments is precisely that the reasons or the psychological attitudes behind these safeguards are unstable.
Indeed, the debate has already started invoking those kinds of slippery slope concerns. Writer Julie Burchill, for instance, wrote in the Spectator that “Euthanasia (…) will start with the old who are in the pain, but it won’t end there. If legalised, it will be applied to depressed people and poor people – as it already has in Canada”. One might agree or disagree with these words, particularly the use of “will” rather than “might”. However, they do express concerns that many people have about legalizing various forms of MAiD and that seem supported by the Canadian experience.
Burchill’s article was, in part, a response to an article in the Guardian by writer Charlotte Raven, who is currently in palliative care for Huntington Disease. In her article, Raven wrote: “I understand those arguing against assisted dying worry that vulnerable people might be coerced into suicide, especially the elderly. But I find it baffling that this is seen as valid opposition. Of course terrible things happen to innocent people, but when opinion polls show support for assisted dying, why would a hypothetical outcome take precedent over the reality of death?”.
One problem here is that hypothetical outcomes are often a relevant consideration when implementing new legislations, especially when they involve ‘terrible things’ for innocent people. Besides, the real question is about fundamental rights, and not simply about risk assessment and probabilities of terrible outcomes. “I want self-determination between now and dying, and assisted dying is the only way left that I can achieve this”, writes Raven. That does call for understanding and compassion. But if it must translate into legislation, the question is whether that self-determination that she wants is a matter of individual right and, more importantly, what kind of right that would be. Whether the risk of ‘terrible things’ is worth taking largely depends on the answer to these questions.
What questions are we asking?
As the cases discussed so far show, there are at least three distinct issues that are usually brought up in discussion of MAiD. They tend to be mixed up, but it is important to keep them distinct and to identify which ones matter the most.
One question is about whether suicide is morally permissible. As mentioned, many religious and non religious views consider suicide in most cases morally impermissible. However, the moral impermissibility of suicide is not a decisive reason against legalizing MAiD. More important is whether suicide is a right and, if so, what type of right it is. That is a different type of question, because arguably we often have the right to do morally wrong things (Waldron 1982). I might have a right to kill myself even if suicide is morally wrong.
But is suicide a right? The question calls for some disambiguation.
The second issue is whether suicide is a negative right. Negative rights are rights to non-interference. They are typically protected by laws that prevent others from interfering with our plans. Negative rights are independent of issues around the moral permissibility of the action in question. Arguably, the point of the law is not to enforce morality. Thus, one could still appeal to a right to “self-determination”, to use Raven’s term, to defend MAiD regardless of considerations about the morality of suicide, because “self-determination” says nothing about whether what I determine to do to myself is moral. However, this is not a decisive reason for MAiD. State oversight and the involvement of medical professionals are part of MAiD. As Starmer made clear, a law that decriminalizes assistance in dying for family members who accompany they loved ones abroad to obtain MAiD does not extend to medical professionals providing that assistance with medical means. That extension would require new specific legislation about the scope of healthcare. If there is a negative right at stake, it would need to be more specific than a general negative right to kill oneself.
Thus, the third issue is whether there is a negative right to receive assistance by qualified medical personnel. Here is where the question extends to active euthanasia. If a healthcare professional is willing to provide me with medical assistance to die, and I request that assistance, should we be ‘left alone’ by the State or any other institution or individual? This question is as much about a right to self-determination as about the appropriate role of the healthcare profession. What do we, as a society, want the healthcare profession to be about? This question derives from the fact that healthcare professionals are licensed by society to provide medical and health care. There would be no healthcare “profession” without society licensing certain individuals to perform certain procedures and access certain drugs in a regime of monopoly. Society does so because it needs and wants qualified experts to provide specific services that it considers valuable. Thus, the decision on what the health care profession is for is up to society at large (my coauthors and I argue for this point in a forthcoming book on conscientious objection in healthcare). That is why the scope of legitimate healthcare is a political decision. As such, it sometimes gives rise to societal and political controversies about whether healthcare professionals should be legally allowed to provide certain services on which people are likely to disagree, such as abortion, euthanasia, transgender interventions, and so on. As with any other political issue, this is a matter of societal and political negotiation within the boundaries of constitutional protection of fundamental rights. Some do not want to live in a society that licences healthcare professionals to euthanize the elderly . Others would see that a sign of compassionate healthcare and as one of the ways in which healthcare and medicine can be used to alleviate suffering.
I do not intend to take a stance on this issue, but simply to point out that this is one of the relevant issues that would need to be discussed. Indeed, this issue is more relevant than those about the morality of suicide or whether suicide is a right. One might have a negative right to kill oneself, but not a negative right regarding medical assistance for that purpose.
The last point relates to a fourth, even more controversial issue. That is whether MAiD is a positive right. Positive rights entail a claim on others. If I have positive right to MAiD, it means that someone or some institution has the respective obligation to provide it to me. It is important to emphasize how this issue differs from any of the issues we have examined so far. Suicide might well be morally permissible (first issue). I might have a negative right to kill myself (second issue). And I might well have the right to receive MAiD by qualified healthcare professionals (third issue). However, this says nothing about whether anyone is under a moral or professional obligation to provide MAiD to me. Whether someone is, and in what capacity, is precisely what would need to be argued for. Again, this is a question about the nature of the health care profession, but is more specifically about professional obligations, rather than about what healthcare professionals may permissibly do. Among other things, it raises the question whether there should be a right to conscientious objection by health care professionals to the provision of MAiD to which a patient is legally eligible. Legislations allowing MAiD do protect doctors’ conscientious objection, but some argue against such conscience clauses (Savulescu and Schuklenk 2017). Once again, this is a matter of societal and political decision about the proper role of the health care profession and the relative obligations, not about the morality of suicide or the right to take one’s own life.
Conclusion
I have not provided any answer to any of these questions here. I just want to point out that some of the differences in ethical and religious views about suicide or about the right to end one’s own life are less relevant to a debate on MAiD than one might initially assume.
At the same time, many concerns around slippery slopes are more relevant than one might initially assume. As a matter of fact and of logic, MAiD legislations tend to expand by extending their eligibility criteria. When debating MAiD legislations, we need to ask if we are prepared for that.
References
Cholbi, M. J. (2000). Kant and the Irrationality of Suicide. History of Philosophy Quarterly, 17(2), 159–176
Fumagalli R. (2020) Slipping on slippery slope arguments. Bioethics ; 34: 412–419
Hatherley JJ (2019), Is the exclusion of psychiatric patients from access to physician-assisted suicide discriminatory?, Journal of Medical Ethics ;45:817-820.
Lerner, B. H., & Caplan, A. L. (2015). Euthanasia in Belgium and the Netherlands: on a slippery slope?. JAMA Internal Medicine, 175(10), 1640-1641
Savulescu, J., & Schuklenk, U. (2017). Doctors have no right to refuse medical assistance in dying, abortion or contraception. Bioethics, 31(3), 162–170.
Snijdewind, M. C., et al. (2015). A study of the first year of the end-of-life clinic for physician-assisted dying in the Netherlands. JAMA Internal Medicine, 175(10), 1633-1640
Sulmasy, D. et al (2016). Non-faith-based arguments against physician-assisted suicide and euthanasia, The Linacre Quarterly, 83(3), 246–257.
Waldron, J. (1981). A Right to Do Wrong. Ethics, 92(1), 21–39.
Walton, D. (1992). Slippery Slope Arguments. Oxford University Press.
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