Hard cases make bad law

[liv]

There's a really sad story in the news here at the moment: it concerns a premature baby, whom the medical team had decided couldn't be saved so they agreed to turn off the life support. They followed normal procedures and sedated the baby so she wouldn't experience distress, but the dose was miscalculated and the baby died from the sedative. The consultant responsible for the overdose has been arrested and imprisoned, facing charges of euthanasia, ie murder because euthanasia is not legal under any circumstances in Sweden.

Even if it transpires that the doctor deliberately gave an excessive dose and killed the baby, there doesn't seem to be much moral logic in punishing her for ending the baby's life a little faster than she was planning to end it, legitimately, anyway! Every step leading up to the doctor being in prison is perfectly reasonable, but they add up to horrible unintended consequences.

I think it's right to prohibit euthanasia, because although in theory I accept that it can be moral for a doctor to assist a patient to commit suicide, in practice there is no way to enforce the law to prevent its abuse by those who want to murder "undesirables". In a society where people with disabilities, poor people, and old people were fully valued, legal euthanasia would be morally good, but we're a million miles from such a society. I think it's right that causing death by giving the wrong dose of sedatives should classify as murder (or manslaughter depending on intent). I even think it's right that the accused doctor has been temporarily imprisoned; the Swedish legal system jails people arrested on a murder charge, purely in order to take witness statements without the suspect interfering in any way. Once this process is complete, the doctor will be released on bail and await a full trial like any other criminal defendant.

It seems likely that the doctor will be found innocent when the case does come to trial. If not, I foresee a new unintended consequence: doctors in an end of life situation may be reluctant to give adequate pain relief in case they are held criminally responsible for hastening the patient's death. There has to be a distinction between active killing, and simply ceasing treatment (otherwise doctors would have to go to extreme lengths to save patients in every case, and nobody could ever be removed from life support). The problem is that dividing line is ludicrously fine in practice.

When I was a kid we had a neighbour who was found to be carrying a foetus with spina bifida. Being Catholic, she would not consider abortion, but when the child was born, simply didn't feed her until she died. I can't help thinking that it would have been "kinder" for the baby (if you believe that an unborn child has the status of a baby) to be killed by a lethal injection at an early stage in pregnancy, than to be brought to term and then starved to death. Similarly with this case: surely being put to sleep with an excessive dose of sedatives involves less suffering than being taken off a ventilator. Yet, on a technicality at least, the crueller alternative avoids active killing.

Comments

[sea-bright.livejournal.com]

From the Catholic moral theology I've read (which is a reasonable amount, as I've had to teach a couple of tutorials on this stuff), not feeding the baby would generally be considered on a par with having an abortion. Obviously I don't know the details of your neighbour's case, but from what you've said it doesn't sound as though the route she chose would have been officially sanctioned, even if she managed to justify it to herself.

Interestingly, the Catholic approach would hold the doctor who administered the sedative blameless unless her intention was to kill. Even if she'd known there was a serious risk that dose would end the baby's life, that would still be OK, as long as her intention was to prevent distress rather than to kill: intention is absolutely central in Catholic ethics.

The problem is, as you say, that so often the rights and wrongs of the situation turn on incredibly fine distinctions (I think it's even finer than that between killing and ceasing treatment, as ceasing treatment if there's a good chance someone might recover would usually count as culpable negligence), which are hard enough to make in the comparatively detached setting of a medical ethics tutorial, let alone in the high pressure environment of a hospital...

[liv]

Input from an actual theologian always welcome, thank you! The picture I've painted of my neighbour's moral choice is filtered through a childhood memory of listening to adult conversations, so I'm absolutely certain that I'm missing theological nuance here.

My impression, perhaps unfairly, is that your ordinary Catholic-in-the-pews perceives abortion (and condoms) as a bigger deal than other things which may on paper be just as sinful. It's like Jews and Muslims who think it's absolutely terrible and horrible to eat pork, but break all kinds of other religious laws all over the place because they aren't aware of their existence or don't care about them. I am reminded of the recent news story where the people involved in obtaining an abortion for the nine-year-old incest victim were excommunicated, whereas the person who raped her and all the murderers of born humans who happened to be around at the time don't even get a mention (I think, technically, they're in a state of mortal sin but have the ability to repent?). That leads people to conclude that the Catholic church cares more about abortion than all these other crimes.

I think secular law cares about intent too; if the overdose was an accident, it's manslaughter or medical negligence, whereas if she actually intended to kill the baby it's murder (though there are pretty strong mitigating circumstances here). Also a very good point that ceasing treatment can be morally and criminally wrong in some circumstances. I think that's the big problem in a lot of these "mercy killing" cases, where the medical team or relatives assume that a patient has low prospects for quality of life because of old age or disability, and they're just as culpable for not treating as they would be for actively killing.

[midnightmelody.livejournal.com]

My impression, perhaps unfairly, is that your ordinary Catholic-in-the-pews perceives abortion (and condoms) as a bigger deal than other things which may on paper be just as sinful

I don't know if I ever count as ordinary, but I would say that all of the decisions which reflect the absolute sanctity of life are equally important, if that helps. In general Catholic teaching (which I think of as slightly different from theology, because it tends to be less abstract) sanctity of life is a bigger deal than most other sins, because life itself is a bigger deal than most other things.

I am reminded of the recent news story where the people involved in obtaining an abortion for the nine-year-old incest victim were excommunicated

I have absolutely no idea what would have happened there if a typical parish congregation had made the decision rather than the Vatican. I think one of the reasons that Catholicism is so complicated is that it looks far more monolithic than it is - you have the Vatican, and then you have the church in different countries, and the religious orders, and then you have the pastoral decisions made by church officials, and that's before you even get to the congregations, and the lobbying groups, and so on. (Which is not hugely relevant to this, it's more a thought I keep having.)

[liv]

Very good point about Catholicism not being monolithic. Indeed, I don't know who made the theological judgement in my neighbour's case; was it just her, or did she consult her priest, or did it go higher up than that? Obviously it's totally unfair to blame individual Catholics if one doesn't agree with a simplistic understanding of a position taken by the Pope.

I can buy that abortion is worse than rape because rape at least leaves the victim alive. It's not my view, but it makes sense to me. I do have a harder time with the idea that making a 9-year-old girl go through with a double pregnancy, which has a very high chance of killing both her and the twins, is sanctifying life. But yeah, I'm pretty certain there was more going on with that excommunication than was reported in the popular press.

(I think that in the old days, excommunication was pretty close to being a death sentence without actually killing, mind you. If everybody the excommunicee interacted with took the excommunication seriously, the person would be literally removed from the community to the extent of not really being able to obtain food or shelter.)

[midnightmelody.livejournal.com]

I do have a harder time with the idea that making a 9-year-old girl go through with a double pregnancy, which has a very high chance of killing both her and the twins, is sanctifying life.

And this is where I get very avoidant and am glad I do not have to make those decisions, because absolutist positions and probabilities don't sit neatly together, and Catholic theology is very much more focused on intention than it is on strict utilitarianism. :(

I am very glad that excommunication is no longer an almost-death sentence. It should mean what it currently means, ie exclusion from sacraments and holding church offices, because it is a formal sign of division, but I am glad that excommunicated people can still go to mass and other such things. They are excluded from the church to the same extent (although for very different reasons!) as Anglicans.

[sea-bright.livejournal.com]

My impression, perhaps unfairly, is that your ordinary Catholic-in-the-pews perceives abortion (and condoms) as a bigger deal than other things which may on paper be just as sinful.

Unfortunately, I think that's true, at least for some people. By a tragic irony, however, I think that happens because the church makes a fuss about those issues, and doesn't make a fuss about rape and murder because pretty much everyone already agrees they're wrong. The impression this sometimes gives is of caring more about the former than the latter, when in fact the purpose of the fuss is to drive home the point that the former are considered as wrong as the latter.

[pplfichi.livejournal.com]

My impression, perhaps unfairly, is that your ordinary Catholic-in-the-pews perceives abortion (and condoms) as a bigger deal than other things which may on paper be just as sinful.

Some definitely do (though most Catholics I know think the Church's policy on condoms is stupid and have no problems with them personally). When topics such as this one have come up, I usually ask what the difference between this and euthanasia is, they can't really give me a good answer. I've noticed those that are dead against euthanasia decide that withholding food amounts to it and is now wrong, regardless of what their previous position was.

I like idea of euthanasia and assisted suicide in theory, I don't think our society I can't see our creating effective rules and safeguards that I would find acceptable, anyway.

Though, if someone is going to die^{* (#zsf1)}, killing them instantly has to be better then letting them starve, assuming the method chosen is reliable and painless. If only we could put in workable safeguards...

^{* ()}"Going to die", does not include people whose quality of life you judge to be so low you think they are better off dead!

[edit: Closing tag]

[liv]

I completely agree that euthanasia / assisted suicide are morally acceptable in theory, but not in our current society. And yes, absolutely, the difference between easing the suffering of someone who is actually dying, and deciding that someone with a long term but not immediately fatal condition is "better off dead" needs to be vastly, vastly clearer. Both in the popular view and in the understanding of the medical establishment.