FROM Rethinking Life and Death
The Structure of Ethical Revolutions
Four hundred years ago our views about our place in the universe underwent a crisis. The ancients used a model of the solar system devised by Ptolemy, according to which the earth was the center of the universe and all the heavenly bodies revolved around it. Even the ancients knew, however, that this model did not work very well. It did not predict the positions of the planets with sufficient accuracy. So it was assumed that, as the planets moved in great circles around the earth, they also moved in smaller circles around their own orbits. This helped to patch up the model, but it didn’t fix all the problems, and further adjustments were required. These adjustments were again an improvement, but still did not quite get it right. It would have been possible to add yet another modification to the basic geocentric model—but then Copernicus proposed a radically new approach. He suggested that the planets, including the earth, revolve around the sun. This remarkable new view met stiff resistance, because it required us to give up our cherished idea that we are the center of the universe. It also clashed with the Judeo-Christian view of human beings as the pinnacle of creation. If we are the reason why everything else was made, why do we have such an undistinguished address?
The resistance to the Copernican theory was not, however, simply due to human pride, hidebound conservatism, or religious prejudice. The truth is that, in predicting the movements of the planets, Copernicus was not really any more accurate than the latest patched-up version of Ptolemy’s old system. For Copernicus, too, had made a mistake. He clung to the idea that the heavenly bodies move in perfect circles, when really, as Kepler was later to show, the orbits of the planets are slightly elliptical. So there were some who continued to believe in the ancient model of the universe, and looked for better ways of making it fit the facts. The Copernican theory nevertheless triumphed, not because it was more accurate than the old one, but because it was a fresh approach, full of promise.1
Like cosmology before Copernicus, the traditional doctrine of the sanctity of human life is today in deep trouble. Its defenders have responded, naturally enough, by trying to patch up the holes that keep appearing in it. They have redefined death so that they can remove beating hearts from warm, breathing bodies, and give them to others with better prospects, while telling themselves that they are only taking organs from a corpse. They have drawn a distinction between “ordinary” and “extraordinary” means of treatment, which allows them to persuade themselves that their decision to withdraw a respirator from a person in an irreversible coma has nothing to do with the patient’s poor quality of life. They give terminally ill patients huge doses of morphine that they know will shorten their lives, but say that this is not euthanasia, because their declared intention is to relive pain. They select severely disabled infants for “non-treatment” and make sure that they die, without thinking of themselves as killing them. By denying that an individual human being comes into existence before birth, the more flexible adherents of the sanctity of life doctrine are able to put the life, health, and well-being of a woman ahead of that of a fetus. Finally, by putting a taboo on comparisons between intellectually disabled human beings and nonhuman animals, they have preserved the species boundary as the boundary of the sanctity of life ethic, despite overwhelming evidence that the differences between us and other species are differences of degree rather than of kind.
The patching could go on, but it is hard to see a long and beneficial future for an ethic as paradoxical, incoherent, and dependent on pretense as our conventional ethic of life and death has become. New medical techniques, decisions in landmark legal cases, and shifts of public opinion are constantly threatening to bring the whole edifice crashing down. Modern medical practice has become incompatible with belief in the equal value of all human life.
It is time for another Copernican revolution. It will be, once again, a revolution against a set of ideas we have inherited from the period in which the intellectual world was dominated by a religious outlook. Because it will change our tendency to see human beings as the center of the ethical universe, it will meet with fierce resistance from those who do not want to accept such a blow to our human pride. At first, it will have its own problems, and will need to tread carefully over new ground. For many the ideas will be too shocking to take seriously. Yet eventually the change will come. The traditional view that all human life is sacrosanct is simply not able to cope with the array of issues that we face. The new view will offer a fresh and more promising approach.
Rewriting the Commandments
What will the new ethical outlook be like? I shall take five commandments of the old ethic that we have seen to be false, and show how they need to be rewritten for a new ethical approach to life and death. But I do not want the five new commandments to be taken as something carved in stone. I do not really approve of ethics carved in stone, anyway. There may be better ways of remedying the weaknesses of the traditional ethic. The title Rethinking Life and Death suggests an ongoing activity: we can rethink something more than once. The point is to start, and to do so with a clear understanding of how fundamental our rethinking must be.
First Old Commandment:
Treat all human life as of equal worth
Hardly anyone really believes that all human life is of equal worth. The rhetoric that flows so easily from the pens and mouths of popes, theologians, ethicists, and some doctors is belied every time these same people accept that we need not go all out to save a severely malformed baby; that we may allow an elderly man with advanced Alzheimer’s disease to die from pneumonia, untreated by antibiotics; or that we can withdraw food and water from a patient in a persistent vegetative state. When the law sticks to the letter of this commandment, it leads to what everyone now agrees now is an absurdity, like the continuation of respirator support for Baby K, an infant born with no brain, who survived for two years, or the maintenance of Joey Fiori, a young man injured in a motorcycle accident, who was in a persistent vegetative state for almost two decades. The new approach is able to deal with these situations in the obvious way, without struggling to reconcile them with any lofty claims that all human life is of equal worth, irrespective of its potential for gaining or regaining consciousness.
First New Commandment:
Recognize that the worth of human life varies
This new commandment allows us to acknowledge frankly—as the British judges did when presented with the facts about Tony Bland’s existence—that life without consciousness is of no worth at all. We can reach the same view—as British judges did in another case, Re C, involving an infant with a severely malformed brain—about a life that has no possibility of mental, social, or physical interaction with other human beings. Where life is not one of total or nearly total deprivation, the new ethic will judge the worth of continued life by the kind of balancing exercise recommended by Lord Justice Donaldson in a third case, Re J, taking into account both predictable suffering and possible compensations.
Consistent with the first new commandment, we should treat human beings in accordance with their ethically relevant characteristics. Some of these are inherent in the nature of the being. They include consciousness; the capacity for physical, social, and mental interaction with other beings; having a conscious preference for continued life; and having enjoyable experiences. Other relevant aspects depend on the relationship of the being to others: having relatives, for example, who will grieve over your death, or being so situated in a group that if you are killed, others will fear for their own lives. All of these things make a difference to the regard and respect we should have for a being.
The best argument for the new commandment is the sheer absurdity of the old one. If we were to take seriously the idea that all human life, irrespective of its capacity for consciousness, is equally worthy of our care and support, we would have to root out of medicine not only open quality-of-life judgments, but also the disguised ones. We would then be left trying to do our best to prolong indefinitely the lives of anencephalics, cortically dead infants, and patients in a persistent vegetative state. Ultimately, if we were really honest with ourselves, we would have to try to prolong the lives of those we now classify as dead because their brains have entirely ceased to function. For if human life is of equal worth, whether it has the capacity for consciousness or not, why focus on the death of the brain, rather than on the death of the body as a whole?
On the other hand, if we do accept the first new commandment, we overcome the problems that arise for a sanctity of life ethic in making decisions about anencephalics, cortically dead infants, patients in a persistent vegetative state, and those who are declared to be brain-dead by current medical criteria. In none of these cases is the really important issue how we define death. That question has had so much attention only because we are still trying to live with an ethical and legal framework formed by the old commandment. When we reject that commandment, we will instead focus on ethically relevant characteristics like the capacity for enjoyable experiences, for interacting with others, or for having a preference about continued life. Without consciousness, none of these are possible; therefore, once we are certain that consciousness has been irrevocably lost, it is not ethically relevant that there is still some hormonal brain function, for hormonal brain function without consciousness cannot benefit the patient. Nor can brain-stem function alone benefit a patient, in the absence of a cortex. So our decisions about how to treat such patients should depend not on lofty rhetoric about the equal worth of all human life, but on the views of families and partners, who deserve consideration at a time of tragic loss. If a patient in a persistent vegetative state has previously expressed wishes about what should happen to her or him in such circumstances, they should also be taken into account. (We may do this purely out of respect for the wishes of the dead, or we may do it in order to reassure others, still alive, that their wishes will not be ignored.) At the same time, in a public health-care system, we cannot ignore the limits set by the finite nature of our medical resources, or the needs of others whose lives may be saved by an organ transplant.
Second Old Commandment:
Never intentionally take innocent human life
The second commandment should be rejected because it is too absolutist to deal with all the circumstances that can arise. Taken literally, it leads to the Roman Catholic church’s teaching that it is wrong to kill a fetus, even if that would be the only way to prevent both the pregnant woman and the fetus from dying. For those who take responsibility for the consequences of their decisions, this doctrine is absurd. It is horrifying to think that in the nineteenth and early twentieth century it was probably responsible for the preventable and agonizing death of an unknown number of women in Roman Catholic hospitals or at the hands of devout Roman Catholic doctors and midwives. This could occur if, for example, the head of the fetus became stuck during labor and could not be dislodged. Then the only way of saving the woman was to perform an operation known as a craniotomy, which involves inserting a surgical implement through the vagina and crushing the cranium, or skull, of the fetus. If this was not done, the woman and fetus would die in childbirth. Such an operation is obviously a last resort. Nevertheless, in those difficult circumstances, it seems appalling that any well-intentioned healthcare professional could stand by while both woman and fetus die. For an ethic that combines an exceptionless prohibition on taking innocent human life with the doctrine that the fetus is an innocent human being, however, there could be no other course of action. If the Roman Catholic Church had said that performing a craniotomy is permissible, it would have had to give up either the absolute nature of its prohibition on taking innocent human life, or its view that the fetus is an innocent human being. Obviously, it was—and remains—willing to do neither. The teaching still stands. It is only because the development of obstetric techniques now allows the fetus to be dislodged and removed alive that the doctrine is no longer causing women to die pointlessly.
Another circumstance in which the second old commandment needs to be abandoned is—as the British law lords pointed out in deciding the Bland case—when life is of no benefit to the person living it. But the only modification to the absolute prohibition on taking human life that their lordships felt able to justify in that case—to allow a life to be taken intentionally by withholding or omitting treatment—still leaves the problem of cases in which it is better to use active means to take innocent human life. Thus, in 1992 a British court had to convict Dr. Nigel Cox of a crime because he gave Mrs. Lillian Boyes a lethal injection of potassium chloride. The fact that she had begged for death and knew that she had nothing ahead of her but a few more hours of agony, that he had tried and failed to ease her pain with large doses of morphine—all that was not enough to enable him to avoid a conviction. Needless to say, no law, no court, and no code of medical ethics would have required Dr. Cox to do everything in his power to prolong Mrs. Boyes’s life. Had she suddenly become unable to breathe on her own, for instance, it would have been quite in accordance with the law and the traditional ethical view not to put her on a respirator—or if she was already on one, to take it away. The very thought of drawing out the kind of suffering that Mrs. Boyes had to endure is repugnant, and would have been regarded as wrong under the traditional ethic as well as the new one. But this only shows how much weight the traditional ethic places on the fine line between ending life by withdrawing treatment and ending it by a lethal injection. The attitude of the traditional ethic is summed up in the famous couplet:
Thou shalt not kill; but need’st not strive
Officiously to keep alive.
These lines are sometimes uttered in reverent tones, as if they were the wisdom of some ancient sage. One doctor, writing in the Lancet to defend the nontreatment of infants with spina bifida, referred to the lines as “The old dictum we were taught as medical students.”2 This is ironic, for a glance at the poem from which the couplet comes—Arthur Hugh Clough’s “The Latest Decalogue”—leaves no doubt that the intention of this verse, as of each couplet in the poem, is to point out how we have failed to heed the spirit of the original ten commandments. In some of the other couplets, this is unmistakeable. For example:
No graven images may be
Worshipped, except the currency.
Clough would therefore have supported an extended view of responsibility. Not killing is not enough. We are also responsible for the consequences of our decision not to strive to keep alive.3
Second New Commandment:
Take responsibility for the consequences of your decisions
Instead of focusing on whether doctors do or do not intend to end their patients’ lives, or on whether they end their patients’ lives by withdrawing feeding tubes rather than giving lethal injections, the new commandment insists that doctors must ask whether a decision that they foresee will end a patient’s life is the right one, all things considered.
By insisting that we are responsible for our omissions as well as for our acts—for what we deliberately don’t do, as well as for what we do—we can neatly explain why the doctors were wrong to follow the Roman Catholic teaching when a craniotomy was the only way to prevent the death of both mother and fetus. But there is a price to pay for this solution to the dilemma too: unless our responsibility is limited in some way, the new ethical approach could be extremely demanding. In a world with modern means of communication and transport, in which some people live on the edge of starvation while others enjoy great affluence, there is always something that we could do, somewhere, to keep another sick or malnourished person alive. That all of us living in affluent nations, with disposable incomes far in excess of what is required to meet our needs, should be doing much more to help those in poorer countries achieve a standard of living that can meet their basic needs is a point on which most thoughtful people will agree; but the worrying aspect of this view of responsibility is that there seems to be no limit on how much we must do. If we are as responsible for what we fail to do as we are for what we do, is it wrong to buy fashionable clothes, or to dine at expensive restaurants, when the money could have saved the life of a stranger dying for want of enough to eat? Is failing to give to aid organizations really a form of killing, or as bad as killing?
The new approach need not regard failing to save as equivalent to killing. Without some form of prohibition on killing people, society itself could not survive. Society can survive if people do not save others in need—though it will be a colder, less cohesive society. Normally there is more to fear from people who would kill you than there is from people who would allow you to die. So in everyday life there are good grounds for having a stricter prohibition on killing than on allowing to die. In addition, while we can demand of everyone that he or she refrain from killing people who want to go on living, to demand too much in the way of self-sacrifice in order to provide assistance to strangers is to confront head-on some powerful and near-universal aspects of human nature. Perhaps a viable ethic must allow us to show a moderate degree of partiality for ourselves, our family, and our friends. These are the grains of truth within the misleading view that we are responsible only for what we do, and not for what we fail to do.
To pursue these questions about our responsibility to come to the aid of strangers would take us beyond the scope of this book—but two conclusions are already apparent. First, the distinction between killing and allowing to die is less clear-cut than we commonly think. Rethinking our ethic of life and death may lead us to take more seriously our failure to do enough for those whose lives we could save at no great sacrifice to our own. Second, whatever reasons there may be for preserving at least a part of the traditional distinction between killing and allowing to die—for example, maintaining that it is worse to kill strangers than to fail to give them the food they need to survive—these reasons do not apply when, like Lillian Boyes, a person wants to die, and death would come more swiftly and with less suffering if brought about by an act (for example, giving a lethal injection) than by an omission (for example, waiting until the patient develops an infection, and then not giving antibiotics).
Third Old Commandment:
Never take your own life, and always try to prevent others from taking theirs
For nearly two thousand years, Christian writers have condemned suicide as a sin. When we should die, said Thomas Aquinas, is God’s decision, not ours.4 That view became so deeply embedded in Christian nations that to attempt suicide was a crime, in some cases punished—ideologues lack a sense of irony—by death. The prohibition on suicide was one element of a general view that the state should enforce morality and act paternalistically toward its citizens.
This view of the proper role of the state was first powerfully challenged by the nineteenth-century British philosopher John Stuart Mill, who wrote in his classic On Liberty: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”5
Incurably ill people who ask their doctors to help them die at a time of their own choosing are not harming others. (There could be rare exceptions, for example if they have young children who need them; but people who are so ill as to want to die are generally in no position to care adequately for their children.) The state has no grounds for interfering, once it is satisfied that others are not harmed and that the decision is an enduring one, which has been freely made, on the basis of relevant information, by a competent adult person. Hence the new version of the third commandment is the direct opposite of the original version.
Third New Commandment:
Respect a person’s desire to live or die
John Locke defined a “person” as a being with reason and reflection that can “consider itself as itself, the same thinking thing, in different times and places.” This concept of a person is at the center of the third new commandment. Only a person can want to go on living, or have plans for the future, because only a person can even understand the possibility of a future existence for herself or himself. This means that to end the lives of people, against their will, is different from ending the lives of beings who are not people. Indeed, strictly speaking, in the case of those who are not people, we cannot talk of ending their lives against or in accordance with their will, because they are not capable of having a will on such a matter. To have a sense of self, and of one’s continued existence over time, makes possible an entirely different kind of life. For a person, who can see her life as a whole, the end of life takes on an entirely different significance. Think about how much of what we do is oriented toward the future—our education, our developing personal relationships, our family life, our career paths, our savings, our holiday plans. Because of this, to end a person’s life prematurely may render fruitless much of her past striving.
For all these reasons, killing a person against her or his will is a much more serious wrong than killing a being that is not a person. If we want to put this in the language of rights, then it is reasonable to say that only a person has a right to life.6
Fourth Old Commandment:
Be fruitful and multiply
This biblical injunction has been a central feature of Judeo-Christian ethics for thousands of years. The Jewish outlook regarded large families as a blessing. Augustine said that sexual intercourse without procreative intent is a sin, and to try actively to prevent procreation “turns the bridal chamber into a brothel.” Luther and Calvin were equally forceful in their encouragement of procreation, with Calvin even referring to Onan’s act of “spilling his seed on the ground” as “to kill before he is born the son who was hoped for.” As late as 1877, the British government prosecuted Annie Besant and Charles Bradlagh for distributing a book on contraception, and around the same time in America the Comstock law prohibited the mailing or importation of contraceptives. In the twentieth century, until World War II, several European powers, among them France and Germany, continued to have national policies of increasing population in order to be able to support large armies. In some American states, old laws against the use of contraceptives survived until 1965, when the Supreme Court struck them down on the grounds that they were an invasion of privacy.7
Restrictions on abortion should be seen against this background view that more people are a good thing. The biblical injunction may have been apt for its time, but with world population having risen from two billion in 1930 to over six billion today, and projected to go to eleven billion by the middle of the next century, it is unethical to encourage more births. It may seem that in developed countries with low population densities, like Australia, Canada, and the United States, there is ample room for a much larger population; but all nations put their wastes down the same atmospheric and oceanic sinks, and the average Australian or North American uses several times his or her share of these sinks. If this situation continues, it will mean that people in developing countries cannot achieve a lifestyle like ours, with similar outputs of carbon dioxide and other wastes; or, if they do, then each of us will share responsibility for global warming that will speed up the melting of the polar icecaps, and so lead to a rise in sea levels. This will cause devastating floods in low-lying coastal areas, including the delta areas of Bangladesh and Egypt, where forty-six million people live. Entire island nations like Tuvalu, the Marshall Islands, and the Maldives could disappear beneath the waves.8 Global warming may also mean devastating droughts in areas that now feed millions. Irrespective of how few people there may be per square mile, additional people living in developed countries add to the strain we are placing on the ecosystems of our planet.
The new version of the fourth commandment therefore takes a different perspective.
Fourth New Commandment:
Bring children into the world only if they are wanted
What do the original and new versions of the fourth commandment have to do with the questions discussed in this book? The two versions underpin very different views of how we should treat human life before a person comes into existence.
Consider, for example, an embryo in a laboratory. The crucial characteristic that makes it wrong to kill such an embryo, some would say, is that it has the potential to become a person, with all the characteristics that mature humans usually possess, including a degree of rationality and self-awareness that will far surpass that of a rat or a fish. But the fact that the embryo could become a person does not mean that the embryo is now capable of being harmed. The embryo does not have, and never has had, any wants or desires, so we cannot harm it by doing something contrary to its desires. Nor can we cause it to suffer. In other words the embryo is not, now, the kind of being that can be harmed, any more than the egg is before fertilization. In the absence of any meaningful sense in which the embryo can be harmed, the argument from potential seems to presuppose that it is good to promote the existence of new human beings. Otherwise, why would the fact that the embryo has a certain potential require us to realize that potential?
There are (or soon will be) as many people on this planet as it can reasonably be expected to support. If it is not wrong to kill an embryo because of the wrong it does to an existing being, then the fact that killing it will mean that one fewer person comes into existence does not make it wrong either. Those who use the potential of the embryo as an argument against abortion are rather like Calvin, who, as we saw, objected to Onan’s practice of spilling his seed on the ground, because this killed “the son who was hoped for.” Suppose that we really were hoping for a son. Suppose, too, that if we did not conceive a son now, then it would become impossible for us to conceive one at all. Then Calvin’s objection would be sound. But if we are not hoping for another son, then the argument will pass us by.
Fifth Old Commandment:
Treat all human life as always more precious than any nonhuman life
The fifth and last of the traditional commandments that make up the sanctity of life ethic is so deeply embedded in the Western mind that even to compare human and nonhuman animals is to risk causing offence. At the time of the controversy over the Reagan administration’s “Baby Doe” rules, I wrote a commentary on the issue for Pediatrics, the journal of the American Academy of Pediatrics. My commentary contained this sentence:
If we compare a severely defective human infant with a nonhuman animal, a dog or a pig, for example, we will often find the nonhuman to have superior capacities, both actual and potential, for rationality, self-consciousness, communication, and anything else that can plausibly be considered morally significant.
The editor received more than fifty letters protesting against my views in this commentary, several condemning the editor for allowing it to be published. Many of the correspondents protested particularly against the comparison of the intellectual abilities of a human being and a dog or a pig. Yet the sentence that so disturbed them is not only true but obviously true.9
The lingering sense of outrage at such a comparison is a relic of the human-centred view of the universe which, as we saw, was severely battered by Copernicus and Galileo, and to which Darwin gave what ought to have been its final blow. We like to think of ourselves as the darlings of the universe. We do not like to think of ourselves as a species of animal. But the truth is that there is no unbridgeable gulf between us and other animals. Instead there is an overlap. The more intellectually sophisticated nonhuman animals have a mental and emotional life that in every significant respect equals or surpasses that of some of the most profoundly intellectually disabled human beings. This is not my subjective value-judgment. It is a statement of fact that can be tested and verified over and over again. Only human arrogance can prevent us from seeing it.
Fifth New Commandment:
Do not discriminate on the basis of species
Some people will be happy to accept the previous four new commandments but will have doubts about this one, because they associate the rejection of a bias in favor of our own species with an extreme form of species-egalitarianism that treats every living thing as of equal worth.10 Obviously, since the new ethical outlook I have been defending rejects even the view that all human lives are of equal worth, I am not going to hold that all life is of equal worth, irrespective of its quality or characteristics. These two claims—the rejection of speciesism, and the rejection of any difference in the value of different living things—are quite distinct. Belief in the equal value of all life suggests that it is as wrong to uproot a cabbage as it would be to shoot dead the next person who rings your doorbell. We can reject speciesism, however, and still find many good reasons for holding that there is nothing wrong with pulling up a cabbage, while shooting the next person to ring your doorbell is utterly dreadful. For example, we can point out that cabbages lack the kind of nervous system and brain associated with consciousness, and so are not capable of experiencing anything. To uproot the cabbage therefore does not frustrate its conscious preferences for continuing to live, deprive it of enjoyable experiences, bring grief to its relatives, or cause alarm to others who fear that they too may be uprooted. To shoot the next person to ring your doorbell is likely to do all of these things.
In listing the possible reasons why it is wrong to shoot the next person to ring your doorbell, I never mentioned species. Perhaps a flying saucer has just landed in your front garden, and a friendly alien has rung the bell. If the alien is capable of having conscious preferences for continuing to live, that is a reason for not killing it. The same applies if the living alien will have enjoyable experiences, or if the alien has relatives who will grieve for its death, or other companions who will fear that they too may now be shot. So the four possible reasons I mentioned for regarding it as wrong to kill the person ringing your doorbell will apply to the alien just as they would apply to the girl from next door who wants to retrieve her ball. The rejection of speciesism implies only that the species of the doorbell ringer is irrelevant.
If, as I hope, this discussion has put to rest possible doubts about the new fifth commandment, it remains only to say what its implications are for the issues discussed in this book. Because membership in the species Homo sapiens is not ethically relevant, any characteristic or combination of characteristics that we regard as giving human beings a right to life, or as making it generally wrong to end a human life, may be possessed by some nonhuman animals. If they are, then we must grant those nonhuman animals the same right to life as we grant to human beings, or consider it as seriously wrong to end the lives of those nonhuman animals as we consider it to end the life of a human being with the same characteristic or combination of characteristics. Likewise, we cannot justifiably give more protection to the life of a human being than we give to a nonhuman animal, if the human being clearly ranks lower on any possible scale of relevant characteristics than the animal. An anencephalic baby clearly ranks lower on any possible scale of relevant characteristics than a chimpanzee. Yet as the law now stands, a surgeon could kill a chimpanzee in order to take her heart and transplant it into a human being, while to take the heart of an anencephalic baby would be murder. In terms of the revised ethical outlook, that is wrong. The right to life is not a right of members of the species Homo sapiens; it is—as we saw in discussing the third new commandment—a right that properly belongs to persons. Not all members of the species Homo sapiens are persons, and not all persons are members of the species Homo sapiens.
Some Answers
All we have so far is a rough sketch of how the five crumbling pillars of the old ethic might be replaced with solid new material, better able to support a structure that will guide our decisions about live and death into the next century. More thought and discussion are needed to develop these broad proposals into a working ethic. But we have to keep living in the house we are rebuilding. We cannot move out during the renovations, because decisions about life and death need to be made all the time. We cannot live without an ethic, and we cannot buy a new one ready-made. So despite the preliminary nature of our sketch of the new ethic, it is not premature to see what answers it gives to some of the issues I have discussed.
Brain Death, Anencephaly, Cortical Death,
and the Persistent Vegetative State
Our examination of the sanctity of life ethic began with brain death. We saw then that the decision to regard people as dead whose brains have irreversibly ceased to function is an ethical judgment. To cease to support the bodily functions of such people is normally a justifiable ethical decision, in accordance with the first and fifth new commandments, for the most significant ethically relevant characteristic of human beings whose brains have irreversibly ceased to function is not that they are members of our species but that they have no prospect of regaining consciousness. Without consciousness, continued life cannot benefit them. There may, of course, be other issues: the need for the family to have time to adjust to a tragic loss, the preservation of organs that could save the lives of others, and occasionally a pregnancy. Exactly the same holds for patients in a persistent vegetative state, once we can be certain that there is no possibility of restoring consciousness. It holds, too—apart from the impossibility of pregnancy—for anencephalics and cortically dead infants.
This does not mean that the decision to end the life of an irreversibly unconscious patient is simple or automatic. The considerations of family feelings are both subtle and important, particularly if the patient is an infant or young person and the loss of consciousness was unexpected. But the new approach does make the decision more manageable. There are some situations in which all the considerations point in the same direction. When the parents of an anencephalic baby would like their child to be used as a source of organs to save the life of another infant, the fact that the anencephalic baby is alive should not stop us from doing the obvious thing: taking the heart from the baby who cannot benefit from continued life, and giving it to the one who can.
Abortion and the Brain-Dead Pregnant Woman
The first, fourth, and fifth new commandments have implications for the abortion controversy. What ethically relevant characteristics does the fetus have? The fact that it is a member of the species Homo sapiens does not answer this question. The argument from the potential of the embryo has already been examined and found wanting. In terms of the actual capacities of the fetus, there is little to suggest that it would be wrong to end its life. Probably at some point in its development in the womb the fetus does become conscious. This may happen around the tenth week of gestation, when brain activity can first be detected. Even then, brain-wave activity measurable by an EEG does not become continuous until the thirty-second week, so it may be that the fetus is only intermittently conscious until that stage, which is well past the date when it becomes viable.11 Suppose, though, that the fetus is capable of feeling pain at the earliest possible date, ten weeks. Is the capacity to feel pain a sufficient reason to grant a being a right to life? If we think that it is, we will have to grant the same right to (at least) every normal vertebrate animal, since there is more evidence for brain activity and a capacity to feel pain even in vertebrates with relatively small brains, like frogs and fish, than there is in the fetus at ten weeks of gestation. If we balk at so radical a change in our attitudes toward nonhuman animals, we shall have to hold that the fetus may be killed for relatively trivial reasons, like those that we now consider justify us in killing rats (say, to test new food colorings) or fish (because some people prefer tuna to tofu).
An intermediate position would be that we may kill both fetuses and nonhuman animals at a similar level of awareness, if we can do so in a way that does not cause pain or distress, or if, despite the fact that some pain or distress is caused, the need to kill the fetus or nonhuman animal is sufficiently serious to outweigh the pain or distress caused. This would mean that we would have to stop the routine product safety tests now carried out on rats and other animals, because these cause the animals to become ill, and often to die in considerable distress, and the products generally do not serve any need that could not be served by an existing product. (It may not be a popular comparison to make, but rats are indisputably more aware of their surroundings, and more able to respond in purposeful and complex ways to things they like or dislike, than a fetus at ten or even at thirty-two weeks’ gestation.) Fishing, too, would have to stop, except when practiced by those who have no other way of getting enough to eat. Most commercially caught fish die slowly of suffocation, as they lie gasping in the air. Recreational anglers inflict pain and distress by inducing fish to bite on a barbed metal hook. In the case of abortion, whether pain and distress is caused to the fetus would depend not only on how developed the fetus is but also on the method used. This intermediate position would allow unrestricted early abortions, and would not entirely exclude late abortions, if a method of abortion that killed the fetus painlessly were used, or if the reason for the abortion were sufficiently serious to outweigh the pain that might be caused.
It follows that there are no grounds for opposing abortion before the fetus is conscious, and only very tenuous grounds for opposing it at any stage of pregnancy. In fact, since a woman’s reasons for having an abortion are invariably far more serious than the reasons most people in developed countries have for eating fish rather than tofu, and there is no reason to think that a fish suffers less when dying in a net than a fetus suffers during an abortion, the argument for not eating fish is much stronger than the argument against abortion that can be derived from the possible consciousness of the fetus after ten weeks. What has been said here of fish would also be true, in different ways, of the commercially reared and killed animals we commonly eat—quite apart from any ethically relevant characteristics that animals like cows and pigs may have in addition to their capacity to suffer. So while one may consistently be an ethical vegetarian and still accept even late abortions, those who oppose late abortions on the grounds of fetal distress will need to be ethical vegetarians if their position is to be consistent and nonspeciesist.
Resolving the issue of abortion in this way has direct implications for the dilemma with which this book began: the brain-dead woman who is pregnant. Since neither the actual characteristics of the fetus nor its potential characteristics are a reason for keeping it alive, such women can normally be allowed to become dead in every sense. The only ground for not doing so would be the strong desire of the father of the child, or of other close relatives of the pregnant woman, that the child should live. The issue then ceases to be a life-or-death decision for the fetus and becomes a question of whether the medical resources required should be used to satisfy this desire rather than others.
Infants
In the modern era of liberal abortion laws, most of those not opposed to abortion have drawn a sharp line at birth. If, as I have argued, that line does not mark a sudden change in the status of the fetus, then there appear to be only two possibilities: oppose abortion, or allow infanticide. I have already given reasons why the fetus is not the kind of being whose life must be protected in the way that the life of a person should be. Although the fetus may, after a certain point, be capable of feeling pain, there is no basis for thinking it rational or self-aware, let alone capable of seeing itself as existing in different times and places. But the same can be said of the newborn infant. Human babies are not born self-aware or capable of grasping that they exist over time. They are not persons. Hence their lives would seem to be no more worthy of protection than the life of a fetus.
Must we accept this shocking conclusion? Or does birth somehow make a difference, in some way that has so far been overlooked? Perhaps our focus on the status of the fetus and the infant has led us to neglect other aspects of the situation. Here are two ways in which birth may make a difference, not so much to the fetus or infant and its claim to life, but to others who are affected by it.
First, after birth the pregnant woman is no longer pregnant. The baby is outside her body. Thus her claim to control her own body and her own reproductive system is no longer enough to determine the life or death of the newborn baby. As I argued, this right in itself was never enough to resolve the abortion issue. Still, that does not mean that it was without any weight at all, and so the fact that at birth it no longer applies will make some difference to how we think of the newborn infant.
The second difference birth makes is that if the baby’s mother does not want to keep her child, it can be cared for by someone else who does. This reason for preserving infant life is strong in a society in which there are more couples wanting to adopt a baby than there are babies needing adoption. It is no reason at all for preserving infant life if there are babies in need of adoption and no one is willing to adopt them. The coming of effective contraception and safe legal abortion have moved most developed nations sharply into the former status (though not, unfortunately, if we focus on babies with major disabilities, whom very few couples are willing to adopt). In these societies there is an important reason to protect the lives of babies, even those unwanted by their parents. In other societies that have difficulty coping with unwanted children and so have traditionally accepted infanticide, this is not a reason for preserving infant life.
So birth does make a difference to the status of the infant. But the difference is one of degree, and it remains true that the new approach, drawing on the third new commandment and the idea of a person on which that commandment is based, will not consider the newborn infant entitled to the same degree of protection as a person. There are other issues at stake as well. First, as we saw in the decisions of the British court of appeal in the cases of Baby C and Baby J, the future prospects of life may be so bleak that it is kinder to the baby, both now and in the future, to “treat it to die.” That decision must depend crucially on the wishes of the parents. Their desire to keep and cherish the child can make an enormous difference to its prospects; conversely, the quality of life of a child abandoned to an institution, without loving parents, can be much less acceptable. The views of the parents, as the people most closely concerned with the infant, should also be given great weight simply because of the effects, both good and bad, that the continued life of their child will have on them and any other children they may have. In general, therefore, decisions about the future of severely disabled newborn infants should be made, not by judges who will have nothing to do with the child after their judgment is delivered, but by the parents, in consultation with their doctor.12
Some of the most controversial court cases have been concerned with the treatment of babies with Down syndrome. “Baby Doe” was the legal pseudonym given to a baby born in Bloomington, India, with Down syndrome and a blockage between his mouth and his stomach. Without an operation to remove the blockage, he would die. His parents refused permission for the operation. In a British case, Dr. Leonard Arthur, a respected physician, was charged with murder after putting John Pearson, a Down syndrome baby rejected by his parents, on high doses of a painkiller. People with Down syndrome have a distinctive appearance, are poorly coordinated, and are intellectually disabled to varying degrees; but they are not in pain or in need of frequent operations. Many people with Down syndrome have a cheerful temperament and can be warm and loving. In contrast to Baby C and Baby J, their lives could not be described as full of suffering, without compensating positive elements. Why then did the president of Britain’s Royal College of Physicians feel able to say, at Arthur’s trial, that “it is ethical that a child suffering from Down’s syndrome … should not survive”? Why did half of a sample of American general pediatricians say that they would not oppose a parental refusal of surgery for a Down syndrome infant with blockage of the digestive system? Why did the supreme court of Indiana refuse to order that Baby Doe should be given the operation that would have saved his life?
Here is one answer to these questions. Shakespeare once described life as an uncertain voyage.13 As parents, or would-be parents, we want our children to set out on that voyage as well equipped as possible for whatever it may bring. The expression “our children” need not refer to particular, already existing children. If we have no children but are planning to have some, we may well want to provide the children we hope to have with a good start on life’s uncertain voyage. That will be better for our children—in the generic sense. But it is not only because we believe it will be better for our children that we may choose not to bring up a child with Down syndrome. Having children is a central part of our uncertain voyage as well. We will look after them and guide their lives until they are in their teens; after they become independent of us, we will still love them and share their joys and sorrows.
To have a child with Down syndrome is to have a very different experience from having a normal child. It can still be a warm and loving experience, but we must have lowered expectations of our child’s abilities. We cannot expect a child with Down syndrome to play the guitar, to develop an appreciation of science fiction, to learn a foreign language, to chat with us about the latest Woody Allen movie, or to be a respectable athlete or basketball or tennis player. Even as an adult, a person with Down syndrome may not be able to live independently; and for people with Down syndrome to have children of their own is unusual and can give rise to problems. For some parents, none of this matters. They find bringing up a child with Down syndrome a rewarding experience in a thousand different ways. But for other parents, it is devastating.
Both for the sake of “our children,” then, and for our own sake, we may not want a child to start on life’s uncertain voyage if the prospects are clouded. When this can be known at a very early stage of the voyage, we may still have a chance to make a fresh start. This means detaching ourselves from the infant who has been born, cutting ourselves free before the ties that have already begun to bind us to our child have become irresistible. Instead of going forward and putting all our efforts into making the best of the situation, we can still say no and start again from the beginning. That is what John Pearson’s mother was doing when, told that she had given birth to a Down syndrome baby, she said to her husband, “I don’t want it, Duck.”
It must be extraordinarily difficult to cut oneself off from one’s own child and prefer it to die, so that another child with better prospects can be born. Yet many women think like this when they discover that they are pregnant with an abnormal child. Prenatal diagnosis is routine for older women, who are more at risk of having a baby with Down syndrome. It is premised on the assumption that if the test shows a fetus with Down syndrome or other abnormalities, an abortion will follow. When the pregnancy was wanted, the couple will usually then try to conceive another child.
In our culture, it is only before the baby is born that we openly accept this idea of saying no to a new life that does not have good prospects. But many other cultures say no shortly after birth as well. Among the Kung, nomadic people living in the Kalahari desert, women who give birth when they still have a child too young to walk probably do not find it easy to go to the bushes and smother the newborn infant, but doing this does not prevent them from being loving mothers to the children that they do choose to bring up. Japanese mothers are renowned for their devotion to their children, but this was compatible with the tradition of “mabiki,” or “thinning” of infants. Japanese midwives who attended births did not assume that the baby was to live; instead they always asked if the baby was “to be left” or “to be returned” to wherever it was thought to have come from. Needless to say, in Japan as in all these cultures, a baby born with an obvious disability would almost always be “returned.”14
The official western reaction to these practices is that they are shocking examples of the barbaric standards of non-Christian morality. I do not share this view. My dissent has nothing to do with cultural relativism. Some nonwestern practices—for example, female circumcision—are wrong and should, if possible, be stopped. But in the case of infanticide, it is our culture that has something to learn from others, especially now that we, like them, are in a situation where we must limit family size. I do not mean, of course, that infanticide should become a means of limiting family size. Contraception is obviously the best way to do this, since there is no point in going through an unwanted pregnancy and birth; and, for the same reason, abortion is much better than infanticide. But, for reasons we have already discussed, in regarding a newborn infant as not having the same right to life as a person, the cultures that practiced infanticide were on solid ground.
Despite the dominance of the traditional western ethic, some parents do think of their infants as replaceable. Here is a journal entry written by Peggy Stinson when Andrew, her extremely premature and seriously brain-damaged son, had been in intensive care for two months:
I keep thinking about the other baby—the one that won’t be born. The IICU [Infant Intensive Care Unit] is choosing between lives. It may already be too late for the next baby. If Andrew’s life is strung out much longer, will we have the money, the emotional resources, the nerve to try again?
Another two months went by before Peggy returned to this topic in her journal. Andrew’s condition had not changed.
Thirty-fifth birthday coming up next week; haven’t got forever to try for another child.… At this rate we’ll have neither Andrew nor the next child, who because of Andrew’s extended course, will have lost the chance to exist at all.
Jeff [a doctor at the hospital] once said that our “next child” was theoretical, abstract—its interests couldn’t be considered. Strictly speaking that may be so, but that next baby seems real enough to me. To Bob too. Decision this week to change that abstraction into a real person before it’s too late.15
It is rare to find a couple reflecting openly on the choice between an existing baby and the “next child” whom they will conceive and raise only if the existing one dies. But there are many couples who realize that to give enough love and care to a severely disabled child would make it very difficult to bring up another child. A couple considering whether to terminate a pregnancy when the fetus has been diagnosed as having Down syndrome is in a similar situation to the Stinsons. The couple could, of course, continue the pregnancy, bring up the child with Down syndrome, and then have another child. But most couples have a sense of how many children they plan to have, and so to allow one pregnancy to lead to a child effectively precludes the existence of another child. It is implausible that the choice between one life and another does not enter the minds of many parents with disabled newborn infants. It is not Peggy Stinson’s thoughts that are so unusual, but her willingness to write them down and publish them. We know that once our children’s lives are properly under way, we will become committed to them; for that very reason, many couples do not want to bring up a child if they fear that both the child’s life and their own experience of child rearing will be clouded by a major disability.
Shakespeare’s image of life as a voyage is consistent with the idea that the seriousness of taking life increases gradually, parallel with the gradual development of the child’s capacities that culminate in its life as a full person. On this view, birth marks the beginning of the next stage of development, but important changes continue to happen in the weeks and months after birth as well. These changes are not only in the capacities of the baby but also in the attachment of the parents and the acceptance of the infant into the family and the wider moral community. Many cultures have a ceremony to mark this acceptance. In ancient Greece, the infant could be exposed on the mountainside only before it had been named. (Christening may be a relic of such ceremonies.)
All of this may help to show that the ethical approach toward newborn infants proposed here is consonant with some strands of our thought about the wrongness of killing, although certainly not with all of them. Neither the first nor the second new commandment condemns the parents of Baby Doe for wanting their newborn Down-syndrome infant to die. There is no sharp ethical distinction between what they did and what most pregnant women do when they are offered an abortion because the fetus they are carrying has Down syndrome. In both cases, the decision is not primarily the concern of the state, or of the doctors—it chiefly concerns the family into whom the baby is born.
There remains, however, the problem of the lack of any clear boundary between the newborn infant, who is clearly not a person in the ethically relevant sense, and the young child, who is. In our book Should the Baby Live? my colleague Helga Kuhse and I suggested that a period of twenty-eight days after birth might be allowed before an infant is accepted as having the same right to life as others. This is clearly well before the infant could have a sense of its own existence over time, and would allow a couple to decide that it is better not to continue with a life that has begun very badly. The boundary is, admittedly, an arbitrary one, and this makes it problematic. We accept other arbitrary boundaries based on age, like eligibility for voting or for holding a driving licence—but a right to life is a more serious matter. Could we return to a view of infants more like that of ancient Greece, in which a public ceremony a short time after birth marked not only the parents’ decision to accept the child but also society’s conferral on it of the status of a person? The strongest argument for treating infants as having a right to life from the moment of birth is simply that no other line has the visibility and self-evidence required to mark the beginning of a socially recognized right to life. This is a powerful consideration; maybe in the end it is even enough to tilt the balance against a change in the law in this area. On that I remain unsure.16
People
The third new commandment recognizes that every person has a right to life. We have seen that the basic reason for taking this view derives from what it is to be a person, a being with awareness of her or his own existence over time, and the capacity to have wants and plans for the future. There is also a powerful social and political reason for protecting the lives of those who are capable of fearing their own death. Universal acceptance and secure protection of the right to life of every person is the most important good that a society can bestow upon its members. Without it there is, as the seventeenth-century English philosopher Thomas Hobbes said, “continual fear and danger of violent death. And the life of man solitary, poor, nasty, brutish and short.”17 Only a being able to see herself as existing over time can fear death and can know that if people may be killed with impunity, her own life could be in jeopardy. Neither infants nor those nonhuman animals incapable of seeing themselves as existing over time can fear their own death (although they may be frightened by threatening or unfamiliar circumstances, as a fish in a net may be frightened). It is reasonable to regard more seriously crimes that cause fear in others and threaten the peaceful coexistence on which society depends. This provides another reason for recognizing that every person has a right to life, or in other words that it is a greater wrong to take the life of a person than to take the life of any other being.
A right is something one can choose to exercise or not to exercise. I have a right to a percentage of the money my publisher earns by selling this book, because I wrote it and then made an agreement with my publisher for it to be published on this basis. But I can waive this right, if I wish to do so. I could pass the royalties on to an overseas aid organization, or to the next homeless person I meet, or even tell my publisher to keep them. Similarly, the most important aspect of having a right to life is that one can choose whether or not to invoke it. We value the protection given by a right to life only when we want to go on living. No one can fear being killed at his or her own persistent, informed, and autonomous request. On the contrary, the evidence shows that many people approaching the end of their lives fear suffering much more than death. Hence the very argument that so powerfully supports recognition and protection of every person’s right to life also supports the right to medical assistance in dying when this is in accordance with a person’s persistent, informed, and autonomous request.
The right to medical assistance in dying has been accepted as legitimate in the Netherlands and in Oregon. Those who want to exercise it in other countries are increasingly finding ways around existing laws. But respect for a person’s right to live or die also suggests that where a person is capable of expressing a view about continuing to live, life-sustaining treatment should not be withdrawn without the patient’s consent. The second new commandment indicates that doctors cannot take refuge in the idea that in withdrawing treatment, they are only “letting nature take its course.” On the contrary, they are responsible for the decision taken, which was to let the patient die rather than to postpone death.
The Basis of the New Approach to Life and Death
The new approach to life-and-death decisions is very different from the old one. But it is important to realize that the ethics of decision-making about life and death are only one part of ethics, important as they are. In particular, before leaving the sketch of the new ethic I have drawn, I want to emphasize that to deny that a being has a right to life is not to put it altogether outside the sphere of moral concern. A being that is not a person does not have the same interest in continuing to live into the future that a person usually has, but it will still have interests in not suffering and in experiencing pleasure from the satisfaction of its wants. Since neither a newborn human infant nor a fish is a person, the wrongness of killing such beings is not as great as the wrongness of killing a person. But this does not mean that we should disregard the need of an infant to be fed, and kept warm and comfortable and free of pain, for as long as it lives. Except where life is at stake, these needs should be given the weight they would be given if they were the needs of an older person. The same is true, with the necessary changes for its different needs, of the fish. Fish can surely feel pain. Their pain matters just as much, in so far as rough comparisons can be made, as similar pain experienced by a person. We do both infants and fish wrong if we cause them pain or allow them to suffer, unless to do so is the only way of preventing greater suffering.
Even when these limits to the scope of the changes I propose are understood, many will be skeptical about the need for so great a change in our ethics. There is a common view that reason and argument play no role in ethics, and therefore we have no need to defend our ethical views when they are challenged. Some people are more ready to reason about the merits of football players or chocolate cake recipes than they are about their belief in the sanctity of human life. This is a force for conservatism in ethics. It allows people to listen to a criticism of their own views and then say: “Oh, yes, well that is your opinion, but I think differently”—as if that is the end of the discussion. I hope I have shown that it is not so easy to ignore the fact that our standard view of the ethics of life and death is incoherent.
As we have just seen, the differences between the old and the new approach arise from just five key ethical commandments. In fact, the case for a drastic change to the old ethic is even simpler and more rationally compelling than that. Just as changing one or two lines of a complex computer program can completely alter the image that appears on your screen, so changing two central assumptions is enough to bring about a complete transformation of the old ethic. The first of these assumptions is that we are responsible for what we intentionally do in a way that we are not responsible for what we deliberately fail to prevent. The second is that the lives of all and only members of our species are more worthy of protection than the lives of any other beings. These are the assumptions behind the second and fifth of the commandments that we discussed earlier.
Each of these assumptions has a religious origin. The roots of the first lie in the Judeo-Christian idea of the moral law as set down in simple rules that allow for no exceptions, and the second springs from the same tradition’s idea that God created man in his own image, granted him dominion over the other animals, and bestowed an immortal soul on human beings alone of all creatures. Taken independently of their religious origins, both of these crucial assumptions are on very weak ground. Can doctors who remove the feeding tubes from patients in a persistent vegetative state really believe that there is a huge gulf between this and giving the same patients an injection that will stop their hearts from beating? Doctors may be trained in such a way that it is psychologically easier for them to do the one and not the other, but both are equally certain ways of bringing about the death of the patient. As for the second assumption, what I have already said should be sufficient to show that it is not rationally defensible.
If we did nothing to the old ethic apart from abandoning these two assumptions, we would still have to construct an entirely new ethic. We could construct it differently from the ethic I have sketched out. We could, for instance, insist that, just as it is always wrong to take human life intentionally, so it is always wrong to refrain deliberately from saving human life. This would be a consistent position, but not an attractive one. It would force us to do whatever we could to keep people alive, whether they wanted to be kept alive or not and irrespective of whether they could ever recover consciousness. That would surely be a pointless and often cruel exercise of our medical powers. There would be other, even more far-reaching but on the whole much more desirable consequences for our responsibilities toward those in other countries who need food and other forms of aid that we can spare. In a similar manner, having abandoned the distinction between humans and nonhuman animals, we could refuse to adopt a distinction between persons and those who are not persons, and instead insist that every living thing or, perhaps more plausibly, every being capable of experiencing pleasure or pain has an equal right to life. So a new ethical approach can take many different forms. But without its two crucial but shaky assumptions, the old ethic cannot survive. The question is not whether it will be replaced but what the shape of its successor will be.