Who Am I and If So How Many? (17 page)

Is it really such a good idea to disregard feelings, as in the case of the utilitarian response to the question of small children, because they do not fit into the explanatory model? Moreover, does it make sense to grant the highest priority to fairness, as utilitarianism does? Is that in line with our nature? If a woman standing in front of a burning house with her infant and her German shepherd inside can save only one of the two, should she ignore her instincts and feelings of love to save the German shepherd for reasons of fairness, because it may have more strongly developed preferences?

If we want our rules of conduct to make sense, we can’t disregard intuition. That is true of any half-reasonable moral philosophy. Philosophy cannot exist without values. And values are by nature an outgrowth not of reason but of feelings. If I, like utilitarians, declare the common good an important value, that is certainly easy to understand. It is not the outcome of logical deliberation, however, but rather a value, as is evident when someone claims to be an egotist and declares that the common good does not interest him in the slightest. I cannot supply a reason for my interest in other people that is based purely in logic. And my desire to do good deeds is a personal value judgment. The ultimate basis for any moral rule is hopes and wishes, not insights or knowledge.

Many philosophers today reject the notion of an intuitive moral sense because it appears to be based on religious sentiment. If the 
Catholic Church today would like to see all members of the species
Homo sapiens
granted universal and unconditional protection from the moment the egg and sperm combine, it is not invoking rational arguments but rather an emotional element, namely, God’s will. Oddly, God’s will is subject to change. In 1869, Pope Pius IX declared that embryos have a fully developed soul from the moment of conception, but before his statement, the first movements of the fetus, the first perceptible signs of life, were considered the point that it was imbued with a soul. That makes much more sense as an intuitive feeling, because life felt within the body has a different intuitive importance from life that is defined only biologically yet imperceptibly; even today, many women are not aware of their pregnancy at an early stage. But Pope Pius’s decree was a reaction to recent medical advances. In the 1860s, it became possible to diagnose pregnancy reliably right from the start. Boldly and incautiously, the pope extended the Church’s sphere of influence then and there to all fruit of the mother’s womb.

From its very origins, religion has entailed translating intuition into images and commandments. The next step has been regulating the social order. But the religious dogma that the soul enters the body at conception is counterintuitive and makes no positive contribution to the social order. The perceived meaning of early human life is dependent upon the value that the mother and, to a lesser extent, the father and other family members accord to it. The further the fetus develops, the stronger the parent-child bond normally becomes. An all-important development is, of course, the moment of birth. For the fetus, it is the entry into a new dimension. It has now become biologically independent, its environment has changed completely, and a revolution is taking place in its brain. And for the mother and father, siblings, grandparents, and extended family, a new dimension of feelings arises upon seeing, hearing, and feeling the infant. As close as the bond to the fetus was in the womb, very few women would say that the bond after birth has the exact same dimension as before. Our moral sensibility is thus largely a question of the sensory
experience and the power of imagination that is ignited with our feelings. Religions preserve this feeling of ‘intuitive morality’ – with varying degrees of success.

Intuition offers a corrective to utilitarianism in two respects. It shows that the later an abortion occurs, the more problematic it becomes, which means that the upper limit of three months in Germany for an abortion exempt from punishment makes good sense. Even though the change from the ninety-first day of life to the ninety-second does not signify a step into a different dimension, as a general rule, after three months the natural limit of what can still be called a life without consciousness has been reached. Secondly, intuition confers an unconditional right to life on newborns and infants, because we feel intuitively that their lives are of full human value. The fact that there are people who lack these intuitions and are emotionally incompetent does not change that. Every system of morality has this problem. As we discussed earlier, not every person considers the common good important; even so, utilitarians assume that people possess these intuitive feelings. Biological instincts tend to be more reliable than derived social instincts.

The right to life, its value, and its dignity do not begin with the act of procreation, so there would seem to be no reason to prohibit abortions up until the third month. From each month to the next beyond these three months, the fetus’s continued development makes ending its life increasingly problematic. The occasional defensible exception only proves the rule. Parents who learn that their child would run a very high risk of severe mental or physical disability and feel that they are not equal to the task may find no other choice than to abort the fetus. The utilitarian equation that weighs the intentions and the potential suffering of the parents against those of the fetus is distressing, but there is no alternative. The decision is even more difficult after birth if a child is comatose or requires machines to prolong its life, such as the case of an infant with a severe heart defect. In instances like these, what yardstick other than intense emotional deliberations can be applied?
Questions like these, however, are no longer really issues of abortion. They’re about the circumstances under which it is morally defensible to let a person die, or even to kill a person who expresses the wish to die.

Warnemünde is a cheerful place – the choppy sea, the bright sky. Many years ago, Marie-Luise Nicht and her son were here at the Baltic. Soon she will be bringing him back. He would not have wanted to be buried under the heavy cemetery ground.

On the refrigerator is a brochure about burial at sea. Mrs Nicht keeps leafing through it. The whole thing still seems unreal to her because her son is lying in the next room, in the larger and nicer of her two rooms. He is breathing, his heart is beating, and he is warm. Sometimes he opens his eyes. This is not what a dead person looks like.

‘The person who was Alexander died four years ago,’ Mrs Nicht says. ‘Another Alexander took his place.’ From a medical point of view, he is a person without a self, without sensation, without any chance of communicating – and without any hope of improving. But for Marie-Luise Nicht, he is her child, a child who needs her.

At first, she would sometimes clench her fist in her pocket, then smack him and shout: ‘Come back! You can’t leave me here alone!’ That phase is over.

In the fall of 2006, the German magazine
Der Spiegel
published this report about the plight of Alexander Nicht and his mother, Marie-Luise. One evening in October 2002, Alexander, then a high school senior, was in a car accident and was rushed to the intensive care unit with severe head injuries. A large portion of his cerebral cortex was irreparably destroyed. For nearly four years, Alexander remained in a persistent vegetative state, unresponsive and without any chance of recovering. Alexander’s mother knew that her son would not have wanted to live that way, but the doctors treating him in Berlin insisted on having the machines keep Alexander artificially alive, and the courts emphatically rejected Mrs Nicht’s wish to end her son’s life. The legal situation was more complicated than it appeared at first glance. Doctors in Germany are not allowed to prolong the life of a patient artificially against his will – but how can the doctor know the will of a comatose patient? Instead of trusting Marie-Luise Nicht’s conviction that her son would not have wanted to live that way, the doctors continued to keep Alexander alive.

Patients like Alexander raise difficult legal and ethical issues concerning the will and rights of the terminally ill and comatose. Who is allowed to have a say and decide? And how much latitude does the doctor have to decide the fate of a patient? Can doctors induce the end of terminally ill patients by breaking off their treatment (passive euthanasia)? Can they act on the knowledge that
treating a patient with strong pain medication will hasten the patient’s death (indirect euthanasia)? Can doctors aid patients who explicitly seek to end their lives (assisted suicide)? And finally: can doctors end a life at the patient’s request by administering medicine or a lethal injection (active euthanasia)?

The major argument advanced by those who advocate
permitting
active euthanasia or exempting it from prosecution is the right of self-determination. People of sound mind should have the right to make decisions about their lives and thus about their deaths. Interestingly, both advocates and opponents of the right to active euthanasia have been known to cite Kant. Opponents emphasize the unconditional ‘sanctity’ of human life, invoking Kant’s insistence that man must be treated as an end unto himself and may not be ‘instrumentalized,’ or used as a means to an end. Authorizing someone else to carry out the death process would mean ceding control to another and sacrificing personal freedom and independence. Albin Eser, professor emeritus of international criminal law at the Max Planck Institute in Freiburg, argues that this counts as ‘instrumentalization.’

But this argument doesn’t hold water. Does it really matter whether I freely decide to kill myself or I – just as freely – ask someone to kill me because, for example, I am lying in a hospital bed and am unable to do so on my own? Am I not being ‘instrumentalized’ to a far greater extent if I am kept alive against my free will? It appears that as Kant grew older, he was terrified of a possible onset of dementia and decided that his life in that condition would no longer have any value or meaning for him. Since the modern forms of indirect euthanasia did not exist in his day, and a cessation of treatment for a patient suffering from Alzheimer’s or dementia would not result in immediate death, one could argue that had it been an option, Kant would have supported active euthanasia, at least for himself.

Those in favor of active euthanasia argue that it is a fundamental right of a free person, a part of one’s right of self-determination. The following objections to allowing active euthanasia are
advanced to counter this argument: (1) Does the fact that active euthanasia is permissible in certain cases undermine the bond of trust between doctor and patient? (2) Doesn’t active euthanasia violate the physicians’ code of honor ‘to help and to heal’? (3) Is it always possible to verify beyond the shadow of a doubt that a patient requested active euthanasia? (4) Who is going to safeguard a demented or comatose patient from relatives hoping to benefit from the patient’s death? (5) Doesn’t the legalization of active euthanasia lead society to rethink the question of how we should deal with terminally ill patients and thus pose a danger to the conditions of our coexistence? (6) Does it ‘open the floodgates’ and force people to choose the option of active euthanasia to satisfy relatives or to avoid imposing additional strain on the health insurance plan? (7) Doesn’t the ‘freedom to die’ eventually result in a ‘lack of freedom to live’? (8) Doesn’t the authorization of active euthanasia relieve the health care system of the need to expand costly but more humane alternatives, such as a higher investment in palliative medicine?

Questions (1) and (2), concerning the relationship between physician and patient, can be answered quickly. They do not pose a philosophical problem but rather arise from a personal
psychological
situation with many possible variants. While it is possible for the relationship between doctor and patient to be strained by the option of active euthanasia, it need not be. And even if active euthanasia were legalized, no doctor would be obliged, or certainly ever forced, to perform the procedure. Questions (3) and (4), about possible abuse by family members, ask whether the legal system is able to craft the legal provisions to ensure maximal transparency. Questions (5), (6), and (7) are broadly defined philosophical questions pertaining to societal consequences and potential
pressure
on terminally ill patients. Here a key social and ethical dimension comes into play. But how can we assess the social consequences? In the Netherlands, three major studies of active euthanasia have been conducted since 2001. Of the approximately 140,000 men and women in the Netherlands who have since
ended their lives in a hospital, about 4,500 were administered a lethal injection by a physician; four times as many died as a result of terminal sedation. Both numbers have remained fairly constant from year to year. The advocates of the right to active euthanasia see this as a confirmation that there has been no opening of the floodgates, because the number of requests to doctors for help in dying did not increase. But even opponents of the procedure find grist for their mill in these studies. Every year there were at least some cases that resulted in litigation, pitting family members against hospitals. Moreover, some critics assume that the statistics omit a number of cases that went unreported. The clinical data currently available do not provide an unequivocal picture of the ethics of euthanasia.

So only question (8) remains: whether the legalization of active euthanasia might undermine the implementation of more
expensive
alternatives. Most people would probably believe intuitively that palliative care, including terminal sedation, is better than a lethal injection. This intuitive feeling is ingrained in human nature, as the trolley questions (see ‘The Man on the Bridge,’ p. 132) demonstrate. Active killing differs from a failure to act even when the outcome is the same. The fundamental ban on taking a human life actively is not the result of a religious dogma of the ‘sanctity’ of human life; rather, the dogma is the expression of a deeply rooted evolutionary intuition. For this reason, brushing aside the
sanctity-of-life
argument by pointing out that religious belief has declined in our era makes little sense. Our natural aversion to killing precedes even ancient religions. Interestingly, most advocates of the right to active euthanasia attach great importance to the difference between action and failure to act. Despite any criticism of the gray area of indirect euthanasia, an advocate of active euthanasia would be unlikely to argue that a lethal injection would be the fundamentally better route. Active euthanasia needs to remain a last resort when every other avenue has been exhausted.

The crucial problem in the question of the final days of life of terminally ill patients in excruciating pain is not medical in nature
but psychological. As appropriate as it is to validate the right of an individual to decide for himself about his death, it is also of crucial importance to look into the circumstances that prompt a wish of this kind. The problem with active euthanasia is not the understandable legal claim of the patient, but rather the life circumstances that give rise to a decision to die. Palliative medicine is therefore the more humane path for both physician and patient.

If active euthanasia is permitted, what has been a last resort for a few hopeless cases becomes one ‘normal’ resort among many. Some relatives might reduce their efforts on behalf of terminally ill patients, and hospitals might not bother to keep the final days and weeks of the patient’s life as pain-free as possible. Even though the statistics from the Netherlands have not substantiated this fear, it is possible to imagine that people might begin to neglect their own right to choose the best possible end of life for themselves because of a societal pressure not to become a burden to the health care system.

The key question is thus: what is a dignified death worth to society? In this light, the powerful argument for the right to self-determination takes on a new perspective. The gray areas of passive, indirect, and active euthanasia as they are currently practiced are surely still preferable to an unequivocal support for active euthanasia. Philosophers focus squarely on the rationality, consistency, and validity of a position, but politicians have a social and ethical responsibility to move beyond intolerable gray areas in theory and examine tolerable gray zones in practice.

We have seen in this chapter how the right to human self-determination comes up against its limits when it produces what are judged to be intolerable and inhumane consequences for society. But who is included in this ‘society’? How do we deal with living creatures – namely, animals – who have a capacity to suffer but cannot express their interests and cannot demand their rights?