Part 1 Arguments for euthanasia and in support of the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill
1.1 Rights of individuals in a democracy
1. John Stuart Mill, one of the architects of democratic doctrine, advanced the principle that ‘the only purpose for which power can be rightly 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’. Accordingly, democratic societies can make laws to prohibit murder and robbery, but should not make laws to prohibit sex before marriage, religion, or voluntary euthanasia. This is because terminally ill patients who desire euthanasia for themselves are not physically harming other people. The Bill is consistent with democratic principles.
2. Mill’s philosophy can be reduced to the statement that, ‘in any legal issue between an individual and the state, the burden of proof for showing that an individual’s behaviour is undesirable, always rests upon the state, not upon the individual’. The onus is thus on those opposed to the Bill to ‘prove’ that voluntary euthanasia is fundamentally flawed, that the Bill is inconsistent with the principles of the democracy in which we live and that the Bill does not have merit.
1.2 The rights of an individual
3. Sue Rodriguez was a Canadian who died in 1994 from Lou Gehrig’s disease, but not before taking her case to the Canadian Supreme Court in an attempt to gain permission for her own legal euthanasia. In explaining her situation, she questioned that if she cannot give consent to her own death, then whose body is it? ‘Whose life is it anyway?’ After passage of the Euthanasia Laws Act in Australia, the majority of Australians would have asked the same question.
4. Bob Dent, the first of four people to die under the Northern Territory’s Rights of the Terminally Ill Act, was adamant that the beliefs of others should not be forced on individuals. He said ‘What right has anyone, because of their own religious faith to which I do not subscribe, to demand that I must behave according to their rules’.
5. It is anomalous that currently an act such as suicide can be legal, but to seek and gain assistance with that act is not. In effect, the Euthanasia Laws Act inflicts a form of discrimination on those terminally ill patients who would like to commit suicide but do not have the means to do so.These are exactly the people for whom the option of voluntary euthanasia is particularly appealing. Enactment of the Bill would reduce suffering and loss of dignity for terminally ill patients.
6. The concept of individualism is fundamental to democratic political theory. In a democratic society, individualism posits that latitude be given to individuals to behave as they wish, and to develop and satisfy their interests. Mill stated that ‘Over himself, over his own body and mind, the individual is sovereign’. To deny a person the right to live his or her life as he or she wishes implies that each individual does not know what is right for himself or herself.
7. Individuals can make important decisions about their bodies when they are young, for example, they can decide to participate in dangerous sporting activities or women can choose to have an abortion. However, since the Euthanasia Laws Act came into force, it seems that somewhere between the ages of twenty (when some women might have an abortion) and seventy (the age of some terminally ill patients) women lose legal control of their bodies. The Euthanasia Laws Act represents moral oppression at a level rarely experienced in Australia.
8. Members of the clergy, who seem to be the most vocal opponents of voluntary euthanasia, have imposed their values on euthanasia on other individuals through support of the Euthanasia Laws Act, but I suspect that they would not entertain a reciprocal arrangement that impinged on their individual freedoms. In the spirit of Voltaire, the clergy and other opponents of the Bill most certainly can remonstrate with people requesting euthanasia to change their minds, but they ought not to be able to compel them by insisting on a legislative fiat in a democracy. Voluntary euthanasia is morally just precisely because it is voluntary.
9. Voluntary euthanasia supporters on the other hand do not insist that all people must have voluntary euthanasia, but rather that everybody be given the choice. For an issue as personal as one’s own life and death, the choice of how you might die is one of the most personal decisions an individual should make. To be denied the right to make this decision is a blight on democracy.
10. In Australia, we now have the situation that elderly Australians are travelling overseas in search of voluntary euthanasia, manufacturing drugs in Australia, travelling overseas to buy and import drugs, and taking other initiatives, to give themselves a dignified end of life option if they were to become terminally ill. Australian doctors are assisting patients with voluntary euthanasia (a survey indicated more than a third of doctors have done so), albeit in an illegal environment. All of this activity is happening and is unrefuted, and no serious efforts are being made to stop any of this activity. Perhaps there is a latent and acceptable view that these elderly people are not dangerous to society, and should not be the subject of criminal prosecution.
11. The enactment of the Bill would formalise and legalise what is already happening around Australia, and reduce the possibility of abuse. In the words of Marshall Perron, the former Northern Territory Chief Minister, ‘It is surely preferable to have voluntary euthanasia tolerated in particular circumstances with stringent safeguards and a degree of transparency, than to continue to prohibit it officially while allowing it to be carried out in secret without any controls’.
1.3 Rights of people living in a territory
12. It is within the Commonwealth Government’s legal power to make laws for the government of any territory, according to s.122 of the Constitution. However, the Euthanasia Laws Act effectively discriminates against people living in territories because the Commonwealth does not have the right to legislate on this matter for the States. I doubt if it was the intention of those who drafted the Constitution that such discrimination should occur.
13. The Euthanasia Laws Act, in prohibiting the territory governments from enacting voluntary euthanasia legislation, limits the ability of territories to govern themselves. Territory citizens are considered sufficiently responsible to make their own wills, to marry, to ask for removal of life support, and arrange financial transactions, without interference from an authoritarian state. Yet the Euthanasia Laws Act effectively dictates that terminally ill individuals in the Northern Territory, the ACT and Norfolk Island, are not sufficiently responsible to make decisions about their own bodies, about their quality of life, and how they should live.
14. As an example, the Australian Capital Territory (Self-Government) Act 1988 states that the ACT Legislative Assembly has ‘power to make laws for the peace, order and good government of the Territory’. From the perspective of territory governments, and territory citizens, not being able to make voluntary euthanasia laws is inconsistent with this objective, and an insult to the ability of territory citizens to govern themselves. Australian territories should have the same rights to make laws for their peace, order and good governance as any state.
15. One reason for the introduction of the Euthanasia Laws Act was ‘if the parliament of the Commonwealth of Australia cannot resolve a matter that goes to the life and death of its citizens, then what is the purpose of this parliament?’. Perhaps more pertinently, one should ask what purpose the territory parliaments serve if the Commonwealth is to override their laws.
16. The Euthanasia Laws Act is not legislation born of a need to legislate for the territories to ensure the national good, as those who drafted the Constitution might have envisaged, but rather an attempt to impose the predominantly religious view of the leaders of the previous Government on as many Australians as possible.
17. The territories should not have to live with the uncertainty of not knowing which laws will be overturned, or which powers will be revoked, whenever some Commonwealth leaders feel inclined to force their religious values on people. Nobody, including politicians, would appreciate having the values of a religion, not of their own choosing, forced on them.
1.4 Freedom of religious expression
18. This underlying rationale for the Euthanasia Laws Act—the religious opposition to voluntary euthanasia by certain politicians—has again come to the fore through the Commonwealth Parliament’s recently legislated ban on the electronic transmission of information about voluntary euthanasia, and the ban that has also been placed on the sale of The Peaceful Pill Handbook by Dr Philip Nitschke and Dr Fiona Stewart. Nonetheless, in the absence of supportive legislation, Australians are downloading the information obtained in this book, and attending meetings, to obtain all the information they need to make informed end-of-life decisions. Good policy should not be about banning information that predominately elderly Australians would use to make informed decisions about how they should live, and end, their own lives, because this is effectively forcing other people’s religious values on them.
19. Another argument relates to s.116 of the Australian Constitution. Section 116 states that the Commonwealth shall not make laws ‘for prohibiting the free exercise of any religion’. The clergy and most other opponents of the Bill oppose euthanasia because of a reliance on Christian ethical values. Clearly, those who support euthanasia rely upon different ethical values, such as might be compatible with a ‘religion’ based on the primacy of the quality of life, rather than, for example, a Christian ‘existence for its own sake’. It could be argued that legislation that prohibits people from practising this alternative ‘religion’ could be in contravention of s.116.
20. At least three religions in the world support active voluntary euthanasia (so long as there are precautions to prevent abuse): the Unitarian-Universalist Association, the United Church of Christ (Congregational) and the Methodist Church on the West Coast of the USA. No other mainstream churches appear to support active voluntary euthanasia. This is despite the fact that, according to a 2007 Newspoll in Australia, 74% of religious people support the right of doctors to provide a lethal dose to end the life of a terminally ill patient at the patient’s request. This was also the view of 91% of those surveyed who claim to have no religion.
21. Despite the more liberal views of Christians, the clergy have been particularly outspoken on voluntary euthanasia. It is regrettable that their views do not reflect church membership and have been manifested in legislation that impacts on people who do not share their religion. Only support for the Bill will ensure that people can live their lives as they wish, without being constrained by the religious values of others.
1.5 Tolerance in Australia’s multicultural society
22. In recent times there has been an ongoing debate about the diverse and multicultural society in which we as Australians all live. Tolerance of the values of others is an important element of multiculturalism, however it is defined. To avoid a ‘tyranny of the majority’ situation, the values of different cultural, indigenous, ethnic and other minority groups must be respected.
23. It is hypocritical however to claim that one is tolerant of others but simultaneously decree that their values, such as a desire for the option of voluntary euthanasia, are wrong and cannot be practised.
24. Enactment of the Bill will respect the views of all Australians. If religious people object to voluntary euthanasia, they need not ever request euthanasia.
1.6 Popular opinion in Australia
25. The fact that many are in favour of a particular policy does not automatically make it right. However, when it comes to public policy, and a choice of what people want for themselves (rather than others in the population), popular support for a policy should be a strong argument in its favour. After all, democracy seems to be about trying to appease the majority, without adversely affecting minorities.
26. Numerous public polls have shown that the majority of Australians, 75% before the Euthanasia Laws Act was enacted, but now 80% (according to a 2007 Newspoll) support the option of active voluntary euthanasia. It is reasonable to deduce that the clergy and other opponents of the Bill are at odds with the four-fifths of adult Australians who would support the Bill.
1.7 Economic arguments
27. There are limited resources available for health care in the Australian economy. The current Government is engaging in cost-cutting exercises, which is its prerogative, and this places further pressure on the health budget.
28. The second reading speech for the Euthanasia Laws Act by Kevin Andrews MP referred to economic pressures on terminally ill patients, but not in a way that reflects a tight monetary situation. He seemed to think that it is preferable to pay ‘$5 000 to $6 000 on average for a person in the terminal stages of their life’ even if they want to die, rather than spending this on, say, a younger person who is badly injured and wants to live. Australian taxpayers’ money is now being spent where it is not wanted or appreciated. It could otherwise be available for additional infant care, cancer therapy or emergency services, where it could save lives and improve the quality of life for others who want it.
29. One must question, as a serious matter of public policy, why public money should be spent on keeping terminally ill patients alive who do not want to live, in preference to patients who do.
1.8 The human factor
30. Throughout this paper I refer to the ‘terminally ill patient’. This is a rather impersonal term, disguising the fact that patients are people; they are people with feelings, and they are loved by friends and relatives. These people must be treated in a humane and compassionate way. Australians are now living longer, and our ailments are often well treated with drugs. But for some people these drugs do not provide a good quality of life, and they may suffer from continuous pain, discomfort or loss of dignity. Some people would like to choose the option of euthanasia.
31. To deny terminally ill patients the right to euthanasia is to condemn them to a miserable existence, contrary to their wishes. It is hard to establish any difference in moral character between someone who denies a legitimate request for voluntary euthanasia, and who subsequently watches that person die a slow and painful death, and someone who watches a cancer-ridden pet writhe in agony without putting it down. Most people—80% of Australians—would argue that if you are terminally ill, are of sound mind and not clinically depressed, and choose euthanasia, then it is morally right.
32. For acts such as voluntary euthanasia that impact directly on an individual, the moral and humane thing to do is what is right for the individual, and only each individual knows what this is. Voluntary euthanasia is moral and humane because it is what the individual wants. And that accords with common sense.
33. The gist of the above analogies is that not providing the option of voluntary euthanasia in the above situations is inhumane and callous. In a humane society the prevention of suffering and the dignity of the individual should be uppermost in the minds of those caring for the terminally ill. When the quality of life is more important than the quantity of life, voluntary euthanasia is a good option.