Dyck, Arthur J.

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The Linacre QuarterlyVolume 52 | Number 2 Article 18May 1985The President's Commission for the Study ofEthical Problems in Medicine: Its View of the Rightto LifeArthur J. DyckFollow this and additional works at: http://epublications.marquette.edu/lnqRecommended CitationDyck, Arthur J. (1985) "The President's Commission for the Study of Ethical Problems in Medicine: Its View of the Right to Life," TheLinacre Quarterly: Vol. 52 : No. 2 , Article 18.Available at: http://epublications.marquette.edu/lnq/vol52/iss2/18The President's Commission fo : the Study of Ethical Problems in Me v. cine: Its View of the Right to Life Arthur J. Dyck Professor Dyck, a faculty member of the Harvard Univer ty School of Divinity, is also a faithful member of the Linacre advisor board. board. · -The Commission, to be discussed in this essay, has been auch cited in the medical literature and the media. Most of the con 11ents haV~ been laudatory. That concerns me, because I believe that ,;,s report 0 March, 1983 takes a less than satisfactory view of the righ , co life._ ~he report I have in mind is entitled "Deciding to Forego Li:fc-Sus~In~g Treat~ent." I sho~l~ add that the Commissi~m's full ~am.e IS :d:. "Prestdent's CommiSsiOn for the Study of Ethtcal ProblP,ns In M 1 cine and Biomedical and Behavioral .Research." (For convenience, refer simply to the "Commission" and all subsequent page references refer to the one report named above.) · ,, · The Commission considers three values to be "dominant values. . These are self-determination, well-being, and equity. As we shall seee, d. al car however equity does not actually guide the nature o f me IC .f ;, ' s· e ]I e~> given to patients; it applies to equal access to health care. me to not singled out as a dominant value, the question arises fo~ . me as rt. what status our right to life has for this Commission in t his repo. b ed. l . t ' but I WIS The Commission deals with a number of m I~a s1tu~ 1?ns where to focus on their discussion of care for senously tll mfants . 8. conceptions, both of the right to life and the right to self-deter~~tY tion, are explicitly involved under circumstances of great ambl~on where as some like to say, everything looks. grey. To put our quet~ 1.de · ' ·. · fan IC in its bluntest form : Does the Commission sometimes favor m in the context of caring for seriously ill infants? If by fnfanticide we mean directly killing, with measures known to be lethal,. newborns or very young children classified as infants, the Commission should be viewed as totally opposed to infanticide fqr the following reasons: 1) "A physician's shooting or poisoning of a dying patient, even at the patient 's request and from merciful motives falls within the definition of murder" (p. 33 ), 2)The omission.of life-saving is to be regarded in the same way, as murder, if the result is the same (p. 34). 3) "Society seems well served by retaining the prohibition on kill-ing" (p. 36). · 4) The traditional prohibition of the Hippocratic Oath is to be retained: "Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course" (p. 79) . The reasons for following the Oath in this respect is that to do other-wise would risk : loss of patient trust; damage to a professional's self-image; and undermining of wholehearted treatment of gravely ill patients. (There is no mention here of violating a right to life and we will see why momentarily.) 5)Physicians are to favor life (p. 207). 6) Early intervention for infants, seriously ill, is cost/effective (p. 206); The Co~mission has apparently rejected infanticide for physicians and other health care providers. They also reject acts of omission that result in death as . akin to murder . However, this does not end the matter. They suggest policies which have heretofore resulted in the ~eaths of handicapped infants by omitting life-saving intervention, lllcluding instances where the intervention would be considered routine for non-handicapped infants. By the Commission's own reasoning, these should be reckoned as cases of infanticide and murder. Let us carefully trace the Commission's position on this. Co Firs~ o_f all, recall that li.fe i~ not a basic ?r " dominant·: value for the C rnnuss10n; self-determmatwn, well-bemg and eqmty are. The ~Inrnission explicitly lists the "right to life" as among the phrases c t ~onstitute "empty rhetoric" and that "have been used in such ~fiicting ways that their meanings, if they ever were clear, have tha~rne hopelessly blurred" (P: 24). No affirmation here of the idea m· _Persons are endowed with an inalienable right to life! The Com-t.::lon believ~s that self-determination and well-being are the values o::_reate obligations and are the basis of rights. . co tee very pertinent example illustrating this point occurs in the ac~te xt of the Commission's commentary on the commitment of Co care hospitals to the extension of life. This commitment is, the m~Inission maintains, an important source of trust and an endorse-of the value of persons, both medical necessities. Nevertheless, 110 Linacre QuarterlY May, 1985 111 ·. • 1,1 i ' ' I ' . the Commission admonishes these hospitals by asserting th. should not face such marked resistance to a decision to sustaining treatment as to . either rob them of the right t mination or damage their mental, or physical health" ( 1 Commission is not limiting its remarks to patients who ar ill! ·patients ·ego life· lf-deter-08). The 'rminally For newborns, the Commission generally favors par ,s, where available, as surrogate decision-makers. The decisions o urtogates should be guided by two principles : respect for self-de• n ination; and the welfare or well-being of the patient in questio r ~quity or equality is not invoked at this point. The apparent rea~ is that it does not apply to decisions regarding care, only to decisin regarding access to care as noted earlier. For infants, only the prin• le of well· being applies. I remind the reader that the infants we are t , ing about 1 are seriously ill; only some of them may be correctly , :m gh with difficulty, judged to be terminally ill; some of them m~ be treated with the prospect ·of a normal life-span, or in ·the ca:- of certain , handicaps, a life-span typical of that handicap. Where the1 in the case of handicapped infants, is their ·right to live, and where is 1 eir right to equal treatment, that is, their -life to have the same lJ ' -sustaining treatment afforded normal infants with similar ailmen such as a bowel obstruction? Perhaps these are implicitly recog1:. ?.ed by the Commission though not mentioned. Perhaps they are noi regarded as rights. The answers to these questions require a further probe into the exact advice the Commission gives to surrogate decision-m i-tkers. Commission Says Surrogate Should Decide · · . · decide The surrogate sho\lld, in the judgment of the Comm1sswn, whether the continued existence of the seriously ill infant would ~r · would not be "a net benefit to the infant. " This, for the sake of ~h: I self-determination that the infant lacks, should be done fro~ is infant's perspective. In the Commi~sion's _words, "The ~o~:nissl~~S ) . concerned with the value of the patient 's hfe for the patient (p. f It is this value to which the Commission refers when it speaks~- , judging what is for the patient's well-being or best interests. The Co e-mission however is concerned at the same time that enor~ous r d I sources' may be ~pent, for little beriefit, to sustain "a painful ~y burdened life for an individual who has little or no c~pacity to e~~at it." How much is a little in benefit, or a little in capacity? Aware n's many do not think it beneficial to sustain the infants with J?ow of ) Syndrome, the Commission categorically suggests t~at the h~~ bf persons with this degree and range of mental . handicaps sho I saved, when possible, because their lives are generally meaningful. ualll' From the standpoint of equality then, lives are no t seen as eq 112 arterlY Linacre Qu worthwhile and some lives are not worth sustaining. From the stand-point ofth~ value of life, its worth depends upon the worth assigned it by the patient or, in the case of infants, whether handicapped or not, by what is thought to be the worth that would or should be given it. An individual's life is a right only insofar as it is claimed as such, or when it cannot be claimed by that individual, life is a right insofar as it . is judged , by someone else, to have sufficient worth for that individ-ual. But if physicians and health professionals are to favor life, and hospitals are committed · to extending it, would not there still in fact be a functioning right to life, even for handicapped infants? There are two aspects to care for handicapped infants that militate against this. . First, the Commission recommends that parents generally be the surrogates for their own infants whenever possible. The Commission is fully aware of the well-publicized data on parental choices not to treat their seriously ill neWbQrns, even in instances where their lives can clearly be sustained and their illnesses · are not terminal. These instances included failure to save the lives of infants with Down's Syndrome whose lives, the Commission thinks, should be saved. The Baby Doe case in Bloomington, Indiana, is only one case in addition to the many reported in medical journals. The Baby Doe case is especially notable because it was a state supreme court that sanctioned ·a Parental decision not to feed and not to operate on their infant child. By the Commission's owu' standards, not feeding an infant would qualify as murder, as a failure to act that leads to death. The Commission depicts the relation between parents and physi-cians, with regard to . treating seriously ill newborns, in the chart below. -Physician's Assessment Parents Prefer to Parents Prefer to of Treatment Options Accept Treatment Forego Treatment . Clearly beneficial Provide treatment Provide treatment t--during review process Ambiguous or uncertain Provide treatment Forego treatment 1-Futile Prov:ide treatm~nt Forego treatment unless provider ..._ declines to do so (Table 1, p. 218) From this chart we can see that the physician only strives with the Parents when parents refuse clearly beneficial treatment, or in the case of futile treatment, when parents want treatment that the provider is t.faY,l985 113 - . . I • • unwilling to offer. If life were a dominant value, one would pect that ambiguous or uncertain cases would be decided on the le of maintaining life. Such is not t he recommendation of the Com :·1 ;ion, and this certainly qualifies what they say about physicians f · Jring life . Not just parental attitudes but also those of physicians af • t the care seriously ill infants will receive, and physicians influence u-ents by their assessments of how beneficial treatment will be. They nd to see t reatment for mentally handicapped infants as futile. The ( nmis· sion is willing to see infants with Down's Syndrome treated ; t. .;e are infants who are usually moderately retarded. But many p r icians take issue with this and the decisions of parents will be based ' their assessments. Physicians oft en use the term "hopeless," for exa .. Jle, to describe both a condition of terminal illness, and one of a pe 1anent mental handicap. As many as sixty-one percent of the physic ns sur· veyed in California in 197 5 would, with parental cqnsent, fa1 co pro· vide life-saving treatment for a Down's Syndrome infant. In a 1tion~ survey, eighty-five percent of the ~ediatrie surgeons, in _1; 7, ~1~ they would acquiesce in parental w1shes not . to treat an m.L 1t w1t Down's who also had congenital heart disease; sixty-five perceh of the · pediatricians would do likewise. Another study found that t ~fty-one percent of the pediatricians surveyed in Mas~achusett~ w~mld ?~ recommend surgery for a ·nown's Syndrome mfant w1th 1:1 testm blockage. The Commission cites these three studies (p. 208 }. Hence, the Commission is aware that what by their own formulat ions could be deemed murder or infanticide, will take place, unless some p~o~ec· tion not now in place, is provided and enforced. The CommlSS10? explicitly rejects legal and governmental interference in t hese ?eel· sions: Self-determination both of health professionals and of pat1ents or their surrogates is a right not to be interfered with. One might well ask how the value of life can be subordinate to the value of self-determination. The value of life is to be judged by the indlvidual, and when it is judged by another person, it is done_on t~ basis of the well-being of that life, particularly whether that hf~ ~ still allow the individual to be at least somewhat self-determm~g. Self-determination, for the Commission, consists in "a person form_m~: revising, over time, and pursui~g his or her own particular plan of hfe (p. 43). . . 0 ft f its During the time the Commission was preparmg the fmal dra 0 t report, I had the opportunity to read and comment on a dr~~ thai closely resembled the final one - the one I have been descn bmg. noticed and commented in a letter that "life" was not treated as_ a dominant value. In reply, Dr. Joanne Lynn wrote a cordial l~tter ~ which she said, on. this point, that "the report does not list hfeu~ of 'dominant value' because, for the purposes of this ,report, . the val self-life is included in the other categories, especially well-bemg and 114 Linacre QuarterlY determination" (Nov. 1, 1982). The Commission also saw fit not to change their minds, or their report, in this respect. Now, regardless of how the reader may think or feel about the Commission's conception of rights, it should be evident that 'it is not making a separate right out of the right to life. Self-determination is what others are obligated to secure and protect. There is no unquali-fied right to life : Its value is to be determined by each individual ; and ·for individuals deemed incapable of judging the value of their own lives, what value life has is based on someone else 's assessment of their best interests or well-being. Of course, we are talking about the value of an individual's life in the. context of health care decisions. This is a sphere of individual liberty for the Commission. The Commission is not willing simply to assert or accept what the American Declaration of Independence designates as an inalienable right to life. Unlike that · Declaration, the Commission views every judgment of the value of individuaUife as either a self-assessment of its utility, or as an assess-ment of itS utility by someone else. While the value of life may not always have a high degree of utility, self-determination for the Com-mission always does. Indeed, any loss in one's capacity to be self-determining is deemed a loss in the utility of one's life to oneself and to others. For the Commission, then, there is no strictly equal right to life and no stable, high value to be placed on life. Entitlement to equality of one's basic right to life is, therefore, always _qualified by the differences in utility, whether judged by oneself or by someone else. And the degree of that utility is largely, sometimes exclusively, a function of the degree to which someone is self-determining. The ~ffect of this kind of thinking is that it sanctions discrimination and 1nfanticide relative to handicapped infants, in principle and in prac-tice. . . It is no wonder then, that Congressional action was necessary and that it came on October 9, 1984 (H.R. 1904) in the form of amend-ments to the Child Abuse Act. Congress moved against any discrimin-atory treatment of seriously ill handicapped infants: Infants with dis-. abilities are to receive the same care expected for infants generally. That specifically includes appropriate nutrition, hydration, and medi-. cation. But health professionals, and all of us together in the larger COmmunity, will need to be alert if this law is to be effective. As we have seen from the Commission's report, there are many physicians ~ho will be reluctant to give optimistic prognoses when infants have ~-bilities, in fact or in prospect, and parents and others may have difflculty discerning what the real prospects are. And, I need not add, Pl'og:noses for infants are often so uncertain. So, despite the help from ~nt law, the struggle will continue for straight thinking about what JUstlce (equality of basic rights) demands, and for the willingness to meet those demands. It is a struggle for the very lives of infants everywhere. MaY,l985 115 • • .I • • 

The President\u27s Commission for the Study of Ethical Problems in Medicine: Its View of the
      Right to Life

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The President\u27s Commission for the Study of Ethical Problems in Medicine: Its View of the Right to Life

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