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To be presented at a workshop to be held at the Faculty of Shariah Islamic University of Beirut on 17-19th April 2011 by Professor Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Bioethics & Chairman of the Institutional Review Board (IRB) King Fahad Medical City, Riyadh Saudi Arabia.
ABSTRACT
Euthanasia is action or unaction with the deliberate intention of causing death of a terminally ill patient for relief of pain or suffering. Active euthanasia is directly causing death such as a fatal injection. Passive euthanasia is letting a person die by taking no action to maintain life. In voluntary anesthesia the patient takes the decision. In non-voluntary euthanasia a decision is made for an unconscious patient. In involuntary anesthesia the decision is made contrary to the patient's wish. The same action can be withdrawal of useless life support and can also be euthanasia to relieve pain depending on the underlying intention of the physician. Physician assisted suicide is essentially the same as euthanasia except that the patient takes the final action preceding death while the physician assists by giving advice and training, providing material and equipment.
Euthanasia violates the purpose of preserving life, hifdh al nafs (physicians treat and do not kill) and the purpose of preserving diin, hifdh al ddiin (life and death are in the hands of Allah). Active and passive euthanasia are the same because they have the same intention since actions are judged by their intentions, al umuur bi maqasidiha. Physicians and family members can be motivated by self-interest to decide for euthanasia. Euthanasia causes injury which is prohibited, la dharara wa la dhiraar. The pain of terminal illness is a lesser evil that causing death, ikhtiyaar ahwan al sharrain. Euthanasia violates public interest by cheapening life and therefore encouraging genocide; public interest takes precedence over personal interest, al maslahat al aamat muqaddamat ala al maslahat alkhhaasat. Pain in terminal illness is not a necessity that legalizes murder that is according to the principle al dharuraat tubiihu al mahdhuraat. A necessity is defined in law as what threatens any of the 5 purposes of the Law (ddiin, nafs, nasl, aql, & maal). Euthanasia cannot be accepted as a necessity since it destroys and does not preserve 2 of the purposes of the law: religion and life. Euthanasia violates the principle of custom, qa’idat al aadat, because the customary role of the physician is to heal and not to kill.
The physician who advises, assists, or carries out a euthanasia operation at the instructions of the patient in full knowledge of the underlying intention is committing a crime. An action is haram whether done by the person or is done by another on his/her behalf, ma haruma fi'iluhu haruma talabuhu. The physician carries is the final actor, al fi'ilu yudhhafu ila al fa'ili al akhiir. Refusal of treatment is euthanasia if the intention is causing death.
Our analysis has shown that there is no legal basis for euthanasia. Physicians have no right to interfere with ajal that was fixed by Allah. Disease will take its natural course until death. Physicians for each individual patient do not know this course. It is therefore necessary that they concentrate on the quality of the remaining life and not reversal of death.
1.0 DESCRIPTION OF EUTHANASIA:
1.1 DEFINITION OF EUTHANASIA
Euthanasia is Greek for good death which translates into English as easy death or mercy killing. Other terms similar to euthanasia are aid-in-dying or physician-assisted suicide. Euthanasia is action or unaction with the deliberate intention of bringing about death of the patient to relieve him and /or his relatives from the suffering of a longer course of terminal illness. Relief from pain and suffering is the key to the definition of euthanasia.
1.2 PATIENTS INVOLVED IN EUTHANASIA
Two types of patients are involved in euthanasia: (a) a patient in a persistent vegetative state who is awake but is not aware of self or the environment. Such a patient has no higher brain functions and is kept 'alive' on artificial life support: respirators, heart-lung machine, and intra-venous nutrition (b) a patient in terminal illness with a lot of pain, psychological suffering and loss of dignity. The patient may or may not be on life-support.
1.3 WHO CARRIES OUT EUTHANASIA?
Euthanasia can be by the patient or by the health care giver. The patient may refuse food and/or treatment. The caregiver may withhold nutrition and/or medical care. The caregiver may advise and/or assist the patient in committing suicide. A physician is legally liable for any euthanasia actions performed even if instructed by the patient. Physicians have no right to interfere with ajal which was fixed by God. Disease will take its natural course until death. Physicians do not know this course for each individual patient. It is therefore necessary that they concentrate on the quality of the remaining life and not reversal of death.
1.4 ACTIVE AND PASSIVE EUTHANASIA
A distinction is made between active euthanasia which is making a patient die and passive euthanasia which is letting a patient die. Active euthanasia, an act of commission that causes death, is taking some action that leads to death like a fatal injection. Passive euthanasia, an act of omission, is letting a person die by taking no action to maintain life. Passive euthanasia can be withholding or withdrawing water, food, drugs, medical or surgical procedures to let patient die from the underlying terminal disease.
1.5 VOLUNTARINESS IN EUTHANASIA
Euthanasia can be voluntary when the patient takes the decision, non-voluntary when another person makes the decision for the unconscious patient, and involuntary when the decision is made contrary to the patient's wish.
1.6 INTENTION: A DISTINGUISHING CHARACTERISTIC OF EUTHANASIA
The same action can be withdrawal of useless life support and can also be euthanasia depending on the underlying intention of the physician. Decisions on withdrawing life support revolve around the treatment having no net benefit. Decisions about euthanasia revolve around the patient and relief from physical pain and suffering. The underlying intention may be different from the expressed intention. For example a treatment-based rationale may be given when the actual underlying intention is patient-based relief from suffering. Analgesics and sedatives can be used with the expressed intention of controlling pain when the underlying intention is casing death to relieve the patient from further suffering (euthanasia). Distinguishing expressed from underlying intentions is within the conscience of the physician and no outsider can fathom these matters.
1.7 HISTORY OF EUTHANASIA
Euthanasia was accepted by the ancient Greeks and Romans. Three Asian religious traditions accept euthanasia: Budhism, Shintoism, and Confucianism. It was rejected by the 3 main monotheistic religions: Christianity, Judaism and Islam. Euthanasia has its supporters and opponents in all countries. The books of siirat record a case of a man who was fighting gallantly. The prophet told his companions that the man was a hypocrite. When he was wounded he took his life with his own sword because of the pain he was suffering. This incidence indicates that Islam does not accept taking life for pain in a terminal condition.
1.8 MORAL POSITIONS ABOUT EUTHANASIA
European moral arguments for euthanasia are based on the utilitarian relief of pain, suffering, and misery of the terminal patient. Two arguments are made against active euthanasia. (a) Killing is morally wrong and is forbidden by religion (b) unexpected cures or procedures may be discovered to reverse the 'terminal' condition.
1.9 LEGAL POSITIONS ABOUT EUTHANASIA
Islamic Law views all forms of euthanasia as murder. Those who give advice and those who assist in any way with suicide are guilty of homicide. Islam teaches patience, sabr, for prolonged and painful disease. Active euthanasia is illegal in all countries except the Netherlands. Controversies on legalization of euthanasia in Europe and America are continuing. The argument for legalizing euthanasia is that the individual's freedom entails liberty or choice in all matters as long as the rights of any other person are not infringed upon. The argument against legalizing euthanasia is that it will lead to disrespect for human life. Euthanasia can then be abused for criminal purposes. A financial motive is sometimes advanced in favor of euthanasia. It costs money from the family of the government to keep terminally sick people on life support that will be wasted resources if they eventually die.
2.0 DESCRIPTION OF PHYSICIAN-ASSISTED SUICIDE (PAS)
2.1 Physician assisted suicide is essentially the same as euthanasia except that the patient takes the final action preceding death. The physician assists by giving advice and training, providing material and equipment.
2.2 Euthanasia and PAS are essentially the same. The physician plays a major role in both except that in the case of PAS, he stops short of the last step after participating along the way in all stages of the preparation for suicide.
2.3 PAS arises partly because of lack of adequate palliative care. If patients had adequate palliative care they would not opt for PAS. Other patients opt for PAS because of pain. Others because of loss of autonomy, being a burden on others, not being able to enjoy life etc
2.4 PAS is illegal in all countries except the Netherlands. It had been legalized in the Northern Territory of Australia for a short time. It was also legalized by the Oregon State of the United States.
2.5 PAS takes place informally and secretly because it is illegal. Patients do ask their doctors to hasten their death and many physicians do respond favorably but these cases are not documented because of fear of legal liabilities.
2.6 PAS as a form of suicide is illegal because voluntary suicide of persons who are not terminal patients is an illegal act. Those who assist in such suicide are also liable for the death. The same applies to PAS.
2.7 Physicians can prescribe a lethal drug in jurisdictions in which PAS is legal. This reverses the doctor-patient relationship from healing to killing.
2.8 PAS is a moral slippery slope. Once it is allowed, it will open the door to a flood of other evils in which people will seek the help of physicians to end their lives for any reason.
3.0 ANALYSIS OF EUTHANASIA and PAS USING PURPOSES OF THE LAW
3.1 VIOLATION OF THE PURPOSE OF LIFE
The purpose of preserving life, hifdh al nafs, makes any form of active or passive euthanasia illegal. Life and good health must be protected and promoted in all circumstances. This includes, inter alia, adequate nutrition, hydration, prevention and treatment of any illness and disease. Every disease has a treatment known or discoverable by further scientific research. The purpose of preserving life does not imply human ability to delay death or lengthen the life span because those are the prerogatives of God alone.
3.2 VIOLATION OF THE PURPOSE OF DIIN
Euthanasia violates the purpose of preserving religion, hifdh al ddiin, because it involves a human attempt to violate the divine prerogative of giving and taking away life. Euthanasia can indirectly lead to the violation of the purpose of preserving progeny by cheapening human life thus encouraging feticide and infanticide.
4.0 ANALYSIS OF EUTHANASIA USING THE PRINCIPLE OF INTENTION
4.1 THE SUB-PRINCIPLE OF AUTONOMY
A competent patient has the absolute right to make decisions regarding treatment because of all the players involved he has the purest intentions regarding his best interests. The right of autonomy here is understood to be used to pursue best interests. A decision to terminate human life can never be conceived to be in the best interests of the patient. Thus the right of autonomy is irrelevant in discussions of euthanasia and PAS.
4.2 ACTS OF COMMISSION vs ACTS OF OMISSION
Terminal illness involves acts of commission or omission that require definition and description of actions. All actions are judged by their intentions, niyyat. The last stage of the act is what defines its nature, al a'maal bi khawatimiha. Actions can be obligatory, wajib; offensive, makruh; recommended, mandub; prohibited, haram; and permitted, halal. The basic default position is permission, al asal fi al umuur al ibaahat. There are rewards or penalties for each action depending on the mode of commission or omission. Committing an obligatory act brings rewards and omitting it brings penalties. Committing an offensive act brings no penalty but omitting it brings a reward. Committing a recommended act brings rewards but omitting it brings no penalty. Committing a prohibited act brings penalties and omitting it brings a reward. It is therefore clear from the above that there is a difference between acts of commission and acts of omission. This difference disappears at the level of the intention. If both types of act have the same intention, they are not different in the eyes of the law. This conclusion makes the distinction between active and passive euthanasia untenable.
4.3 ACTIVE vs PASSIVE EUTHANASIA
Active euthanasia is an act of commission. Passive euthanasia is an act of omission. There is no legal distinction between active and passive euthanasia because the Law considers only the intentions behind human actions and ignores the terminology used, al ibrat fi al maqasid wa al ma'ani wa laisa li al alfaadh wa al mabaaani. Since both active and passive euthanasia have the same intention of ending the life of a terminally ill patient, they are the same action under the law.
4.4 ROLE and INTENTIONS OF THE PHYSICIAN
The physician involved in euthanasia either as an active participant or an advisor may have intentions relating to self-interest and not the interests of the patient or those of religion. These could include trying to get rid of a difficult medical case, cutting costs of intensive and expensive terminal care, or possible ulterior material, political, or social motives.
4.5 ROLE AND INTENTIONS OF THE FAMILY
Members of the family may have the intention of hastening death in order to inherit the deceased's estate. They may also want to avoid the costs of terminal care. In both cases above there is a possibility of bad intention in euthanasia decisions.
5.0 ANALYSIS OF EUTHANASIA and PAS USING THE PRINCIPLE OF INJURY, qa’idat al dharar
5.1 NO CAUSING INJURY
No one should be hurt or cause hurt to others, la dharara wa la dhiraar. Decisions on euthanasia hurt patients in their life and health. The family is also hurt emotionally and psychologically by the death of the patient. The family hurt is accentuated by feelings of guilt about the euthanasia decision.
5.2 WHAT TO DO IF 2 INJURIES ARE INVOLVED?
The Law requires that any injury should be mitigated to the extent possible, al dharar yudfau qadira al imkaan. When faced with 2 evils, the lesser one is chosen, ikhtiyaar ahwan al sharrain. This is interpreted to mean that continuation of painful terminal life is better that euthanasia.
5.3 THE PUBLIC INTEREST
A further argument against euthanasia is that a person should bear personal injury if that prevents public or widespread injury, yatahammal al dharar al khaas li daf'ui al dharar al 'aam. Suffering of some individuals in terminal life is preferable to legalizing euthanasia because euthanasia could be criminally abused leading in some cases to genocide. Public interest takes precedence over personal interest, al maslahat al aamat muqaddamat ala al malahat alkhhaasat. Preventing evil from euthanasia takes precedence over any consideration of benefits from it, dar'u al mafasid awla min jalbi al masalih. In case of two actions being required at the same time, the rejection of prohibition, haram, takes precedence over carrying out the permitted, halal. Alleviation of the evil takes precedence over establishing benefit, dar'u al mafasid muqaddam muqaddam ala jalb al masalih. If a choice between 2 actions has to be made, the lesser evil is chosen, ihktiyaar aqallu al dhararain.
6.0 ANALYSIS OF EUTHANASIA AND PAS USING THE PRINCIPLE OF HARDSHIP
Hardships necessitate relaxing the law, al mashaqqa tajlibu al tayseer. The pain and suffering of terminal illness are not among the hardships recognized by classical jurists. The life of handicapped invalids, psychological and emotional stresses due to illness are difficult situations but do not reach the level of the legally defined hardship. In general in cases of hardship where a clear necessity is established, the prohibited can be allowed at least temporarily until the hardship is relieved, al dharuraat tubiihu al mahdhuraat. A necessity is defined in law as what threatens any of the 5 purposes of the law namely religion, life, intellect, progeny, and wealth. Euthanasia cannot be accepted as a necessity since it destroys and does not preserve 2 of the purposes of the law: religion and life.
7.0 ANALYSIS OF EUTHANASIA AND PAS USING THE PRINCIPLE OF CUSTOM OR LEGAL PRECEDENT, qa’idat al aadat
Custom, ‘aadat is defined as what is uniform, widespread, predominant, and not rare, al ibrat li al ghaalib al shaiu la al naadir. Once a custom is established it must be accepted until there is evidence to the contrary. Custom has the force of law, al aadat muhakkamat. The role of physicians has customarily been known to be preservation of life. It is therefore inconceivable that they could be involved in any form of euthanasia that destroys life.
8.0 OTHER ISSUES IN EUTHANASIA
8.1 PHYSICIAN LIABILITY
The physician who advises, assists, or carries out a euthanasia operation at the instructions of the patient in full knowledge of the underlying intention is committing a crime. The physician is responsible for his actions and cannot claim that he is acting on the patient's instructions. An action is haram whether done by the person or is done by another on his/her behalf, ma haruma fi'iluhu haruma talabuhu. The physician carries the most responsibility for such an action because the major responsibility for a bad act rests on the person who performs it last, al fi'ilu yudhhafu ila al fa'ili al akhiir. Final legal responsibility is with the physician who carried out the act and not the patient who requested it, yudhaafu al fi'ilu ila al fa'ili la ila al amir ma lam yakun mujabaran.
8.2 PATIENT REFUSAL OF TREATMENT
Depending on the underlying intention, patient refusal of treatment may be a form of passive euthanasia depending on the underlying intention of the patient. If the patient states the intention clearly as euthanasia we cannot respect his decisions to refuse treatment. If there is no evidence of the intention of euthanasia, a patient who has legal competence, ahliyyat, makes final decisions about medical treatment and nutritional support. A patient should be fed according to his wishes and forced only if there is an immediate threat to life. The conditions of legal competence are: adulthood, soundness of the mind, freedom from duress or compulsion, and complete understanding of the medical and legal issues involved. These conditions rarely obtain in a situation of terminal illness.
8.3 OWNERSHIP AND CONTROL OF LIFE
The central legal and ethical issue in euthanasia is ownership of life. Do humans own or control their lives? Do they have a right to take that life under any or all conditions? The Islamic position is that life belongs to Allah. It is He who gives and takes away life. No human can give or take it. Despots like Pharaoh and Nimrod were severely condemned by the Qur'an for their mistaken belief that they controlled human life by deciding who would be executed and who would be spared. The moment of death, ajal, is under the control of Allah and the human has no say in this matter; the human cannot and should not attempt to hasten or delay the ajal. The prohibition on life applies equally well whether for self, suicide, or others, homicide or genocide. The concept of freedom and individual choice in euthanasia does not apply here for 2 reasons: (i) life does not belong to the human (ii) taking life will cause harm to the family and society in general. An individual's freedom of choice is constrained by the harm it causes others.
9.0 GENERAL CONCLUSIONS
9.1 SUMMARY
The analysis concluded that active and passive euthanasia are both illegal because the intention behind them is the same, taking life.
9.2 CONCLUSION
Our analysis has shown that there is no legal basis for euthanasia. Physicians have no right to interfere with ajal that was fixed by Allah. Disease will take its natural course until death. Physicians for each individual patient do not know this course. It is therefore necessary that they concentrate on the quality of the remaining life and not reversal of death. Life support measures should be taken with the intention of quality in mind. Instead of discussing euthanasia, we should undertake research to find out how to make the remaining life of as high a quality as is possible. The most that can be done is not to undertake any heroic measures for a terminally ill patient. However ordinary medical care and nutrition cannot be stopped. This can best be achieved by the hospital having a clear and public policy on life support with clear admission criteria and application to all patients without regard for age, gender, SES, race, or diagnosis.