Rethinking Life and Death.

• Author: Cantor, Norman L.

When medical science became capable of prolonging the dying process beyond the point that most patients would wish, medical management of the dying process became a necessity. Health-care providers no longer could strive inexorably to extend waning human lives. The search thus began for an ethic to govern medical management of the dying process.(1)

Peter Singer's Rethinking Life and Death,(2) a provocative and entertaining book, purports both to critique "the old ethic" -- the book is subtitled "The Collapse of Our Traditional Ethics" -- and to propound a "new ethic" to regulate the medical handling of dying patients.(3) Although the book does underscore some anomalies in end-of-life care, its account of the dominant ethic of death and dying proves inaccurate. Rather than portraying the existing order -- or disorder -- it creates a straw man. Moreover, despite the highly problematic nature of his "new ethic," Singer defends it only superficially.

This review essay contains three parts. The first exposes the deficiencies in Singer's depiction of the old ethic. The second lays bare the key ingredients in his new ethic and discusses some of its major issues and weaknesses. The third presents my own prescription for an appropriate ethic to govern medical management of the dying process.

1. THE OLD ETHIC AS STRAW MAN

   According to Singer, a "sanctity of life" ethic dominates the traditional approach to death and dying. A central premise of that supposed ethic is that all human beings, no matter how rudimentary their mental function and capacity, deserve protection. That protection includes a prohibition against the intentional taking of innocent human life and, in the medical context, a ban on letting patients die(4) simply because of deteriorated quality of life (pp. 73-75). Exceptions to this sanctity-of-life approach supposedly exist to allow for the cessation of "extraordinary means of medical treatment" and for the use of analgesics that are intended to relieve pain but incidentally hasten death (p. 147). However, the strict sanctity-of-life ethic described by Singer has not prevailed in Anglo-American jurisprudence since 1976, when the New Jersey Supreme Court in In re Quinlan(5) upheld the discontinuation of life support maintaining a permanently unconscious patient.

   Singer contends that physicians who remove life-sustaining machinery with the object of allowing a patient to die take an innocent human life -- a violation of what he sees as the old sanctity-of-life principle. In Singer's view, the medical profession secured authorization to take such steps in the 1993 Bland(6) case, in which Britain's House of Lords upheld the removal of a feeding tube sustaining a permanently unconscious patient (pp. 65-66). This assertion ignores the fact that American courts for twenty years have upheld the right to remove life support, including artificial nutrition, from permanently unconscious patients even though the acting parties involved understood that death would ensue. Quinlan was the first such decision,(7) but a succession of cases from other jurisdictions have followed suit.(8) Singer attempts, unsuccessfully, to distinguish these American precedents as being grounded in autonomy -- the prior expressions of now incompetent patients (p. 64). Quinlan did not rely on the patient's prior expressions.(9) Furthermore, subsequent decisions have endorsed the withdrawal of life support from patients even in the absence of clear-cut prior expressions.(10) In short, American jurisprudence on death and dying generally accepts that physicians sometimes may "take innocent life," as Singer defines the concept.

   The second aspect of Singer's old sanctity-of-life ethic -- the notion that poor quality of life can never justify the termination of life-sustaining medical intervention -- never really has prevailed. Since 1976, American courts have recognized that a person's health may deteriorate to such a degree that she may be better off dead than alive.(11) Cases have applied this principle to both competent and incompetent patients. For incompetent patients, judicial acceptance of end-of-life determinations has relied both on the dismal status of the patient -- such as permanent unconsciousness -- and on determinations that the burdens of existence, such as pain and suffering, can outweigh the benefits of extended life.(12) Contrary to what Singer suggests, courts frequently consider diminished quality of life, in the sense of grievous bodily deterioration, in shaping the bounds of medical intervention in the dying process.(13)

   With regard to the asserted "old ethic," Singer suggests that permitting the removal of "extraordinary means" of life preservation constitutes the main deviation from a strict sanctity-of-life principle (p. 188). The concept of extraordinary means, which originated in a 1957 pronouncement of Pope Pius XII,(14) influenced the original position of the devoutly Catholic Quinlan family.(15) In fact, the concept sometimes was cited as a possible demarcation of permissible medical conduct in ending life-sustaining intervention. For example, the American Medical Association House of Delegates used the extraordinary means terminology in 1973 in suggesting guidelines for terminal care.(16)

   Nevertheless, American jurisprudence long since has abandoned the ordinary-extraordinary dichotomy.(17) Authorization to withhold or withdraw life support now extends to the most basic forms of medical intervention, including blood transfusions,(18) artificial nutrition,(19) and chemotherapy.(20)

   In sum, the old ethic of death and dying presented by Singer bears little resemblance to the prevailing ethic found in American cases of the past twenty years. Had Singer articulated and defended a sensible new direction in the death and dying ethic, that flaw would seem forgivable -- but he did not. Although he does endorse some unconventional positions, he fails adequately to defend or even to articulate their implications. I turn to consideration of those positions.

2. WEAKNESSES OF THE NEW ETHIC

   1. Human Nonpersons

      Singer's new ethic centers around the notion that not all human beings are persons (pp. 180-83). To be a "person," he says, a being must have an awareness of self over time and enough reasoning capacity to plan for the future (pp. 182, 218). Under this theory, certain human beings -- including anencephalics, permanently vegetative patients, and neonates -- are deemed nonpersons. On the other hand, certain nonhuman animals -- including whales, dolphins, monkeys, dogs, and pigs -- are deemed persons (pp. 180-82, 205-06, 209-10). Although Singer does not address it, his framework also might classify some severely retarded or demented human beings as nonpersons. This might include patients with advanced Alzheimer's, for example.(21)

      Singer's personhood framework falters in its superficial consideration of the implications for human nonpersons. Many commentators have argued that absence of neocortical function -- which includes the capacity to interact with others -- ought to form the boundary of death.(22) Singer does not, however, classify his nonpersons as dead. Rather, he sees them as creatures with diminished rights and expectations, retaining some interests but lacking normal protection against involuntary death (p. 198).

      Singer briefly considers the implications of nonpersonhood in the context of neonates. He supports medical infanticide, at the parents' discretion, during the first few weeks of a neonate's existence, asserting that these young infants are "not yet full members of the moral community" (p. 130). In his view, the parents of a Down's syndrome neonate may withhold her life support if they prefer to raise only children better equipped to deal with life's challenges (pp. 212-15). Singer does not discuss the concomitant issues of organ harvesting, medical experimentation, or allocation of scarce medical resources; however, it seems fair to assume that his theory would favor the interests of live persons over the interests of nonperson neonates in prospective life.(23)

      Singer's approach to the implications of nonpersonhood proves even more perfunctory in the context of permanently unconscious patients. Must we honor the request of a previously competent patient to be maintained in a permanently vegetative state? Singer says that such wishes should be "taken into account," but should not be decisive (p. 192). What about the independent emotional and financial interests of the patient's relatives and other caretakers? Singer merely says that such interests "deserve consideration" (p. 192). What about the competing interests of potential organ recipients and potential beneficiaries of nontherapeutic medical experimentation on the permanently unconscious patient? While Singer comments that we "cannot ignore the needs of others" (p. 192), he does little to elucidate a hierarchy of interests regarding the treatment of human nonpersons.

      Labelling permanently vegetative patients as nonpersons achieves very little. If Singer's concern is the indefinite preservation of a dismal quality of life -- with no real benefit to the permanently insensate being and with real opportunity costs to society -- that concern can be met without denominating the vegetative patient a nonperson. I have argued elsewhere(24) that permanently unconscious patients should be allowed to die. My rationale, however, is not that these patients are nonpersons, but that withdrawal of life support in this circumstance very probably accomplishes the result that the patients would want. The vast majority of people, when asked, say that they want no life support to maintain them in a permanently insensate state.(25) We ought to respect this common, and therefore putative, wish in the absence of prior instructions or personal indications to the contrary. Furthermore, even if the vegetative patient did in fact request life-sustaining measures...