LCMS Convention Workbook St. Louis, Missouri — 1981, Page 404

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404

THEOLOGICAL DOCUMENTS

exhibit toward patients that appear to have irrevocably entered the process of
dying.

In this connection it should be noted that the terms ‘‘passive,”’ “‘negative™
or even “‘indirect’’ are at times applied to situations where a life is snuffed out
by the refusal or the failure to take any kind of medical action or to apply any
means of healing. One of the most notable cases on record is that of a baby
bom at Johns Hopkins Hospital in 1971 which was unable to be fed because
of an intestinal blockage. Because the infant also suffered from Downs
Syndrome, doctors were refused permission to do anything about its intestinal
problem. The baby was wheeled away into a comer where it was left to die
two weeks later of starvation and dehydration. This incident could be, and has
been. referred to as an example of passive euthanasia. In this case doing
nothing resulted in unjustified killing. The persons involved perpetrated a sin
of omission in one of its most frightening manifestations. Here was euthanasia
at work in a passive sense as the refusal by those responsible to use ordinary
life-sustaining medical treatment to prolonga life simply because there was no
Prospect of recovery in the sense of having a normal healthy child. Certainly
there was nothing beautiful or good about this death. There was nothing
merciful at all about this killing.

The story of this infant serves as a reminder of the fact that the morality of
an act, whether of commission or omission, depends on what is intended as
well as on what is done or not done. Just as “pulling the plug’’ may not be
euthanasia even though a specific action has been taken. so the failure to do
something, sheer passivity, may well be an act of unjustified killing belonging
to the category of homicide.

Other examples of situations which are said to call for euthanasia involve
persons suffering from unresponsive, far-advanced cancer with intractable
pain. irreversible brain damage resulting in a vegetative state, and individuals
with marked senility who suffer from life-threatening illnesses. It is to excep-
tional cases of this kind that the following statement of the New York Academy
of Medicine applies:

When, in the opinion of the attending physicians. measures to prolong life
in which no realistic hope of effecting significant improvement will cause
further pain and suffering to the patient and family, we support conser-
vative passive medical care in place of heroic measures in the manage-
ment of a patient afflicted with a terminal illness.
It should be noted that this statement does not use the term ‘‘passive eutha-
nasia." Instead, it speaks of ‘conservative passive medical care.’' Here is a
teminder that the medical profession is hesitant to use the term “euthanasia,”
partly because the use of such distinctions as “passive” and ‘“‘active’’ eutha-
nasia has tended to blur the ethical dimensions inherent in the possibilities of
extending and ending life almost at will. In norma! medical parlance the term
“euthanasia” stands for "mercy killing.’ As such this practice plays no rightful
role in the profession of healing. and it has no place in the church except for

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dinary measures to extend the dying process. They also observe that the
enforcement of whatever legislation applies to this question Is sporadic and
even capricious, and that, in any case, it is contrary both to the spirit and the
letter of the larger body of United States law to equate mercy killing with
murder.

Explictt legalization of mercy killing has not yet occurred in any nation in the
world. Uruguay has, perhaps, the most permissive legislation on the subject.
The law In this country, which has been in effect since 1933, prescribes that in
case of homicide committed out of compassion and at the victim's repeated
request, ‘‘the judges are authorized to forego punishment of a person whose
previous life has been honorable.” Germany and Switzerland also permit a
mitigation of punishment where the killing proceeds from “‘honorable
motives.” Elsewhere the laws, at least on paper, continue to be more strin-
gent But even In the three exceptions cited, the offense Is not condoned or
legitimized; rather, judges are authorized to pardon or to soften the punish-
ments (for murder) normally prescribed by law.

In most jurisdictions throughout the world, and decidedly so in the United
States, the legality of acts of omission as a means of hastening death, or
removing obstacles to tts accomplishment, are still clouded with ambiguities.
Such acts are at times fudged to be murder, when it can be shown that an act
of omission fs a major contributing factor. Indeed, existing laws do not
Presume to say, for example, whether tuming off a particular life-sustaining
apparatus is an act of omission or commission. And, moreover, if it can be
established that a particular act ts one of omission, the law ts still far from clear
as to what the legal implications are when such a procedure leads to a predict-
able death.

Even murker are the questions that arise from the withholding of remedies
and medications—e. g., depriving a diabetic of Insulin or keeping antibiotics
from a patient who Is dangerously ill with pneumonia. Meanwhile, physicians
are understandably intimidated by the amibiguities that surround the law.
Moreover, legislators in all the 50 states have shown a surprising resistance to
proposed “death with dignity” bills which have been introduced in state legis-
latures in recent years. They are somewhat aware of the problems arising out
of the difficulties that adhere to changing definitions which, in tum, reflect the
rapid development of medical technology. To compound the difficuities,
authorities inside the medical profession continue to discuss the question as to
when death effectually occurs. For example, there ts disagreement among
physicians as to whether or not, in the light of late-20th-century medicine, it
can be contended that the criterion should be the onset of “‘brain death”
rather than the conventional view that genuine human life goes on so long as
heart and hungs are functioning, no matter what the circumstances.

Critics of present law at times introduce the matter of motives. They insist
that when motives seern honorable voluntary euthanasia, as they refer to It,
cannot properly be defined as murder in either the first or second degree

10

Purposes of condemnation.

To confound the whole field of definitions still more, the term “euthanasia”
is sometimes modified by such adjectives as “voluntary,” “involuntary” and
“compulsory.” If euthanasia is voluntarily administered by and to oneself, it is
a form of suicide. If applied by another with the deceased's consent or coop-
eration, it is both suicide and murder. If the application of a death-accelerating
measure is administered by someone else without the consent of the patient or
his family, it is called involuntary. If administered in violation of the wishes of
the patient and/or the family, it is known as compulsory euthanasia. In an
involuntary and/or a compulsory situation it is a form of murder. It is a
patient-killer, not a pain-killer. In any form, it is illegal at the present time in
every state.

The various semantic distinctions which have been indicated here, espe-
Gially the use of “‘passive” or “active” and “‘positive”’ or “negative,” serve to
confuse the unwary and to desensitize those who oppose the legalization of
mercy killing disguised as “happy death.”’ In some cases the differentiations
made may be well-intentioned. Yet the use of various qualifiers in connection
with the term “euthanasia” has created great confusion, thereby raising
unnecessary hazards for persons committed to a God-pleasing attirude
regarding the issues of life and death.

Properly speaking euthanasia entails direct intervention, the killing of a
human being, with or without his knowledge or consent. It may be briefly
defined as the administration of a lethal dose to the patient or the deliberate
Tefusal to use even the ordinary means of sustaining life. It is in this “active”
sense that the word “‘euthanasia’”’ will be used in the present study.

b. Legal Status of Euthanasia

Presently euthanasia is not legal in the United States, despite the efforts of
such groups as Concem for Dying (formerly the Euthanasia Educational
Council), the Society for the Right to Die (formerty the Euthanasia Society of
America), the American Euthanasia Foundation, and the Good Death Fellow-
ship to cultivate a climate of opinion favorable to the acceptance of legislation
that would embody the use of this word and permit the practice of ‘mercy
killing.” As a matter of fact, the legal status of euthanasia is more than a litde
ambiguous.

The fact that legislation regarding euthanasia is a matter of state rather than
of federal law has produced significant disparities among the various propos-
als drawn up for legislative discussion and possible action. The present legal
situation with respect to euthanasia is criticized for a number of reasons. First
of all, critics say that a steady deterioration of the legal handling of the problem
of mercy killing has made a dead letter of the existing laws on this subject.
Neither judges, juries nor public opinion will support or implement them.
Moreover, they argue that uncertainties in the area of liabiliny compel physi-
dans, presumably against their better judgment, to persist in so-called extraor-

9

because an action has been undertaken for the relief of suffering and as
compassionate ministration. Defenders of current law sometimes rebut this
argument, however, by contending for a more commodious definition of
“malice.” It should be broad enough, they say, to include such aspects as ‘ ‘tll
wil,” “callous disregard,” and “hardness of heart” Defenders of euthanasia
repiy, on the other hand, that mercy killing fs usually not the real cause of a
patient’s death, that it is only a measure for the merciful acceleration of a
death already in progress or indeed (by a more imaginative definition) already
accomplished.

Much of the demand for revision of the laws regarding euthanasia derives
from the anomaly that motive may mitigate the punishment but may usually
Not constitute a defense against the charge of murder—a contradiction that
makes, it ts said, neither good sense nor good law. Additional refinements in
the arguments against the current bearing of law on euthanasia express the
numerous and obvious distinctions between the motives of mercy killings and
murders. The following might serve as examples: (a) its effect upon the ‘'vic-
tim” ts radically different, (b) the two acts proceed from totally different atti-
tudes toward law and toward human well-being, (c) the ‘‘mercy killer” does
not have available to him the wide range of obviously more acceptable alter-
Natives; and (d) there ts wide popular support for mercy killing, but none at all
for murder. These arguments are frequently bolstered by the claim that a
person’s body and self are his own, to dispose of as he sees fit, as a matter of
tight In fact, protagonists at times insist on these possibilities as a “‘ctvil
right”

The complexities involved in the issues pertaining to life and death help to
account for the ambiguity of existing legal formulations and opinions. Much of
the current sentiment in favor of “‘Hberalizing”’ the law with respect to mercy
killing finds tts source, to a large extent, in the thinking and plans of persons
who oversimplify or even ignore the ethical questions raised both by advances
in medical technology and by the changing definitions of death as well as the
term euthanasia ttself.

While the foregoing discussion characterizes the current legal cimate with
Tespect to euthanasia and the identification of some of the principal arguments
adduped by proponents of change, our own position as Lutheran Christians
who seek to bring our conduct into conformity with the divine will cannot, in
the last analysis, be settled by purely secular sanctions or from considerations
of public policy alone. It is appropriate at this time to include a reminder that
resort to euthanasia would be sinful even if the time should come when mercy
Killing may no longer be defined by society as a crime.

2. Life and Death

In any evaluation of euthanasia it is essential to have at hand certain accept-
able definitions of life and death, for euthanasia is a word that points to the
end of the former and to the hastening of the latter. The problems arising from

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