Art of Dying or Living?
This last week, a conference was held in Flanders, Belgium. Hosted, as it is every year by the Katholieke Universiteit Leuven, the Onclin conference always promises to be a thought provoking event. This year was no exception. Named after the great Monsignor Willy Onclin sometime Dean of the Faculty of Canon Law at Leuven (known by many in the English speaking world as Louvain) and the principal architect of the various schema which became the Code of Canon Law 1983; even gaining express mention in the Apostolic Constitution Sacrae Disiplinae Leges: "our beloved son, Monsignor Willy Onclin".
This year's conference, hosted by Prof. Dr Hildegard Warnink (Dean of Faculty), generated a good deal of interest. Convened under the title Ars Moriendi, the conference benefited from a number of speakers; each, as one might expect, offering differing perspectives formulated within their own area of professional expertise or faith tradition. Divergence of both opinion and conclusion was inevitable. However, what was of particular interest, was the absence of any shared philosophical perspective relative to the dignity of life itself.
The preamble to the European Convention For the Protection of Human Rights and Fundamental Freedoms (ECHR) confirms its provisions are intended to facilitate greater 'unity' within the signatory states inter alia, by:
"Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend..."
The right to life is, of course, addressed in Art 2 ECHR. A series of cases confirm that this right does not extend the right to die; whether argued by reference to Art 2 or indeed, the prohibition of degrading and inhuman treatment (Art 3). Yet, the European Court of Human Rights has also confirmed that it is a matter for each signatory state to determine whether it wishes to give effect to a right to die in accordance with its own laws. Upon this basis, it might be thought that the shared heritage cited in the preamble to the ECHR does not extend to a synoptic view of what we mean when we speak of life.
The question: "the meaning of life" has been parodied in a number of fictional and comical works. In the present context, however, it calls for serious engagement with fundamental ethical and legal issues such as personal autonomy, rights of self-determination, legal capacity and the need for immunity from prosecution for those who might be called upon to assist in the act of termination of life. The complexity of these issues has also generated its own lexicon; with distinctions being drawn between what are considered "active assisted dying" and "passive assisted dying". Whilst the distinction may be self-evident, the former requires an act on the part of one or more third parties to give effect to the person's wish to end his own life. The latter invariably requires third parties to refrain from taking action in circumstances in which they might otherwise be required (e.g. by reason of professional ethics or legal obligation) to preserve or maintain the life of the individual concerned.
In the absence of a synoptic view of "life", it is not surprisingly that the debates around these issues are predicated by reference to oversimplifications. In the ensuing discussions, resort is made to stereotypes, seemingly (whether consciously or otherwise) with the intention or purpose of presenting concepts which are palatable and/or which may on emotional grounds, arouse sympathy. By way of example, such discussions regularly engage with the scenario in which an older person having attained a certain age (commonly 75 years or older) has formed the view that they do not wish to live to witness a decline in their health, fortunes, energies or simply to a stage where they may no longer "enjoy life". The second scenario commonly involves a patient with a degenerative condition unresponsive to existing medical treatment and who, on account of their own dignity, wishes to accelerate their demise. Both cases are offered as examples of the informed exercise of self-determination. Implicit to each is the notion that the individual enjoys the freedom to make the decision. However, it may be thought necessary to dispel a number of myths.
First, human beings thrive where they are cared for and enjoy a sense of belonging and value. In Western societies, the elderly and infirm are too often, through lack of consideration, deprived of essential recognition and status.
Second, as has been well recorded elsewhere, people in the west are living much longer than former generations. This too brings with it serious issues of financial provision; issues which many elderly lack the means to overcome.
Third, given this context, the notion that people over the age of 75 are somehow free (unaffected by societal and financial considerations) to make decisions demands careful analysis. This question is, of course, very different from the more specific notion of legal capacity. Experience has shown - and the law of the Church affirms- there are instances in which a person enjoys capacity to formulate a decision, but, is nonetheless in need of protection from the consequences of decisions which are the product of express, direct, or indirect pressures. Civil legal systems also recognise this distinction (e.g. the common law principle of the vitiating factors or the doctrine of undue influence).
These same issues have an important part to play in the second scenario of the patient with a degenerative condition. Continuing costs of healthcare, preservation of assets for the benefits of surviving relatives together with the emotional perception of representing a burden to family/society inevitably play their part.
Whether right or wrong, any debate around these issues must necessarily move from the vocabulary of generalities and engage with questions such as these; if only upon a juridical basis.
More fundamentally, within the western legal tradition, laws are inevitably aspirational in character; declaring the normative standard not as an isolated social principle, but rather, one which contributes to the education of society and the attainment of the societal values to which the particular society has subscribed and, of which it is professes to be the custodian.
Unlike the forum provided by the Onclin Chair, many of the debates around these subjects exclude from consideration issues of faith and belief. This is not surprising. Since the second world war, most legal theorists have been searching in vain for the identification of the vinculo iuris; avoiding references to morality and virtue as too value laden and subjective. However, sooner or later, there is a need to engage move from the individualistic perception of freedom to one which is (in many other fields) qualified by the demands of the common good founded upon shared responsibility.
This year's Onclin Chair Conference will undoubtedly serve as a valuable contribution in the much needed debate within Belgium and elsewhere in connection with what has variously been referred to as "euthenasia" "assisted dying" "the right to die" and "the art of dying". Perhaps too, there is a clue in the title of this year's Onclin Conference? The term Ars Moriendi emanates from a fifteenth century document (albeit published in two forms) which had as its purpose the preparation for, and attainment of, a 'happy death'. Comprising six chapters, the text first sought to console the reader in the notion that death was not an occasion to be feared. Second it attempted to equip the reader with the means of faith and the assurance of redemption. Finally, the text provided guidance to family members. Written and disseminated to counter the terrors of death, the work served to prepare the dying for spiritual life. Perhaps, in our present times, our own discussions around these issues might equally be directed to a similar exercise of educating society as to the meaning and value of life and providing guidance as to how such life might find expression. Central to this educational process, however, is the notion that life is not about periods of uninterrupted bliss, incessant acquisition of ephemeral objects, or, the pursuit of self. Whether viewed from the vantage point of faith or not, life is also about the service of others and the recognition of the uniqueness of each and every person. It is said that the original Ars Moriendi was written by an anonymous Dominican Friar following the Council of Constance (1414-1418). Any Ars Vivendi would do well to draw upon the words of the psalmist:
"The law of the Lord is perfect, reviving the soul;
the testimony of the Lord is sure, making the wise simple;
the precepts of the Lord are right, rejoicing the heart..."
Perhaps too, the authors of such an Ars Vivendi might find both example and witness in the person of St John Paul II:
"Mature humanity means full use of the gift of freedom from the Creator...Nowadays it is sometimes held, though wrongly, that freedom is an end in itself, that each human being is free when one makes use of freedom as one wishes, and that this must be our aim in the lives of individuals and societies. In reality, freedom is a great gift only when we know how to use it consciously for everything that is our true good. Christ tells us that the best use of freedom is charity which takes concrete form in self-giving and service...The full truth about human freedom is indelibly inscribed in the mystery of his Redemption" (Redemptor Hominis AAS 71 (1979) 257).