Over the past year, the law and practice of Medical Assistance in Dying (MAID) in Canada has received an incredible amount of media attention, much of it negative.
Last October, a prominent Canadian fashion retailer released a three-minute commercial titled “The Most Beautiful Exit,” featuring the suicide of a thirty-seven-year-old British Columbia woman, Jennyfer Hatch, who was approved for MAID because of Ehlers Danlos syndrome, a genetic connective tissue disorder that is often painful. It was later revealed that Hatch had “preferred” to live, but was finding it difficult to navigate the healthcare system and get the care she needed. “I feel like I’m falling through the cracks so if I’m not able to access health care am I then able to access death care?’ And that’s what led me to look into MAID and I applied last year,” she said under a pseudonymous interview a few months earlier.
That same month, The Free Press published a chronicle of one mother’s desperate attempt to intervene in the scheduled death by euthanasia of her twenty-three-year-old son, who had qualified for MAID on the basis of the three medical factors of diabetes, blindness in one eye, and depression.
A month later, retired Army Corporal and Canadian paralympian Christine Gauthier testified before the House of Commons that after trying unsuccessfully for five years to get financial support from the government to build a wheelchair ramp, the Veterans Affairs office offered her MAID instead.
Despite the fact that Prime Minister Justin Trudeau has publicly promised that no one would receive MAID “because [they’re] not getting the supports and cares that [they] actually need,” many are wondering if this is in fact true. Concern has been raised by those on the right and the left. Headlines from mainstream newspapers include the following: “Are Canadians being driven to assisted suicide by poverty or healthcare crisis?”, “‘Disturbing’: Experts troubled by Canada’s euthanasia laws,” and “Why is Canada euthanizing the poor?”
The debate ramped up when journalist Alexander Raikin published a piece in the more conservative-leaning journal The New Atlantis providing evidence that euthanasia providers are aware that such cases are more common than many think. Among Raikin’s sources for such a claim were a set of virtual training seminars produced by the Canadian Association of MAID Assessors and Providers, or CAMAP. These seminars advised providers on how to deal with the moral distress of providing MAID to patients who are driven to euthanasia because of poverty or inadequate social supports—in other words, patients who feel they have “no other options.” Raikin chronicled a few such cases in depth. The subjects said things like “I cannot afford to live . . . what do I do? . . . MAID is the only choice I can see for a way out” and “the suffering I experience is mental suffering, not physical. I think if more people cared about me, I might be able to handle the suffering caused by my physical illnesses alone.”
To be sure, with such anecdotal cases, one must be careful about misrepresentation and misinformation, as was the case with the sensationalized story of the Dutch teenager of whom it was widely reported that she had been euthanized after being sexually assaulted—a story, which, it seems, was false. Of course, we would do well not to dismiss the anecdotes either, especially when they come from people who are basically sympathetic with the idea of MAID. For example, a Toronto-based MAID provider named Madeline Li confessed regret over providing euthanasia to a young patient with a 65% chance of cure, saying that she now finds it “maddening that the law itself is missing crucial safeguards for patients.”
The question of safeguards is at the forefront of the current debate about MAID in Canada, which is quickly becoming one of the most permissive policies in the world. MAID was originally legalized in 2016 through the passage of Bill C-14, which allowed for MAID (either self-administered or administered by a medical professional) in cases involving mentally competent adults suffering from an incurable illness whose natural death is “reasonably foreseeable.” Three years later, the Superior Court of Quebec struck down the “reasonably foreseeable” clause as unconstitutional and unjust (Truchon v Attorney General of Canada). In 2021, a new law, Bill C-7, was passed which aimed at further expanding access to MAID. The law removed the existing ten-day waiting period, the requirement to offer palliative care, and the requirement to have two independent witnesses for patients whose death is reasonably foreseeable. It also created a path for patients whose death is not reasonably foreseeable to access MAID if they suffer from a “grievous and irremediable medical condition” that “cannot be relieved under conditions that the patient considers acceptable.” The new law also included a sunset provision, which after two years would expand the definition of “medical condition” to include a diagnosis of mental illness alone. This provision, which was set to come into effect this month, has been delayed until this coming March to allow for more input from an expert panel on MAID and mental illness. In addition to the expansion of access to those suffering from mental illness only, a recent government report recommended that lawmakers revisit the possibility of making MAID available to “mature minors.”
Canada, it seems, is traversing the “conceptual slippery slope” that some have warned about, whereby the twin justifications of assisted dying, namely relief of suffering and respect for autonomy (or “Compassion & Choices”), are played off one another to progressively undermine existing restrictions and safeguards. If autonomy makes MAID a legal right, why must someone demonstrate that they are dying, or that they are suffering in a particular way, in order to access it? If compassion justifies MAID, why should it not be administered to non-competent people who are clearly suffering, including infants with debilitating conditions and the elderly demented? In this light, it is all the more striking that the law in places like my home state of Oregon has not expanded in a similar way since it was instituted in 1997. Indeed, despite sporadic efforts in that direction, the only major change to the law has been the recent expansion of access to non-residents of Oregon.
Statistics reveal that usage of MAID in Canada is growing, though whether one believes it is growing rapidly, steadily, or modestly, probably depends on one’s prior judgments about the ethics of euthanasia and assisted suicide. According to the most recent government report, “MAID deaths accounted for 3.3% of all deaths in Canada in 2021, an increase from 2.5% in 2020 and 2.0% in 2019.” Economist Lyman Stone notes that MAID deaths will very soon outpace all accidental deaths in Canada and is now higher than the general suicide rate (MAID deaths are not counted as suicides under existing protocols). He also notes that the rate of suicide has not been displaced by the increase in MAID deaths, which means that MAID is not primarily providing a gentler option for those who would otherwise commit suicide. Others note the stark disparity between usage in Canada and usage in the United States. For example, despite having nearly equal populations and having legalized MAID in the same year, in the past year in California, 486 people died using the state’s assisted suicide program. In Canada in the same year, 10,064 people (a roughly 20 times higher rate) used MAID to die, even without the expansion of MAID to cases involving mental illness diagnoses.
To be sure, as political scientist Richard Hanania notes, in the last year “about 81% of MAID recipients [in Canada] had received palliative care, and 88% were eligible for it.” At this point, only 230 of these (about 2.2%) were cases involving persons without a terminal diagnosis. Furthermore, Canadians largely support the current MAID policy, though they are less supportive of the proposed changes. This leads some, like Hanania, to claim that the evidence suggests that MAID is in almost all cases being supplied to patients who are in “extreme physical discomfort” and that the rise in cases demonstrates that “the Canadian program is meeting previously ignored demand, and in most other times and places it has been too difficult to end one’s life.”
MAID & The Common Good
How are we to evaluate such a situation morally and ethically? Of course, there are a number of factors we might consider. Those with familiarity of American bioethics are exceedingly familiar with the moral principles of autonomy, beneficence, non-maleficence, and justice. We might ask how we can best weigh and balance the competing principles of autonomy and nonmaleficence. We might ask how to ensure that autonomous choices are, indeed, fully autonomous. We might debate whether the provision of MAID constitutes harm to a patient, or whether refusing to provide MAID to a suffering patient would actually constitute the greater harm. We can ask what fairness requires in the provision of MAID? For example, is it just for a society to allow an inordinate amount of healthcare costs to be directed toward dying patients in the final weeks and days of their life, when the utilization of MAID could make it possible to redirect such funds in a more productive and more widely beneficial manner? Or, rather, should we avoid such a utilitarian calculus because it could put vulnerable populations at risk of being pressured into utilizing MAID?
In a recent newsletter titled “Canadian Euthanasia as Moral Progress,” Richard Hanania makes the following argument:
It is true . . . that some people might feel “pressured” to commit suicide because they don’t want to be burdens on their families or the government. I don’t think there’s anything wrong with this . . . . Since when do we denounce people considering how their actions will affect others? Should a good euthanasia program go out of its way to hide the costs and impacts someone has on the rest of society? . . . [I] believe that it is morally correct to take into account the common good in deciding whether to commit suicide.
Admittedly, Hanania is something of a provocateur, and his position is stated in an unusually stark way. Nevertheless, it does reflect an argument that some hold seriously. In the UK, for example, the prominent philosopher, Baroness Mary Warnock, made a similar argument, supporting MAID by appealing to “the common good,” even suggesting that some elderly people may have a “duty to die.” Hanania stops short of that claim, but it may be implied when he says things like, “If you’re on the fence about killing yourself, the fact that you’re a burden on your family or the wider society should be taken into consideration.” Both Hanania and Warnock reflect the view that MAID is conducive to the common good (both in terms of individual cases and in terms of aggregate effect).
What is The Common Good?
Is this a plausible interpretation and application of the notion of “the common good”? I do not think that it is. To explain why, I will need to spend some time developing an account of “the common good.” So what is “the common good?” Let me begin by explaining a few things that it is not. Charles Dougherty notes that “the common good is a good for all, not a good for each. The common good is something collective, not simply the sum of what is good for each member of the society in a distributive sense.” This means the common good is not the same thing as “the greatest good for the greatest number of people.” It does not refer simply to a utilitarian calculus or cost-benefit analysis, though it certainly considers what may be in the interest of persons in general and in the long run. Because, as will be explained below, the common good is constituted, at least in part, by the relationship of each to all, it is incompatible with any view that would require us to harm some of our fellow citizens when this would generate sufficient gains for others.
The common good is also conceptually distinct from “goods held in common,” though the latter is part of the former. Suppose you and I happen to be standing in a line together with a group of other people on a rainy day, and the two of us, for the moment, happen to find ourselves under an overhang that shields us from the drizzle. We might both appreciate the good this overhang brings for us, but that does not mean that the overhang constitutes our “common good.” Why is that? The reason has to do with the nature of our relationship to one another. At the moment, our relationship is minimally relevant to each of us. As line-standers, we are simply individual subjects going about our private business. An economist like Friedrich Hayek would refer to the group as a “catallaxy,” or a spontaneous order. At present, we have no common objective, no shared activity, and no commitment to the order that constitutes our relationship with one another (that is, to the line itself). If we had these three elements then we would form a genuine “community” or “society” and we could then have a “common good.”
This point suggests why a partnership, though it involves more than a catallaxy, cannot be the basis for the common good. According to Russell Hittinger, “In a partnership, two or more people deliberately and explicitly make a contract with respect to mutually agreeable ends while laying claim to their private shares and yields.” At the level of a mere partnership, what matters is that each gets what she wants and deserves from the relationship, but the relationship itself is in some ways beside the point.
We may contrast this with a community or society (in the more Aristotelian sense) in two ways. First, the community is involved in a sustained process of “communication” about the nature of the community itself and the goods at which it aims as a community. Waheed Hussain calls this a “shared standpoint for practical reasoning . . . a way of thinking and acting that constitutes the appropriate form of mutual concern among members.” Or, as theologian Oliver O’Donovan puts it, “‘the’ common good is the good of the community of communicating members, consisting in their capacity to realize fulfillment through living together.” This means that political deliberation about what sort of community or society we want to be is central to the task of discerning the common good.
The second thing to note is that solidarity is the central virtue of those who stand in relation to one another in a true community. Solidarity means a commitment to both the good of the other and the good of the other. On the one hand, that means taking into consideration the interests of others in an analogous way that one takes one’s own interests into consideration. This means an attack on another is something of an attack on myself; indeed, the whole community considers a threat to any individual member as if this were a threat to every member.
On the other hand, solidarity entails desiring the good of the other, meaning it involves a commitment to the good that person simply is. This, of course, presupposes that the person’s existence constitutes a “good” as such. In the Aristotelian tradition, this is rooted in the presupposition of the social nature of human beings. Christian and other religious traditions add to this a claim about the fundamental dignity of human persons and the ideal of neighbor-love. But the virtue of solidarity is by no means a specifically religious virtue.
Is There a Common Good in Medicine & Public Bioethics?
Given the various conditions just outlined, we might understandably ask whether such a good exists or can exist. I want to briefly consider the question from the perspective of medicine and then from the perspective of law. What I want to suggest as an answer is something like, “It depends on how you look at it,” which is, admittedly, not a very solid answer, but which I think points to something significant about the common good: namely, that it is an act of moral imagination.
When it comes to medicine, the common good is challenged on many fronts. Increasing pluralism and diversity presents challenges to maintaining consensus about the nature of the goods properly sought through medicine. This sometimes leads to a form of moral agnosticism that puts aside the question of the “good” in favor of procedural concerns and a deference to patient autonomy. In some ways this is appropriate. Doctors should not unilaterally impose their values on patients. Paternalism is a bad philosophy of medicine. And yet, an a-moral approach to medicine can more easily become captive to an individualistic, competitive consumer culture that increasingly pervades American (and presumably Canadian) life. Philosopher Daniel Callahan notes how a commitment to non-interference and privacy rights can also limit freedom by creating its own culture—one of perpetual choice. This sort of culture may seem liberating (and in many ways it is), but we must also acknowledge that it means that we increasingly live in what Michael Sandel calls a “market society . . . a way of life in which market values seep into every aspect of human endeavor . . . where social relations are made over in the image of the market.” Of course, markets are not always bad. They are useful for coordinating interests and creating efficiencies. But “market rationality” can also undermine certain types of relationships and the virtues necessary to sustain them.
Here we might ask, what kind of relationship is the medical relationship? This is a contested question today. Farr Curlin (a palliative care physician) and Christopher Tollefsen (a philosopher) have recently suggested that the profession of medicine is caught between two basic and incompatible paradigms. According to
the provider-of-services model, medicine comprises a set of technical skills that are to be put to work to maximize patient well-being. In our consumerist environment, patient well-being is a subjective norm understood principally in terms of satisfying the patient’s wishes. Healthcare workers provide the services that patients need to bring about the states of affairs they desire. For the provider-of-services model, if an intervention is permitted by law, technologically possible, and autonomously desired by the patient, then medical practitioners should provide the intervention.
The authors contrast this with what they call, for lack of a better term, “the Way of Medicine.” Under this paradigm, “the good physician orients her practice centrally around the good of health, objectively understood, pursuing it in ways that are accountable to the broader demands of reason, and steadfastly refusing to intentionally damage or destroy health in any human being.”
The provider-of-services model involves what we may call a partnership of exchange. Partnerships can be good and useful, but the primary goods of this partnership are the private goods each party is independently seeking from the relationship. This is no doubt how patients often approach the relationship, and for understandable reasons. When doctor and patient meet as strangers in a context of unequal power dynamics, and when mutual trust cannot be presupposed, then the language of exchange and contract may be better, it is thought, for protecting each individual’s interests.
It may be how some healthcare practitioners understand their own participation (and, indeed, the language of “provider” increasingly predominates in medical circles). Many, however, would balk at the idea that they are involved in a mere partnership. Many in healthcare have a sense that they are, or at least should be, committed to the patient herself in ways that transcend their own private interest. This points to the continued power of the second model mentioned. The relationship in that model goes beyond a partnership and more toward what Aristotle called friendship, but what I have been calling a “true society” or “community.” Especially in its Hippocratic form and its promise not to use medicine to harm, the doctor-patient relationship involved a covenantal commitment to the patient herself.
If what we said above is correct, then the answer to the question of whether there is a common good in medicine depends on how one sees the nature of the medical relationship. The further one moves from a provider-of-services model toward a “way of medicine” model, the more grounds one will find for pursuing the common good with one’s patient. Of course, we should recognize that the healthcare relationship goes beyond one-on-one. It often involves a healthcare team including multiple doctors, nurses, social workers, and chaplains. It often involves patients’ family members, friends, and significant others. It even involves hospital administrators and others who maintain the institutions of medicine. When all are oriented around the commitment to the patient and his health, then the common good names all that is required to sustain that pursuit, including the virtue of solidarity and the task of ongoing communication about what good medicine does and does not involve in the particular situation.
Of course, all those named in the previous discussion are also members of other communities, including the broader community of fellow citizens. Unfortunately, in many ways the laws in this country do not seem to presuppose a political community or to reflect an orientation to the common good. In his extended analysis of American public bioethics, legal scholar Carter Snead argues that American jurisprudence is based on an anthropology of “expressive individualism,” in which “there are no unchosen obligations, relationships are instrumental and transactional, and natural givens offer no guidance for understanding or negotiating the world.” The rights and privileges offered by the law at the end of life—primarily the right to refuse treatment, and in the case of MAID, to bring about the end of one’s life—are “suited to atomized individual wills who inhabit a world of strife. They are limited weapons and tools of rational mastery fit for a lonely, disembodied self to defend and pursue its interests.” In other words, the law treats all relationships as “partnerships” at best. As an alternative to this, Snead proposes what we might call a “common good public bioethics,” marked by a recognition of something like friendship and grounded in the virtue of solidarity. The law, according to Snead, should “help create, support, and protect the networks of giving and receiving on which we all depend in our vulnerability as embodied beings in time. It should encourage the goods, virtues, and practices that sustain these networks . . . and where such networks fail or are altogether absent, the law must intervene to protect the vulnerable from exploitation and harm, and from the temptation to harm others or even themselves in pursuit of their own desires and interests.”
How could we move in this direction? Snead suggests that we must “reorient our thinking toward the meaning and consequences of our individual and shared lives as bodies in time.” I imagine some readers might be thinking this is precisely what MAID legislation is intended to do, to attend to the physical and mental suffering that arises as vulnerable bodies decline. For its proponents, MAID is seen as a form and expression of solidarity to the suffering other, a refusal to abandon that person to his or her pain. Hence, in Belgium, where euthanasia has become embedded in palliative care, the term “euthanasia accompaniment” is used to describe part of the daily work of palliative care professionals.
There are reasons to question whether this is the best description. For one, intractable physical suffering is not a major driver of MAID. In most cases, palliative medicine can effectively control physical pain. Statistics show that only about 25% of respondents seek MAID because of “inadequate pain control or concerns about it,” whereas over 90% are motivated by concerns about “losing autonomy.” Over half also indicated that they perceived themselves as a burden to family and friends. In addition to this, treatable depression is highly correlated with the desire to end one’s life, and studies suggest that for cancer patients, treatable depression is “the major risk factor” for suicidality. According to Snead, “such patients ‘were four times more likely to have a desire for hastened death, compared with those patients without depression.” Nevertheless, of patients receiving prescriptions under Oregon’s Death With Dignity Law, less than 1% (.69%) had been referred for psychiatric assessment, despite the fact that rates of treatable depression are much higher than this in these populations. It seems to me that the more likely driver of MAID is the subtle belief among patients that it is best to be independent and self-sufficient, that it is undignified and shameful to become a recipient of care, and a tacit agreement on the part of everyone else that when one faces such things it makes sense to be depressed about it, so the treatment of depression is not necessary to make the choice for MAID is rational.
Solidarity and a Common Good Bioethics
There is another way to understand the human condition. Under this alternative conception, human beings are not first atomized wills contracting to live and work together toward private ends. Rather they are always already born into relationships of interdependency and care, enmeshed socially in communities that are necessary for the achievement of human goods. In these communities each has a part to play, no matter where one falls on the spectrum of strength or autonomy. According to physician Matthew Loftus,
In contrast to the regnant ideal of autonomy as the norm for human existence, we must recognize that each of us is a living body “whose natural history has a trajectory,” as Gilbert Meilaender has put it. Human beings are born in total dependence, grow in strength and autonomy, and then decline before death, often reaching a point where their autonomy is attenuated or absent and dependence on others is crucial to survival. This “arc of life” perspective foregrounds the human body as it is, not the ideal rational, autonomous, non-disabled individual that dominates the social imaginary of medical ethics and decision-making.”
To sustain such a vision of the human being, and to see oneself in friendship and community with the suffering, both of these are acts of moral imagination. It involves a way of seeing that must be cultivated. Especially given the very real challenges of social fragmentation, the lack of adequate healthcare resources, and the constant pressure of the market, it is hard to sustain such a vision. Perhaps the sources of such a vision must come from outside the profession of medicine itself, in more comprehensive moral communities. But it also would involve new ways of thinking about medical training, innovative models of healthcare delivery and financing, and attention to the expressive function of law and practice. We might begin to ask, what does the law say to the person who is most vulnerable about how she should move forward in life? Does it confirm her deepest fears and suspicions about not being worth the care she requires after she has herself stopped being “productive”? When insurance covers MAID but not needed prescription drugs or other services, what does that convey? Does it suggest that dependency is undignified? Does it suggest that pain eradicates the goodness from life?
The question of how best to meet a friend in her pain and suffering is a complicated one. But solidarity suggests it would be better and more fitting not to eliminate the sufferer in the name of eliminating suffering. I am reminded here of the ancient story of Job, that prototypical sufferer. Job experienced total pain. He had immense physical, emotional and spiritual suffering. He had painful boils. He lost his children and much of his wealth. In many ways, he was a shell of his former self. At the beginning of his story, we see two sets of reactions to his condition. One comes from his wife, the other from his friends. His wife, who we must remember has also suffered greatly, exclaims desperately, “Are you still trying to maintain your integrity? Curse God and die!” (Job 2:9). We need not denigrate her, as some commentators do, as an unfaithful and wicked wife. Indeed, she seems to be expressing the very understandable emotions of an agonized caregiver. Nevertheless, her response can be contrasted with the response of Job’s friends. “When three of Job’s friends heard of the tragedy he had suffered, they got together and traveled from their homes to comfort and console him . . . . Wailing loudly, they tore their robes and threw dust into the air over their heads to show their grief. Then they sat on the ground with him for seven days and nights. No one said a word to Job, for they saw that his suffering was too great for words” (Job 2:11–13).
For those who know the story, you know the friends eventually start talking, and when they do they are much less helpful to Job. But, at least initially, they seem to have done something right in expressing solidarity through mere presence. They would rather be present in his pain than see him end his pain by ending his life. This principle has been taken up in Judaism through the practice of “sitting shiva,” or attending to a grieving person for some number of days (between three and seven, usually). This level of solidarity is, of course, too much to ask of healthcare professionals for every patient. But the work of moral imagination to see the common good not as the greatest good for the greatest number, but rather as a commitment to the other, is the work we may all begin, even though we may never completely reach it perfectly.
