CHAPTER FIVE

HENKJOCHEMSEN

WHY EUTHANASIA SHOULD NOT BE LEGALIZED

A Reflection on the Dutch Experiment

The experience of the Netherlands continues to be cited as illustrative of the

euthanasia debate that is going on in many countries. The parliamentary debates on
the legalization of euthanasia (November 2000 in the Second Chamber and April
2001 First Chamber) have drawn a lot of international attention. But, before this
legalization in the Penal Code this country had adopted a legal regulation of
euthanasia and, before and after that, extensive surveys into the practice of
euthanasia had been carried out. The fact that the Dutch example is cited both by
those who favor the legislation of euthanasia and those who reject it demonstrates
that empirical data in themselves do not settle an ethical or juridical issue.
In this chapter I will argue against legalization of euthanasia, largely on the basis
of the Dutch experience. I will follow two approaches: a juridical and an ethical. The
juridical argument is based upon the assumption that any form of legal regulation of
euthanasia is only acceptable if it would guarantee that the state, i.e. legal
authorities, would in principle be able to assess each case. 1 The crucial question is
whether the Dutch have succeeded in establishing a regulation of euthanasia that
permits its application in individual cases under certain conditions, while at the same
time maintaining a strict control of the practice as a whole. This paper will analyze
the available data on Dutch euthanasia practice in the light of that question.
The ethical approach will discuss a number of medical ethical and social ethical
problems that are raised by a legal regulation of euthanasia.
This chapter is divided into the following sections. Section two contains the
clarification of some concepts that play a crucial role in the euthanasia debate.
Section three presents information on the regulation and the practice of euthanasia
and considers whether the requirements are followed. Section four discusses new
developments after the publication of the second main survey (1996), considering
the question whether they involve an improvement of the situation. In section five
the ethical approach against (legalization of) euthanasia is presented. Section six
provides the conclusion of the chapter.

D.N. Weisstub, D.C. Thomasma, S. Gauthier & G.F. Tomossy (eds.), Aging: Decisions at the End of Life,
67-90.
© 2001 Kluwer Academic Publishers.
68 JOCHEMSEN

CLARIFICA nON OF CONCEPTS

In the Netherlands euthanasia is narrowly defined as "the intentional shortening of a
patient's life at the patient's explicit request." In other words "euthanasia" is defined
to mean only "active, voluntary euthanasia" and does not include intentional life-
shortening by omission ("so-called passive euthanasia") or euthanasia without the
patient's request (whether "non voluntary" if the patient is incompetent or "involun-
tary" if the patient is competent). For ease of exposition, I will follow the Dutch
definition. Apart from the request of the patient this definition of euthanasia, as well
as most others, contains two crucial elements. First, that the shortening of life, in
other words the death of the patient, is intended, that is wanted, if not as an end in
itself at least as a means to an end (ordinarily the ending of suffering). Second, that
this intention leads the person to an action that he would not otherwise have
performed and that, indeed, aims at the shortening of the patient's life. Hence, in my
opinion euthanasia is not solely defined by the particular intention to shorten life.
For this would mean that medical care informed by the acceptance that the patient
will die and that is provided by a physician who personally feels that for the patient
it would be desirable to die soon, could hardly be distinguished from euthanasia,
whereas it could be normal medical treatment. Nor is euthanasia defined only by a
shortening effect on the life of the patient. That would bring any course of action
that would not maximally extend the life of the patient under the definition of
euthanasia. This would either lead to an inhuman medicine that would essentially
aim at the prolongation of the physical life of patients, or broaden the meaning of the
term euthanasia to the extent of becoming virtually meaningless.
The important elements of the definition of euthanasia can be clarified further by
discussing the differences between euthanasia and other actions of physicians that
may seem to be euthanasia but are not. It has been agreed in the Netherlands that the
following three categories of actions should not be considered as euthanasia (Leenen
1989,520):
• stopping or not beginning a treatment at the request of the patient;
• withholding a treatment that is medically useless;
• pain and symptom treatment with the possible side-effect of shortening
life.
These courses of action will briefly be discussed.
a) On the basis of the rule of informed consent, the patient is entitled to refuse
treatment or to withdraw consent. When the physician respects the refusal of
treatment of a fully competent patient and the patient dies soon after the withdrawal
of life-supporting treatment, this is not to be classified as euthanasia. This does not
mean that such situations cannot become at least ambiguous. In the first place
because decisions of patients are often very much influenced by the information that
the physician provides on the burden of the possible treatment, its prognosis etc.,
and by the way in which this information is provided. Hence, the performance of the
physician can provoke the refusal of a medically useful treatment when in the
opinion of the physician it would be better for the patient if he were "allowed to