Assisted Suicide! Morality and the Law: An insight into the African visa v Western perceptions of assisted suicide

 Mercy killing: Morality, ethics and the law: A comparative analysis of Western and African perceptions of assisted suicide. 

By Lincoln Majogo 

Profile 

Lincoln Majogo is a law student currently studying at the University of Zimbabwe. He has written and published 2 novels to his name, one titled MUTSA and another tiled The Mirror, Suicide Note and Other short stories.

Contact details 

Telephone, Whatsapp//0773 785 283

Email address: LincMajogo1@gmail.com

Twitter handle: @LincolnMajogo

ABSTRACT 

The paper will critically examine the conceptions of euthanasia as understood in Africa visa v the perceptions of the Western countries. For this analysis, reliance will be placed upon contributions from F.Mangena, E.Chitando, Stanlike Samukange, Maduka Enyimba who have covered extensively the African perceptions of Euthanasia. On the other side of the coin, the paper will also rely on contributions from various judgments in the U.K, U.S.A, persuasive scholarly writings, Immanuel Kant and Stuart Mill, who have influenced Western perceptions of mercy killing. The article will begin by examining the definitions as perceived by both camps, after which the paper will set out the context and background of the issue.  A critical but brief overview of the experiences of euthanasia drawing examples from UK, Netherlands, U.S.A and Zimbabwe will be made. Next, the paper will focus on African perception of euthanasia, followed by the western approach, then public policy and finally the conclusion and references.

Introduction 

Imagine being a parent of a child who is born with no brains, is terminally ill, and has been in the intensive care unit with clear signs of suffering from a disease the experts have ruled incurable. On one hand, your love of your child keeps you with a thought of persisting with every possible treatment regardless of the doctors ruling your child will die. You hope they will recover, that they will fight against odds yet the pain and suffering of this minor child who can’t communicate continues every day. On the other hand your love for the child compels you to listen to the doctor’s advice and free them from the suffering and give them a peaceful rest, free from the torture. You stop to think; what really is in the best interests of my child? 

Or imagine being a mother of an adult child diagnosed with a severe disease to which no cure exists. The adult child, whom doctors presume at most can survive for a year and having endured 6 months of excruciating  pain and anxiety every single day of his life with the treatments and needles, communicates  his desire to end his life. As a mother, you can’t bear the pain of letting go your loved one yet as a mother you can’t bear to continue seeing your child in such pain. No doubt this is a very difficult decision to make but it has to be made! Moreso it raises ethical and philosophical questions over the right to life and when it should be taken from a person and who should institute this decision.

Euthanasia has been defined as originating from the Greek word eu-thanatos which translates to good death (Enyima; Odey 2019). Euthanasia has thus been worded to mean the deliberate killing of a person suffering from an illness believed to be terminal out of mercy (Enyima, Odey2019). This form of killing has referred to as mercy killing in simplistic terms. Euthanasia can be categorized into various forms these being passive, involuntary and voluntary forms. Active form of euthanasia occurs as a result of someone performing an act such an injection of a lethal drug (DVK Chao), passive results from the omission of an act such as withdrawal of treatment to a patient. 

Involuntary euthanasia involves withholding medical treatment for e.g. removing life support or ventilators from the patient which technically amounts to letting the patient die without their consent. Non voluntary occurs when a patient is not competent enough to make decisions of their own such as a mentally incapacitated person or a child born with severe congenial abnormalities (DVK Chao). Voluntary euthanasia involves the informed consent of the patient and involuntary occurs where the patient is incapacitated and their relatives, the doctors and the state become the decision makers. Another form of euthanasia is called a physician assisted suicide where a physician provides the means by which a patient can end their life. The northern territory of Australia was the first place where physician assisted suicide had ever been legal until the passing of the Rights of the Terminally ill Bill was overturned in 1997.

It can be seen that there exists various forms of euthanasia depending on the circumstances of the case. In Africa, euthanasia is generally illegal and in Zimbabwe it is criminalized under section 50 of the Criminal Law Code. Around the world, countries like Switzerland, Belgium, Netherlands, Luxembourg, India, Columbia, Mexico and Ireland allow lawful euthanasia. In the U.S.A the states of Oregon, Washington, Montana and Vermont have stopped the practice of legal euthanasia. (Enyima,Odey).  The issue touches not only on religious dogmas of existing societies but also ethical and cultural beliefs which we shall examine.

Experiences all over the world (UK, Netherlands, USA, Zimbabwe)

The experiences over the world of euthanasia differ with society and literatures existing in those societies. For the purposes of context this work is limited to the period from 1930 till date. The Voluntary Euthanasia Society (Exit), founded in 1935 in the UK is the first publicly acknowledged euthanasia society in the world that campaigned for the legalization of abortion. The issue led to a series of public debates on the matter with the House of Lords rejecting the bill that intended to legalize euthanasia the next year(Emmanuel EJ 1994). In 1939 the Nazis began a euthanasia programme in which an estimated 70 000 psychiatric patients fell victim through gassing and poisoning(Ernst 1996). 

Netherlands

The rejection of the bill in the UK did not stop the matter from spreading to other parts of the continent where public discussions were held to determine legislating euthanasia for instance in the Netherlands and Australia. Up to date, the Netherlands is the only country where euthanasia and physician assisted suicide is practiced openly. The only requirement for physician is that they practice euthanasia in accordance with formal regulation(Van de Wal 1994), failure of which criminal sanctions follow. In 1984, the Royal Medical Dutch Association stated that physicians performing euthanasia and assisted suicide would not be prosecuted  if they met the following requirements, i) The request by the patient must be voluntary, durable and persistent, ii) the patient was fully informed about the medical condition and the prognosis and there was no other alternative treatment, iii) the patient had unbearing suffering and the physician consulted with another physician. A lot of debates have been ongoing on the issue.

 

U.S.A 

In other countries for instance the USA, withholding and withdrawing life sustaining treatment was the main focus in the discussion in the 70s and 80s(DVK). (DVK Chao tells a case in 1975 surfaces involving Karen Ann Quinla, a 21 year old woman that went into a comma and had been put on a ventilator for breathing. Due to the persistent vegetative state(a chronic state of brain dysfunction in which a person shows no signs of awareness), the family members began to request the removal of the ventilator support. Eventually, the court decided that if there was no chance of Karen ever becoming conscious, the life support system could be removed. 

In  the 1980s, 35 states and the District of Columbia passed the Natural Deaths Act which recognized the legality of living will which allowed a person to specify what treatment they want to receive given a terminal condition(Backer AC). In 1988 another case involving Nancy Cruzan was heard by the court. In this case a young lady was in a persistent vegetative state for 4 years in which her life was maintained by artificial hydration and nutrition. The Supreme Court in the US whilst ruling that there has been no conclusive evidence to allow for discontinuance of medical treatment also held that individual states could not ignore the expressed wishes of a patient when satisfactory evidence was produced. On 27 October 1997, the Oregon Death and Dignity Act became law to legalize physician assisted suicide (DVK). Two years later on  27 October 1999 the House of Representatives voted to amend this Act to make it a federal crime for doctors to prescribe drugs for medically ill patients to end their lives thus ending the practice of physician assisted suicide in Oregon.

 

Zimbabwe 

There has been a suggestion that the act of euthanasia has existed amongst the Zimbabwean shona society under a different name. An interview carried out with a one sekuru Karevo (82) confirmed these findings in which the old man narrates how an older man would get into the room of a terminally ill person as if to assess his or her condition and strangle him or her to death, after which he would close his or her eyes and mouth (Karevo 2013). The announcement would follow that the patient is dead and the rationales of doing this was to assist the terminally ill patient that had endured so much pain to rest.

Mawere also cites circumstances where mercy killing occurred to save the patient from suffering or to fix a social problem such as isolating those with leprosy. The following quote further supports this position ‘during the times of famine, families would choose to starve to death those who were advanced in age in order to save children. in times of war, families would run away from their enemies but because of the extended nature of most traditional families it was difficult to run away as a group so it was common practice to run away leaving behind those who were advanced in age and they would die as a of fatigue or attack by enemies(Murarike 2013). 

It seems whilst the concept may be relatively the same, the definitions captured by the authors appear to be quite broad but nevertheless reflective of some dissenting African views on the mainstream assertion that mercy killing is intolerable in Africa.

Afrocentric perception of euthanasia.

The perception of mercy killing is largely defined in the context of the state having a paternalistic role in determining moral issues of society. Ubuntu a term defined by Desmond Tutu as being open and available to others affirming others having a proper self assurance is usually attached to the issue. This notion can be aptly captured in these words of an African writer “to be human is to affirm ones humanity by recognizing the humanity of others and on that basis, establish respectful relations”. 

The right to life from this camp of philosophy is viewed as the most important right in which no man can alienate. In respect of euthanasia the authors asserts that  if and when one is faced with a decisive choice between wealth and the preservation of life of another human being, then one should opt for the preservation of human life. This position largely draws its influence from the fact that he African perception of a person is tied to family and the community thus in most cases, it is the relatives that bear the shared responsibility of taking care of a sick member of the family. 

 The logic behind is that the rights can only be limited if their exercise cause harm to others as per the social contract theory by John Locke. In this essence the exercise of the patient’s right to terminate his life hurts (emotional and psychological harm) those that remain inside the realm of life and as such right in these circumstances is limited lawfully. It is not the subject of the essay to define what harm to others involve whether psychological and emotional are legal grounds of harm that justify limiting ones liberty to end his life.

 This traditionalistic view is confirmed by what is terms umuthu which literally translates to “your neighbor’s child is your own, his or her own success is yours too”. 

A shona maxim is as equally important in deciphering this philosophy. The maxim reads “hama haipihwi munhu” meaning you cannot give away or wish away your relative, worse still through death (Hofisi 2017).

From this view, a few things are worth denoting. Firstly, the decision rests primarily with society, community and the state and not the patient. This is confirmed by the theory of Utilitariasm which is doctrine that believes in passing decisions that maximize the greatest good for the majority affected by a decision or an act (Mojofela). This doctrine supports the ubuntu view that the community is an equally interested party in deciding whether or not a terminally ill patient should be allowed to die regardless of their personal decision. Since the majority (community) is interested in that there are directly ‘hurt’ by the passing of their loved one, they rest with the decision to allow this harm to occur. This theory emanates from the view that the end justifies the means (Mojofela). Thus the mantra of this perception is “that which produces the best results of those involved is the only right choice.” Thus if community is happy by keeping the patient alive, their decision overrides the patients.

Secondly, it is the majority that should be made happy by the end result in voluntary euthanasia. This largely creates a moral dilemma in which the sick patient is left to suffer and experience excruciating pain simply to please their relatives. The happiness of a patient that comes from his freedom to finally relive himself from his pain is subjected to the happiness of the community. But another moral dimension that surfaces from this view is the right to the individual’s liberty to do as he pleases with his body including being the ultimate decider in matters affecting their death and the manner in which they want to die.

Thirdly, from the approach it can be said that doctor’s expertise in non voluntary euthanasia is overridden by the relatives desires which also brings another moral dilemma of who amongst these two parties has the best interests of the patient at heart. A doctor, well trained will of-course have developed a relationship with the patient which might cause them to be conflicted. Added to that, there is a possibility of a doctor calling for euthanasia simply because they have grown frustrated of attending to this same un-recovering patient. From that angle, one can speculate some justifications for allowing relatives who have cared for this patient to blow the final whistle. 

On the other hand, the preceding view is problematic in that relatives/the community are lay persons with a scratchy and surface understanding and appreciation of the pain one experiences when there are terminally ill thus it creates a problem where the patient who is going through tremendous pain is allowed to continue with this cycle simply because their relatives under look the level of pain they are going through. This constitutes a violation of the patient’s fundamental right to freedom from psychological integrity and dignity which includes freedom from such pain. 

Also, the relatives being deeply conflicted may make decisions based on their emotions of love and not wanting to let the patient die whereas a doctor being a professional is less conflicted to make such decision. 

A view adopted in  the research into euthanasia by Maduka Enymba is best captured in the abstract as follows “We argue that within Africa, terminally ill persons are in useful in the community in the sense that their condition provides the family members an opportunity to show how hey care for them”(Maduka Eyimba at 50). The authors proceed to hold that keeping the patient alive allows for doctors to discover more medicines. 

Both presuppositions entirely ignore the idea of individual autonomy i.e. the inherent and inalienable right of a person to make decisions affecting their life and their body protected under various constitutional and international conventions most African countries are signatories to. The second presumption loosely interpreted means sick patients are used for experiments without their “consent”.  The above approach reinforces and ring-fences the notion that the ultimate decision lies not with the individual from this camp of philosophy.

This approach is also buttressed by religious dogmas within the African context.  The Roman Catholic church for instance  in the Roman Catholic Declaration on Procured Abortion has held that accelerating death even in cases where death is foreseen is regarded as murder”(in Flannery 1981, No 1). No doubt this issue is often met with slippery slope arguments in which it is usually said allowing euthanasia is killing which is prohibited by “God” in Exodus 20:13 which reads  “thall shall not kill”. 

This is a general view shared amongst conservative Christians in Africa. The view is supplemented by the view that God as the creator of life has the ultimate decision to take it thus it is viewed from this premise allowing mercy killing is disobeying the commands of “God”. 

The problem with this view can be best summed up by (Brazier) as follows: “if l profess to believe that life is sacred and ends at Gods command not mine that belief mandates that I may neither seek my own death nor hasten another’s. That faith it might be argued, no more entitles me to enforce that belief on others than it would justify me in compelling non believing neighbors to attend Holy Communion to “save their souls”. Another problem with the religious view being the basis of interpreting constitutional provisions such as the right to life is that it exempts non followers of that religion from the application of the law hence legally justified reasons and grounds are the best form of cementing these arguments

Closely linked to the religious views of African societies, is the general traditional beliefs existing particularly in Zimbabwe. A case can be made during Mandela’s last days.

Mangena reports that The Daily News of July 5, 2013 carried a story on its second page titled: “Family advised to turn off Mandela’s life support” the doctors treating Nelson Mandela said he was in a permanent vegetative state and the story further claims that “Rather than prolonging his life, the Mandela family is exploring this option as a very real probability”.

Claude Murarike, a prominent Zimbabwean sociologist made the following remarks regarding Mandela’s case “harboring such feelings, as the Mandela family did is tantamount to kuroya (witchcraft). The mere thought of entertaining the idea of allowing doctors to turn off Mandela’s life support machine is in itself a failure to appreciate African values life (Murauke 2013).

Murauka (2013) went further to argue that Africans, particularly the Shona consider kuroya (witchcraft) as one of the worst evils on earth and that it is as good as murder itself. He further posited that Africans value life because they are afraid of menacing ngozi (avenging spirits) which may come back to haunt them in the long run.

From this perception the right to life is absolute and cannot be limited by any circumstance. Mawere, in support of the fact that the shona people are against euthanasia posits the following “usarasa chirimumaoko nekuombera” meaning do not lose what is already in your hands by clapping”. The interpretation Mawere gives is that a patient should be contented with the life he or she has, as no one knows what the future holds or whether there is another life behind the grave.

Mangena notes the slippery slope argument developed from this view through the citing of J.G Williams by Mawere who also posits the follows ‘if a person who is apparently hopelessly ill may be allowed to take his own life, then he may be permitted to deputize others to do it for him should he no longer be able to act….this may incline other people to act on behalf of other patients who have not authorized them to exercise their judgment”. The argument is faulty in that there simply is no evidence to corroborate these claims. 

Western perception

The western perception particularly in the U.S.A and U.K is largely based on the individual’s autonomy as he is ultimate maker of decisions about their life.  The perceptions are influenced by a number of philosophers’ worth taking note of. This is largely as recognition of one’s fundamental and sacred constitutional right to liberty, privacy and human dignity. Thus the patient’s right of freedom from pain; torture is one of the most important considerations in the USA. 

A plethora of worthwhile decisions are worth noting with regards to an adults choice and right to terminate their life. Justice Schloendolf in a famous case held that every human being of adult years and sound mind has the right to determine what should be done with his own body (Schloendolf 1914). 

This is supported by John Stuarts Mill view on individual autonomy where he asserts “over his mind and body, every individual is sovereign (Mill, 2002). The preceding view is further supported by what is termed the ‘right to be left alone’ and personal privacy which strongly contends  that if the individual does not want treatment regardless of it being in their best interests, their decision is the ultimate say. From this angle it can be seen that the western approach is the fundamental respect for an individual’s right (adults) to have the ultimate say in the matter affecting their life. 

The general guideline in the UK is that “decision makers must look at the patients welfare in the widest sense, not just medical but social and psychological, they must consider the nature of the medical treatment in questions, what it involves and its prospects of success: they must consider what the outcomes of treatment for the patient is likely to be and they must try and put themselves in the place of an individual patient’ (Airedale)

A persuasive assertion to support the above view reads “to be forced to continue living a life that one deems intolerable when there are doctors who are willing either to end one’s life or to assist one in ending one’s life is an unspeakable  violation of an individual’s freedom to live and die as he or she sees fit” (Banatar 2011). 

This proposition is buttressed by the aphorism by Rene Descartes ‘I think therefore I am” thus this is an issue of the inalienable right to personal liberty. Immanuel Kent, the deontologist and student of self legislative will held a view that what matters to render an action right is good will and good intention (Kant 1986). This in a simplified version could lead to a slippery slope argument but the authors premise is that humans are endowed with the right of free will to do as they please in this case with their life and body. 

To add on (Brazier) posits that the logic of acknowledging ones right to an autonomous choice to be killed is that legislation need do no more than ensure a means of obtaining unequivocal evidence of one’s free and  informed choice and should ascertain if this request is persistent.

The problem with the concept of free will and choice in voluntary euthanasia is that there has to exists variances from which one can pick from. If hospice care is not available for all terminally ill patients, if standards of palliative care can vary, are they any options available?(Brazier) Patients in the Netherlands for instance are said to have died without their express consent(Brazier). In some cases others have expressed their desires to die not out free will but simply out of fear of burdening their families(Brazier). 

On national policy grounds Brazier  points out that if painless death is an option of the terminally ill, would public health authorities purchase expensive palliative care for their patients? She continues further and asks:  Will private insurance cover the cost of dying slowly for increasing numbers of sick and elderly patients?

Involuntary euthanasia has also sparked questions of who ultimately decides if a minors life should be terminated and what criteria should be used. It seems the western philosophy in cases of terminally ill infants has been to lean towards the “bests interests on the child” which is usually determined by a judge after considering unassailable medical evidence from doctors.  A good case to illustrate this position involved an  infant known as C  who was born with an exceptionally severe degree of hydrocephalus, was blind and deaf and became unable to feed naturally. The English Court of Appeal held that there was no mandatory obligation to resort to nasogastric or intravenous feeding(In Re C). The medical evidence was that the child would not survive more than a few more weeks whatever was done for her. The professional’s duty was to alleviate her suffering by all means short of actively ending her life (Brazier).

 A more recent case that drew sympathy from all over the globe involved Charlie Gard, a British 9 month old infant who had been in the Intensive Care Unit at London’s Great Ormond street for more than 6 months after having been treated for a rare genetic condition called cephalomyopathic mitochondrial DNA depletion syndrome (JJ Paris). The parents finally agreed to allow doctors to terminate the infant’s life after unsuccessful appeals in the Supreme Court to overturn the decision which had decided to end the Charlie’s life. Although the parents of Charlie Gard has initially opted  to take their son to the United States of America for treatment, their final decision to abide by the decision of the court was largely influenced by the parents desire to have their dear child rest from the chronic pain and suffering. This scenario classically captures the moral dilemma with involuntary euthanasia in that who should make this decision to terminate a minor’s child. The Court or the natural guardian of the minor?

Other cases involved the case of Baby K, a baby born without a brain and Jah Maccath a case where the court has ruled a child to be legally dead. 

The story does not end there! Another worthwile case in the United States involved Tinslee, who suffered from  a rare heart defect known as Ebsteins anomaly, chronic lung disease and acute systolic heart failure. In the words of the doctors the patient experienced dying events that require aggressive intervention 2 or 3 times a day. She has been in the cardiac ICU for months (Marisa 2020).

The Infants Heath care team  at Cock Children’s Medical Centre had this to say concerning the status of the patient “every medical procedure it performs on her causes only more suffering and that she be allowed to dire naturally and peacefully(Marisa 2020). Jay Duncan, one of the doctors corroborated this view in the following words “she’s in pain. Changing a diaper causes pain. Suctioning her breathing tube causes pain. Being on the ventilator causes pain”

The judge in the matter held they have been convinced by research that irrefutably proved the infant was in great amount of pain and thus he felt he needed to relive him.  

All this evidence reflecting that involuntary euthanasia in minor cases has largely been decided “in the best interests of the child”. The logic stems from the fact that for instance a child without a brain will not perform the vital functions required for a person to enjoy the fruits of life through its various activities. The fact that this child will not be able to speak, run, breathe , eat on its own etc are the usual factors that the weighs in favor of ending a Childs life and relieving them off the pain and suffering. But again, how is death in the best interest of anyone?

Public policy!

The overall view to disallow euthanasia cannot be faulted especially where evidence exists in euthanasia practicing countries of misuse of this law by physicians resulting in the death of patients. A case in the 1990’s involved Dr Jack Kevorkian who assisted a patient with Alzheimer’s disease to commit suicide in Michigan in 1990. It is reported he made claims of having assisted over 100 deaths. He escalated his practice from assisting suicide to direct killing in the case of Thoma Youk, a patient suffering from amyotrophic  lateral selerosis. A video showing his action was broadcast live on Television leading to his arrest and conviction on the charges of second degree murder leading to imprisonment in 1999(Cordner).

In the UK for example, a select committee on Medical Ethics was set up to reconsider the subject of euthanasia after the Tony Bland and Nigel Cox cases in the early 1990s(Cordner). In the Nigel Cox case, Nigel Cox, a rheumatologist was involved in the death of a 70 year old lady suffering from rheumatoid arthritis with severe complications. As her pain was intractable, Dr Cox administered a lethal injection of potassium chloride resulting in her death(Cordner). He was found guilty by the Winchester Crown Court with the Professional Conduct Committee describing the conduct as unlawful and wholly outwith the doctors professional duty to be patient. The court however expressed profound sympathy to his situation and declined to suspend his registration or take further action against him.

Furthermore the Nazi euthanasia programe which claimed thousands of Jews in the Second World War is yet another clear case where such law may lead to slippery slope abuse by politicians to eliminate the racially unwanted(Ernest 1996).

Such possibilities exist and as DVK rightly points out if a physician could save a life and on the other hand, could end a life it would create ambiguity in the duty of the physician. This would undermine the patients trust in doctors and would in turn erode the medical profession. Thus the standing in most African systems is largely influence by the utmost trust in the profession and this profound belief in the sanctity of life.

Conclusion 

From the ongoing discussion it can be seen that the western approach is quite different from the Afro centric one in that in the western perspective the doctors opinion and research are heavily relied on whereas in afro centric perspective the morality of the act is the determining factor.

The second difference to note is the weight given to ones wishes. In the afro centric view, ones wishes cannot be allowed if they hurt the majority of the community and in the western perspective the wishes on one are absolute stemming from the fact that he is the owner of his life, granted free will to make a decision as he so pleases with his body.

Also it can be seen that the approach in western countries is guided largely by scientific evidence and religion has very limited scope in interpreting national law whereas in Africa, a lot of the issues surrounding mercy killing emanates from religious and traditional beliefs of the dominant religious sector of society.

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