THE 14TH SINGAPORE LAW REVIEW LECTURE TERMINATION OF NON-VIABLE LIFE1

Published date01 December 2001
Date01 December 2001
Citation(2001) 13 SAcLJ 267
AuthorCHOO HAN TECK
INTRODUCTION

Death.2 Tolstoy’s Ivan Ilyich3 illustrates how fearful and unprepared we can be when death announces itself to us,4 but Epicurus exemplified courage when he said, “How shall I fear death? Where I am, death is not; where death is, I am not.”5 Some like Michel De Montaigne,6 the French philosopher, pray that death will find them planting their cabbages.7 When the time comes, some of us will, no doubt, go gracefully and quietly; some will go, as we came, kicking and screaming.

The promise of death is what makes life precious; but the primal question is whether life is sacred. The object of this lecture is to examine that old question concerning the sanctity of life and how it features in the great debates over the legality and morality of terminating a life no longer

deemed viable.8 That question is relevant in cases concerning abortion, the termination of life support in terminally ill patients,9 physician-assisted suicides,10 euthanasia, as well as the resuscitation of patients who have collapsed and would otherwise have died. The secondary questions are just as troublesome, if not more formidable: can we choose to exit when we regard life as no longer worth living? Ought doctors be obliged to help us ease into the beyond? There are no complete answers and, therefore, I do not offer any. I aspire to a less ambitious objective. I merely hope to be your fellow journeyman in exploring some of the current issues. We may not reach our destination, but we can hope to find fulfillment in the discoveries we make along the way. As Professor John Finnis said of a man who takes aim at a target, that “the important thing is not the target, nor of hitting it but the aiming straight”.11

DEFINITIONS
(A) Terminating Life Support

Some definitions are necessary to begin with. First, when we speak of the termination of life support, sometimes referred to as “pulling the plug”, we are referring to the act of disconnecting the life support system that maintains a patient’s life. This commonly concerns patients in a “persistent vegetative state”.12 The decision to terminate life support, in the absence of any advance directive (sometimes called “living wills”) is made by someone other than the patient himself. It is also important to note, for clarity’s sake, that the term in use is “persistent vegetative state” and not “permanent vegetative state”. People do recover although the instances are rare.13 This fact must nevertheless be reckoned with. A person who is in a “persistent vegetative state” is not “brain dead” or even “brain-stem dead”,14 which is the legal definition of death in some jurisdictions. In Singapore, a person is legally dead when there is either

an “irreversible cessation of circulation of blood and respiration15 in the body of the person; or a total and irreversible cessation of all functions of the brain of the person.”16 This is a reference to “whole brain death”17 as opposed to “brain stem death”.18 The English courts have now, in at least two cases including Re A,19 and Airedale NHS Trust v Bland,20 recognized “brain-stem death” as death.

(B) Physician-Assisted Suicide

Secondly, physician-assisted suicide (PAS) is the act of a doctor who prepares the protocol, equipment, and accessories to enable a patient to take his own life. The efforts of Dr. Jack Kevorkian21 represent the famous, if not the shining, example of this form of ending life. The advocates of physician-assisted suicide have since found a more acceptable model in the form of Dr. Timothy Quill.22 The difference between the two doctors is mainly in their approach towards publicity, and the relationship between them and their death patients. In Dr. Quill’s case, he knew his patients over a long period of time, whereas Dr. Kevorkian knew his for only a short time. In some jurisdictions, the United States and Britain, for example, attempted suicide and abetment of suicide have been decriminalised but not in Singapore23 and other jurisdictions. Unlike euthanasia, in PAS the doctor may not intend the death of the patient although the patient himself intends his own death. The doctor only provides the option.24 He does not aim for the patient’s death. He aims

only to give him the option.25 But some will hasten to add that this is an option with no limitations.

(C) Euthanasia

Thirdly, euthanasia is the act of ending a person’s life by someone other than the patient himself. Euthanasia is termed “voluntary” when it is performed at the request of the patient.26 In most jurisdictions, euthanasia (whether voluntary or otherwise) is criminal homicide.27 In 1995 the Northern Territory of Australia became the first jurisdiction in the world to enact legislation authorizing euthanasia.28 This legislation was, however, annulled in March 1997 by the Australian Federal Parliament.29

JODIE AND MARY30

The central issues in any case in which a life is to be terminated are first, is it lawful to do so; and secondly, what criteria should be used to justify that decision? The difficulties embodied in these questions were starkly exposed in the case of the conjoined twins nicknamed Jodie and Mary.

The twins were born on 8 August 2000 to an impoverished couple from Malta.31 The babies were born conjoined at the pelvis and had a combined weight of 6 kg at birth. They thus shared a common torso but not the limbs and lower organs. Each had an individual brain, heart, lungs, liver and kidneys. The only shared organ was a large bladder that drained into two separate urethras. However, Mary’s cardio-vascular system was

not functioning. She drew her life support of oxygen and nutrients through an artery and a vein linked to Jodie’s system.

There was no question that Mary’s survival in this way jeopardised Jodie’s own chances of survival. It was the accepted medical opinion that without Mary, Jodie would very likely grow up and lead a reasonably normal life. Yoked to Mary she would not survive in the long term. She would die if Mary were to die. Jodie’s cardio-vascular system could not maintain two bodies for more than six months or a bit longer. A surgical operation to separate them physically was possible and with good prognosis for Jodie but dire consequences for Mary. The court was asked to sanction the operation that had been opposed by the babies’ parents, a pair of devout Roman Catholics. The application for surgery to proceed was allowed by Justice Johnson and affirmed by the Court of Appeal although the reasons were not entirely the same. On 6 November 2000 surgery commenced. Mary was buried in Gozo, Malta on 19 January 2001.32

Jodie and Mary is a classic case that goes to the heart of the matter. It concerned a life that was not viable on its own; a life that was dependent on external support for survival; it concerned the issue of when, if at all, such a life may be terminated; it raised questions as to who makes such decisions and when, if at all, it would be ethical for doctors to terminate a non-viable life. The entanglement of legal and ethical issues in this case prompted Lord Justice Ward to issue the reminder that the “court is a court of law, not of morals.”

Lord Justice Ward followed the reasoning process of Lord Justice Balcombe in H v Birmingham City.33 Jodie and Mary were patients. The law in England in this context is that the doctors are expected to act in the best interests of the patient. In determining what was in the patient’s best interests the court acknowledged that the patient here was a child (or rather two children). The law prescribes that the interests of the child were paramount. In deciding how far the term “paramount” goes, the judge concluded that it goes to the apex. Paramount means supreme. Noting the impossibility of two children occupying a single paramount slot, the judge concluded that “paramount” is used only in respect of the competing interests between an adult and a child; as between two children, the court will do what it has been accustomed to do — start the balancing process — of the interests of the two children as between themselves. He therefore held in favour of balancing the competing interests of the twins;

but he did so only after removing one factor from consideration: the parents’ wishes.34

Lord Justice Ward reasoned that “in their natural repugnance at the idea of killing Mary” the parents “fail to recognize their conflicting duty to save Jodie and they seem to exculpate themselves from, or at least fail fully to face up to the consequence of the failure to separate the twins, namely death for Jodie”. This observation may be a matter of contention in the face of the deposition filed by the parents. In that deposition the parents declared: “We cannot begin to accept or contemplate that one of our children should die to enable the other to survive. That is not God’s will. Everyone has a right to life so why should we kill one of our daughters to enable the other to survive … We cannot possibly agree to any surgery being undertaken that will kill one of our daughters. We have faith in God and are quite happy for God’s will to decide what happens to our two young daughters. In addition we cannot see how we can possibly cope either financially or personally with a child where we live, who will have the serious disabilities that Jodie will have if she should survive the operation.”35 Never was the line between Positivism and Natural Law so brightly drawn as that reflected in the views of Lord Justice Ward and the parents of the twins.

Without the equation of the parents’ wishes, the scales tipped in favour of killing Mary to save Jodie. There was no dispute that it would be a positive act of killing, as opposed to a passive act of letting die.36 Lord Justice Ward himself described the first movement — taking the scalpel and cutting the skin. The surgeons would then have to invade the bodily integrity of Mary to determine which organ belongs to Mary and which to Jodie...

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