Assisted Dying for Newborns

The ethical case

Photo by Dave Lowe on Unsplash

In Canada, medical assistance in dying (MAiD) has been legally available for adults who meet the criteria since 2016. The current criteria include having the capacity to make the decision, making a voluntary request, and having a “grievous and irremediable medical condition”, which means having a serious illness, disease, or disability that causes unbearable physical or mental suffering.

Although some people are against assisted dying in all circumstances, around 85 percent of Canadians support MAiD for people who meet the above criteria. Call these the easy cases. Someone is experiencing horrible suffering from a medical condition that can’t be relieved in a way they find acceptable, they ask for an assisted death, and they get it. The ethical justification for MAiD in these cases rests on an appeal to the patient’s autonomy and well-being. MAiD is something they want and will benefit from, so helping them end their life is an act of compassion. 

Other cases are trickier. For instance, although about 85 percent of Canadians also support assisted dying when the person has stated via advance request that they want to die when certain conditions are met, they’re no longer able to consent (e.g., because they have advanced dementia). Even though their wishes are documented, since they can’t consent in the moment, people are sometimes less sure that it’s ethically acceptable.

A different sort of situation is back in the news. Some newborns will die soon after birth even if they receive the best care possible. Others might survive longer—months instead of days—but with extremely poor quality of life, such that they will only experience horrible suffering. Thankfully, due to screening during pregnancy and abortion access in Canada, cases of this sort are rare. But they still happen, since, among other things, the child can experience traumatic injury during birth.

In these cases, it’s commonplace for physicians, in consultation with the parents, to decide not to initiate life-sustaining treatment. In cases where they have started such treatment and then assessed that it’s not in the child’s best interest to continue, the physicians stop aggressive treatment and switch to care that focuses on the baby’s comfort. In some cases, the baby dies almost immediately, but, in others, it could continue to live, sometimes for months, in agony and with no chance of improvement. In these cases, physicians might recommend stopping nutrition and hydration, which will lead to the baby’s death within days.

Would it be ethical to give the baby an assisted death instead? This is back in the news after a member of the Quebec College of Physicians recently repeated the group’s endorsement of MAiD for newborns in cases like the ones above. They’re following The Groningen Protocol, which gives the following criteria for the ethical assisted death of a newborn (the quotations below are from a summary here):

• “[D]espite all measures taken, suffering cannot be relieved and no improvement can be expected.” 

• The parents must consent.

• “A team of physicians, including at least one who is not directly involved in the care of the patient, must agree.”

• “the condition and prognosis must be very well defined.”

• An outside legal body must determine that the assisted death was justified.

MAiD for newborns isn’t legal in Canada, but some are worried that it might be at some point. Andrew Phillips writes in the Toronto Star that “authorizing doctors to actively euthanize infants — rather than allowing nature to take its course—does cross a line once thought inviolable.” Phillips doesn’t give an argument as such; there’s no explanation for why he thinks this line should remain inviolable, but he does mention that the government seems “unable or unwilling to find a reason to draw a line anywhere.”

Here’s why Canada should legalize MAiD when the Groningen Protocol criteria are met: when a baby is experiencing intolerable suffering with no hope of improvement, the most ethical action is to end its suffering as quickly as possible. Since MAiD results in less suffering than starving a baby to death, MAiD is the more ethical choice. Allowing nature to take its course is the worse option.

This is not a new point. If you ever took a bioethics class, the odds are high that you read James Rachels’s 1975 paper “Active and Passive Euthanasia”. If you didn’t, ask for your money back. Rachels convincingly argues that there’s no ethical difference between a physician actively ending someone’s life and letting them die. Ethical acceptability is due to other factors, such as the physician’s motives.

Consider a baby who’s suffering intolerably. The physicians and the parents all agree that continued life isn’t in the baby’s best interest, so the decision to withhold nutrition—passive euthanasia—is done with the aim of relieving suffering through death. So, says Rachels,

If one simply withholds treatment, it may take the patient longer to die, and so he may suffer more than he would if more direct action were taken and a lethal injection given. This fact provides strong reason for thinking that, once the initial decision not to prolong his agony has been made, active euthanasia is actually preferable to passive euthanasia, rather than the reverse. To say otherwise is to endorse the option that leads to more suffering rather than less and is contrary to the humanitarian impulse that prompts the decision not to prolong his life in the first place.

The goal of relieving suffering through death is ethically acceptable, so MAiD is acceptable, and is in fact preferable, since it better achieves the goal. 

If you deny MAiD’s acceptability in these cases, you need to give a reason. One possibility, as I suggested above, concerns consent. Autonomy and well-being are the twin pillars of MAiD in Canada, but, since newborns lack autonomy, they can’t give consent. Some find this decisive. For example, a National Post article quotes Krista Carr, executive vice president of Inclusion Canada, as saying that “An infant cannot consent to their own death. This isn’t MAID, it’s murder.”

There are two problems with appealing to consent in this way. The first is that, if the problem with MAiD for newborns is that they can’t give consent, then withholding nutrition to cause death (i.e., passive euthanasia) would also be unethical. But that would entail that physicians are ethically obligated to keep newborns alive as long as possible without consideration for suffering or quality of life, which is absurd. 

The second problem is that newborns can’t consent to anything. The error Carr and others make is appealing to a concept that doesn’t apply in these cases. The fact that a child can’t consent to medical treatment of any sort doesn’t mean that treatment is wrong. Instead, it means that promoting autonomy through informed consent is the wrong standard. When a patient doesn’t have values to promote, or we don’t know what they are, we switch to doing whatever is in their best interest. Getting informed consent from the child’s parents is a safeguard. That’s why it’s ethical to vaccinate children, give them antibiotics, and, in exceptional situations, kill newborns. 

People are increasingly trying to paint potential changes to Canada’s MAiD legislation as a slippery slope. Recall Phillips’s claim that the government is “unable or unwilling to find a reason to draw a line anywhere.” The reality is much more uplifting. Canada is carefully considering each potential amendment to ensure it promotes autonomy where applicable and prevents suffering while protecting people from abuse. As I’ve argued, the evidence that abuse is occurring is extremely thin. 

The upshot is that we should consider each amendment on its ethical merits. When it comes to preventing unbearable suffering for newborns, we should make the compassionate choice and legalize MAiD.