This article appears in the February 2000 edition of the Catholic Medical Quarterly
THE NEW RELIGION
We are grateful to the Association of Lawyers for the Defence of the Unborn (ALDU) for heralding the advent of The New Religion.1 It is the gathering impact of the cause or creed of Human Rights: a legal concept relating to the whole of human experience and to certain areas of life with which the Guild concerns itself.
It is understandable why The New Religion should have emerged, given the atrocious and sustained attacks on often defenceless humanity that have characterised the last century. But what concerns ALDU in particular is that the rights that are so piously and noisily promoted almost always ex clude one vast section of humanity, namely unborn children.
Last year saw the enactment here of the Human Rights Act 1998 which embraces the European Convention on Human Rights. It does not become operative until October 2000, but it is useful to examine some of its provisions.
It appears to make the rights of the individual the dominant focus of all law_making, to the apparent exclusion of any other agent or principle in the Universe, including God, state sovereignty, duty and the verifiable public will contained by law. But where do these rights come from?
Not from the State or society. Both rights and duties flow from the innate value and dignity of every human life, and from the fact that we share a common humanity. If they are to genuinely serve human well_being, to be more than exercises in mere self_ assertion, they need a secure moral foundation. Article 2 of the Convention, states clearly - and it is the first substantive proclamation in a long series - that:
Everyone s right to life will be protected by law.
This certainly seems to be a good start, giving prominence to the most basic right of all, from which all others follow: the right to life.
But in our society the brute fact is that even this right is not fully respected. Row an do you have to be before being able to claim the right to life? Unborn human life, whether in the womb, or indeed in the test_tube, or laboratory, seems to depend on choice. That human life is at stake in the womb is increasingly clear from the therapeutic procedures that current technology can now undertake before birth. In carrying out such interventions both doctors and parents in effect recognise that the unborn child has a right to be treated as a patient.
The European convention distinguishes some absolute rights such as freedom from torture and inhu mane treatment. In other cases, for example the right to privacy or to freedom of expression, the convention recognises that a balance has to be struck between the claims of an individual or group and the needs and requirements of community as a whole. Without doubt a whole range of crucial legal judgements will appear on such key points of prin ciple over the next few years.
We, are now heavily involved in the right to die. Campaigners for euthanasia are pressing for the adoption of the right to be killed or physician assisted suicide (PAS). The state of Oregon has already legalised this option, the other states in America are watching its progress closely with a view to its possible adoption. It would be an under statement to state that its development is being closely monitored here also.
The New Religion of rights could then ensure that there is both a legal right to die and, if necessary, enlist the aid of a doctor willing to prescribe the lethal dose. This will mean, as Keenan has pointed out (2), that incompetent, depressed, disabled or otherwise vulnerable people will not be protected. No less an authority than the founder of the Hastings Centre for Medical Ethics, Daniel Callahan writes "It is impossible in principle and in practice to regulate either euthanasia or PAS successfully" (3)
He makes this claim because fundamental legal concepts like terminal illness, competency, voluntariness, restrictions of eligibility, suffering, pain and consent, are so historically fluid and regionally diverse that they could never be used with success to maintain distinctions. After arguing that such laws could never protect us from abuses, Callahan concludes: "the only purpose that will be achieved by these laws is to protect physicians and health care facilities from any liability for their actions in connection with PAS".
In addition to providing protection to physicians, the only other effect of any introduction of PAS will be what Callahan calls the deregulation of euthanasia.
Association of Lawyers for the Defence of the Unborn, News and Comments Autumn 1999, Number 83.
James Keenan SJ., Bioethics Outlook Vol. 10, Number 2, June 1999, Euthanasia. Comparisons and contrasts in the ethical, political and legal developments in the USA and Australia
- Daniel Callahan and Margot White: The legalisation of physician assisted suicide: Creating a regulatory Potemkin Village, University of Richmond Law Review, 30.1 (1996) 1_84 at 2.