This essay received an Honourable Mention in the Undergraduate Category of the Oxford Uehiro Prize in Practical Ethics 2017

Written by University of Oxford student, Isabel Canfield

The debate about the moral permissibility of euthanasia is often presented as hinging upon the distinction between killing and letting die. This debate is often focused around a discussion of intention. This paper will attempt to answer the question, is there an additional level of intention, that has not been considered in the current debate on the moral permissibility of euthanasia, that should be considered?

It will be helpful to begin by outlining some of the terms that I will use throughout this paper. To this end, “euthanasia” is the act of killing someone else with the intention of avoiding the harm of living a continued life that is worse than death.[1 2] The distinction between active and passive euthanasia is complicated and at times not entirely clear. Typically, and for the purposes of this paper, active euthanasia is defined as an act that requires the agent who brings about death to do so purposefully. This purposeful action can be the completion of some task or tasks to accomplish this specific end. Meanwhile, passive euthanasia comes about when the agent who brings about death, if an agent can be said to bring about death at all in these cases, does so by purposefully not acting to continue to sustain the life of the person who dies.[3]

Any distinction in intention between active and passive euthanasia, supporters of active euthanasia argue, has been artificially created. These supporters claim that the outcome in both active and passive euthanasia is the same and the intentions of the agent, or non-agents, are the same. If this is true, then the comparative moral argument that relies upon the assumption that active and passive euthanasia are morally dissimilar can be overcome. [4] However, there are convincing arguments for the view that active euthanasia is significantly different than passive euthanasia. I will argue, through the examination of a United States Supreme Court opinion, that the difference of the intentions of the actors in cases of active and passive euthanasia are significant. Yet, active euthanasia is still morally permissible because of a second level of intention that spans across cases of both active and passive euthanasia. I will argue that while in both cases the first level of intention differs in a relevant way, the second level of intention is the same in all of these cases.

In the unanimous United States Supreme Court decision, Vacco v. Quill.[5] The Supreme Court argued that there is a significant difference between an agent who chooses to commit physician-assisted suicide, a form of active euthanasia, and an agent who chooses to forgo life sustaining-treatment, a form of passive euthanasia. So, it is constitutionally permissible for state laws to treat these two acts differently. The court held that competent terminally ill patients have a right to choose to forgo lifesaving treatment but competent terminally ill patients do not have a right to be free of a ban on physician-assisted suicide.

The United States Supreme Court drew a distinction between physician-assisted suicide and forgoing life-support. The difference, this court said, is a difference of causation and intention. A physician who honors her patient’s right to forgo life-sustaining treatment may not wish to cause death, but may only act in order to respect her patient’s wishes. The Supreme Court stated that even if two acts have the same outcome the law treats the acts differently when the agents’ intentions differ. When an agent forgoes life-sustaining treatment she may act in spite of the unintended but foreseen consequence of causing death, with an intention to avoid the life-sustaining treatment. This is not the case with physician-assisted suicide; in this case the agent acts because she has the intention of killing the person who dies. This intention is what differentiates the acts, and so the two acts are not essentially similar. This is one reason why the law distinguishes between cases of physician-assisted suicide, and cases of forgoing life-sustaining treatment.

An objection to the Supreme Court’s decision is that the primary intention of the agent who commits physician-assisted suicide may not be to cause the death of the person who dies. The Supreme Court made the assumption that, unlike when an agent chooses to forgo life-sustaining treatment, an agent who chooses to commit physician-assisted suicide has the primary intention to cause the death of the one who dies. However, the intention of this agent may be to ease the pain of the one who dies and death may be a foreseen but unintended effect of achieving this intention.

One way to respond to this objection is by stating that there is a test that can be used to determine the intention of the patient. If death were not the outcome of taking the medication, then the agent would not have used the medication. Thus, the primary intention of using the medication was to cause death. Yet, when an agent forgoes life-sustaining treatment, the agent would forgo the treatment even if death were not the outcome of this action. In fact, the agent may be more likely to forgo life-sustaining treatment if death were not the outcome. Hence, there is a fundamental difference in the intention of the two acts.

There are two responses to this objection. The first response is that if the test used above can be disproved, then this line of reasoning may not be valid. If there were one instance when an agent with a primary intention to do X, would still act even if the outcome of the action would not result in X, and the agent had no other intention on the basis of which she would act in this way, then this test would be disproved. Yet, there is no counter example that comes to mind and so, this test cannot be easily disproved in this paper.

Another response may be that death may not have been the primary intention but a means to achieving the primary intention, the relief of pain. The Supreme Court commented on a patient’s right to be free of a ban on taking medication that may decrease the patient’s pain, even if this medication may also hasten death. Here, the primary intention is to diminish the patient’s pain not to cause death, because even if the hastening of death were not the outcome of taking the medication, the agent would still give the medication to relive the pateint’s pain. If the agent is assured the patient will die but will still be in a state where she experiences pain, the agent would most likely not choose to commit physician-assisted suicide. In this case the primary intention in committing physician-assisted suicide, the diminishment of pain, would not be met. However, changing the assumption that death does not bring about the end of pain does not create an intuitively satisfying response. In part, this is because this case is impossible to conceive of with a normative understanding of death. This case may also be hard to evaluate because if the agent knew that the person who dies might be in a state of pain after her death the agent might reject physician-assisted suicide, or active euthanasia. In a similar case the same agent may still forgo life-sustaining treatment. The primary intent, to be free of life-sustaining treatment, would still be met even if the person who dies would then die and be in pain. The death and, in this case, the pain are foreseen but unintended consequences of the choice to forgo life-sustaining treatment, not the primary intention.

It is difficult, then, to prove that the primary intention for an agent committing physician-assisted suicide is anything other than death, and I have not been successful in arguing otherwise.

Therefore, it does seem that the primary intentions of the agents in active and passive euthanasia differ. In cases of passive euthanasia, the agent’s intention is to act, or to not act, in order to free the person suffering of the treatment. In cases of active euthanasia, the agent’s intention is to cause the death of the person who dies.

However, there may be another level to intention. If intentions are the kinds of things that can have multiple layers, then it may be sufficient for a higher level of intention to be the same across both active and passive euthanasia. Multiple layers of belief and will have been discussed in philosophical literature. [6 ] Therefore, it is reasonable to think intent could be subject to the same sort of treatment.

The concept of secondary intention could be defined as a higher order intention about a primary intention. For example, in these cases the primary intention of an agent who acts to bring about passive euthanasia is to free the person who will die of the life sustaining treatment. Meanwhile, this agent’s secondary intention is to help the person who will die. This secondary intention of helping the person who will die is much broader than the primary intention.

The secondary intentions are the types of intentions that drive the primary intentions. Primary intentions are narrower and entail only one course of action. However, secondary intentions are a type of intention that can lead to many possible courses of action. For example, Catherine intends to help her sister. Catherine may then have the primary intention to bake her sister a cake, write her sister a card or never speak to her sister again.

There is a possible objection to the use of secondary intentions in the debate about the moral permissibility of active euthanasia. This objection is that the secondary intention of wanting to help the person who will die has multiple possible primary intentions. However, primary intentions are much more dependent upon the circumstances of the actual world than secondary intentions. So, in Catherine’s case above, it is possible to imagine a world wherein Catherine is an outlaw and everyone she speaks to is in danger. Therefore, the only way Catherine can conceive of to help her sister is by never speaking to her again. Catherine’s secondary intention to help her sister may only be possible in this case if she has the primary intention never to speak to her sister again.

If an agent has the secondary intention of helping someone and it is the case that the only way to help this person is to bring about this person’s death, then having the primary intention of bringing about this person’s death is morally permissible. This reply does suggest that in order for this primary intention to be morally permissible the primary intention must be the best of any possible primary intentions. Therefore, active euthanasia is not morally permissible if the best way to help someone is with a different primary intention, for example the primary intention to provide hospice care or to assist in maintaining comfort in some other way.

Active and passive euthanasia are both carried out with the secondary intention of helping the person who dies. I have purposefully left the secondary intention in cases of euthanasia vague in this paper. I have attempted to avoid, as it was not the point of this paper, an argument for what exactly this secondary intention would be. It may be that the secondary intention is something like assisting the person who will die in a process of self-determination or in achieving autonomy. This secondary intention, regardless of the specific form it takes, is the same across agents who assist in both active and passive euthanasia. This level of similarity between these two courses of action along with the primary intention being the best possible option for achieving the secondary intention is sufficient to consider both active and passive euthanasia morally equivalent. Therefore, active euthanasia should be permissible as long as the same safeguards that are in place for passive euthanasia are present in order to ensure that the course of action that is selected is the result of the best possible primary intention possible in light of the context of the individual case.

1 Foot, Philippa. “Euthanasia.” Philosophy & Public Affairs 6.2 (1977): 85-112.

2 This point is argued for by P. Foot in her piece entitled “Euthanasia.” I find Foot’s argument for this definition to be convincing. As the definition of euthanasia is not the focus of this paper, I will begin with the assumptions that are entailed from this definition.

3 Young, Robert. “Voluntary Euthanasia.” Stanford University. Stanford University, 18 Apr. 1996.

4 The issues in the debate about the moral permissibility are too numerous to include in this paper. For this reason, the frequently mentioned, in this debate, topic of causation is not addressed in this paper.

5 Vacco, Attorney General Of New York, et al. v. Quill et al. No. 95-1858. The United States Supreme Court. 26 June 1997. Cornell Law School.

6 Here I am thinking in particular of the work done by Harry Frankfurt and Susan Wolf.