Issues in Law & Medicine

Dutch Euthanasia, Health Care Rationing, Assisted Suicide, and the Remarkable Potential of Adult Stem Cell Research

By Barry A. Bostrom, M.Div., J.D.
Executive Editor, Issues in Law & Medicine

Editor's note. Issues in Law & Medicine is a peer reviewed professional journal published three times a year by the National Legal Center for the Medically Dependent & Disabled, Inc. and the Horatio R. Storer Foundation, Inc. Published since 1985, Issues is devoted to providing useful information on recent legal and medical developments to assist attorneys, health care professionals, educators, and administrators on legal, medical, and ethical issues arising from health care decisions.

The featured article in the spring 2002 edition of Issues in Law & Medicine evaluates the legalization of euthanasia and physician-assisted suicide in the Netherlands, practices that had long been legally sanctioned as a result of court decisions since the early 1970s. In Holland, euthanasia has even become a "cure" for those with clinical depression. In other words, depressed people with suicidal tendencies are sometimes encouraged to consider euthanasia.

The author, Herbert Hendin, M.D., medical director of the American Foundation for Suicide Prevention, notes (1) that according to official reports the euthanasia guidelines have failed due to widespread disregard by physicians practicing euthanasia, and (2) that there is a significant pattern where incompetent patients were "terminated" without their consent, or when competent patients were not consulted before they were euthanized.

Dr. Hendin concludes that Dutch tolerance of euthanasia is really a mask for indifference toward people with chronic mental or physical problems. The casualness with which Dutch physicians recommend euthanasia to their patients, he argues, is really a sign of ambivalence toward patients and disinterest in developing patient care alternatives such as treatment of depression and anxiety, pain relief, and hospice.

The second article, by Professor Raphael Cohen-Almagor, University of Haifa, Israel, focuses on the influential writings of Daniel Callahan, founder and president of the Hastings Center in New York. He argues that Callahan's approach is too cold and detached, and that age alone should not serve as the decisive criterion for limiting medical care. His criticism of Callahan's views on older patients stems from two different lines of reasoning: the medical and the moral-contractual.

From the medical perspective, while age is an important variable in determining a patient's medical condition, there are other no less important factors that influence one's health care decisions, such as accurate diagnosis, prognosis, life expectancy, and the belief system of the patient. Age may affect these determinations, but should not be determinative of whether medical treatment should be limited.

From the moral-contractual line of reasoning, Cohen-Almagor contends, a liberal society should not desert its citizens at the time they need its help most. It is the older patient who has contributed most through a lifetime of paying taxes and rendering personal service to the community in which he or she has lived. The age criterion is too simple, too general, too sweeping, and too convenient.

The first item in the Verbatim section is the memorandum from Attorney General John Ashcroft to Asa Hutchinson, administrator of the Drug Enforcement Administration, regarding the dispensing of federally controlled substances to assist suicide. It declares that the use of federally controlled substances to assist suicide is a violation of the Controlled Substances Act and that physicians who prescribe controlled substances for purposes of assisting suicide may be investigated and have their licenses revoked. This was the original position of the Justice Department before former Attorney General Janet Reno reconsidered the question. Ashcroft's rule has been rejected by a federal appeals court judge, a decision that will likely be appealed, if necessary, all the way to the United States Supreme Court.

The second item in the Verbatim section is the legal memorandum upon which the Ashcroft decision is based. The memorandum explains that assisting in suicide is not a "legitimate medical purpose" within the meaning of federal regulations. That interpretation is the best reading of the regulatory language: it is firmly supported by the case law, by the traditional and current policies and practices of the federal government and of the overwhelming majority of the states, and by the dominant views of the American medical and nursing professions.

The act of a physician in writing a prescription does not transform assisted suicide into a "medical treatment." To argue that assisting suicide is a legitimate medical purpose is to turn medicine on its head.

The third Verbatim is an open letter from Do No Harm: The Coalition of Americans for Research Ethics to Dr. Ruth Kirschstein, acting director, National Institutes of Health, dated July 3, 2001. The letter is fully documented with citations to published studies.

In it the coalition explains that human embryonic stem cells have never successfully been used in clinical trials, have had lackluster success in combating animal models of disease, and carry significant risks, including immune rejection of the transplanted cells and tumor formation. By contrast, adult stem cells have been used in many clinical trials with great success.

Thus, contrary to the suggestions by supporters of human embryonic stem cell research that would require the destruction of human embryos, federal funding of such research is not a necessary or even a wise use of limited federal research dollars. Other forms of stem cell research are more promising, are demonstrably more successful at producing beneficial treatments that are actually in use today, and do not present the significant problems and uncertainties (to say nothing of the ethical and legal problems) posed by human embryonic stem cell research which would require the destruction of human embryos.

Be informed and stay informed! Issues in Law & Medicine is a peer-reviewed journal published three times a year. The annual subscription rate is $69 for individuals, $89 for institutions, for three issues. Single issues are $23. Requests may be sent to Issues in Law & Medicine, 3 South 6th Street, Terre Haute, IN 47807-3510.