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Human Dignity in Birth and Death: A Question of Values
(A sample chapter from the book Christians in the Public Square)

An invitational keynote address by John Warwick Montgomery at the Conference on Legal and Ethical Issues (Edmonton, 2-4 May 1990), sponsored by the Alberta Hospital Association, the Legal Education Society of Alberta, and the Health Law Section of the Canadian Bar Association.

Much of the ethical confusion experienced by physicians, nurses, hospital administrators, and their legal counsel in the health-care area derives from an attempt to deal with problem cases ad hoc-without considering fundamental principles. The all-too-natural tendency to "take each case as it comes" is exacerbated by the social pressures created through the spiraling costs of health care and the spectre of litigation. Like the anti-hero preacher of John D. MacDonald's novel, One More Sunday, the health care professional too frequently finds himself reduced to getting past the current crisis, hoping that he can survive just "one more Sunday."

Even those to whom the practitioners look for guidance are not immune from losing the forest among the trees. Note the commentary offered on the following tragic malformed-infant case:

Case 3. T.B., a 36-hour-old male, was transferred to a medical center for management of an imperforate anus. The product of a normal pregnancy of, and an uneventful vaginal delivery by, his 39-year-old mother, T.B. had been recognized as having the clinical features of Trisomy 21 (Down's Syndrome) shortly after delivery-flattened occiput, characteristic appearance to the eyes, slightly full and protruding tongue, a simian crease on both hands and feet, and diffuse hypotonia, plus a loud heart murmur on auscultation and extreme cardiomegaly on chest x-ray.

Physical examination of the rectal area at the time of transfer demonstrated a thin veil of almost transparent tissue covering the rectal orifice. Surgical relief of the rectal problem was felt to be relatively simple to achieve, but the cardiac signs and symptoms were interpreted as indicative of a major cardiac defect likely to cause death in the absence of attempts at surgical relief.

At that point in time, the parents were presented with the perceived facts and the options available to them. They considered the alternatives overnight and then decided against surgical intervention. Then the involved attending physician, who had been ostensibly neutral, shifted and supported their position, as did the consultant surgeon. Other members of the medical staff disagreed totally with the decision against intervention. The nursing staff emphasized their "Catch 22" quandary: if they fed the child and he eventually aspirated, it could be considered as active euthanasia; if they withheld all fluids, it could be construed as intentional starvation, also an active euthanasia process. Much private one-on-one discussion and debate followed, but virtually no group discussion and/or meetings intervened. At the end of 48 hours, the child was transferred to a nursing home for terminal care. Some 10 years later, members of the staff who participated in the process continue to harbor unease about that situation and the mechanism of its management . . . .

The point of concern is, of course, that the misery and antagonism embodied in such situations not be permitted to interfere with the already stressful environment of the hospital (and all its inherent potential for error) to precipitate inappropriate allegations of malpractice.¹

To be sure, the commentator's subject is malpractice, but prior to all questions of possible litigation are such bedrock ethical issues as: Was the newborn human? What value did he (it?) have? Was the non-performance of the "relatively simple surgical relief" unethical and in violation of the physicians' oath? Should the parents make the life-or-death decision for the newborn?

Avoiding such fundamental ethical questions is fatal (both for patients and for those who treat them). Socrates put it this way: "the unexamined life is not worth living." And, in fact, no-one ever really avoids the ethical dimension. As in historical study, where everyone has a philosophy of history and the really dangerous historians are the ones who are unaware of the values they intuitively bring to their work,² so in health care the question is not whether one indeed has values but whether one is willing to bring them into the clear light of day where they can be subjected to analysis and rigorous criticism.

In this brief presentation, an attempt will be made to identify the fundamental value-questions which health-care professionals cannot avoid asking, and to examine the alternative responses available in answering them. My own preferences will be clear, but the object of the discussion is to encourage the reader to think through each of the six watershed questions for himself or herself-before the next crisis arises in the hospital, the office, or the home. The six value issues are:

1. How important are human beings?
2. How do you know it's human?
3. Are human beings equal in value?
4. How important is the individual?
5. Do individuals have the right of self-determination?
6. Are ethical standards absolute?

How Important Are Human Beings?

Even misanthropes consider their own viewpoint on the subject important, and thus place a high value on themselves (if not on others). In general, everyone considers human beings, or some human beings, very important. The ways divide over whether the human being is, or is not, all-important.

Ho Chi Minh was quoted as saying that even if North Vietnam had its population devastated in war it made little ultimate difference, for "we can always grow more children." Classical Marxism has always regarded the Party's doctrine as more important than the welfare of particular persons. Thus Socialist political trials have followed Lenin's view that the end justifies the means and the actual guilt of the accused is far less important than the "education" of the populace by way of the trial.³ In today's secular and capitalist West, success and accomplishment (building a bigger, more "successful" hospital or practice?) have not infrequently counted more than human values in pragmatic decision-making.

Over against the "limited importance" view of human worth is the Judeo-Christian conviction that human beings are unqualifiably important. The European Civil Law tradition, stemming from the Christian Emperor Justinian's great 6th-century codification, and the Anglo-American Common Law, exemplified by Blackstone's fundamental distinction in his Commentaries between "persons" and "things," refuse on principle to subordinate human worth to any impersonal values. Thus in the Common Law of defense of property, one is not allowed to kill to prevent conversion or theft of personal property, whereas homicide may be justifiable if one's own life or the life of another is in jeopardy (self-defense, defense of others). In international human rights law, the conventions, instruments, and treaties almost invariably place the "right to life" first among all rights, and make that right non-derogable.

Why choose the Justinian-Blackstonian option? Practically, it may be enough to consider the personal consequences of being treated by a health-care provider who doesn't consider human beings all-important! But, in the final analysis, one's view will depend upon one's ultimate commitments. Kaptchuk has argued that the progress of Western medicine over against its oriental counterpart may best be seen as "a consequence of Judeo-Christian emphasis on an omnipresent, transcendent God."⁴ I have maintained the same in reference to the foundations of human rights: without a transcendent Creator to establish and guarantee human dignity, man whistles in the dark when he tries to assert his ultimate worth (like a world congress of rabbits voting on the supreme worth of rabbithood). We must refer readers elsewhere to pursue this most basic of all value questions.⁵

How Do You Know It's Human?

Even when we have made a decision as to human worth, we will be in grave difficulty if we cannot distinguish a human being from W.C. Field's kumquat! Two approaches are available for resolving this all-important question.⁶

First, it is argued simply that a human being is to be defined and identified according to its genetic-chromosomal makeup.⁷ On this view, one will not be able to justify on the grounds of "insufficient humanness" the killing of a fetus or a malformed neonatus.

Second, there is the functional definition of the human being: one is human only and insofar as one functions humanly. The most influential advocate of this viewpoint at the moment is philosopher Michael Tooley, who asserts: "An entity cannot be a person unless it possesses, or has previously possessed, the capacity for thought. And the psychological and neurophysiological evidence makes it most unlikely that humans, in the first few weeks after birth, possess this capacity."⁸

Problems are rife with the functional approach to personhood. Leslie Mulholland of the Memorial University of Newfoundland writes:

If every human being has the right to be a person, then there is still an important question to be asked: does a human being who lacks the ability to exercise judgment still have the right to the status of a person? In considering such questions, the important thing is to avoid answering them by treating the questioner as if he/she were in a special privileged position to consider them. It can seem that the ability to engage in the answer puts one in a privileged position. However, we should not abstract from the education that allows one to be in this position. That is, no one could be in the position if others had not educated him/her. Thus the position of the educated individual, able to exercise reflection, is always acquired. The right to be educated and the right to exercise judgment cannot be a consequence of the education itself. Furthermore it cannot be a consequence of the relative social position of the parents, etc., for their position still needs to be justified. It must pertain to the individual by virtue of being human alone.⁹

Moreover, if genetic-chromosomal makeup is insufficient to define the human being and to justify according him or her human value and worth, who precisely has the right to establish the additional, functional criteria? And who is to say if the candidate functions well enough to deserve to be treated as a human being? Tooley, a philosopher, declared that to be human one must think. (Descartes was more humble. He spoke of himself in his aphorism, Cogito, ergo sum. He did not thereby try to define others out of the human race by evaluating their thinking capacity!) But why use thinking ability alone? What about job skills and other socially useful attributes? Social planners have long been disturbed by the need to support social misfits. And note the applications of this approach to the end of life-when the (former?) person loses his ability to function productively. Since decisions in areas like this gravitate almost inevitably to government, Huxley's Brave New World raises its ugly head. Not only the fetus, the handicapped, and the aged suddenly find themselves in jeopardy, but so does everyone whose activity does not conform to current societal or political standards.

May we suggest that humans do not become such by acting in a human way: They act (occasionally!) in a human way because they are first of all human.¹⁰

Are Human Beings Equal in Value?

Once we have determined that our patient is indeed human and therefore of immense value, we are still faced with the awkward comparative question: how valuable is one human being in comparison with another? On the genetic-chromosomal basis, a fetus is just as human as his or her mother. What do we do, therefore, in those admittedly rare, but no less agonizing situations where the life of one or the other must be sacrificed?

Here we must make an important distinction. When asking, "Are human beings equal in value?" do we mean "equal in inherent value" or "equal in social value"? We have already dealt with the question of inherent worth, and we concluded that it is a sad philosophy which would reduce human worth to anything below infinite value. Robert Veatch, in an exceedingly important recent study,¹¹ has applied such reasoning to the handicapped. He argues that all human beings-including the retarded-are morally equal, for they are the special handiwork of an infinite and loving Creator.

As true as this is, it is not the whole picture. If we stopped here when faced with the life-of-the-fetus versus the life-of-the-mother, nothing could be done but to flip a coin (since each life has the exact same ultimate worth by virtue of its createdness). A further question needs to be asked-that of social value.

Though possessing exactly the same inherent value as its mother, the fetus lacks the nexus of social involvements, responsibilities, and dependencies that the mother possesses. Thus, for example, the mother's death will have a profound and concrete effect upon her husband, her other children, her blood relations, her friends, her employer or employees, etc. The death of the fetus will also impact the lives of others (as a human being, even the fetus cannot be "an island unto itself"), but the impact will be minimal owing to the brevity of the fetus' contacts with human society. It would seem, therefore, that in the agonizing situation in which only one life and not the other can survive, the choice should be made in favor of the mother. By analogous reasoning, where either the hopelessly retarded or the "normal" individual cannot survive (e.g., when only one kidney dialysis machine is available), the choice may have to be made on the ground of relative social worth, i.e., the relative complexity of social dependencies.

Note, however, that such reasoning is applicable only in the life-versus-life scenario. To sacrifice one life for the non-necessary convenience of another person remains a monstrous act, devoid of ethical justification. Even if we were to try to reason that a retarded individual totally lacked social worth (a hard proposition to maintain, since those who take care of the severely retarded are the first to say how much they are impacted and often transformed by them), this would say nothing as to their inherent worth as human beings. Fascinatingly, great writers have often used the lunatic or the retarded as a prophetic figure or even a Christ-image. We devalue our own humanity when we seek to devalue theirs.

How Important Is the Individual?

The mention of "social worth" leads inevitably to the ethical dilemma of the needs of the individual over against the needs of society. Suppose there is only so much money for hospital treatment, and it can be either divided up to help many patients or restricted to the very expensive costs of saving just one. How should the money be allocated?

The classic answer, representing the position of the French Declaration of the Rights of Man, the American Bill of Rights, and 18th-century Western political liberalism in general, is that except in cases of emergency it is never right to sacrifice the good of one human being for that of another. Each individual has inherent worth, and no individual's interests are to be subordinated to another's unless absolute necessity dictates. To be sure, the individual may voluntarily sacrifice his interests for those of another-and such acts are often ennobling in the highest degree. (Think of Sidney Carton in Dickens' Tale of Two Cities.) But self-sacrifice is hardly identical to forced sacrifice.

The opposing viewpoint came on the ideological scene in the 19th century, and is generally termed utilitarian socialism. Its great advocates were Jeremy Bentham and James and John Stuart Mill. Here the watchword is "the greatest good for the greatest number". The individual should be subordinated to the body politic so that the level of the entire populace is raised. In health care, the utilitarian argues for the overall average benefit to the patient-pool.

The utilitarian-socialist approach seems to have much to commend it. Is it not true, for example, that even the most libertarian governments expropriate individually owned property for the good of the many (the widow's home is sold by court order to permit the thruway to be built), and that these same governments use compulsory military service to send unwilling individuals forth in war to be maimed or killed for the sake of the rest of the populace?

However, it will be noted that eminent domain is supposed to be used only as a last resort, and the property owner must in any case receive "just compensation". (In the United States this is mandated by the Fifth Amendment to the Federal Constitution, and the same principle is firmly embodied in the unwritten British Constitution.) As for compulsory military service, I am not particularly convinced that it is ethically justifiable-but even if so, it is surely to be regarded as an exception arising from necessity, not as the reflection of normal societal practices. The only reason for forcing an able-bodied person to die for his country is presumably that otherwise the entire society, including the weak, might be subject to wanton destruction.

Are medical dilemmas analogous to these limiting cases? We doubt it. If the utilitarian argument were to be applied in general to medical treatment, the results would be bizarre and offensive to ordinary moral sensibility. Thus, to achieve the greatest good for the greatest number, it would be legitimate to engage in forced organ transplants. If I am blind, and you have two eyes, it would be mandatory on utilitarian principles to take one of your eyes and give it to me. Compulsory organ banks would be a proper object of utilitarian-socialist medical legislation.

We recognize intuitively from such illustrations that the utilitarian approach demeans the individual. Because of the inherent worth of the person, he must not be used as a means to an end, even if that end is the presumed good of an abstract humanity. Human beings are ends in themselves, and must always be treated as such.

Bentham considered burial non-utilitarian, and so donated his embalmed corpse to University College, London, where he is visible today for the utilitarian edification of subsequent generations¹² May we suggest that in this as in the application of utilitarianism to medicine, the whole idea suffers from exaggerated self-importance? A health-care facility, except in the rarest of dire emergencies, must never sacrifice the individual patient for a "higher general good". In point of fact, there is no higher medical good than the best interests of the individual entrusted to the health care provider.

Do Individuals Have the Right to Self-Determination?

When we opt for the individual over against the "mass", are we saying at the same time that individuals always have the right to determine their own destiny-that they are the absolute "masters of their fate and the captains of their soul"? If so, we would be adopting a viewpoint which has powerful contemporary support, and important applications in the medical-legal field.

Thus, the libertarian view argues in favor of "pro choice" in the abortion controversy: a woman has the absolute right to do as she wishes with her own body. the same approach is applied at the other end of life: one also has an absolute "right to death" and should not be kept on life-support machines a moment longer than one wishes. Indeed, analogous reasoning was employed by one Canadian Queen's Bench judge (now mercifully overruled) who argued that a provincial law requiring seat belts infringed on Section 7 of the Charter of Rights and Freedoms, since the individual allegedly has the freedom to make his own safety decisions and not be prosecuted for his choice.¹³

In sharp contrast with the libertarian approach is the viewpoint that individuals, though infinitely important, cannot be allowed to exercise their freedom of choice in an unrestrained manner. The very fact that each individual has the same inherent worth as each other individual creates a built-in restraint on a given person's choices and actions. "Your rights end where my nose begins" is a succinct statement of this ethical position.

In reference to the abortion issue, the "pro choice" advocate should be reminded that one cannot decide the question as if only the mother were present. The unborn person must also be taken into account. If the "right to privacy" is appealed to (as it has been in U.S. legal discussion from Roe v. Wade to the present), it is worthwhile noting that homicide in the Common Law never becomes justifiable because one commits it while protecting one's right to privacy. Thus, if I am plagued by a cheeky encyclopedia salesman who violates my right to privacy by shoving his literature through my open window day and night, I may obtain an injunction to stop this private nuisance-but I must not blow his head off with a sawed-off shotgun! If the fetus is a human being by genetic-chromosomal definition, my right to absolute freedom of personal choice ends where his or her life is at stake.

What about the so-called "right to death"? The Common Law traditionally punished suicide as a criminal act, and aiding and abetting suicide is still criminalized in most jurisdictions. Blackstone explains the Common Law position as follows: "the law of England wisely and religiously considers, that no man hath a power to destroy life, but by commission from God, the author of it . . . the suicide is guilty of a double offense: one spiritual, in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects."¹⁴ Suicide is never really a "victimless crime" for the body politic is diminished by the loss of any of its members. "You ask for whom the bell tolls", wrote Christian poet and preacher John Donne, "it tolls for thee."

The same point applies to seatbelts, as the Alberta Hospital Association correctly reasoned and as the Canadian court system finally agreed. Those persons who refuse to wear or negligently do not wear seatbelts not only jeopardize their own lives and contribution to the community; they also cost the rest of society vast sums in medical care for the injuries sustained.

And cryonics? What about the recent effort (both in real life and on television) of the patient with a terminal brain tumor to have himself frozen now so that on being revived (hopefully!) at a later stage of medical knowledge his brain will have a better chance of treatment?¹⁵ Assuming that this patient's brain would be destroyed by the time of his natural death, one could well argue that pre-death freezing would not in fact be suicide in the ordinary sense, since the object here is not the cessation of life but the (admittedly remote but nonetheless scientifically responsible) chance of restoring it.¹⁶

Whatever one's position in the difficult and gray area of cryonic ethics, it should be plain that, in general, the inherent equality of individuals militates against the kind of unbridled individualism that would place no restraint on personal decision-making. As we opt for life over death, our life-and-death decisions must take others into account.

Are Ethical Standards Absolute?

Throughout this essay we have been discussing standards of one kind and another. Now, in conclusion, we had better determine what degree of binding force standards ought to have. Two views of standards are common-the relativistic approach and the absolute viewpoint.

For the relativist, standards do not exist as moral absolutes over against the human decision-maker. Contextual ethicists, for example, see standards as arising from the very texture of group ethical discussion. Existential ethics (one thinks especially of Jean-Paul Sartre) focuses on the uniqueness of the ethical event and the active decision-making imposed by it. (To a resistance fighter during World War II who came to Sartre for moral advice, the existential philosopher declared: "there are no omens in the world. . . DECIDE!") Joseph Fletcher tells us that ethics is situational: we should act in love, letting the end justify the means, and not think that the same moral rules are binding everywhere or for all time.

Ethical absolutists are not impressed by these positions. they note, first of all, that relativistic arguments always beg the question: one must begin with a non-relativistic premise in order even to be able meaningfully to state something relative. This is clear when one examines the assertion, "All is relative." Is that statement relative? (If so, it is no longer necessarily true. But if the statement is absolutely true, then relativism is perforce incorrect!)

Relativistic viewpoints descend into hopeless subjectivity. Contextual ethics has been termed "morality by bladder control", for those able to sit the longest in the group discussion (without having to go to the bathroom) influence the ethical discussion the most! Existentialism is purely ad hoc and therefore ethically arbitrary. the resistance fighter who went to Sartre received no help whatever, for he already knew he had to make a decision-and Sartre on principle was incapable of offering any objective guidance to assist that decision. One man's existential decision can well be another man's poison, and by definition, no criteria exist to arbitrate between them.

Fletcher's situationalism leaves love undefined and opens the floodgates to virtually any action that allegedly produces a good end. In my university debate with Professor Fletcher, I reminded the audience that since for my opponent lying was a legitimate means to a good end (and since he obviously considered their acceptance of situation ethics a good thing), they could discount the truth of anything and everything he said to them that evening!¹⁷ It is not accidental that Professor Fletcher is ethically untroubled by abortion on demand or by active euthanasia.

Medical decisions are fraught with such consequences for human life and dignity that one cannot afford the luxury of a relativistic ethic where they are concerned. Thus, in the international human rights field, efforts are focused on the preservation and promulgation of inalienable, non-derogable rights-rights that cannot be taken away by governments on the pretense that "national emergencies", changing socio-economic conditions, etc. may permit, for example, the torture of prisoners. Once we have justifiably arrived at ethical bedrock, let us not make the sad mistake of building our house upon the sands of relativism!

But is not ethical absolutism rigid and unfeeling? It can be, but this need not be the case. In the broken world we live in , even when moral issues are clearly seen, one must often face genuine conflicts of principle and the necessity of choosing a lesser of evils. Such decisions are not compromises. They are rather a mature recognition of the problems inherent in a fallen world. Here, particularly, the theology represented by classical Christianity can be an incalculable boon, for at its heart is the Cross of Christ, offering forgiveness and hope as we struggle in the slough of ethical ambiguity, striving to apply sound principles to exceedingly complex and often heartrending individual cases.

One thing is certain. If we refuse to face the kinds of questions posed in this essay, we become a danger to the institutions which we represent and the patients and clients entrusted to our care. To paraphrase Socrates outrageously: "the unexamined hospital is not worth funding."

Notes:

¹William O. Robertson, M.D., Medical Malpractice: A Preventive Approach(Seattle: University of Washington Press, 1985), pp. 73-74 (italics ours).
²See John Warwick Montgomery, The Shape of the Past (rev. ed.; Minneapolis: Bethany, 1975).
³See John Warwick Montgomery, The Marxist Approach to Human Rights: Analysis & Critique(Edmonton: Canadian Institute for Law, Theology and Public Policy, 1997).
⁴Ted J. Kaptchuk, O.M.D., The Web That Has No Weaver: Understanding Chinese Medicine (New York: Congdon & Weed, 1983), p. 254.
⁵See John Warwick Montgomery, Human Rights and Human Dignity (Edmonton: Canadian Institute for Law, Theology and Public Policy, 1995).
⁶An example of particularly muddy thinking in this area is the Law Reform Commission of Canada's Working Paper 58, Crimes Against the Foetus (Ottawa, 1989). There we are informed (rightly) that "market research cannot provide a solution, "and then - three pages later - given Angus Reid and Gallop poll results generally supportive of the authors' question-begging non-solution: "In conclusion, the foetus merits at least some protection, not necessarily of the same order as that accorded to those already born, but of a kind increasing as it develops" (pp. 10, 13).
⁷See John Warwick Montgomery, Slaughter of the Innocents: Abortion, Birth Control and Divorce in Light of Science, Law and Theology (Westchester, Illinois: Crossway Books, 1981), especially pp. 72-73, 87ff.
⁸Michael Tooley, Abortion and Infanticide (Oxford: Clarendon Press, 1983), p. 421.
⁹Leslie A. Mulholland, "The Innate Right To Be a Person, " in Ethique et droits fondamentaux, ed. Guy Lafrance, (Ottawa: Les Presses de l'University d'Ottawa, 1989), p. 136.
¹⁰See John Warwick Montgomery, "The Rights of Unborn Children, " in this book.
¹¹Robert Veatch, The Foundations of Justice: Why the Retarded and the Rest of Us Have Claims to Equality (Oxford: Oxford University Press, 1986).
¹²On Bentham, see especially the writings of historian Gertude Himmelfarb, e.g., her Marriage and Morals Among the Victorians, and Other Essays (New York: Random House Vintage Books, 1987), pp. 94-143.
¹³"Seat Belt Legislation Unconstitutional, Says Judge, " HospitAlta, (Edmonton: Alberta Hospital Association, February, 1989), p. 6. the Alberta Hospital Association was a prime supporter of the (ultimately successful) seatbelt legislation.
¹⁴Wm. Blackstone, Commentaries IV, xiv, 3.
¹⁵Thomas Donaldson of Sunnyvale, California, has so petitioned the Santa Barbara County Superior Court to have himself frozen to death (28 April 1990); his attempt was featured in an episode of NBC's "L.A. Law" in January 1990.
¹⁶Cf. John Warwick Montgomery, "Cryonics and Orthodoxy, " Christianity Today 10 May 1968, p. 48. See also John Warwick Montgomery, "Do We Have the Right to Die? " Christianity Today 21 January 1977, pp. 49-50.
¹⁷See Joseph Fletcher and John Warwick Montgomery, Situation Ethics: Is It Sometimes Right To Do Wrong? (Minneapolis: Bethany, 1972).