Active Voluntary Euthanasia

Cleveland State University
EngagedScholarship@CSU
Cleveland State Law Review Law Journals
1989
Active Voluntary Euthanasia: The Ultimate Act of

Care for the Dying
Deborah A. Wainey
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Recommended Citation
Note, Active Voluntary Euthanasia: The Ultimate Act of Care for the Dying, 37 Clev. St. L. Rev. 645 (1989)
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ACTIVE VOLUNTARY EUTHANASIA: THE ULTIMATE
ACT OF CARE FOR THE DYING*
I. INTRODUCTION .................................................. 646
II. EUTHANASIA: FROM A MODE OF DYING TO
A KIND OF KILLING ............................................. 647
A. Ancient Greek and Roman Attitudes ..................... 647
B. ChangingAttitudes Through the 19th Century ......... 648
C. The 20th Century: A Focus on the United States ....... 650
1. Active-Passive Distinction ............................. 650
2. Voluntary-Involuntary-Nonvoluntary Distinction... 652
D . Sum m ary .................................................... 653
III. ACTIVE VOLUNTARY EUTHANASIA: A REALITY IN THE
N ETHERLANDS ................................................... 653
A. The Physicianas Mercy Killer: An Analysis of
D utch Case Law ............................................ 654
B. The Policy of the Dutch Government on the Matter
of E uthanasia............................................... 661
C. The Medical Profession's Response to Developments
in the Law ................................................... 663
D. Striking a Balance Between Case and Statutory Law .. 664
E . Sum m ary .................................................... 665
IV. FACING THE CHALLENGE OF ACTIVE VOLUNTARY
EUTHANASIA IN THE UNITED STATES ......................... 666
A. The Physician as Mercy Killer: An Analysis of
American Case Law ........................................ 668
B. 20th Century Efforts to Legalize Active Voluntary
E uthanasia.................................................. 670
C. The Problems Inherent in Ignoring the Issue 673
D. The Death With Dignity Act: Making The Right
to Choose When to Die a Reality in the United
S tates ........................................................ 673
E. Sum mary .................................................... 677
V. CONCLUSION ..................................................... 677
APPENDIX I ...................................................... 678
We are, by some strange habit of mind and heart, willing to

impose death but unwilling to permit it: we will justify humanly
contrived death when it violates the human integrity of its vic-
tims, but we condemn it when it is an intelligent voluntary
decision. If death is not inevitable anyway, not desired by the
subject, and not merciful, it is righteous! If it is happening
anyway and is freely embraced and merciful, then it is wrong!
- Joseph Fletcher
* In loving memory of my sister, Helen, for whom there was no choice. Her
illness, suffering, and death made me truly appreciate that life is more than mere
existence, and that permitting death to occur can be the ultimate sign of respect
for human life in certain circumstances.
IJ. FLETCHER. MORALS AND MEDICINE 181 (1954).
Published by EngagedScholarship@CSU, 1989 1

CLEVELAND STATE LAW REVIEW [Vol. 37:4
I. INTRODUCTION
On January 30, 1987, Hector Rodas petitioned the Colorado District

Court for the right to request and receive a lethal injection to cause his
death.2 Paralyzed from the neck down as the result of a drug overdose,
Rodas had just received permission from the same court to refuse insertion
of a gastrostomy tube for nutrition and hydration.' He sought to take his%
right of bodily self-determination one step further by exercising his right
5
to choose when to die. Rodas sought the good death of euthanasia, but
4
controversy about the voluntariness of his decision led to dismissal 7of his
starvation.
suit." Fifteen days later Rodas died of dehydration and
Hector Rodas sought to establish that euthanasia was not a criminal
act to be denied one facing a prolonged and painful dying process.8 Eu-
9
thanasia literally means death without suffering and was originally
concerned with the type of death experienced rather than the means of
death. 10 A good death was ideal, even if achieved by way of suicide, for
instance. I
The principle of euthanasia became distorted over the years,12mainly
as a result of Christian views on suicide and the sanctity of life. Today,
3
"death without suffering" means a natural death while "euthanasia" is
4
more readily associated with direct killing. Given the contemporary
understanding of euthanasia, anyone who would have given Rodas the
lethal injection he desired would have been susceptible5 to prosecution for
murder, even though Rodas requested help in dying.
The issue raised by Rodas did not disappear with the dismissal of his
suit. 16 This Note explores whether modern society can embrace the con-
2Rodas v. ErkenBrack, No. 87CV142 (Dist. Ct. Mesa County, Colo. filed Jan.
30, 1987). For a review of the case, see Nota Bene, Rodas v. ErkenBrack, 2 ISSUES
L. & MED. 481 (1987). Death by lethal injection upon request is referred to as
active euthanasia. See infra Section I.C.1.
3In re Rodas, No. 86PR139 (Dist. Ct. Mesa County, Colo. Jan. 22, 1987). For
a review of the case, see Nota Bene, In re Rodas, 2 ISSUES L. & MED. 471 (1987).
4 The American Civil Liberties Union, which represented Rodas, argued that
he had a right to receive a lethal injection grounded in the constitutional right
to privacy, Medical Treatment for Older Peopleand People with Disabilities:1987
Developments, 3 ISSUES L. & MED. 333, 343 (1988) [hereinafter Medical Treat-
ment].
'See infra Section II.A.
6 Medical Treatment, supra note 4.
'Id.
'Id. at 343 n.58.
9 P. RAMSEY, THE PATIENT AS PERSON 149 (1970).
16 See infra note 24.
"See infra Section II.A.
"See infra Section II.B.
"Note, Death with Dignity: Implementing One's Right to Die, 64 U. DET. L.
REV. 557, 566-67 (1987).
14DEATH, DYING, AND EUTHANASIA xix (D. Horan & D. Mall eds. 1977) ("eu-
thanasia is a high-falutin' word for murder").
"See infra note 49.
16Witness the case of Larry McAfee, who has been paralyzed from the neck
down since a May 1985 motorcycle accident and remains hooked up to a ventilator.
QuadriplegicRuled Entitled to Kill Self, The Plain Dealer, Sept. 7, 1989, at D1,
col. 3. McAfee was granted permission by a Fulton County, Georgia, Superior
Court judge in September 1989 to modify his ventilator so that he can turn it off 2
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19891 ACTIVE VOLUNTARY EUTHANASIA
cept of euthanasia as "death without suffering" to the full extent of the

term. Section II explores the distortion of the concept of euthanasia from
an historical perspective. Section III provides insight into the practice of
euthanasia in the Netherlands, the only country in the world which allows
people to request and receive aid-in-dying, i.e., active euthanasia. 7 Sec-
tion IV reviews the American judicial and legislative response to the active
euthanasia issue, and analyzes the Death With Dignity Act,' 8 a model
law which would permit a terminally ill adult to request and receive
active euthanasia and simultaneously protect the physician honoring
9
such request from civil, administrative and criminal sanctions.1 Careful
and intelligent consideration of the Dutch experience and the proposed
Death With Dignity Act suggests that the United States should make
active euthanasia a reality for terminally ill persons.
II. EUTHANASIA: FROM A MODE OF DYING TO A KIND OF KILLING
A. Ancient Greek and Roman Attitudes
Euthanasia is a troublesome word 20 whose original meaning-good

death 2' -can be traced back to ancient Greece and Rome. 22 For the Greeks
and Romans, euthanasia signified a quiet and easy death, one without
suffering. 2 The principle of euthanasia emphasized the type of death
experienced as opposed to the means by which death occurred. 24 Thus,
using a device he designed. Id. Although the judge has ordered that the decision
be appealed to the Georgia Supreme Court, McAfee does not have to wait to have
the ventilator fitted with the switch-off device. Id. Thus, as noted by his attorney,
McAfee has been given the right to choose when to die without being pressured
to take his life. Anderson, The Right to Choose Death: Atlanta Judge Allows
Quadriplegicto Turn Off His Ventilator,A.B.A. J. 18 (Dec. 1989). Unfortunately,
this very choice was denied Rodas.
I7See infra Section II.C.1.
"1See infra Section IV.D.
9 See infra note 278.
20The word "euthanasia" is troublesome in the sense that it has too many
meanings. For a brief commentary on the different meanings of euthanasia and
the need to clarify what one means when talking about euthanasia, see Hilton,
Euthanasia is Hardly a 4-Letter Word, San Francisco Examiner, Jan. 21, 1988,
at E-3 (photo. reprint courtesy The National Hemlock Society).
21 Euthanasia is derived from the Greek eu ("good") and thanatos ("death").
Humphry, The Case for Rational Suicide, 17 SUICIDE AND LIFE-THREATENING BE-
HAVIOR 335, 335 (1987) (reprint courtesy The National Hemlock Society).
22 Other ancient civilizations which practiced euthanasia include India and
Sardinia. Note, The Rightof the Terminally Ill to Die, with Assistance if Necessary,
8 CRIM. JUST. J. 403, 404 (1986). Voluntary euthanasia was both morally accept-
able and customary in these civilizations in the case of the aged or infirm. Id.
23 Paul Ramsey, a Christian ethicist, suggests that the concept of death without
suffering extends only to caring for the dying. P. RAMSEY, supra note 9. See also
YOUR DEATH WARRANT?. 15 (J. Gould & Lord Craigmyle eds. 1971) [hereinafter
DEATH WARRANT]. But see Admiraal, Justifiable Euthanasia,3 ISSUES L. & MED.
361, 362 (1988) (euthanasia is "the ultimate act of care for the dying").
24 J. WILSON, DEATH BY DECISION 17 (1975). Euthanasia provided the oppor-
tunity to choose a dying process that was good or happy for the one experiencing
it. Foot, Euthanasia,in DEATH AND DECISION 86 (E. McMullin ed. 1978). Today,
"type" and "means" refer to whether euthanasia is classified as voluntary, in-
voluntary or nonvoluntary, or as active or passive, respectively. S. MCLEAN & G.
MAHER, MEDICINE, MORALS AND THE LAw 44 (1983). See infra Section II.C.1.
the concept of dying well overrode the general disapproval of suicide ,25
and an incurably ill person with unbearable suffering had the right to
choose a quick and painless death as an alternative to a lingering and
2 6
degrading one.
B. ChangingAttitudes Through the 19th Century
The influence of Christianity, conflicts raised by the Hippocratic Oath,2
and the resultant distinction between passive and active euthanasia 2
played key roles in the growing disapproval and distortion of euthanasia.
The rise of Christianity brought with it an absolute ban on killing
human beings, including oneself,29 grounded in the doctrine of the sanctity
0
of life. The ban on suicide necessarily included a ban on euthanasia 3 1
since killing oneself was not justified for any reason.3 2 Human life was
considered sacred, a gift from God subject only to his power. 33 The effect
on the suicide rate was immense-by the 4th century A.D. the limited
tolerance of suicide associated with classical Greek and Roman civiliza-
tion had virtually disappeared.34
St. Augustine (354-430 A.D.) vigorously condemned suicide as "intrin-
sically sinful" because it went against man's inherent tendency to pre-
serve his existence. Suicide was viewed as the most mortal of sins since
it denied the victim a chance for salvation.35 Church law denied a Chris-
tian burial to anyone who took his own life. 36 Civil laws also reflected
15Ancient Greeks and Romans generally disapproved of suicide, although they

viewed an absolute ban on suicide as unreasonable. J. RACHELS, THE END OF LIFE
8 (1986). The Romans, in fact, were more tolerant of suicide than the Greeks,
although Roman law specifically forbade suicide. Marzen, O'Dowd, Crone &Balch,
Suicide: A Constitutional Right?, 24 DuQ. L. REV. 1, 26 (1985) [hereinafter
Marzen]. In both civilizations, suicide was justifiable as a means to achieve a good
death. D. HUMPHREY & A. WICKErr, THE RIGHT TO DIE 4-5 (1986).
26 J. RACHELS, supra note 25.
27The Hippocratic Oath, a standard of ethics for the medical profession, dates
back to 400 B.C. in ancient Greece. Mannes, Euthanasiavs. The Right to Life,
27 BAYLOR L. REV. 68, 70 (1975). For a copy of the Oath, see 0. RUTH RUSSELL,
FREEDOM TO DIE 285 (rev. ed. 1977). Two duties contained in the Oath are seem-
ingly incompatible, i.e., the promise to relieve suffering and the promise to prolong
and protect life. J. FLETCHER, supra note 1, at 172.
See infra Section II.C.1.
The ban was against killing man and, as a man, one could not kill oneself
any more than one could kill another man. J. RACHELS, supra note 25, at 11-12.
The Church eventually modified its position in the case of war and capital pun-
ishment, reasoning that killing in such cases was for the good of the State. Id.
at 10-11.
30 For a detailed explanation of this doctrine and how it relates to medical,
moral and legal issues, see S. McLEAN & G. MAHER, supra note 24, at 1-19.
31Euthanasia and suicide are coinherent because in order to achieve a good
death one had to kill oneself or permit another to do so. This understanding of
euthanasia and suicide is captured in the definition offered by Dr. Joseph Fletcher,
a prominent theologian and advocate of euthanasia: "Suicide is choosing to die
when one chooses to, either with or without assistance." Fletcher, The Right to
Choose When to Die, HEMLOCK Q., Jan. 1989 at 3.
32 D. HUMPHRY & A. WICKET', supra note 25, at 7.
J. WILSON, supra note 24, at 24.
Marzen, supra note 25.
31 Id. at 27-28.
3
1 J. WILSON, supra note 24. at 23.
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1989] ACTIVE VOLUNTARY EUTHANASIA
the intolerance of suicide -a suicide victim's property was seized by civil
37
authorities and his body buried in the highway, impaled by a stake.
The Christian view on suicide dominated the Western hemisphere
throughout the Middle Ages.
The influence of Christian opposition to suicide began to weaken by
the 17th century. Robert Burton and John Donne, both Anglican cler-
gymen, questioned the ironclad ban on suicide in their respective pub-
38 39
lications, The Anatomy of Melancholy, and Biathanatos. That these
men constituted a minority was evidenced by the force of the outcry
against them at the pulpit and in counter publications. Despite such
renewed opposition, the once-negligible suicide rate began to climb. 4
During the 17th century, society began to associate euthanasia with
the medical treatment rendered to dying patients. Philosophers and es-
sayists, such as Bacon, Montaigne and Donne, advocated a merciful re-
lease from unnecessary suffering. 41 Bacon, in fact, urged physicians to
become skilled42in the means of helping dying patients attain "a fair and
easy passage.."
The 18th century was a period marked by skepticism and religious
indifference known as the "Age of Reason." The suicide controversy had
escalated, and atheistic arguments in defense of suicide began to out-
number deistic arguments in opposition thereof. Some actually succeeded
in simultaneously condemning suicide from a religious viewpoint while
justifying it from a purely
44
human perspective. 43 It was this attitude that
eventually prevailed.
The medical profession began to acknowledge its responsibility to the
dying patient during the 18th century.45 Physicians focused their efforts
not on terminating life, but on using their skills to alleviate the suffering
of the incurably ill. The Greek concept of an easy death as an alternative
to unbearable suffering began to give way to death that was made as
natural and humane as possible but not intentionally brought about. This
attitude prevailed throughout the 18th and 19th centuries."
By the end of the 19th century, however, the death experience itself as
the focal point of euthanasia was cast aside in favor of the act of attaining
death. Euthanasia was promoted as the merciful act of taking another's
life to end their suffering, i.e., mercy killing. 47 Emphasis had shifted from
37D. HUMPHRY & A. WICKETr, supra note 25, at 6.
38
Marzen, supra note 25, at 31. In The Anatomy of Melancholy, Burton "ques-
tioned the accepted position that those who commit suicide are eternally damned."
Id.
39
Id. at 31-32. Donne argued that "each suicide must be judged individually,
and in some cases the suicide is justified and acceptable to God." Id. at 32.
40Id. at 31-33.
41 D. HUMPHRY & A. WICKETT, supra note 25, at 9.
42Mannes, supra note 27, at 69.
Marzen, supra note 25, at 33-34.
4Id. at 56.
45 D. HUMPHRY & A. WICKErT, supra note 25, at 9.
4J. WILSON, supra note 24, at 27. This can be seen as early recognition of
what is now referred to as the distinction between active and passive euthanasia.
See infra Section II.C.1.
41Mercy killing is defined as "[t]he affirmative act of bringing about immediate
death allegedly in a painless way and generally administered by one who thinks
that the dying person wishes to die because of a terminal or hopeless disease or
Publishedcondition."
by EngagedScholarship@CSU, 1989
BLACK's LAW DICTIONARY 511 (abr. 5th ed. 1983). 5
justifying a terminally ill person's means of dying to justifying another's

act of killing them. The compassion inherent in allowing an incurably
ill person to choose an easy death ("euthanasia") was displaced by the
notion of allowing a second party to kill that person as an act of mercy
("mercy killing").
Some proponents of euthanasia at this time suggested that physicians
had a duty not merely to alleviate suffering but to put hopelessly ill
persons to death through quick and painless means. 48 Fear of criminal
liability tempered wholesale acceptance of this idea, 49 but the damage
was done. Mercy killing and euthanasia had become synonymous for the
act of directly killing an incurably ill person to end his suffering. The
distortion of euthanasia "as a kind of killing rather than a mode of
dying" 50 would undermine future efforts to restore to the terminally ill
the right to choose a death without suffering regardless of the means of
dying.
C. The 20th Century: A Focus on the United States
The means and type of death remain central to a contemporary un-

derstanding of euthanasia. However, instead of euthanasia as an easy
death (type) being justified regardless of how the death occurred (means),
the focus today is on (1) the involvement of a second party as being active
or passive (means), and (2) whether the victim participated in the eu-
thanasia decision at all (type).51
1. Active-Passive Distinction
The distinction between active and passive euthanasia is often framed

in terms of the killing-letting die dichotomy, which provides that it is
morally wrong to intentionally take a life, but alright to allow the in-
evitable to happen by withdrawing or withholding treatment. 52 This is
too simplistic an explanation, however, especially in light of the fact that
J. WILSON, supra note 24, at 27. The problem with this suggestion was that
it made no provision for the doctor who conscientiously objected to euthanasia
on religious or other grounds. It also failed to make clear whether the physician
was to respond to a patient's request for death or take it upon himself to make
the euthanasia decision.
41 Suicide is not a crime in the United States, but assisted suicide
is a statutory
crime in 22 states, classified either as a unique offense or a type of murder or
manslaughter. Shaffer, Criminal Liability for Assisting Suicide, 86 COLUM. L.
REv. 348, 348, 353 (1986). A person who provides the means to commit suicide is
guilty of assisted suicide. Id. at 351 n.30. A person who participates in a suicide
by performing the act causing death, even if done at the request of the victim, is
guilty of murder, based on the criminal law theory that, in the United States,
consent to homicide is not an affirmative defense to the killing of another human
being. Id. at 351. See infra Section IV.
50Velasquez, Defining Suicide, 3 ISSUE L. & MED. 37, 39-40 (1987).
51S. McLEAN & G. MAHER, supra note 24, at 44, 50.
52 Potts, Looking for the Exit Door: Killing and Caring in Modern Medicine,
25 Hous. L. REV. 493, 500 (1988). For a discussion of the underlying logic of the
killing-letting die dichotomy, see Walton, Active and Passive Euthanasia,86 ETH-
ICs 343 (1976).
approval or disapproval of euthanasia in the United States hinges more

on whether it is active or passive than on whether it is voluntary, in-
53
voluntary or nonvoluntary.
Active euthanasia generally refers to steps taken to deliberately induce
death whereas passive euthanasia infers doing nothing, that is, letting
nature take its course. 54 By definition then, each involves an "act"-active
euthanasia, an act of commission; passive, an act of omission.5 5 Each act
results in the death of the person earlier than would have been the case
without such act. 56
The doctrine of double effect 5 7 best illustrates the distinction between
active and passive euthanasia in the sense of the killing-letting die di-
chotomy. Double effect is an intention-driven doctrine which provides
that "in certain circumstances, where the intention behind an action is
good, the action is permissible even although [sic] it is known that un-
desirable consequences will also follow."58 1 Double effect therefore con-
dones the administration of a lethal injection so long as the intent behind
the act is to alleviate suffering rather than to hasten death, even though
life is shortened as a secondary effect of the effort to alleviate suffering.59
The reason for the active-passive distinction is not grounded in
morality60 but lies rather in concern for the actor's culpability as the
cause of death.6 ' The culpability of the actor is irrelevant, however, as to
the patient who desires a good death, 62 except to the extent that the actor
acts without the permission of said patient. The real concern, therefore,
13 Witness the handful of doctors prosecuted in the United States for the mercy
killing of their patients, many of whom defended themselves on the theory of
lack of causation. See infra Section IV.A. The degree of patient participation in
the decision to perform euthanasia ran the gamut of the voluntary-involuntary-
nonvoluntary distinction, yet all but one of the doctors who have stood trial were
acquitted of murder; the doctor found guilty of murder received a lenient pun-
ishment. Id.
- Rachels, Euthanasia,Killing, and Letting Die, in ETHICAL ISSUES RELATING
To LIFE AND DEATH 148 (J. Ladd ed. 1979).
0. RUTH RUSSELL, supra note 27, at 19-20. Professor George Fletcher argued
that there is a difference between an act of commission and an act of omission
grounded in the common understanding of the legal consequences of causing
something to happen versus permitting it to occur. Fletcher, ProlongingLife, 42
WASH. L. REV. 999 (1967) [hereinafter ProlongingLife]. Thus, one can grasp why
the person performing euthanasia would want to distinguish between its active
and passive forms-passive euthanasia distances him from legal responsibility
for the resultant death more so than does active euthanasia.
Rachels, supra note 54, at 151.
r7 For a brief explanation, see Potts, supra note 52, at 513. For a more detailed
treatment, see J. RACHELS, supra note 25, at 16-17.
S. McLEAN & G. MAHER,supra note 24, at 52.
59
1d.
60Rachels, supra note 54, at 147. See also Fletcher, supra note 31. Contra
O'Rourke, Active and Passive Euthanasia: The Ethical Distinctions, HOSPITAL
PROGRESS, Nov. 1976, at 68 ("From an ethical or moral point of view, causing
something to happen when it can and should be prevented (active euthanasia) is
very different from allowing something to happen when there is no moral obli-
gation to prevent it (passive euthanasia).").
LI ProlongingLife, supra note 55.
6 Gelfand, Euthanasiaand the Terminally Ill Patient,63 NEB. L. REV. 741, 753
(1984).

should focus on ensuring that euthanasia is performed at the voluntary

63
request of the person seeking aid-in-dying.
2. Voluntary-Involuntary-Nonvoluntary Distinction
While the active-passive distinction is irrelevant as to the patient re-
questing euthanasia, the voluntary-involuntary-nonvoluntary distinc-
tion is of utmost importance to the patient. Euthanasia is classified as
voluntary, involuntary or nonvoluntary depending on the extent of the
patient's participation, if any, in the euthanasia decision.64
Voluntary euthanasia is performed at the express request or with the
informed consent of a legally competent patient.65 The patient's right to
decide what is done with his body is best protected when his choice of
death is honored, whether that choice requires withdrawal of life support
equipment or administration of a lethal injection, because it is the most
important expression of personal autonomy.
Involuntary euthanasia is done against the will or without the consent
of a patient possessing the capacity to make a meaningful decision on
the subject. In other words, a competent patient is either not consulted
on the subject or his decision to forego euthanasia is ignored. Involuntary
euthanasia is the worst alternative for the patient from an autonomy
point of view, although it is conceded that such a scenario might be
economically feasible and, therefore, technically the best decision.6 6
The gray area between voluntary and involuntary euthanasia has been
dubbed nonvoluntary euthanasia. Nonvoluntary euthanasia is performed
at the request of the legal guardian and/or family of one who is unable
to participate in the decision due to incompetence. 67 Such a patient may
have always been incompetent (e.g., severely retarded) or may have be-
come incompetent as the result of injury or disease (e.g., comatose pa-
tients, head injury victims).68 Nonvoluntary euthanasia brings the
concept of substituted judgment6 9 into play by requiring the guardian "to
put himself in the shoes of the incompetent patient and decide as the
70 '
patient would if competent.
"[T]here is a profound moral difference between euthanasia administered at

the patient's own request and acts done of the actor's 'own head'." Silving, Eu-
thanasia: A Study in Comparative Criminal Law, 103 U. PA. L. REV. 350, 389
(1954). See also Wolhandler, Voluntary Active Euthanasiafor the Terminally Ill
and the ConstitutionalRight to Privacy, 69 CORNELL L. REV. 363, 368 (1984) ("The
law should rest upon the [patient's] status and not upon the degree of second-
party assistance.").
S. McLEAN & G. MAHER, supra note 24.
65Wolhandler, supra note 63, at 366. "In the euthanasia context, legal com-
petence is the incurable's ability to understand that in requesting active euthan-
asia he is choosing death over life." Id. at 367 (emphasis added).
S. McLEAN & G. MAHER, supra note 24, at 44-45.
6 0. RUTH RUSSELL, supra note 27, at 21.
Potts, supra note 52, at 499.
The leading case on the concept of substituted judgment is the landmark
decision handed down in In re Quinlan, 70 N.J. 10, 41, 355 A.2d 647, 664, cert.
denied, 429 U.S. 922 (1976) (guardian to render best judgment as to whether
patient would exercise her right of privacy under the circumstances).
10Agrawal, In re Conroy: Forginga Path to Death with Dignity, 67 B.U.L. REV.
365, 370 (1987).
D. Summary
The active-passive distinction is irrelevant as to the right of a termi-

nally ill person to choose when to die because the consequences of both
acts are the same. 71 Emphasis should be placed on whether the patient
has voluntarily requested euthanasia. The Netherlands provides an ex-
ample of a country that originally placed great emphasis on the active-
passive distinction 72 but shifted toward acceptance of the voluntary-in-
voluntary-nonvoluntary distinction as equally important. 73 Today, the
Netherlands permits physicians to perform active euthanasia without 74
risk of liability provided certain judicially-created criteria are satisfied,
among which is the requirement that the doctor carefully weigh the
suffering of the patient as part of the euthanasia decision.7 5
IH. ACTIVE VOLUNTARY EUTHANASIA: A REALITY IN THE NETHERLANDS
The Dutch Penal Code of 1886 operates on two premises; namely, (1)
"a misdeed is punishable only if it has been made punishable by name
in the law,' 76 and (2) there is "no punishment without guilt. '77 The Penal
Code contains general grounds for exculpation and specific grounds for
increasing or decreasing the punishment under a particular law.7 8 Article
293 of the Penal Code states that "[hie who robs another of life at his
express and serious wish, is punished with a prison sentence of at most
twelve years ... -79 The punishment for mercy killing imposed under
Article 293 is less severe than the punishment for murder 0 due to the
request of the victim.8 ' The reasoning behind this diminished punishment
7' This is the approach of a consequentialist, as opposed to that of an absolutist,

who believes that there is an absolute distinction between killing and letting die.
See Ladd, Positive and Negative Euthanasia,in ETHICAL ISSUES RELATING TO LIFE
AND DEATH 165 (J. Ladd ed. 1979).
11In 1973 a Dutch Health Council committee recommended that "[t]he eu-
thanasia-problem [sic] ... be resolved via the distinction active/passive and not
voluntary/involuntary." Driesse, van der Kolk, van Nunen-Forger & de Marees
van Swinderen, Euthanasiaand the Law in the Netherlands, 3 ISSUES L. & MED.
385, 393 (1988) [hereinafter Driesse].
13See infra Section III.A.
7' See infra note 85.
1 D. HUMPHRY & A. WICKETT, supra note 25, at 179.
76Driesse, supra note 72, at 385.
77
Id.
78 Id.
79Id. at 386.
soMurder is defined at Article 289 of the Penal code as "deliberate killing with
malice aforethought" and is punishable with either life in prison or a temporary
sentence of up to 20 years in prison. Id.
"IWhen the motive behind a killing is the desire to comply with the victim's
request, then the homicide is categorized as "homicide upon request". Silving,
supra note 63, at 363. Several modern continental European criminal codes,
including that of the Netherlands, recognize homicide upon request as being less
culpable than murder. Id. The United States does not formally recognize homicide
upon request. Id. at 352.

is the fact that murder violates the life of a particular person, whereas
82
mercy killing violates respect for human life in general.
In addition, the "Penal Code assumes that situations can develop in
which overstepping a norm may not be laid to one's charge and gives the
judge the possibility and the duty to ascertain what brought this person
to this deed in these circumstances. 83 This aspect of the Penal Code was
the apparent driving force behind a series of judicial decisions over the
past 17 years which ultimately provided a way for physicians to circum-
vent Article 293. Today, "[t]he verdict [in a euthanasia case] can be guilty
but with no punishment" provided that the physician acted in accord-
85
ance with certain criteria.
How did the Netherlands, a small nation which successfully resisted
the first step toward cooperation with the Nazi program of involuntary
euthanasia during World War 11,86 "become the [world] leader in volun-
tary euthanasia"?8 7 Euthanasia became a generally accepted part of med-
ical practice, even though not codified, 88 due to a number of factors, the
most important being willingness to confront the issue. s 9 The Dutch did
not let the potential for abuse prevent them from permitting active vol-
untary euthanasia to take its proper place as the right thing to do in
certain situations.
A. The Physician as Mercy Killer: An Analysis of Dutch Case Law
Although the first case in which a physician was convicted but not
punished under Article 293 occurred in 1950,90 it was a 1971 incident
12 Driesse, supra note 72, at 387. The consent of the victim apparently serves
to lessen the weight of disrespect for human life. The distinction between a crime
against the person and a crime against life is important in the euthanasia context
because Dutch doctors are not required to report crimes against life. Verbatim,
Guidelinesfor Euthanasia,3 IssuEs L. & MED. 429,437 (1988) [hereinafter Guide-
lines].
83Driesse,supra note 72, at 390.
Sagel, Voluntary Euthanasia,THE LANCET, Sept. 20, 1986, at 691 (letter to
84
the editor).
85"The most important criteria are that euthanasia has been administered by
a physician at the repeated request of a well-informed, hopelessly suffering patient
and8 after consultation with a second physician." Id.
6D. HUMPHRY & A. WICKETr, supra note 25, at 171. Dutch physicians collec-
tively refused to comply with Nazi directives on sterilization, euthanasia, and
deportation. Despite threats that their medical licenses would be revoked, as well
as the arrest and imprisonment in concentration camps of 100 Dutch physicians,
the Dutch medical profession successfully resisted Nazi efforts to implement such
programs
8
in the Netherlands. Id. at 170-71.
7F. Clines, With Courts Paving the Way, Holland Quietly Takes the Lead in
Euthanasia,99 L.A.D.J. Dec. 3, 1986, at 18, col. 5. "[I]t is precisely in the field
of euthanasia that Holland has the dubious honor of being the most advanced
country in the world." Schepens, Euthanasia:Our Own Future?, 3 ISSUEs L. &
MED. 371, 371 (1988).
81Id. at 378.
90
The first case in which a doctor was prosecuted under Article 293 occurred
in 1950 and illustrates the court's ability to consider the circumstances before
which sparked the beginning of the Dutch move toward legalization of

active voluntary euthanasia.9 1 The incident involved Dr. Geertruida
Postma, who was charged under Article 293 in October 1971.92 Dr. Postma
admitted 93 injecting 200 milligrams of morphine into the veins of her 78
year old terminally ill mother, who died within minutes.94 At the time
Postma was brought to trial, it was not unusual for the "average physician
in the Netherlands"95 to manipulate medications in order to alleviate the
unbearable suffering of an incurably ill patient, even if that course of
action would shorten the patient's life. 96
97
The court adopted the professional medical standard as a guide, and
imposing sentence. The case involved a physician who gave a combination of

painkillers and sleeping pills to his incurably ill brother who had requested to
have his life ended. The doctor, who faced a maximum 12 years in prison, received
a one year suspended sentence. Thus, although the doctor was convicted under
Article 293, the court apparently considered the relationship between the doctor
and patient, as well as other circumstances, significant enough to warrant the
suspended sentence. 0. RuTH RUSSELL, supra note 27, at 254-55. It is of note that
at the same time in the United States, Dr. Hermann Sander was charged with
first-degree murder in the death of Abbie Burotto, a cancer patient on the verge
of death. Dr. Sander was accused of injecting air into Burotto's veins. Despite the
lack of motive or consent as a defense to murder generally, Sander was acquitted
after a three week jury trial. See infra Section IV.A.
91"The Dutch are extremely sensitive to the notion that they 'legalized eu-
thanasia.' They hasten to point out that 'it goes unpunished,' which they argue
is different from legalization-a point some observers find moot." D. HUMPHRY &
A. WICKETT, supra note 25, at 175. See also Sagel, supra note 84.
92 D. HUMPHRY & A. WICKEr, supra note 25, at 171-72.
13 Dr. Postma explained what happened to the director of the nursing home.
Instead of signing the death certificate, he reported Postma to the police. Id. at
172.
14 Dr. Postma's mother was a nursing home resident suffering from a cerebral
hemorrhage, partial paralysis, speech difficulty, pneumonia and deafness. She

had repeatedly asked for help in dying and had even attempted suicide without
success. Id. at 171-72.
95Verbatim, EuthanasiaCase Leeuwarden - 1973, 3 ISSUEs L. & MED. 439, 439
(1988) [hereinafter Leeuwarden].
9 Id. at 439-40. This methodology will hereinafter be referred to as a "course
of alleviation." The course of alleviation methodology was considered appropriate
by the medical profession to relieve suffering completely or to the extent possible
when the following five conditions were present:
A. [When] it concerns a patient who is incurable because of illness
or accident ...or who must be regarded as incurably ill from a
medical standpoint;
B. subjectively, his physical or spiritual suffering is unbearable or
serious to the patient;
C. the patient has indicated in writing, it could even be beforehand,
that he desires to terminate his life, in any case that he wants to
be delivered from his suffering;
D. according to medical opinion the dying phase has begun for the
patient or is indicated; and
E. action is taken by the doctor, that is, the attending physician or
medical specialist, or in consultation with that physician.
Id. at 439.
17Id. at 440. The court did not believe that alleviation of suffering should be
withheld from a patient until the dying phase had begun and, therefore, did not
adopt "D" as one of the requisite criteria triggering commencement of a course
of alleviation for an incurably ill person with unbearable suffering. Id.
acknowledged that the requisite conditions for a course of alleviation were

present, but that Postma had deviated from the standard by bypassing
the course of alleviation and opting instead for immediate termination
of her mother's life.98 Dr. Postma was given a conditional sentence of one
week with a probationary period of one year.99
The Postma case illustrates the doctrine of double effect in action. The
doctrine of double effect condones the administration of drugs to relieve
suffering even if the result is to shorten the patient's life; administration
of drugs with the intent to bring about immediate death, however, is
forbidden."0° The key, therefore, is the intent of the actor, i.e., relieve
suffering or shorten life, and not the consequences of his actions, i.e.,
death earlier than would have been the case. If Dr. Postma had manip-
ulated her mother's medication over a course of time in order to relieve
her suffering-as opposed to using a fatal injection without recourse to
alleviation -her actions would not have been punished even though they
served to hasten her mother's death. This dichotomy lends confusion to
interpretation of her case. Was the court merely sanctioning double effect
or did it mean to go one step further, formulating specifications under
which a doctor could avoid punishment under Article 293? The court's
emphasis on the fact that Postma did not "even attempt to pursue this
course [of alleviation], [but] instead administer[ed] a lethal dose all at
one time"'1 1 implied that it was legally acceptable for a doctor to end a
qualified patient's 10 2 suffering so long as she did not resort to lethal means
without first pursuing a course of alleviation. 103
The Postma case afforded a terminally ill person with unbearable suf-
fering the right to request and receive aid-in-dying from his attending
physician. A 1981 ruling took a giant leap forward in expanding the right
to the non-terminally ill. 04 The case, which involved a lay volunteer who
helped a woman commit suicide, was tried before the Criminal Court in
Rotterdam." °' The court promulgated standards for noncriminal aid-in-
dying, the most significant of which was that a person need not be ter-
minally ill to request and receive such aid, but need only have unbearable
physical and spiritual suffering which is continuous. 106 The court ac-
knowledged the patient's right to self-determination 10 7 by allowing active
voluntary euthanasia on request provided certain criteria were satis-
fied, 1 8 and demonstrated its intent to protect such right by convicting
OLeeuwarden, supra note 95, at 441.
Id. at 442. The sentence was light considering Postma faced a maximum 12
years in prison. Driesse, supra note 72, at 386.
100Supra note 57.
101Leeuwarden, supra note 95, at 441 (emphasis added).
102 A qualified patient being one who met the criteria adopted by the court. See
supra note 97.
103Contra Driesse, suvra note 72, at 393 ("According to some writers this pron-
ouncement did not go farther than tolerating an earlier entry of death as a side
effect of pain alleviation.").
114Id. at 394.
105Diekstra, Suicide Should Not Always Be Prevented, in DEATH AND DYING
56 (1980).
0
1 6 D. HUMPHRY & A. WICKETT, supra note 25, at 176-77. For a copy of the
rules,
0 see id. at 177.
1 7 Abstracts, 3 IssuEs L. & MED. 455, 456 (1988).
https://engagedscholarship.csuohio.edu/clevstlrev/vol37/iss4/9
108Driesse, supra note 72, at 393. 12
the defendant for failure to comply with the standards developed by the
court. 0 9
The next important case re-emphasized the right to self-determina-

tion 1 0 and, in fact, further expanded the right to choose active voluntary
euthanasia, requiring only continuous suffering without reference to it
"being unbearable as an independent condition."'1 The case, which was
tried before the Alkmaar Court in 1983, involved a 94 year old woman
who had deteriorated over a five year period to the point where her
physician, Dr. Schoonheim, acknowledged that there was no hope for
improvement." 2 She had repeatedly pleaded with him for help in dying
during this period and continued to do so after the diagnosis. After con-
sulting with her family and another physician, Schoonheim administered
a lethal injection. 113
Dr. Schoonheim was prosecuted" 4 but the trial court acquitted him" 5
based on the doctrine of the absence of material illegality."6 Material
illegality can be absent to the extent that an action is not undesirable
as a matter of law. The trial court found that Schoonheim had acted with
the greatest possible care, giving serious consideration to the persistent
suffering of his patient before making the decision to perform euthanasia.
Accordingly, the court ruled that his actions were not legally undesirable
7
and, therefore, not materially illegal under Article 293."1
The ruling also served to acknowledge the patient's right to self-de-
termination." 8 For the first time the issue of whether the suffering of the
patient in and of itself could be the deciding factor in justifying the
"09 Diekstra, supra note 105. It is not clear which rules were violated although
the rules were specifically mentioned in the sentence imposed by the court. Id.
Abstracts, supra note 107 ("the... judge... acknowledged the right of self-
110
determination in 1983 as had the Court of Rotterdam in 1981.").
M Driesse, supra note 72, at 394.
112 Garbesi, The Law of Assisted Suicide, 3 ISSUEs L. & MED. 93, 108-109 (1987).
For a review of the case and its implications as to Article 293 by the Advocate
General at the Court of Justice in the Hague, see Abstracts, supra note 107, at
455-68.
,3Garbesi, supra note 112.
114 Being one of the few doctors who reported his participation in a euthanasia
procedure at the request of a patient, Schoonheim ended up among the handful

of cases brought to the Public Prosecutor's attention which actually wind up in
court. See infra note 167. It is believed that thousands of violations of Article 293
occur annually but that only a small percentage of them reach the Public Pros-
ecutor's office due to the prevalence of false death certifications by the Dutch
medical profession in order to avoid investigation. Abstracts, supra note 107, at
467. It is likely that the number of cases reported to the Public Prosecutor will
increase as the result of the 1987 court decision which provided that physicians
cannot falsify death certificates in the case of death due to active voluntary
euthanasia. Id. at 468. For a translation of the court opinion, see Nota Bene,
Courtof the Hague (PenalChamber),April 2,1987,3 IssuEs L. & MED. 451 (1988).
1 D.HUMPHRY & A. WICKETr, supra note 25, at 178. "This was the first time
that a lower court had acquitted a physician [under Article 293]." Id.
11 Abstracts, supra note 107.
117 Id.
118 Id. The right of self-determination is a corollary to the absence of material
illegality in that it is the patient who finds the action desirable and to exempt
the physician based on the doctrine of absence of material illegality necessarily
is to acknowledge the patient's right of self-determination. Driesse, supra note
Published
72, byatEngagedScholarship@CSU,
393-94. 1989 13
euthanasia decision was pertinent to the outcome of the case. 119 As noted
above, the Rotterdam Court had required continuous and unbearable
suffering of a physical and spiritual nature as part of the criteria for
justification of the euthanasia decision. 12 0 The Alkmaar Court departed
from this standard in two respects, namely, requiring only continuous
suffering without "reference to [the] suffering being unbearable as an
independent condition,"' 21 and acknowledging that the psychological
(mental) suffering of the patient could itself be significant enough to tip
the scale in favor of euthanasia. 1 22 The court's greater emphasis on the
patient's suffering bolstered the right to self-determination without jeop-
ardizing the protection afforded a physician who participated in a eu-
23
thanasia procedure.'
The Amsterdam Court of Appeal overturned the decision, rejecting the
doctrine of the absence of material illegality outright. 124 The court de-
termined that while the doctor's actions might have been desirable, es-
pecially in terms of the patient's right to self-determination, such actions
were still illegal, and the doctor still accountable, under Article 293.125
Accordingly, the appellate court declared Schoonheim guilty but imposed
no punishment, reasoning that while it was doubtful Schoonheim had
acted out of necessity, it was nonetheless evident that he had acted with
integrity and due caution.' 2 6 The appellate court seemed most concerned
with making it known that although doctors might escape punishment
under Article 293, they were not exempt from the law.
The Schoonheim case ultimately reached the Dutch Supreme Court,
which affirmed the appellate court's analysis as to the absence of material
illegality, but remanded the case to another trial court, 27 the Court of
the Hague, to determine if Schoonheim's actions were justified under the
doctrine of necessity.12 1 The Supreme Court acknowledged the conflicting
duties faced by Schoonheim and developed three criteria to be considered
by the Court of the Hague in its review of the interplay between the
patient's suffering and the doctor's actions: "1. [w]hether, and to what
extent, there is reason to fear further deterioration and/or that already
unendurable suffering would increase? 2. [w]hether, considering potential
119Abstracts, supra note 107. This is especially important in light of the fact
that previously a combination of physical and psychological suffering was most
common to euthanasia cases. Id.
120See supra note 106.
122 Abstracts, supra note 107.
122Id.
,24 Id. at 456-57.
125Cf. People v. Conley, 64 Cal.2d 310, _, 411 P.2d 911, 918, 49 Cal. Rptr. 815,
822 (1966) ("[Olne who commits euthanasia bears no ill will toward his victim
and believes his act is morally justified, but he nonetheless acts with malice if
he is able to comprehend that society prohibits his act regardless of his personal
belief.").
126Abstracts, supra note 107, at 457.
12I Garbesi, supra note 112, at 109.
128Abstracts, supra note 107, at 457-58. "The doctrine of necessity in the com-
mon law refers to a choice between competing values, where the ordinary rule
has to be departed from in order to avert some greater evil." 0. RUTH RUSSELL,
supra note 27, at 126.
deterioration, it is probable that the patient is now unable to die with

dignity? 3. 12[w]hether,
' 9
and to what extent, it is still possible to alleviate
suffering?
The Court of the Hague dismissed the case against Schoonheim, finding
that although there was no medical consensus as to the permissibility of
active voluntary euthanasia, his actions were "justified according to rea-
sonable medical insight."'20 The court in effect said that the primary
responsibility for deciding to proceed with euthanasia lay with the med-
ical profession as opposed to the judiciary. 13 1 At the same time, the court
reinstituted recognition and protection of the patient's right to self-de-
termination by requiring that the second criteria in a necessity situation
was dependent on the patient herself, 132
i.e., did the patient believe that
she could no longer die with dignity?
The effect of the Schoonheim case was that active voluntary euthanasia
rendered by a physician would stand up in court even as against Article
293, provided that the physician had acted in accordance with professional
medical standards and had carefully weighed the suffering of the patient
as part of the euthanasia decision. 133 No blanket exemption was afforded
physicians, and the justifiability of a doctor's decision to administer eu-
thanasia was becoming increasingly dependent on the patient's needs and
desires with respect to dying. Concern was shifting from an emphasis on
the doctor's right to perform euthanasia in a given instance to whether
euthanasia was the right thing to do from the patient's perspective in
that instance.
Over the course of a decade, the courts had moved rapidly along the
spectrum of permissibility in determining euthanasia cases. The courts
removed early criteria of terminal illness and unbearable suffering, ex-
panding the patient's ability to control the dying process to the point that
someone experiencing continuous mental suffering as the result of illness
or disease had the right to request and receive aid-in-dying from the
attending physician, provided such aid was rendered in accordance with
professional medical standards as well as the norms ofjudicial precedent.
A 1986 ruling may have gone too far, however, in the weight given the
patient's suffering when it ruled that a doctor who succumbed to the
pressures of the patient's distress could be excused from liability under
Article 293.134
The case involved a 73 year old non-terminal multiple sclerosis patient
whose physician-friend gave her a fatal dose of morphine after repeated
and insistent requests for aid-in-dying. Although the doctor was found
guilty of active euthanasia, no punishment was imposed by the trial court.
129Garbesi, supra note 112, at 110.

13oAbstracts, supra note 107, at 462 (emphasis in original).
1I1D. HUMPHRY & A. WICKErr, supra note 25, at 178.
134Nota Bene, The High Court of the Hague Case No. 79065, October21, 1986,
3 ISSUEs L. & MED. 445, 445-46 (1988).

The Leeuwarden Court of Appeal reversed the decision, imposing a con-

ditional sentence of two months with two years' probation. The High Court
of the Hague vacated the appellate judgment and remanded the case for
135
further consideration consistent with its opinion.
The High Court agreed with the appellate court that active euthanasia
was not a medical exception to Article 293, and that judicial precedent
did not set Article 293 aside as to physicians. 136 The High Court disagreed
with the appellate court's outright rejection of the physical and mental
suffering of the patient and resultant mental duress of the physician as
conditions justifying the euthanasia decision. The High Court held that
the dire distress of the non-terminal patient and the mental duress of the
physician should be considered as mitigating factors which could justify
13 7
the decision to perform euthanasia.
At a glance, the High Court's decision may appear to be nothing more
than an affirmation of the Schoonheim ruling; however, a commentary
on the case by Dutch Attorney General Remmelink suggests otherwise. 38
Remmelink is concerned not so much with the dire distress of the patient
but with the acceptance of mental duress as a defense under Article 293.19
Remmelink points out the fundamental difference between the appellate
court's treatment of the duress issue and that of the High Court:
For the High Court the moment of duress occurred at the
time when the accused had to decide to carry out the wish of
her friend to terminate her life. The accused was acting as the
patient's friend rather than as her doctor in the judgment of
the Appeals Court; the accused should not have promised to
take the life of her friend, that was her culpa in causa. It was
unfortunate and wrong... the High Court by-passed (sic) this
fundamental issue ... [finding that] the moment of duress oc-
curred when the doctor decided to carry out the euthanasia
procedure which she had promised. There is no culpa in causa
140
because of the appeal to duress.
The problem here is not so much with a doctor who concludes that
euthanasia is the right thing to do under the circumstances, as was the
case in Schoonheim, but with a doctor who succumbs to the pressure of
a repeated and insistent request for euthanasia without stopping to con-
sider if it is the right thing to do for the patient. In other words, a doctor
who believes that he has to administer euthanasia can now avoid liability
under Article 293 just as readily as one who believes he should administer
euthanasia because it is a higher good in a particular instance.
13 5 Id. at 445.
136Id. at 446.
137Id. at 445-46.
31
Id.
18 at 448-50.
139Nota Bene, supra note 134, at 450. Renmelink finds the appeal to distress
"fraught with hazards." Id. He cites expansion of the appeal to others, such as
nursing personnel, as an example of the danger inherent in such an appeal. Id.
Id.
140
The Dutch courts have led the way in making active voluntary eu-
thanasia a reality in the Netherlands. From an initial decision permitting
active voluntary euthanasia in the case of an incurably ill person with
continuous and unbearable suffering, the right to request and receive
physician aid-in-dying expanded rapidly to include the non-terminally
ill patient with continuous physical, spiritual and/or mental suffering.
The medical profession was charged with the primary responsibility for
deciding to proceed with euthanasia. Their judgment was dependent on
a decisionmaking process which emphasized the patient's right to self-
determination. The strides made by the courts reflected public support
for limited acceptance of active euthanasia, yet the trend in case law was
diametrically opposed to the absolute ban imposed by Article 293.
The divergence between case and statutory law left the government,
medical profession, and Public Prosecutor without firm ground to stand
on, and caused concern among opponents of euthanasia that the practice
would soon stretch into the realm of involuntary euthanasia. Rather than
stand passively by and let this happen, the government, medical profes-
sion, and Public Prosecutor took steps to bridge the gap in the law.
B. The Policy of the Dutch Government on the Matter

of Euthanasia
The Queen of Holland created a State Commission on Euthanasia in

1982141 to determine "the future policy of the [Dutch] government in the
matter of euthanasia.. . in particular with respect to legislation and the
142
application of the law."' On July 9, 1985, the Commission issued a report
advising the Queen that Article 293 should be revised to legalize vol-
untary euthanasia. 143 The Commission proposed statutory reform that
would allow a doctor to avoid punishment under Article 293 provided the
euthanasia procedure was performed at the request of the patient and in
accordance with the conditions outlined by the Commission.'4
A bill was presented to Parliament in December 1985 in response to
the Commission's report. 145 The bill, known as the D66 proposal, sought
to allow the practice of euthanasia on request, and provided that a doctor
would not be punished if he used care in helping a person in a hopeless
1 46
situation to die. The government responded with its own proposal, the
Trial Proposal, in January 1986.147 The Trial Proposal was more con-
141 Schepens, supra note 87, at 374.
142 Driesse, supra note 72, at 394-5.
143 Schepens, supra note 87, at 375 n.15.
141 Driesse, supra note 72, at 395. For a copy of the conclusions on which the
Committee based its findings, see Garbesi, supra note 112, at 110-11. The Com-
mission had considered but apparently was unable to reach agreement on "the
additional condition that the death of the patient.., be inevitable and imminent."
Driesse, supra note 72, at 395. The absence of a dying phase was in accord with
case law. See supra note 97.
146Abstracts, supra note 107, at 464-65.
147 Id. at 464.

servative in its approach, providing that a doctor would not be punished

under Article 293 if he performed euthanasia "as a part of careful care
of a patient who is dying if the patient is suffering unbearably, and there
is also a concrete death expectation, and no reasonable goal will be served
by further treatment."' 14 1 The government's legislative proposal was less
progressive than the then-current judicial norm,'149 most notably in that
a dying patient 150 and unbearable suffering 5' were prerequisites to the
serious consideration of a request for euthanasia.
Despite an attempt by certain government officials to quell the reform
effort, both bills were introduced to the Council of State for review.5 2 In
July 1986 the Council of State advised the government to refrain from
modifying Article 293 until the body of case law had developed further. 153
The Council's recommendation was in direct conflict with the Commission
report of one year previous which had concluded that statutory reform
was necessary because it would take years to achieve the clarity desired
in the law if the issue remained solely within the purview of the judici-
54
ary.1
The Council's recommendation did not prevent the government from
requesting and receiving advice on euthanasia from the General Health
Council. 155 In its official statement of advice, the General Health Council
set forth the following criteria to guide doctors in the practice of euthan-
asia:
1. The doctor must inform the patient regarding the condition
of his/her health and the prognosis of his/her illness and the
therapeutic possibilities.
2. The doctor and the patient must be convinced that it is the
latter who has requested and persists in requesting, after ma-
ture reflection and without outside pressure, that the doctor
terminate his life.
3. The doctor may terminate a patient who is no longer able
to comply with point 2, if there is a previously written decla-
ration of the patient requesting the termination of his or her
8
141 d. at 465.
1,9 Id. The divergence between case law and the government's proposal is il-
lustrated by a 1985 decision involving Dr. Pieter V. Admiraal, a leading practi-
tioner of euthanasia. Dr. Admiraal had performed euthanasia at the persistent
request of a young multiple sclerosis patient experiencing physical and mental
suffering. There was no concrete death expectation. The Hague Court dismissed
the case on the basis of criteria outlined in the Schoonheim decision. The pending
government proposal apparently had no impact on the court's decision and, for
some reason, the Public Prosecutor chose not to press the issue, perhaps missing
a golden opportunity to bridge the gap between the law on the books and the law
in practice. Id.
10 The dying phase requirement had been rejected by the judiciary as early as
the Postma decision. See supra note 97.
" "Unbearable" as an independent criteria of suffering was dropped by the
Schoonheim court. See Driesse, supra note 72, at 394.
12 Id. at 395-96. The Council of State is "the highest advisory organ of the
[Dutch] government." Sagel, supra note 84.

"5 Abstracts, supra note 107, at 446.
' Id. at 464. See also Driesse, supra note 72, at 395.
155 Schepens, supra note 87, at 377.
life. This proved the doctor must be convinced that this dec-
laration was freely written and that there is no other solution
for this patient's problem.
4. The doctor must consult with a colleague.
5. The doctor must make a report recording the matters of
points 1, 2 and 3, and give the name of the colleague requested
in point 4. This report must be kept for five years.
6. If the patient is less than sixteen years old, termination
may not take place before the doctor has asked the patient
whether he/she has a valid objection to informing his/her par-
ents on this matter. The latter are to be included in the decision
6
process unless there is such an objection."
These protocols were more progressive in certain respects than the
criteria developed by case law, for example, the implicit approval of vol-
untary euthanasia for minors without parental consent. Yet despite this
and other government efforts to reconcile case and statutory law, eu-
thanasia remains an offense under Article 293.157
C. The Medical Profession'sResponse to Developments

in the Law
Critics of legalized voluntary euthanasia argued that the courts had
vested tremendous responsibility in the medical community when in fact 15
there was no medical consensus on the permissibility of euthanasia.
Their argument lost steam when in 1987 the Royal Netherlands Society
for the Promotion of Medicine ("KNMG") and Recovery, Interest Society
for Nurses and Nursing Aids (the Dutch nurses' union) issued a joint
paper which served to establish practical guidelines for health care profes-
159
sionals participating in the euthanasia decision. The two groups were
not necessarily saying that euthanasia was permissible, but were pro-
viding official guidance for those doctors who chose to perform euthanasia
156 Id. These so-called "carefulness requirements" were published in a report
issued by the General Health Council on March 26, 1987, entitled "Proposal of
Advice Concerning Carefulness Requirement in the Performance of Euthanasia."
Id.
157An April, 1988 news report indicated that the Netherlands was nearing
approval of a legislative proposal submitted for review in December 1987. J. Gray,
Life-and-DeathIssue: NetherlandsExpected to Approve Bill ProvidingEuthanasi-
Defense, Globe & Mail, April 26, 1988, at 1 (photo. reprint courtesy The National
Hemlock Society). The proposal would not make mercy killing legal, but would
provide a defense for a physician who performed euthanasia at the voluntary
request of an incurably ill patient who was fully informed of his condition, in-
cluding the possibility of palliative treatment. Id. The exception to these criteria
would be the case of a now-incompetent patient who had executed a written
directive within the previous five year period. Id. According to Derek Humphry,
who visited Holland in mid-1989, the law remains unchanged. Note from Derek
Humphry to Deborah A. Wainey (July 24, 1989).
" Nota Bene, supra note 134, at 449. See also, Abstracts, supra note 107, at
458-59, 462-63.
"ISchepens, supra note 87, at 378. For an English translation of the profes-
sional guidelines, see Guidelines, supra note 82.

and the nursing staff who might assist in the procedure. 160
The medical profession had responded to the responsibility vested in it
by the courts by providing the consensus critics claimed was lacking. Of
significance is the fact that the guidelines served not only to protect
doctors and nurses against unfounded investigation and prosecution un-
der Article 293, but also to protect the patient, for instance, by sanctioning
only voluntary euthanasia 6' and requiring that a complete written record
of the entire decisionmaking process be included in the patient's medical
file. 162 The guidelines did not calm the fears of doctors who were leery of
a court that could reverse its trend at any time; active euthanasia re-
mained a surreptitious practice.
D. Striking a Balance Between Case and Statutory Law
Despite court rulings, General Health Council guidelines, and profes-

sional medical guidelines, Dutch physicians continued to conceal their
participation in active euthanasia for fear of investigation and prosecu-
tion. 163 Since doctors are not required to report crimes against life,'6
mercy killings involving physicians go unnoticed unless the doctor reports
the crime 165 or is turned in to the Public Prosecutor by others. 66 Only a
handful of cases come to the attention of the Public Prosecutor annually. 167
Efforts to ensure equal and fair application of the law for even the
handful of investigations conducted by the Public Prosecutor were ham-
pered by the disparity between statutory and case law. 6 To rectify the
situation, the Public Prosecutor decided to enforce Article 293 within the
parameters set forth by the courts. 169 A five member committee was
160The guidelines acknowledged that only doctors could perform euthanasia

according to case law, but expressed concern for those nursing personnel who
assisted the doctor at some point in the euthanasia process. Guidelines, supra
note 82, at 430. The guidelines concluded that if a doctor was not prosecuted,
nursing personnel who assisted him should be treated likewise. Id. at 436. The
proposed Death With Dignity Act protects physicians as well as other health care
professionals from criminal, civil and administrative liability when aid-in-dying
is performed in compliance with the terms of the Act. See infra note 278.
161 Guidelines, supra note 82, at 431.
161
16
Id. at 432.
D. HUMPHRY & A. WicKEr, supra note 25, at 176.
146This was the case with Dr. Schoonheim, who filed a death certificate listing
"unnatural death" and also advised the police of his actions. D. HUMPHRY & A.
WICKETT, supra note 25, at 178. The Public Prosecutor investigates all cases of
death attributed to other than natural causes. Nota Bene, supra note 114, at 452.
In the case of active euthanasia, the Dutch courts have ruled that the death
certificate cannot indicate that death was the result of natural causes. Id. at 451.
Nonnatural death must be declared in such a situation. Id.
" Recall that Dr. Postma was reported to the authorities by the director of
the nursing home where her mother was a resident. See supra note 93.
11Approximately 2,000 doctors practice euthanasia in the Netherlands, but
only 36 cases were reviewed by the Public Prosecutor between 1982 and 1984.
D. HUMPHRY
6 & A. WICKETr, supra note 25, at 176.
'Abstracts, supra note 107, at 467.
"9D. HUMPHRY & A. WICKEr, supra note 25, at 176 (quoting Anka Sutorius,
a Dutch judge).
formed to centralize review of all euthanasia cases brought to the atten-

70
tion of the Public Prosecutor.'
71
The majority of cases investigated by the
committee are dismissed.'
Doctors are not yet comfortable being open about their participation
in active euthanasia. There is hope that the 1987 ruling forbidding fal-
sification of death certificates, coupled with the General Health Council
protocols and professional medical guidelines, will encourage honesty in
the practice of active euthanasia. 172 The fact that the Public Prosecutor
has taken steps to bridge the gap in the law is also encouraging, especially
considering that 80% of the euthanasia cases investigated are dis-
missed. 173 But as doctors become less secretive about their actions, the
burden on the Public Prosecutor will increase, 74 making it ever more
difficult to ensure equal and fair application of the law. 175 Unless statutory
reform is accomplished, the individual efforts of the judiciary, govern-
ment, medical profession, and Public Prosecutor will remain at odds and
continue to frustrate the Public Prosecutor's attempts to enforce a law
which has been emasculated by the courts.
E. Summary
Article 293 should be revised to provide an exemption for physicians.

Homicide upon request would remain a crime under Article 293, but a
doctor who killed a patient at the patient's request in order to end un-
bearable suffering ("mercy killing") would not be prosecuted unless he
violated statutory criteria justifying exemption. This would parallel the
Dutch penal system, which recognizes motive and consent as mitigating
factors in the killing of another human being upon his request.
Statutory reform would benefit the Netherlands by providing a sound
legal instrument which protects both patient and physician, while allow-
ing the Public Prosecutor to enforce the law. Doctors would be more
confident working under the protection of statutory guidelines and the
public would be secure in the knowledge that those who violate the law
are convicted andpunished if found guilty under Article 293. In addition,
the guidelines currently followed by the medical profession would have
the benefit of legal force. This would lend weight to the court's decision
to vest primary responsibility for the euthanasia decision in the medical
community.
Report and recordkeeping requirements would ensure that all cases of
active euthanasia are brought to the attention of the Public Prosecutor.
170Sagel, supra note 84.
"I'Of the 36 cases investigated between 1982 and 1984, 28 were dropped im-
mediately and 5 were dismissed after judicial inquiry. D. HUMPHRY & A. WICKEIT,
supra note 25, at 176. In other words, the Public Prosecutor took no action in
approximately 80% of the cases. Id.
173Seesupra note 171.
7
' Abstracts, supra note 107, at 468.
176 Id.

Although the number of reported cases would probably increase dra-

matically, the Public Prosecutor would have the benefit of a sound legal
instrument to enforce the law. The Public Prosecutor could, in fact, de-
centralize the review of euthanasia cases if the five member committee
176
became overwhelmed by the sheer volume of reported cases.
Finally, the patient himself would benefit from such reform because it
is designed to prevent the kind of abuse which might lead to repetition
of the involuntary euthanasia program advanced by the Nazis. 17 The
voluntary request of a fully informed patient is a key factor in reform
proposals. As long as other criteria designed to limit the availability of
active euthanasia are satisfied, the final decision to choose a good death
would rest with the patient. 17 This is the ultimate sign of respect for
personal autonomy and the sanctity of life because it recognizes that being
alive is not necessarily important absent the ability to have a life.1 79
The Dutch have permitted the practice of active voluntary euthanasia
on a limited basis for almost two decades, during which time they came
to appreciate the vast potential for abuse in an unregulated system. 80
Pending legislation is expected to bring the practice out into the open.
The ability to regulate and monitor the practice should allow the Dutch
to stem the tide of abuse which some fear is just around the corner. The
United States should examine the Dutch experience and use it to resolve
the issue on the American front before it becomes mired in the cogs of
the American court system. The issue of active voluntary euthanasia did
not die with the dismissal of the Rodas case.' 8' The United States would
be well-advised to take the upper hand in this matter, responding to the
issue before it becomes unmanageable.
IV. FACING THE CHALLENGE OF ACTIVE VOLUNTARY EUTHANASIA
IN THE UNITED STATES
The United States operates on a criminal law system different from
that of the Netherlands. In the United States, motive is considered ir-
relevant in substantive criminal law, 18 2 and is not regarded as an affir-
mative defense no matter how laudable the motive in a particular
instance.8 3 Likewise, a victim's consent is generally not an affirmative
176 But see Garbesi, supra note 112, at 109, n.87. ("[T]he risk of unjust prose-
cution is not as great as it might be in a decentralized system like that in the

United States.").
177 See supra note 86.
178Although doctors can refuse to comply with a patient's request, they cannot
frustrate the choice made by the patient by refusing to refer him to another doctor
willing to honor the request. See Guidelines, supra note 82, at 436. Cf. Bouvia v.
Super. Ct., 179 Cal. App.3d 1127, 1144, 225 Cal. Rptr. 297, 305 (1986) ("It is
incongruous ... for medical practitioners to assert their right to preserve a life
that someone else must live, or, more accurately, endure .... ").
7
'1 J. RACHELS, supra note 25, at 26. See also 0. RUTH RUSSEL, supra note 27,
at 220 (differentiate between the person and the body).
180Potts, supra note 52, at 502.
182 W. LAFAVE & A. Scow, HANDBOOK ON CRIMINAL LAW 204 (1972).
- Id. "A good motive may result in leniency by those who administer the
criminal process." Id. (emphasis added). See note 192 and accompanying text.
defense in a criminal prosecution. 8 4 Where the Netherlands treats mercy

killing as "homicide upon request,"'' 5 a less culpable crime than murder,
in the United States consent to criminal homicide has never been a de-
fense. 86 Therefore, in the United States "[olne who intentionally kills
another human being is guilty of murder, though he does so at the victim's
request and his motive is the worthy one of terminating
18 7
the victim's
sufferings from an incurable and painful disease."'
Theoretically, under this schematic, a physician who administered a
fatal overdose to end a terminally ill patient's suffering, at the patient's
request, would be susceptible to prosecution for murder. However, in the
United States, mercy killers are rarely indicted'88 and, when prosecuted,
there is great inconsistency of results.8 9 Mercy killing cases involving
physicians aptly illustrate the uneven application of the law. 90
The disparity between the law in theory and the law in practice is
grounded in the ability of the prosecutor, judge and jury to defy the law
191
on the books. The public often sympathizes with a mercy killer, and
such sentiment has crept into the actions of the prosecutor, judge and
jury. Motive necessarily plays a key role in the compassionate response
19 2
of the judicial system to the mercy killer.
The United States has established a pattern of circumventing the law
in the case of mercy killers, especially in the case of physicians. 193 This
sends a mixed message to its citizens, i.e., mercy killing is illegal and
punishable as murder yet the chance of escaping a murder conviction
and/or prison sentence is good.19 4 The disparity in the law is on a collision
course with itself. Americans must deal with the issue of active voluntary
euthanasia by channeling their compassion toward statutory reform
which would grant terminally ill persons "the right to choose when to
die" 9 5 and protect those physicians who help them exercise that choice.
18 W. LAFAVE & A. ScoTT, supra note 182, at 408. See also Silving, supra note
63, at 380.
' See supra note 81.
' Silving, supranote 63, at 380. See also Survey, Euthanasia:Criminal, Tort,
Constitutionaland Legislative Considerations,48 NoTRE DAME LAW., 1202, 1205

(1973). Consent of the patient should be the key in euthanasia cases more so than
the motive of the second party actor. See supra note 63.
187W. LAFAVE & A. Scorn, supra note 182, at 205.
'" Survey, supra note 186, at 1213.
HUMPHRY & A. WICKErr, supra note 25, at 221 n*.
189D.
Eight Doctors On EuthanasiaCharges,HEMLOCK Q., Jan. 1989, at 6 [here-
190
inafter Eight Doctors]. Of eight doctors charged in the mercy killing of a termi-
nally ill patient or family member, five were acquitted of murder charges, one
committed suicide shortly after arrest, one was found guilty of murder but received
no prison sentence, and one awaits trial. See infra Section IV.A.
19lSurvev. suora note 186, at 1213-15.
192W. LAFAVE & A. ScoTr, supra note 182, at 207.
"83See supra note 190.
19D. HUMPHRY & A. WICKETT, supra note 25, at 218-19. For a statistical
analysis of the type of punishment imposed on mercy killers from 1920-1985, see
Wickett, Most Mercy Killings in Living Will States, HEMLOCK Q. Apr. 1986 (re-
printed in COMPASSIONATE CRIMES, BROKEN TABOOs 70 (D. Humphry ed. Fall 1986)
[hereinafter COMPASSIONATE CRIMES].
"I Fletcher, supra note 31.
A. The Physician as Mercy Killer: An Analysis of American

Case Law
Despite rejection of every proposal to legalize voluntary active euthan-

asia to date, 196 Americans have demonstrated a tolerance, if not an ac-
ceptance, of same, especially in the case of physicians prosecuted for
97
killing patients to release them from suffering as an act of mercy.
Although the judicial system has shown compassion in the handful of
mercy killing cases involving physicians, it has been at the expense of
dealing with the issue of euthanasia. 19
The 1950 case of Dr. Hermann Sander was the first mercy killing case
in the United States involving a medical doctor and, as such, was expected
to be a test case for euthanasia. 199 However, this was the first of several
such cases which would successfully circumvent the law by avoiding the
issue.
Sander was charged with first-degree murder for injecting air into the
veins of a cancer patient, Mrs. Abbie Burotto, who was on the verge of
death. 20 0 Dr. Sander did not deny his actions and, in fact, noted in hospital
20 1
records that Mrs. Burotto died about ten minutes after the injection.
When questioned about the incident, Sander reportedly said that he acted
at the persistent request of the patient's husband and out of compassion
20 2
for Mrs. Burotto's suffering.
Sander represented a clear case of mercy killing, yet the issue was
never raised at trial. 20 3 As was the case in previous mercy killing cases,
none of which involved a physician, emphasis was shifted to another issue,
this time lack of causation, in an attempt to avoid the harsh reality of
the law.20 4 After a three week trial, the jury acquitted Sander on the
ground that there was insufficient proof of causation between his actions
and the death of Mrs. Burotto. 20 5 The issue of mercy killing had been
suppressed in the courtroom, 20 6 but the verdict indicated that the jury
20 7
had made motive the central issue in the case.
The spectre of physician as mercy killer did not reappear on the Amer-
ican judicial scene for over two decades. 08 But in 1973, Dr. Vincent Mon-
' See infra Section IV.B.

See supra note 190.
198Id.
- State v. Sander, N.Y. Times, March 10, 1950, at 1, col. 6. See also J. WILSON,
S0. RUTH RUSSELL, supra note 27, at 105-6.
02
Survey, supra note 186, at 1214.
1 D. HUMPHRY & A. WICKErI, supra note 25, at 43.
Recent Decisions, Criminal Law - Humanitarian Motive as a Defense to
Homicide, 48 MIcH. L. REV. 1199, 1201 (1950).
24 Silving, supra note 63, at 353.
205 Recent Decisions, CriminalLaw - Proof of the Corpus Delicti by the Use of
ExtraJudicialConfessions, 48 MICH. L. REV. 1197, 1197 (1950).

206D. HUMPHRY & A. WICKErr, supra note 25, at 43.
207 J. WILSON, supra note 24, at 39.
208 Hospital Surgeon Charged with Mercy Killing of N.Y. Patient, June 29,
1973 (reprinted in COMPASSIONATE CRIMES, supra note 194, at 22).
temarano was indicted for murder in the death of Eugene Bauer, a

comatose throat cancer patient given two days at most to live.20 9 Mon-
temarano was accused of injecting potassium chloride, a deadly but un-
detectable chemical solution, into the veins of Mr. Bauer, who died within
five minutes. 210 Initially the District Attorney called the death a mercy
' 21 2
killing,21' but Montemarano was tried on "a straight murder charge,
with the District Attorney arguing that he had killed Bauer as a matter
of convenience so that 21he
3
would not have to return at a later time to
pronounce Bauer dead.
Once again, lack of causation was raised as a defense and once again,
a jury acquitted a physician accused of murder in the mercy killing of a
patient.2 14 The case may not have been tried on the ground of motive,
but, as noted in a news report of the verdict, "the jury and spectators...
cut through all the technical stuff, straight to the heart of the human
2 16
and moral issue.
The 1980's brought four cases involving physicians charged with killing
a patient or family member who was terminally ill. 21 The 1985 case of
Dr. John Kraai, who was charged with second-degree murder in the death
9
2 /d.
2
0 Goldsmith, The MontemaranoCase: PhysicianAcquitted of Charges of Mur-
dering Patient, 2 J. LEGAL MED. 47 (1974) [hereinafter Goldsmith]. Dr. Monte-
marano was indicted several months after Mr. Bauer's death based on the
allegations of a practical nurse who said that she saw the doctor inject his patient
with a lethal dose of potassium chloride. Id. at 47. However, the nurse's credibility
was shattered at trial when the defense produced a statement signed by her which
indicated "that she had not seen the injection being given." Id. at 48.
2, D. HUMPHRY & A. WICKErr, supra note 25, at 104.
212 Lerner, The Right to Live-And the Right to Die (reprintedin COMPASSION-
ATE CRIMES, supra note 194, at 22).
213 Goldsmith, supra note 210, at 48.
214 Unlike Sander, however, "the defense [in Montemarano] never conceded
that an injection had been given." D. HUMPHRY & A. WICKE"rr, supra note 25, at
104. This approach, in fact, was the key to the defense's strategy. Goldsmith,
[It] permitted the case to be defended on two levels. The prosecution
had to prove that an injection had been given if there was to be a
murder at all. If the prosecution was able to prove that an injection
had been given, it would then have to prove that the injection killed
the patient and that he was dead as a result of the injection and that
he had not died of natural causes.
Id.
2'6 Eight Doctors, supra note 190. Two other doctors, Robert Nedjil and Neil
Barber, were charged with murder and conspiracy to commit murder in the death
of Clarence Herbert. Barber v. Superior Ct., 147 Cal. App. 3d 1006, 195 Cal. Rptr.
484 (1983). The doctors had removed life support equipment and intravenous
tubes providing hydration and nutrition at the request of the patient's family.
Id. at 1010, 195 Cal. Rptr. at 486. The doctors were acquitted of all charges. Id.
at 1022, 195 Cal. Rptr. at 493. Since this case deals with withdrawal/withholding
of life-sustaining procedures, and is more commonly associated with passive eu-
thanasia, it will not be considered in this discussion of doctors charged with
murder wherein the doctor performed what is known as active euthanasia via a
lethal dose of drugs.

of his friend and patient, Frederick Wagner, ended with the suicide of
Kraai three weeks after he was arrested. 217 In 1986, Dr. Joseph Hassman
was found guilty of murder in the death of his mother-in-law, Esther
Davis, who suffered from Alzheimer's disease. 21 Hassman was "sentenced
fined $10,000 and ordered to perform 400 hours
to two years probation,219
of community service .-
Dr. Peter Rosier was charged with first-degree murder in the 1986 death
of his wife, who was suffering from lung cancer. 220 Pat had requested her
husband's help in committing suicide, and he, along with other family
members, participated in her plan to kill herself via an overdose of sleep-
ing pills. The sleeping pills did not have the desired effect, however, so
Dr. Rosier injected his wife with morphine. The morphine also had no
effect, and she was eventually suffocated by her stepfather, Vincent Del-
man, in order to end the botched suicide attempt. Delman bargained for
immunity before confessing his responsibility for Pat's death. 221 Dr. Rosier
stood trial for his part in her death, but the jury acquitted him, apparently
on the basis of lack of causation, as was the result in the Sander and
222
Montemarano cases.
In 1988, Dr. Donald Caraccio was accused of the poisoning and murder
of a 74 year old patient. Dr. Caraccio allegedly injected the patient with22
potassium chloride. He awaits trial; his defense is unknown at this time .
B. 20th Century Efforts to Legalize Active Voluntary Euthanasia
The first attempt to legalize active voluntary euthanasia in the United

States failed. 224 A bill was introduced into the Ohio state legislature in
January 1906225 which proposed
217D. HUMPHRY & A. WICKETT, supra note 25, at 140-42, 218-20.
218Eight Doctors, supra note 190. Hassman acted at the request of the family,
injecting
2 19
the 80 year old woman with a fatal dose of Demerol. Id.
Id.
220'IHelped Her on Her Way', NEWSWEEK, Nov. 7, 1988, at 101 [hereinafter "/
Helped Her'].
221 Id. According to news reports, there was testimony that Pat Rosier would
have recovered from the overdose and morphine, although she might have been
impaired. Id.
222 Botched Suicide Led to Murder Trial, HEMLOCK Q., Jan. 1989, at 7, 8. Rosier
actually stood trial on three charges, murder one, conspiracy to murder, and
attempted murder. The jury acquitted Rosier on all three counts and also declined
to consider five lesser counts offered by the judge. Id. Derek Humphry, head of
the National Hemlock Society, believes Rosier should have been charged with
assisted suicide under FLA. STAT. ANN.§ 782.08 (West 1981) ("Every person de-
liberately assisting another in the commission of self-murder shall be guilty of
manslaughter ....").Dr.Rosier's Acquittal Both a Victory and a Warning, HEM-
OCK Q., Jan. 1989, at 1. The prosecutor apparently perceived a difference between
assisted suicide and murder, but since the cause of death was not due to the
morphine, Humphry's belief is accurate. See supra note 47.
222Eight Doctors, supra note 190. Dr. Caraccio was arraigned in the 36th Dis-
trict Court in Detroit, Michigan. Id.
224 0. RuTH RUSSELL, supra note 27, at 60.
221 Id. Apparently this was the first such bill introduced into the legislature of
an English-speaking country. Id.
that when an adult of sound mind had been fatally hurt or was
so ill that recovery was impossible, or if he was suffering from
extreme physical pain without hope of recovery, his physician,
if not a relative and if not interested in any way in his estate,
might ask him in the presence of three witnesses if he wished
to die. If he indicated that he did, then three other physicians
were to be summoned in consultation and if they agreed that
the case was hopeless, they were to make arrangements to put
the person out of pain and suffering with as little discomfort
226
as possible.
The bill was referred to the Committee on Medical 7
Jurisprudence for
study, where it was rejected by a vote of 78 to 22.22
After failure of the initial proposal in Ohio, no further significant efforts
to legalize active voluntary euthanasia occurred until the 1930's. 22 A bill
introduced into the Nebraska state legislature in February 1937 was sent
to a committee for consideration, but review was postponed and the bill
was never acted upon. 22 The 1930's also brought the founding of the
Euthanasia Society of America (hereinafter "ESA"). This group, formed
in 1938, was the first euthanasia society established in the United
States.230 Its goal was to crusade for legalization of euthanasia on "the
belief that with adequate safeguards, the choice of immediate death
rather than prolonged agony should be available to the dying. '23' As noted,
nothing came of the Nebraska bill, and a similar proposal by 23ESA
2
in New
York in January, 1939 failed to reach the state legislature.
Legislative efforts died down during World War II;23 3realization of Nazi
atrocities 2 4 tempered Americans' willingness to actively support such
efforts. 235 As the war came to a close, however, ESA renewed its efforts.
A proposal was prepared by ESA in 1945 and submitted to the New York
22
1 Id. at 61.
227 D. HUMPHRY & A. WIcKETT, supra note 25, at 12.
228 DEATH WARRANT, supra note 23, at 24.
22 9
J. WILSON, supra note 24, at 32-33.
221 Id. at 33.
2110. RUTH RUSSELL, supra note 27, at 72.
232Id. at 74.
23 Id. at 87.
23 The Nazi programs consisted of compulsory sterilization and eugenics to
purify the German race. This so-called euthanasia program was imposed on un-
witting victims and was anything but a happy death experience for the person
being killed. The euthanasia label, therefore, is wrongly tagged on the Nazi
programs to kill those deemed unworthy of German heritage. On the contrary,
the Nazi programs were nothing more than a cold-blooded attempt by a madman
to purify the German race through a secret program of mass genocide. See gen-
erally, D. HUMPHRY & A. WICKETT, supra note 25, at 20-32.
131 Americans feared legalization of active voluntary euthanasia would lead to
a repeat of the horrors of Nazi Germany. 0. RUTH RUSSELL, supra note 27, at 90-
94. This line of reasoning is known as the wedge or slippery slope argument. For
a discussion of this argument, including an analogy to Nazi Germany, see J.
RACHELS, supra note 25, at 170-80. Contra J. WILSON, supra note 24, at 35-36
(results of public opinion polls indicate that Americans' views on legalization of
active voluntary euthanasia were not affected by events in Nazi Germany).

state legislature in 1947.236 This proposal was supported by 1,776 phy-

sicians and 54 clergymen.27 The proposal provided that
(1) any sane person over twenty-one years old, suffering from
an incurably painful and fatal disease, may petition a court of
record for euthanasia, in a signed and attested document, with
an affidavit from the attending physician that in his opinion
the disease is incurable; (2) the court shall appoint a commis-
sion of three, of whom at least two shall be physicians, to in-
vestigate all aspects of the case and to report back to the courts
whether the patient understands the purpose of his petition
and comes under the provisions of the act; (3) upon a favorable
report by the commission the court shall grant the petition,
and if it is still wanted by the patient euthanasia may be ad-
ministered by a physician or any other person chosen by the
23 8
patient or by the commission.
Two years of lobbying and additional petition drives failed to get the bill
introduced into the New York state legislature.2 39 A final petition effort
24 0
in 1952 also failed and the proposal was shelved.
After the failure in New York, ESA turned its energy to educating the
public on the topic of euthanasia. 241 ESA did not work for legislation
during the 1950's and 1960's, although it did establish the Euthanasia
Education Fund in 1967 to prepare and distribute the Living Will, 242 a
document which provides that no artificial means nor heroic measures
be used to keep the person signing the document alive in the event he
becomes unable to make such decisions in the future243 due to terminal
illness, injury or disease. 24 4 While ESA had abandoned its efforts to le-
galize active voluntary euthanasia, three states independently sponsored
active euthanasia bills, 245 none of which became law.
236
D. HUMPHRY & A. WICKETT, supra note 25, at 33-34.
J. WILSON, supra note 24, at 36.
Fletcher, supra note 1, at 187-88 (emphasis in original).
20 0. RUTH RUSSELL, supra note 27, at 96-97.
240D. HUMPHRY & A. WICKETT, supra note 25, at 47.
The ESA provided speakers and literature in response to requests from
241
across the country. 0. RUTH RUSSELL, supra note 27, at 111.

24Id. at 180-82. This group specifically endorsed passive euthanasia, i.e., "the
2
removal of supportive measures when there is no reasonable hope for real recov-
ery." Id. at 180. This is in stark contrast to the original goals of ESA-to legalize
active voluntary euthanasia-and signified the beginning of the active-passive
distinction as a major weapon in the euthanasia debate. Today, 38 states (not
including Ohio) and the District of Columbia have living will statutes, no two of
which are exactly alike. Condie, Comparison of the Living Will Statutes of the
Fifty States, 14 J. CONTEMP. L. 105, 106-7 (1988).
243Id. at 105.
244Id. at 111. A living will basically provides as follows: "'Ifthe situation should
arise in which there is not reasonable expectation of my recovery from physical
or mental disability, I request that I be allowed to die and not be kept alive by
artificial means or heroic measures."' BLACK'S LAW DICTIONARY, supra note 47,
at 823.
0 . RuTH RUSSELL, supra note 27, at 188. The three states were Idaho, Mon-
tana and Oregon. For a review of these bills, see id. at 192-94.
The American public has yet to face and answer the question of whether
a terminally ill person has the right to choose an easy death as an al-
ternative to a prolonged dying phase that is nothing more than a mockery
of life. Continued defiance of the law on the books will not make the issue
disappear; rather, it will enhance the potential for abuse, leaving patient
and physician alike unprotected.
C. The Problems Inherent in Ignoring the Issue
Stanley Rosenblatt, defense counsel for Dr. Rosier, contended that phy-
sicians frequently help patients to die by giving them fatal doses of drugs,
but hide behind the official shield of an "intent to make comfortable"
246
rather than admit an "intent to hasten death . The fact that four doctors
have been indicted in the 1980's is indicative of the fact that Rosenblatt
is not entirely off the mark. The lenient treatment afforded the six doctors
who have stood trial for murder since 1950 sends a clear signal to phy-
sicians that it is alright to kill a terminally ill patient via a lethal in-
jection, with or without their consent, but fails in the provision of equal
and fair application of the law.
Clearly, some kind of reform is needed to bridge the gap between the
law on the books and the law in action. 247 By focusing on culpability of
actor rather than consent of victim, in an after-the-fact fashion, America
has taken the first step on the slippery slope 241 it so fears. What America
needs is a practical law which gives a terminally ill patient the right to
choose active euthanasia while at the same time granting immunity to
the physician who acts in accordance with such law. The Death With
Dignity Act249 is such a law. It best protects the autonomy of the patient
by ensuring that the patient has requested active euthanasia, and also
requires the State to recognize the motive of euthanasia as a defense to
criminal homicide without need to revamp the entire criminal law system.
D. The Death With Dignity Act: Making The Right to Choose

When to Die a Reality in the United States
Over eighty years after the first attempt in the United States to pass
a law permitting active voluntary euthanasia, 250 the National Hemlock
"IHelped Her', supra note 220. American Medical Association guidelines

condone this attitude. See Council on Ethical and Judicial Affairs, Current Opin-
ions of the Council on Ethical and Judicial Affairs of the American Medical
Association
7 (1986), S 2.18 at 12.
24 Survey, supra note 186, at 1215.
" See supra note 255.

252
Society, 251 through its affiliate, Americans Against Human Suffering
(hereinafter "AAHS"), has once again thrust endorsement of active vol-
untary euthanasia into the legislative arena. AAHS seeks passage of state
laws giving the terminally ill the right to choose active euthanasia and
253
granting immunity to physicians administering same. AAHS is also
lobbying for a congressional resolution encouraging states to enact such
legislation. 254 AAHS has developed a model act, the Death With Dignity
Act 255 (hereinafter "DWDA"), which can be adapted for use on a state-by-
256
state basis.
The DWDA confronts the numerous arguments offered by anti-eu-
thanasiasts without losing sight of the patient. Adequate safeguards are
provided to prevent abuse while at the same time protecting the patient's
right of self-determination. This section presents a critical assessment of
the DWDA in light of the terminally ill patient 257 requesting active eu-
thanasia.
The DWDA combines the concept of a living will 2M with that of a durable
power of attorney 259 to provide adults the ability to make a legal decla-
251The National Hemlock Society is a right-to-die organization which supports

both passive and active voluntary euthanasia. It was founded in 1980 by Derek
Humphry, and devotes its efforts to research and publication in order to educate
the public about euthanasia, especially active voluntary euthanasia. Q. and A.
on the Hemlock Society, HEMLOCK Q., Jan. 1989 at 4. The National Hemlock
Society can be contacted by writing P. 0. Box 11830, Eugene, Oregon 97440-3900.
552 AAHS is the political arm of the National Hemlock Society. Humphry, Leg-
islating for Active Voluntary Euthanasia,THE HUMANIST, March/Apr. 1988, at

10, 11. AAHS can be contacted by writing P. 0. Box 11001, Glendale, California
91206.
253 R. RISLEY, A HUMAN AND DIGNIFIED DEATH: A NEW LAW PERMITTING PHY-
sIcIAN AID-IN-DYING vii (1987).

24 Id. AAHS has a representative located in Washington, D.C. Letter from
William C. Robison to Deborah A. Wainey (Nov. 9, 1988) (discussing AAHS efforts
to legalize active voluntary euthanasia) [hereinafter Letter].
25 Formerly known as the Humane and Dignified Death Act. For a copy of the
model Act, as adapted for use in Oregon, see Appendix I. A similar act was recently
developed by participants in a year-long seminar on aid-in-dying conducted by
Professors Sheldon F. Kurtz and Michael J. Saks at the University of Iowa College
of Law. Et Al, STUDENT LAWYER, Sept. 1989, at 12. The proposed Model Aid-in-
Dying Act will be published in an upcoming issue of the IOWA LAW REVIEW and
is being
26 distributed to all 50 state legislatures. Id.
1 R. RISLEY, supra note 253. AAHS was unable to gather the signatures
necessary to put the Act on the California ballot in November 1988. Letter, supra
note 254. Efforts are underway, however, to qualify the Death With Dignity Act
(hereinafter "DWDA") through the initiative process for the ballot in Oregon in
1990, in Washington in 1991, and in California in 1992. Three States Move to
Legalize PhysicianAid-in-Dying, HEMLOCK Q., July 1989 at 1. Similar plans are
in process for Florida. FloridaInitiative in 1992?, HEMLOCK Q., July 1989 at 2.
2r57A terminally ill patient is one who has been certified by two physicians as
having an incurable or irreversible condition with death expected to occur within

six months. DWDA § 2525.2(f)(g).
8
26 See supra note 244. Ohio does not have a living will statute. Id. For a
discussion of the status of living will legislation in Ohio, see Young, Living- Will
Legislation,OHIO LAw., Nov./Dec. 1988, at 26.
,-1 OHIO REV. CODE ANN. § 1337.11 (Page's 1990). For a discussion of the history
of the durable power of attorney in Ohio, see Fabens, Ohio's Durable Power of
Attorney, OHIo LAW., Nov./Dec. 1988, at 9.
ration as to their wishes with respect to passive and active euthanasia.

The DWDA provides for recognition by the State of an adult's right to
authorize his physician to withdraw or withhold life-sustaining proce-
dures, or, if he has been adjudged terminally ill, to administer aid-in-
dying by way of a humane medical procedure, 260 with lethal injection
being the usual mode of aid. 26 1 Authorization is in the form of a written
directive to be provided the physician and made a part of the patient's
medical records. 26 2 The DWDA addresses only voluntary euthanasia as
requested by a competent adult person via a written directive. Absent a
written directive from the patient, a doctor cannot take steps to perform
3 26
either passive or active euthanasia.
The patient must sign the directive in the presence of two witnesses,
neither of whom can be a blood or marital relation, or stand to share in
the estate of the patient. 2r 4 The attending physician, his employees and
the employees of any health care facility housing the patient cannot act
as witnesses to the directive, nor can anyone with a claim against the
patient's estate. This ensures that the patient has not been coerced by
family members nor prodded by the medical profession to choose aid-in-
26 5
dying.
The patient may appoint an agent to make health care decisions for
him in case he becomes incompetent. 266 The agent can be given the power
to make decisions regarding passive and/or active euthanasia. 267 In such
a case of active nonvoluntary euthanasia, a committee of three persons
must review the agent's request for same to ensure that the patient is
qualified to receive aid-in-dying and that the directive complies with the
requirements of the DWDA. 26 Committee review of the agent's request
ensures that he is acting in the best interest of the patient he represents
and has not merely chosen active euthanasia for personal gain. 26
The Act requires the physician to make the directive a part of the
patient's medical record, 270 to maintain a record detailing the exercise of
euthanasia in accordance with such directives, and to report such cases
26- DWDA § 2525.1.

261 Potts, supra note 52 ('The usual method is lethal injection.").
262 DWDA § 2526.4(b).
263 Preventing a physician from administering euthanasia absent a written
directive protects against opening the door to unacceptable expansion of euthan-
asia, i.e., succumbing to the wedge or slippery slope argument. See supra note
235.2
64DWDA § 2525.3. Additional safeguards are provided for nursing home res-
idents, namely, that one of the witnesses must be a certified ombudsman. Id. at
§ 2525.4.
265 Id. at § 2525.3. There is no guarantee that a scheming relative or doctor
will not be able to circumvent the DWDA, but the DWDA is designed to prevent
such coercion.
266DWDA § 2525.2(i).
267 Id.
60
Id. at § 2525.10.
269The agent may be related to the person signing the directive. Id. at §
2525.2(i). Committee review of the agent's decisions safeguards against abuse of
the27power
0 delegated to him.
Id.at § 2526.4(b).

to the state health department on an annual basis.2 7 1 These requirements

will bring the practice out into the open and 2enable
72
the state to track
and regulate the practice of active euthanasia.
The DWDA is permissive legislation 273-it allows a terminally ill pa-
tient to choose a quick and painless death over prolonged and unbearable
suffering, but does not prevent him from changing his mind later. The
DWDA provides for revocation of the directive by the patient at any time,
even if incompetent. 274 The patient can express his intent to revoke the
directive by destroying it, or by cancelling it in writing or orally.2 7 5 Writ-
ten and oral revocations must be communicated to the physician in order
to become effective and shall be made a part of the patient's medical
record.2 76 A person who acts in accordance with a directive that had been
revoked by the patient shall not be liable for his actions unless he had
2 77
actual knowledge of such revocation.
Licensed physicians and health care professionals acting under their
direction who honor a directive shall not be guilty of violating existing
criminal laws nor shall they be subjected to civil or administrative dam-
ages or penalties.279 Likewise, they will not be liable for failure to honor
a directive absent willful refusal to refer the patient to a physician willing
to comply with the terms of the directive.27 9 Thus, licensed professionals
who comply with a terminally ill patient's request for aid-in-dying will
not be penalized and those who conscientiously object to active euthanasia
will not be forced to perform same against their will.2 0
at § 2526.4(a). '
271Id.
A major concern in the Netherlands is the inability to track the practice of
272
active voluntary euthanasia. J. Gray, supra note 157. The United States can learn
from the Dutch experience by enacting legislation which enables the State to
monitor the practice of active voluntary euthansia. Contra Bostrom, Euthanasia
in the Netherlands:A Model for the United States?, 4 IssuEs L. & MED. 467 (1989).
Bostrom argues that the Netherlands' failure to monitor active voluntary eu-
thanasia is proof that active voluntary euthanasia is uncontrollable. Id. at 477.
However, it is difficult to comprehend how Bostrom can label uncontrollable that
which the Netherlands has never seriously attempted to control.
21,The DWDA is permissive in the sense that "euthanasia is allowable if re-
quested." Kaplan, EuthanasiaLegislation: A Survey and a Model Act, 2 AM. J.
L. & MED. 41, 51 (1976) (emphasis in original).
274 DWDA § 2525.5(a).
211 Id. at §§ 2525.5(a)(1), (2), (3).
-6 Id. at §§ 2 525.5(a)(2), (3).
277Id. at § 2525.5(b).
278Id. at § 2525.7.
279 DWDA at § 2525.9(b).
- See supra note 260. The American Medical Association not only opposes
active voluntary euthanasia, but also the requirement, as provided in the DWDA,
that a physician opposed to performing same refer the patient to another physician
willing to comply with the request for active voluntary euthanasia. American
Medical Association, Proceedings:House of Delegates, Res. 79, Dec. 1987 (copy
available from AMA Library & Information Management, 535 North Dearborn
Street, Chicago, Illinois 60610). Contra Wanzer, et al., The Physician's Respon-
sibility Toward Hopelessly Ill Patients: A Second Look, 320 N. ENG. J. MED. 844
(1989) [hereinafter Physician'sResponsibility]. A majority of the authors (ten out
of a panel of twelve doctors) concluded "that it is not immoral for a physician to
assist in the rational suicide of a terminally ill person." Id. at 848.
E. Summary
The Death With Dignity Act is a carefully drafted law designed to

accommodate those times when euthanasia is the right thing to do, with-
out subjecting the physician performing the procedure to liability under
existing laws. Careful and intelligent consideration of the Death With
Dignity Act, especially in light of the Dutch experience outlined above,
suggests that passage of the Act is in order.
V. CONCLUSION
Every effort to legalize active voluntary euthanasia in the United

States has failed, despite the fact that a large percentage of Americans
believe terminally ill people should be allowed to choose a quick and
painless death instead of waiting in agony for death to arrive. 28 1 When
it comes to legally approving such a choice, Americans have backed off
from the issue for fear of showing disrespect for life, especially that of
the terminally ill. Americans hide behind a wall of arguments that avoid
the real issue, i.e., whether a terminally ill patient must continue to
suffer through mere existence or be allowed to say "enough already" and
choose a truly dignified end to their suffering. The inability of others to
fully confront this issue leaves the patient's life literally hanging in the
balance.
Case law demonstrates a tendency to respond compassionately to one
accused of mercy killing, regardless of whether the victim requested death
or not. Americans have established a pattern of ignoring the real issues -
whether the victim wanted to die and whether euthanasia was the right
thing to do. By ignoring these issues America stands poised to slide down
the slippery slope 8 2 toward an increasingly abusive practice of euthan-
asia.
America has the opportunity to meet the issue of active voluntary
euthanasia head-on, and should take advantage of the learning experi-
ence of the Dutch in order to remain in control of the issue. Adoption of
the Death With Dignity Act would raise America to the level of the
Netherlands as an example of a country not afraid to let its terminally
ill citizens say "when", but smart enough to have learned that regulation
goes hand-in-hand with granting the terminally ill the right to choose
when to die.
Although it's too late for Hector Rodas, it's not too late for the multitude
of terminally ill persons across America imprisoned in bodies wracked
with pain. A vote for the Death With Dignity Act is not a vote for killing
terminally ill people as a matter of policy, but rather is a vote for allowing
the terminally ill to choose when to die. There is a distinction-a dis-
tinction which deserves legal recognition in the form of the Death With
Dignity Act.
DEBORAH A.
WAINEY
281R. RISLEY, supra note 253, at xii. Opinion polls indicate that over 60% of
Americans favor active voluntary euthanasia as proposed in the DWDA. Id. See
also Physician'sResponsibility, supra note 280, at 844 (68% of poll respondents
indicate that incurably ill persons should be allowed to end their lives before
their illness runs its natural course).
Published by m
EngagedScholarship@CSU,
See supra note 235. 1989 33
APPENDIX I
An Initiative to the Voters in 1990
The Oregon Death With Dignity Act

'Similar to the Acts of the sane name inCalifornia and Washington. Formerly known as the Humane and Dignified Death Act.)
SEC. 1. This Act is added to and made a part of Oregon which, when applied to a qualified patient,
Revised Statutes, Chapter 97, to read: would serve only artificially to prolong the
moment of death. "Life-sustaining proce-
2525. ORS _ to - shall be known and
dure" shall not include the administration
may be cited as The Oregon Death With Dignity Act (herein of medication or the performance of any
cited as "Act"). medical procedure deemed necessary to
2525.1. Self-determination is the most basic of freedoms. alleviate pain.
The right to die at the time and place of our own choosing (e) "Physician" means a physician and surgeon
when we are terminally ill is an integral part of our right licensed by the Board of Medical Examiners
to control our own destinies. That right should be estab- of the State of Oregon.
lished in law but limited to ensure that the rights of others (f) "Qualified patient" means an adult patient
are not affected. The right should include the ability to make who has executed a directive as defined in
a conscious and informed choice to enlist the help of the this Act, which directive is currently valid,
medical profession in making death as painless and quick as who is suffering and has been diagnosed and
possible. certified in writing by two physicians to be
Adult persons have the fundamental right to control the afflicted with a terminal condition. One of
decisions relating to the rendering of their own medical care, said physicians shall be the attending physi-
including the decisions to have life-sustaining procedures cian, who has personally examined the
withheld or withdrawn or when suffering from a terminal patient.
condition, as defined herein, to request a physician to ad- (g) "Terminal condition" means an incurable or
minister aid-in-dying. irreversible condition which, will in the
Modern medical technology has made possible the ar- opinion of two certifying physicians exercis-
tificial prolongation of human life beyond natural limits. ing reasonable medical judgment, result in
This prolongation of life for persons with terminal condi- death within six months.
tions may cause loss of patient dignity and unnecessary pain (h) "Aid-in-dying" means any medical procedure
and suffering, while providing nothing medically necessary that will terminate the life of the qualified
or beneficial to the patient. patient swiftly, painlessly, and humanely.
In recognition of the dignity and privacy which patients (i) "Attorney-in -fact" means an agent of the
have a right to expect, the State of Oregon shall recognize person or patient signing the directive,
the right of an adult terminally ill person to make a written appointed for the purpose of making deci-
directive instructing his or her physician to administer aid- sions relating to the patient's medical care
in-dying or to withhold or withdraw life-sustaining and treatment, including withdrawal of life-
procedures. sustaining procedures and physician aid-in-
The purpose of this Act is to create a legal right to request dying, in the event the patient becomes
and receive physician aid-in-dying, and to protect and ex- incompetent to make those decisions. An
onerate physicians who voluntarily comply with the request. attorney-in-fact shall be an adult, who may,
No one is required to take advantage of this legal right or but need not, be related to the person or
participate if they are morally or ethically opposed. patient, but an attorney-in- fact need not be
an attorney at law or a lawyer.
2525.2. The following definitions shall govern the con- (j) "Health-care provider" means a person
struction of this Act: licensed, certified, or otherwise authorized
(a) "Attending physician" means the physician by the law of this State to administer health
selected by, or assigned to, the patient and care in the ordinary course of business or
who has primary responsibility for the treat-
practice of a profession.
ment and care of the patient.
(b) "Directive" means a written document and 2525.3. An adult individual of sound mind may at any
Durable Power of Attorney voluntarily ex- time execute a directive governing the withholding or
ecuted by the declarant in accordance with withdrawal of life-sustaining procedures or administering
the requirements of Section 2525.3 in the aid-in-dying and appoint an attorney-in-fact. The directive
form set forth in Section 2526.5. shall be signed by the declarant and witnessed by two in-
(c) "Declarant" means a person who executes a dividuals, not related to the declarant by blood or marriage
directive, in accordance with this title. and who would not be entitled to any portion of the estate of
(d) "Life-sustaining procedure" means any the declarant upon his/her death under any will of the de-
medical procedure or intervention which clarant or codicil thereto then existing, or, at the time of the
utilizes mechanical or other artificial means directive, by operation of law then existing. In addition, a
to sustain, restore, or supplant a vital func- witness to adirective shall not be the attending physician, an
tion, including nourishment and hydration employee of the attending physician who is involved in any
way with the treatment of the individual, or an employee of tion 2525.5. This Act shall not prevent a
a health care facility in which the declarant is a patient, or declarant from re-executing a directive at
any person who, at the time of the execution of the directive, any time in accordance with Section 2525.3,
has a claim against any portion of the estate of the declarani including re-execution subsequent to a
upon his or her death. The directive shall be in the form con- diagnosis of a terminal condition. If the
tained in Section 2526. declarant has executed more than one direc-
tive, the seven-year time period specified in
2525.4. A directive shall have no force or effect if the this section shall be deemed to commence on
declarant is apatient in a skilled nursing facility as defined in the date of execution of the last directive
ORS 442.015 (13) (c)(A)and intermediate care facilities or known to the attending physician.
community care facilities at the time the directive is executed (b) If the declarant becomes comatose or is
unless one of the two witnesses to the directive is an om- otherwise rendered incapable of commun-
budsman certified by the Long Term Care Ombudsman for icating with the attending physician before
this purpose pursuant to any other applicable provision of the end of the seven-year period, the direc-
law. The certified ombudsman shall have the same qualifica- tive shall remain in effect for the duration of
tions as a witness under Section 2525.3. the comatose condition or until such time as
The intent of this section is to recognize that some the declarant's condition renders him or her
patients in skilled nursing facilities may be so insulated from able to communicate with the attending
a voluntary decision-making role, by virtue of the custodial physician.
nature of their care, as to require special assurance that they
are capable of willfully and voluntarily executing a directive. 2525.7. No physician or employee of a health care facil-
2525.5. (a) A directive may be revoked at ans time by ity who, acting in accordance with the requirements of this
the declarant. without regard to his or her Act, causes the withholding or withdrawal of life-sustaining
mental state or competency, by any of the procedures from, or administers aid-in-dying to, a qualified
following methods: patient, shall be subject to civil, criminal, or administrative
liability therefore. No licensed health care professional, such
(1) By being canceled, defaced, obliterated,
or burned, torn, or otherwise destroyed as a nurse, acting under the direction of a physician, who
by the and at the direction of the participates in the withholding or withdrawal of life-
declarant to revoke the directive. sustaining procedures from, or administers aid-in-dying to,
(2) By a written revocation of the declarant a qualified patient in accordance with this Act shall be sub-
expressing his or her intent to revoke the ject to any civil, criminal, or administrative liability. No
directive, signed and dated by the physician, or other person acting under the direction of a
declarant. This revocatiin shall become physician, who acts in accordance with the provisions of this
effective onls upon communication to Act, shall be guilty of any criminal act or of unprofessional
the attending phy sician by the declarant conduct because he or she participates in the withholding or
or bs a person acting on behalf of the withdrawal of life-sustaining procedures, or because he or
declarant. The attending physician shall she administers aid-in-dying. Fees for administering aid-in-
record in the patient's medical record the dsing shall be fair and reasonable.
time and date when he or she received (a) The certifying physicians shall not be part-
notification of the written revocation, ners or shareholders in the same practice.
and the identity of the communicator.
(3) By a verbal expression bs the declaram 2525.8. (a) Nothing herein requires a physician or
to revoke the directive. The revocation licensed health professional, such as nurses,
shall become effective only upon com- to administer aid-in-dying if he or she is
munication to the attending phs siian by morally or ethically opposed. Neither shall
the declarant or by a person acting on privately owned hospitals be required to per-
behalf of the declarant. The attending mit the administration of physician aid-in-
physician shall confirm with the patient dying in their facilities if they are morally
that he or she wishes to revoke and shall and ethically opposed.
record in the patient's medical record the (b) With the consent of a qualified patient,
time, date, and place of the revocation the attending physician who is requested to
and the time, date, and place, if dif- give aid-in-dying may request a psychiatric
ferent, that he or she received notifica- or psychological consultation if said physi
tion of the revocation, and the identity cian has any question about the patient's
of the notifier. competence.
(b)There shall be no criminal, civil, or ad- 2525.9. (a) Prior to withholding or withdrawing life-
ministrative liability on the part of any per- sustaining procedures from, or administer-
son for following a directive that has been ing aid-in-dying to, a qualified patient pur-
revoked unless that person has actual suant to a directive, the attending physician
knowledge of the revocation.
shall determine that the directive complies
2525.6. (a) Except as provided in subdivision (b), a with Section 2525.3, and that the directive
directive shall be effective for seven years and all steps proposed by the attending phy-
from the date of execution thereof unless sician to be undertaken are in accord with
revoked prior to the end of the seven-year the desires of the qualified patient, as ex-
time period in the manner prescribed in Sec- pressed in the directive.

(b)If the declarant is a qualified patient, the or receiving, health-care services, nor refuse
directive shall be conclusively presumed, service because of the execution, the ex-
unless revoked, to be the directiqns of the istence, or the revocation of a directive.
patient regarding the withholding or with- (d) A person who requires or prohibits the ex-
drawal of life-sustaining procedures. No ecution of a directive as acondition for being
physician, and no person acting under the insured for, or receiving, health-care services
direction of a physician, shall be criminally, is guilty of a misdemeanor.
civilly, or administratively liable for failing (e) A person who coerces or fraudulently in-
toeffectuate the directive of the qualified pa- duces another to execute a directive under
tient, unless he willfully fails totransfer the this Act is guilty of a misdemeanor, or if
patient upon request. death occurs as a result of said fraud or coer-
2525.10 (a)The decision of an attorney-in-fact to re- cion, is guilty of a felony.
quest a physician to administer aid-in-dying 2526.1. This Act shall not impair or supercede any legal
shall first be reviewed by a hospital commit- right or legal responsibility which any person may have to
tee of three persons to assure all of the effect the withholding or withdrawal of life-sustaining pro-
following: cedures or administering aid-in-dyingin any lawful manner.
(1)The directive was properly executed and In this respect the provisions of this Act are cumulative.
witnessed. 2526.2. Any person who willfully conceals, cancels,
(2)The directive has not been revoked by defaces, obliterates, or damages the directive of another
the patient. without the declaram's consent shall be guilty of a misde-
(3)The physicians have certified the patient meanor. Any person who falsifies or forges the directive of
is terminal. another, or willfully conceals or withholds personal
(4)The time of death is properly decided by knowledge of a revocation as provided in Section 2525.5,
the attorney-in-fact and the physician. with the intent to cause a withholding or withdrawal of life-
(b) In reviewing the decision of an attorney-in- sustaining procedures or to induce aid-in-dying procedures
fact, the decision of a majority of the com- contrary to the wishes of the declarant, and thereby, because
mittee shall control. of such act, directly causes life-sustaining procedures to be
(c) If the declarant is in a hospital, the three- withheld or withdrawn and death thereby to be hastened or
person committee shall be the ethics commit- aid-in-dying to be administered, shall be subject to prosecu-
tee of that hospital, or three members
thereof, or if that hospital does not have an tion for unlawful homicide as provided in ORS Chapter 163.
ethics committee, any three persons ap- 2526.3. Compliance with a qualified patient's directive
pointed by the hospital administrator. If the pursuant to this Act, even if this compliance results in
declarant is not in a hospital, the committee hastening the death of the qualified patient, is not a crime.
shall be selected by the attending physician, No person who participates in any manner in the com-
and consist of three persons from a hospital pliance with the directive shall be liable for any civil or ad-
ethics committee of a hospital with which ministrative damages or penalties because of his or her par-
the attending physician is affiliated, or three ticipation or of the death of the qualified patient.
reputable physicians.
2526.4. (a) Hospitals and other health-care providers
2526. (a) The withholding or withdrawal of life- who carry out the directive of a qualified pa-
sustaining procedures from, or administer- tient shall keep a record of the number of
ing aid-in-dying to, a qualified patient in these cases, and report annually to the State
accordance with this Act shall not, for any Department of Human Resources the pa-
purpose, constitute a suicide. tient's age, type of illness, and the date the
(b) The making of a directive pursuant to Sec- directive was carried out. In all cases, the
tion 2525.3 shall not restrict, inhibit, or im identity of the patient and the attorney-in-
pair in any manner the sale, procurement, or fact shall be strictly confidential and shall
issuance of any policy of life or health in- not be reported.
surance, nor shall it affect in any way the (b) The directive, or a copy of the directive,
terms of an existing policy of life or health shall be made a part of a patient's medical
insurance. No policy of life or health in- records in each institution involved in the pa-
surance shall be legally impaired or in- tient's medical care.
validated in any manner by the withholding 2526.5. In order for a directive to be valid under this Act,
or withdrawal of life-sustaining procedures the directive shall be in the following form:
from, or administering aid-in-dying to, an
insured qualified patient, notwithstanding
any term of the policy to the contrary.
(c) No physician, health facility, or other
health-care provider, and no health-care ser-
vice plan, insurer issuing disability in-
surance, self-insured employee welfare
benefit plan, or nonprofit hospital service
plan shall require any person to execute a
directive as a condition for being insured for,
DIRECTIVE TOPHYSICIANS
(a) U That my lite shall not be artificially prolonged and

Warning to Patient
(b) 0 That my lile shall be ended with the aid of a physician
This Is an Important Igo document. Sefre executing this under the circumstances setforth below, anddo hereby
document, youshould know these important facts: declare:
(Youmust initial (a) or (b), or both.)
Powers to Agent 1. Ifat any time I should have a terminal condition or illness certified
This document gives your agent (the attorney-in-fact) when you are in to be terminal by two physicians, and they determine that my death
a coma or otherwise unable to act or decide for yourself: will occur within six months,
1. The power to decide the time of your death for you. However,
your agent must act consistently with your desires, as stated in this (a) U I direct that life-sustaining procedures be withheld or
document or otherwise made known to him or her. withdrawn, and
2, The power to direct your physician to administer aid-in-dying, if (b) U] I direct that my physician administer aid-in-dying in a
you have been diagnosed by two licensed physicians as terminal. humane and dignified manner. (Youmust initial (a) or (b),
3. Authority to consent or refuse consent to any treatment, service or both.)
or procedure for diagnosis or treatment of any physical or mental con- (c) 71 I have attached Special Instructions on a separate page to
dilion This power is limited by your desires contained in this state- the directive. (Initial it you have attached a separate page.)
ment. Youcan provide in this document the type of treatment that you The action taken under this paragraph shall be at the time ofmy own
desire or do not desire. choosing if I am competent.
4 The right to examine your medical records and consent to their 2. In the absence of my ability to give directions regarding the ter-
disclosure unless you limit this right in this document. mination of my life. it is my intention that this directive shall be
Duration honored bymy family. agent (described in paragraph 5), and physi-
The power granted bythis document shall exist for seven years from cian(s) as the final expression of my legal right to
the date it is signed unless you specify a shorter period If you are (a) E. Refuse medical or surgical treatment, and
unable to decide the appropriateness of instructing your physician to (b) U Tochoose to diein a humane anddignified manner. (You
administer aid-in-dying at the time this seven-year period ends, the must initial (a) or (0), or both and you must initial one box
power will continue to exist until the time you become able to make a below.)
decision for yourself or your agent decides to honor the directive. L. IfI am unable to give directions, Ido not want my attorney-
Revocation in-fact to request aid-in-dying
Youmay revoke the authority of your agent and his or her power by It I am unable to give directions, I do want my attorney-in-
notifying him or her, or your treating physician, hospital, or other fact to ask my physician foraid-in-dying.
health-care provider. orally or in writing.
This document revokes any prior directive to withhold or withdraw 3. I understand that a terminal condition is one in which I am not
likely to live for more than six months.
life-support systems, or toadminister aid-in-dying.
4. a I.
Procedures do hereby designate and appoint
Youmust follow the witnessing procedures described at the end of
this form. Ifyou tail to follow the procedures. this document will not as my attorney-in-fact (agent) to make health-care decisions
be valid. for me it I am in a coma or otherwise unable to decide for
Your agent may need this document immediately in an emergency. myself as authorized in this document. Forthe purpose of this
Therefore keep it where it is immediately available to your agent. It is document, "health-care decision" means consent, refusal of
recommended that you give your agent a signed copy. Youmay also consent, or withdrawal of consent toany care, treatment, ser-
wish to give your doctor a signed copy. vice, or procedure to maintain, diagnose, or treat an
Umitations individual's physical or mental condition, or to administer aid-
The court can take away the power of your agent to make health-care in-dying.
decisions, to act in your behalf, and to direct your physician to b By this document I intend to create a Durable Power of Attorney
administer aid-in-dying it he or she acts contrarily to your known for Health Care under The Oregon Death With Dignity Act and
desires. ORSSection 126.407. This power o attorney shall not be af-
Donot use this form if you are a conservatee and you want to ap- fected bymy subsequent incapacity, except by revocation.
point your conservator as your agent. Notwithstanding your instruc- c. Subject to any limitations in this document. I hereby grant to
tions in this directive, lite support systems may not bewithdrawn or my agent full power and authority to make health-care deci-
withheld when necessary to keep you alive if you or your agent object sions for me to the same extent that I could make these deci-
at the time. sions formyself it I had the capacity to do so. Inexercising this
authority, my agent shall make health-care decisions that are
Instructions consistent with my desires as stated in this document or other-
This directive is made this day of (month) wise made known to my agent, including, but not limited to,
.- (year). my desires concerning obtaining, refusing, or withdrawing
I .... . being of sound life-prolonging care, treatment, services and procedures, and
mind willfully and voluntarily make known my desire administration of aid-in-dying.

5. This directive shall have no force or effect seven years from the I declare under penalty ofperjury under the laws of Oregon that the
date filled in above, unless I am incompetent to act on my own behalf person who signed or acknowledged this document is personally
and then it shall remain valid until my competency is restored. known to me (or proved to me on the basis ofsatisfactory evidence) to
6. I recognize that a physician's judgment is not always certain, and be the declarant of this directive; that he or she signed and
that medical science continues to make progress in extending life, but acknowledged this directive in my presence, that he or she appears to
in spite of these facts. I nevertheless wish aid-in-dying rather than beof sound mind and under no duress, fraud, or undue influence:
letting my terminal condition take its natural course. that Iam not a health-care provider, an employee ofahealth-care pro-
7. My family has been informed of my request to die, their opinions vider, the operator of acommunity-care facility, nor an employee of an
have been taken into consideration, but the final decision remains operator of a community-care facility where the declarant resides.
mine, so long as I am competent. I further declare under penalty of perjury under the laws of Oregon
8. The exact time of my death will be determined byme and my that Iam not related to the principal by blood, marriage, or adoption,
physician with my desire or my attorney-in-fact's instructions and, to the best of my knowledge, Iam not entitled to any part of the
paramount. estate of the principal upon the death of the principal under a will now
I have given full consideration and understand the full import of this existing or by operation of law.
directive, and I am emotionally and mentally competent to make this
directive. I accept the moral and legal responsibility for receiving aid- Date:
in-dying. Witness's Signature:
Print Name:
Tids direct wil not be valid unless It is signed by two Residence Address:
qualifed witnesses who are present when you sign or Date:
acknowledge your signature. The witnesses must not be Witness's Signature:
rad Ito you by blood,marriage, oradoption; Ity must nt Print Name:.
beentitled to any part of your estate; andthey must notInclude Residence Address:
a physician or other personreiponsIble for, or employed by
anyone respon ible for, your health care. Ityouhave attached STATEMENT OF CERTIFIED OMBUDSMAN
any additional pages to this frm, you must date andsign each (If you are a patient in a skilled nursing facility, one of the
witnesses must be a certified ombudsman. The following statement is
of the additional pagesat thesane time youdate andsign this
power of attomey required only ifyou are a patient in askilled nursing facility-a health-
care facility that provides the following basic services: skilled nursing
Signed: care and supportive care to patients whose primary need is for
availability of skilled nursing care on an extended basis. The certified
City. County. and State of Residence ombudsman must sign both parts of the "Statement of Witnesses"
(This document must be witnessed by two qualified adult above ANDmust also sign the following statement.)
witnesses. None of the following may be used as witnesses: (1) a I further declare underpenalty of perjury under the lawsof Oregon
health care provider who is involved in any way with the treatment of that I am an ombudsman as certified bythe Long Term Care Om-
the declarant, (2) an employee of a health care provider who is in- budsman and that I am serving as a witness as required bySection
volved in any way with the treatment of the declarant. (3) the operator 2525.4 of this Act.
of a community care facility where the declarant resides. (4) an
employee of an operator of a community care facility wo is involved in Signed:
any way with the treatment of the declarant.
2526.6. The fact that a patient is a burden or is incompe- - through - shall not constitute suicide nor
tent shall not be a factor in any 'decision to withhold isa licensed physician who lawfully administers aid-in-dying
or withdraw life-sustaining procedures, or to administer aid- or who lawfully withdraws or withholds treatment, or a
in-dying. health-care provider or health professional acting under the
Sec. 2. ORS 97.050 through 97.090 shall not be effected direction of a physician, liable under this section. Death
hereby. The sanctions pro, ided in this Act do not displace resulting from the withholding or withdrawal of a life-
any sanction applicable under other lassw except as sustaining procedure or aid-in-dying pursuant to a directive
specifically provided. in accordance with The Oregon Death With Dignity Act
does nor, for any purpose, constitute a suicide or homicide."
Sec. 3. MERCY KILING NOT CONDONED-
Nothing in this Act shall be construed to condone, Sec. 5. This Act may be amended only by a statute passed
authorize, or approve mercy killing, or to permit any affir- y a two-thirds vote of each house of the legislature and
mative or deliberate act or omission to end life other than signed by the Governor.
the withholding or withdrawal of health-care pursuant to a
Durable Power of Attorney for Health Care so as to permit
the natural process of dying or enlisting physician aid-in-
dying under the provisions of this Act.
Sec. 4. ORS Section 163.125 (b) is amended to read: "(b)
Every person who deliberately aids, or advises, or en-
courages another to commit suicide, is guilty of a felony.
Death resulting from a request for aid-in-dying or from a
withholding or withdrawing of treatment pursuant to ORS

Active Voluntary Euthanasia

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Cleveland State University

Cleveland State Law Review Law Journals

Active Voluntary Euthanasia: The Ultimate Act of

Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev

We are, by some strange habit of mind and heart, willing to

Published by EngagedScholarship@CSU, 1989 1

On January 30, 1987, Hector Rodas petitioned the Colorado District

cept of euthanasia as "death without suffering" to the full extent of the

Euthanasia is a troublesome word 20 whose original meaning-good

15Ancient Greeks and Romans generally disapproved of suicide, although they

justifying a terminally ill person's means of dying to justifying another's

C. The 20th Century: A Focus on the United States

The means and type of death remain central to a contemporary un-

The distinction between active and passive euthanasia is often framed

approval or disapproval of euthanasia in the United States hinges more

Published by EngagedScholarship@CSU, 1989 7

should focus on ensuring that euthanasia is performed at the voluntary

"[T]here is a profound moral difference between euthanasia administered at

The active-passive distinction is irrelevant as to the right of a termi-

IH. ACTIVE VOLUNTARY EUTHANASIA: A REALITY IN THE NETHERLANDS

7' This is the approach of a consequentialist, as opposed to that of an absolutist,

Published by EngagedScholarship@CSU, 1989 9

A. The Physician as Mercy Killer: An Analysis of Dutch Case Law

which sparked the beginning of the Dutch move toward legalization of

imposing sentence. The case involved a physician who gave a combination of

hemorrhage, partial paralysis, speech difficulty, pneumonia and deafness. She

acknowledged that the requisite conditions for a course of alleviation were

The next important case re-emphasized the right to self-determina-

procedure at the request of a patient, Schoonheim ended up among the handful

deterioration, it is probable that the patient is now unable to die with

129Garbesi, supra note 112, at 110.

Published by EngagedScholarship@CSU, 1989 15

The Leeuwarden Court of Appeal reversed the decision, imposing a con-

B. The Policy of the Dutch Government on the Matter

The Queen of Holland created a State Commission on Euthanasia in

Published by EngagedScholarship@CSU, 1989 17

servative in its approach, providing that a doctor would not be punished

[Dutch] government." Sagel, supra note 84.

C. The Medical Profession'sResponse to Developments

156 Id. These so-called "carefulness requirements" were published in a report

Published by EngagedScholarship@CSU, 1989 19

D. Striking a Balance Between Case and Statutory Law

Despite court rulings, General Health Council guidelines, and profes-

160The guidelines acknowledged that only doctors could perform euthanasia

formed to centralize review of all euthanasia cases brought to the atten-

Article 293 should be revised to provide an exemption for physicians.

Published by EngagedScholarship@CSU, 1989 21

Although the number of reported cases would probably increase dra-

cution is not as great as it might be in a decentralized system like that in the

defense in a criminal prosecution. 8 4 Where the Netherlands treats mercy

Constitutionaland Legislative Considerations,48 NoTRE DAME LAW., 1202, 1205

A. The Physician as Mercy Killer: An Analysis of American

Despite rejection of every proposal to legalize voluntary active euthan-

' See infra Section IV.B.

ExtraJudicialConfessions, 48 MICH. L. REV. 1197, 1197 (1950).

1973 (reprinted in COMPASSIONATE CRIMES, supra note 194, at 22).

temarano was indicted for murder in the death of Eugene Bauer, a

Published by EngagedScholarship@CSU, 1989 25

B. 20th Century Efforts to Legalize Active Voluntary Euthanasia

The first attempt to legalize active voluntary euthanasia in the United