The Angel of Death and the Limits of Autonomy

angel_deathI sit as a rabbi at the bedsides of the dying. I see the many and varied ways that the dying person, their friends and family, carers and clinicians, cope – or do not cope, with what is happening. I see the fear of pain and the fear of loss. I see ‘good deaths’ and terrible deaths. My own anxiety resonates within me as I walk a few steps of the journey with each person. My most searing rabbinic memory is of an elderly man dying from unstoppable necrosis of the internal organs, curled like a foetus in his hospital bed and whimpering his pain to himself, already far from any awareness of anyone or anything. Such intractable pain witnessed years ago still terrifies me. The pain on the bed and the pain on the face of his soon to be widow, howling in animal agony as she witnessed her husband.

I have seen such deaths and I understand the desire for people not to have to suffer them. I share the desire wholeheartedly, but it does not lead me to believe that legislating in order to assist suicide is a good thing either for society or for the future of many individuals. I fear such legislation even more than I fear such a death for myself, for it will change the narrative and the norms by which human life is seen and valued, and I do not want my children’s children to live in a world where the value of human lives can be quantified, where an expectation may flourish that death is better than continued living, where choosing to die is normalised and accepted as an equal choice with choosing to live.

This, for me, is a case where something may indeed be right for an individual, but where it can never be right for a society. There are some areas of life that will forever have to remain ‘messy’ because to try to clarify them through scaling up to a societal norm what is understandable at the individual level does not work. Life may become such a burden that for an individual it is no longer worth living – but to take this idea to its logical conclusion for society would mean that we would be forced to quantify the value of every life, something so subjective it would be impossible for us to agree on.

Why does our religious tradition, not unaware of or unsympathetic to the problems of overwhelming physical and emotional pain, still refuse to make space within its law codes, its liturgy or its narratives to condone the taking of one’s own life, and why does it explicitly forbid the helping of someone to do so saying “There is no difference between a person who kills either a healthy person or one who is ill and dying, or even a gosses. In all of these cases, the murderer is put to death” (Maimonides, Mishneh Torah, Laws of Murder).

It does so I believe, not because it wants to put people into a position of suffering – indeed it recognises that there are times when the suffering is so great people will indeed act upon it – but because once one deviates from the societal agreement that all human life has absolute and infinite value the door is opened to the possibility of diminishing and relatavising its value. By permitting such an act in its legal codes, it will change the way human life is seen and understood and forever alter the view of the absolute and infinite value of human life. Tradition understands that what is tolerable for individuals to choose does not become tolerable for society to choose. Once it becomes acceptable to measure life in terms of its quality – either subjective or objectively understood, we have laid the groundwork for viewing the value of some life as relatively less than that of others, and opened the door for a diminishment and undervaluing of some human lives.

From this a number of deeply problematic scenarios follow. If quality of life becomes the benchmark by which choosing to die becomes an option, how would one consistently measure it? If by subjective decision making, how easy would it become to opt for death now rather than the more difficult and uncertain continued living? How would depression be measured or ruled out? Or a belief that to choose death will lighten the load either now or in the future, upon the living? Would fear of future pain or incapacity, which may or may not be certain, be allowed to trigger the decision for death, as the anxiety clouds the current quality of life? How and over what length of time would analysis of the capability of the requester be assessed, and against what criteria? Scholars agree that this is always a social rather than a scientifically based process, so no truly objective capability test can be formed. “Capacity assessment” may be the “Trojan Horse” of assisted dying legislation, in that it is meant to provide protection but instead provides cover for dangerous possibilities to enter normal societal discourse.        

As well as the problem of not being amenable to scaling up from the individual to society, the question of assisted dying is a classic dilemma involving two competing ‘goods’:- For people to be able to die without suffering or pain; And for society to protect the vulnerable and not relativise the value of human life. It is not something that is amenable to resolution through legislation, however thoughtfully drafted. In Talmudic terms it is a “Teyku” a situation where the moral arguments on each side balance each other, standing indefinitely in a state of insolubility. 319 times in the Babylonian Talmud the Rabbis are forced to say “Teyku – Let it stand”, when they come across a situation which is not resolvable. There are limits to the application of reason in resolving moral quandaries. In practise one lets the situation stand and each person has to act for themselves while limiting the violations to the other ‘goods’.

Clearly there are intellectual and philosophical arguments on both sides of the debate. Possibly more powerfully there are emotional arguments, such as that we would not allow an animal to suffer what some human beings may experience towards the end of life, or the stories of ‘deathbed’ reconciliation or resolution of entrenched feelings. We are all influenced by our own experiences of seeing someone we love die, or of seeing someone not die, which can indeed be worse. There can be no clear cut and objective line of argument that will lead us to an obvious and shared conclusion. We are talking here about life and death, about the primal emotions that are barely touched by language, so deep are they embedded within us. As Niels Bohr wrote, “There are trivial truths and there are great truths. The opposite of a trivial truth is plainly false. The opposite of a great truth is also true”

Let us look more closely at the two great truths that all people should be able to die well, and that human life is of infinite value. Both truths desire the dignity of the individual, both are driven from compassion. The difference lies in their view of the primacy of autonomy.

Autonomy offers absolute sovereignty over self, the power to decide; independence of mind and body is seductive and influential on our thinking. “Of course I want to make decisions about myself and my life, and of course I should take this power for myself” we think, “and I must have the right to do so in every circumstance”. And this is what leads us to the other side of the dilemma.

Independence is a political construct rather than a social one. In both the natural and the social world there is no true independence, there is only interdependence. We can have no complete autonomy, our choices have impact beyond our selves and are shaped by the society in which we live. Our autonomy is limited by our own bodies, by rules of law or convention, by our schools or places of work, our families our communities and our traditions. It is limited by the need for a greater ‘good’ –that which is best for our group

We live at a time when it has become an expectation that we can control all aspects of our lives. We have elevated this expectation to the status of right. And yet sometimes we do not have the control, sometimes we find ourselves lost in a place where random illness strikes or where the power is firmly in someone else’s hands, or where what we feel is right for ourselves is in tension with what we know to be right for our community or family. Sometimes we may desperately want something we cannot have. Sometimes we pray and the answer is that God says ‘no’.

                 Jewish tradition has a great deal to say to us about the process of dying and it is intriguingly complex. It struggles with what may be right for one person, yet toxic for society. Hence its response to suicide, whereby the hard line of the texts against the individual who takes their own life is mitigated to the point where the explicit disapproval can be almost entirely overcome in the practical response in the event of suicide.

 The ethical problems of balancing two ‘goods’ – how to treat with dignity and respect the person who takes their own life while at the same time neither approving nor promoting such behaviour in order to preserve the well being of the community is apparent from early texts, showing how conflicted our tradition has been always. While there are a good sprinkling of texts which are sympathetic to the people for whom life has become burdensome, there is absolutely no leeway for legislative support – the whole thrust of halachic literature is to reinforce the absolute sanctity of life, the giving and taking of which is in the hands of God alone. There is no explicit prohibition against suicide in Bible, but Talmud works hard to source such a proscription in Torah, using a number of different verses to do so. The most usual quoted is from the Noachide laws (Genesis 9:5) where God says “And surely your blood of your lives will I require”, but the ban against destruction from Deuteronomy “Do not destroy” (Deut 20:19) is also brought to bear, with the Gemara stating that if this applies to artefacts, then how much more so should it apply to one’s own body? (Baba Kamma 91b).

Yet while attempting to give strength to this proscription against suicide, the Gemara notes that “It must therefore be said that Tannaim differed on this point, for there is one view maintaining that a man may not injure himself and there is another maintaining that a man may injure himself”. (ibid)

It is interesting to me how important Tradition’s need for a teaching against suicide is, while at the same time there is demonstrable understanding that sometimes life just becomes too much for individuals, and ending it becomes an option to be considered seriously. So for example we have the story of the Hittite City of Luz where “even the Angel of Death has no permission to pass through it, but when the old men there become tired of life (lit. ‘Their mind becomes loathsome to them’) they go outside the wall and then die” (Sotah 46b), and the principle of “lev yodea marat nafsho” (the heart knows the bitterness of the soul) (Prov. 14:10) suggests that subjective feelings having weight in medical decision making is brought into the debate in Yoma 83a.

Despite the compassion towards the [would-be] suicide as individual being, the full weight of Jewish tradition teaches that life is sacred, it is given to us by God, the soul belongs to God and death comes at the will of God alone. Deuteronomy teaches “I cause death and I cause life” (32:39). Hannah prays “Adonai brings death and makes life” (1 Sam 2:6), Job tells us that God gave life and God took life, and God’s name is blessed (1:21), Kohelet tells us that there is “a time to give birth and a time to die” (3:1-2) and just as the process of birthing is out of our control, so too is that of dying. We are made in the image of God, and life is our most precious attribute, something of absolute value that should never be dismissed. The mitzvah of preserving life, Pikuach Nefesh, is so important that fulfilling it supersedes all but three of the mitzvot in Torah.

The Mishnah tells us “Without our consent we are born, and without our consent we live, and without our consent we die, and without our consent we will have to give a reckoning before …the blessed Holy One”. (Pirkei Avot 4:29). Jewish law concerning the dying (gosses) acts every time upon the assumption that life should be cared for, even though it is clear that it will shortly end. Every morning as soon as we awake, we are supposed to pray the words “Adonai, neshama she’natata bi tehorah..” God, you gave me a pure soul. You created it, you formed it, and you made it live within me. But one day you will take it from me to Eternal life”, a prayer that recognises the transience of both life and of death, and the control of God over them both.

Proponents of the right to be assisted in suicide rely on the idea of well framed legislation that would prevent a slippery slope where life would in future be seen as burdensome for reasons that we currently would find problematic. Mention of eugenics, of ending the life of a person with dementia, of pressurising vulnerable people whose care will cost a family or the State a substantial amount of money to choose to die, or of allowing people with mental fragility to choose death over life – all these can be prevented by good drafting of the Bill, they say. But it seems to me that is to place faith in a fragile and inadequately future-proofable instrument. However carefully drafted a Bill may be, there is no guarantee against violation or infringement, and meanwhile the mores of society will drift further away from the valuing of life qua life, into establishing and measuring and challenging the boundaries of what is an acceptable quality of a life, what a reasonable ground for choosing to die. And anyway Law is used to decide between right and wrong, never to be able to choose between two ‘goods’, it is neither designed to do this nor could it possibly be effective.

Once one crosses the Rubicon and accepts the right of the individual to have autonomy over choosing to live or die, the notion of being able to do so only in strictly bounded conditions is open for change. Indeed it is changing already with the owner of the Dignitas Clinic already suggesting that clinical depression is an acceptable reason for choosing death, and the Dutch Supreme Court ruling that “euthanasia or assisted suicide might be justifiable for a patient with severe psychic suffering due to a depressive illness and in the absence of a physical disorder or a terminal condition.” Supreme Court of the Netherlands. Arrest-Chabot, HR 21 June 1994, nr 96 972. Nederlands Juristen Blad 1994;26:893-5.

Once we allow the idea that autonomy over our lives to the point of choosing our deaths is an acceptable societal norm, that human life is not of infinite value and can in some cases be ended through a legally sanctioned process, then there is nothing to prevent a recalibrating of that value in future years. Once we are prepared to attribute a view of quality and to quantify this, then the subjective view of the clinically depressed at one moment in time may trigger an irrevocable decision. No amount of legislative safeguards will completely protect the vulnerable.

Studies have shown that people who want this legislation mainly want it for reassurance, to know that future extreme physical pain can be escaped, and proponents of this kind of legislation quote the relatively small number of people who go on to commit suicide with the help of their physician – about 50 percent of those who receive the prescriptions actually go on to ingest the drug. But this is not about numbers, and reassurance can be provided in other ways.

Consistent studies reveal that the real issues for patients are not so much the fear of physical pain, but the psychological and emotional distress that may accompany it. Patients surveyed usually speak of the fear of loss of autonomy and control, of living with hopelessness and depression. A Dutch research project in 2005 showed that depressed cancer patients were four times more likely to request euthanasia or physician assisted suicide. Another study in New York replicated this figure and adds “Among patients who were neither depressed nor hopeless, none had high desire for hastened death”.

The texts of our tradition understand the fear of extreme pain, of psychological pain, and of the burden that life can become. There is no strand of tradition or classical text that aggrandises pain or suggests that we seek suffering, there is no sanctity to be found in agony, and our sources permit the use of every medical means to avoid pain (Shulchan Aruch YD 241:13). They are compassionate and forgiving of any action which a person may do arising out of excessive pain. But they hold a line about incorporating into law or into society the idea that any such action is le’hatchila acceptable or predicated on a value system we can endorse. I think they understood that there is no place of safety once life stops being seen as infinitely valuable, that we might think we can legislate impregnable safeguards but that when we change the basis on which we see human life there is no way ultimately to protect the most vulnerable people in society.

We are faced in society with a pressure towards absolute autonomy, bolstered by a belief that we can really control all aspects of our lives, that there is no thing we cannot do and no decision we cannot make for ourselves. But the reality is that we live in community, and what may be desirable for an individual may not be desirable for the society within which that individual exists. There are problems both of scale and of tension between the ‘good’ of the individual and the ‘good’ of society. The reality is also that absolute control over our destinies is not in fact ours; sometimes we simply cannot have what we want.

Our spiritual tradition helps us with the areas of our lives in which we feel less able, not in order to make us more able necessarily, but to be able to live with what is not possible as much as with what is. The need for reassurance that there will be no pain towards the end of life is mainly in the hands of the medical profession, and I fear for the future of palliative care should more people opt to avoid it by leaving their lives before it becomes necessary. But it is also in the hands of us all – if we journey alongside the dying, offer warmth and care, see the humanity of the person and who they are; If we recognise the totality of the life they have lived, if we maintain their dignity and self worth, address their fears and sadnesses, then we offer a way to deal with the reality that we cannot exert control over every aspect of life. In the words of Rabbah in the Talmud responding to distress of Honi HaMa’agel “either companionship or death” (Ta’anit 3a)

 first published in “Assisted Dying – Rabbinic Responses” ed Romain 2014

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