Should euthanasia be available to those who are not terminally ill, on the basis of self-determination? Fascinating article in the June 22 New Yorker, here, describing non-terminal euthanasia in Belgium.

As we know, self-determination is a core principle of mediation and one of the pillars of conflict resolution practice. Self-determination is integral to what Carrie MM has called “tailor made justice” and is supported by a joint problem-solving process that is dialogic, collaborative, synergistic, and sensitive to issues of relationship. Within the conflict resolution context, self-determination is not thought to be about unilateral problem-solving but rather about the recognition of an interconnected, interdependent dispute profile that calls for active engagement of participants and the articulation of individual voices and personal values, so that parties can sort through what exists and perhaps develop some sort of workable plan for moving forward.

But this is not the full sense of the term, at least in Belgium. In Belgium, the idea of self-determination justifies not only euthanasia generally but also what might be considered a rather broad application of the practice. The New Yorker article points out that when euthanasia was decriminalized in Belgium in 2002, the term “self-determination” was used ninety-seven times during the Senate hearings on the matter. According to a Belgian ethics professor quoted in the article, euthanasia is “part of a philosophy of taking control of one’s own existence and improving the objective conditions for happiness. There is an arrow of evolution that goes toward ever more reducing of suffering and maximizing of enjoyment.”

Consistent with this philosophical justification, euthanasia in Belgium is not reserved only for the terminally ill. Those who are not suffering from a terminal illness but nevertheless want to die because of “incurable” mental or physical suffering may also apply for euthanasia. The article points out that last year “thirteen per cent of the Belgians who were euthanized did not have a terminal condition, and roughly three per cent suffered from psychiatric disorders.” Many who choose euthanasia simply believe that things will not get better. In the words of Wim Distelmans, a well-known euthanasia doctor and advocate, more and more people opt for euthanasia because they are “tired of life”:

The Belgian Council of Ministers appointed Wim Distelmans to serve as the chairman of the Federal Control and Evaluation Commission, which reviews euthanasia deaths to insure that doctors have complied with the law. In terminal cases, two doctors need to confirm that the patient’s suffering stems from an incurable illness. For non-terminal cases, three doctors must agree. But doctors have adopted increasingly loose interpretations of disease. Distelmans told me, “We at the commission are confronted more and more with patients who are tired of dealing with a sum of small ailments—they are what we call ‘tired of life.’ ” Although their suffering derives from social concerns as well as from medical ones, Distelmans said that he still considers their pain to be incurable. “If you ask for euthanasia because you are alone, and you are alone because you don’t have family to take care of you, we cannot create family,” he said.

Indeed, Distelmans and other pro-euthanasia Belgian doctors believe that limiting or criticizing an individual’s right to choose euthanasia is paternalistic and thus cuts against human dignity and self-determination. Of course, one of the ironies of euthanasia as self-determination (and mediation as self-determination, for that matter) is that it puts tremendous power into the neutral third party, even if that third party claims to be simply facilitating the patient’s wishes. To what extent do people shape their ideas of what is possible based on the reactions/intervention of other people, particularly those in authoritative positions? And considering that no one knows what tomorrow will bring, aren’t these non-terminal people making decisions under quite considerable and problematic information asymmetry? Whose responsibility is it to tell them that? Apparently there is no requirement in Belgium, by the way, that family members be consulted in decisions around euthanasia. (Understandably, many of the family members interviewed in the article were unhappy not to have had the chance to talk with the patient first.) As a result, self-determination in these cases is nothing more than bare individual choice, possibly made without consultation with family or community, necessarily made without full understanding of context (present and future), and facilitated by a non-judgmental actor with substantial power, real or perceived.

Perhaps I am paternalistic or more conservative than I know, but when I read through these stories of people opting for euthanasia because they are unable to “find a meaningful purpose in life” or to imagine how to go forward after something bad happens (e.g., parents dying or breaking up with boyfriend), I just cannot believe that invoking the term “self-determination” in these cases is an acceptable response, either for a professional (doctor, mediator) or for a fellow member of society. Human dignity cannot be reduced to individual rights and choice; it must be part of something bigger, somehow responsible to self and to other. Likewise, respect for human dignity cannot be reduced to a sterile, hands-off approach when it comes to other people’s decisions about themselves. But does this conception of dignity cut against self-determination? And for conflict specialists (negotiators, mediators, etc.), what are the implications of thinking beyond the parties’ interests and choices?

Jennifer Reynolds is an Assistant Professor at the University of Oregon Law and the Faculty Director of the ADR Center. Teaching civil procedure, conflicts of law, negotiation, and mediation, her research interests include dispute systems design, problem-solving in multiparty scenarios, judicial attitudes toward ADR, and cultural influences and implications of alternative processes. She is also a contributor to ADR Prof Blog.