Why the Groningen Protocol Should Be Rejected

Last year, in two widely discussed articles, Eduard Verhagen and Pieter Sauer reported on the Dutch experience with euthanasia in newborns under current Dutch law and medical practice and proposed a protocol, called the Groningen Protocol, to guide the decision-making.¹ The protocol has two parts. The first addresses "requirements that must be fulfilled," including diagnosis and prognosis that are "certain," presence of "hopeless and unbearable suffering," and confirmation of the diagnosis and prognosis by an independent physician. The second addresses "information needed to support and clarify the decision about euthanasia" that covers five domains: diagnosis and prognosis, "euthanasia decision," consultation, implementation, and "steps taken after death."

Verhagen and Sauer also present a medical and legal justification for the protocol and clinical practice based upon it, and they develop this justification by referring to twenty-two cases of disabled newborns, all but one of them diagnosed with spina bifida.² The justification they offer is woefully inadequate, however. It relies on appeals to the concepts of "hopeless and unbearable suffering," the "best interests of the patient," and "medical-ethical values,"³ but it never explains these concepts, and it gives no ethical argument for their clinical application.⁴ In fact, not only is no argument for the Protocol given, none can hope to succeed. The Groningen Protocol should therefore be rejected as the basis for obstetric and neonatal practice in The Netherlands and throughout the world.

"Euthanasia" means the direct killing of the neonatal patient by the physician, not the withdrawal or withholding of life-sustaining treatment. Dutch medicine has pioneered euthanasia,⁵ apparently on the strength of two appeals. The first is to beneficence, the ethical principle that obligates physicians to seek for the patient the greater balance of clinical goods over clinical harms as the outcome of clinical management.⁶ In some circumstances, disease-related and iatrogenic pain, distress, and suffering can make the end stages of disease unacceptable from a clinical perspective. As a consequence (according to this line of thinking), the beneficence-based obligation to continue life-sustaining treatment has ended. The second appeal is to the well-known ethical principle of respect for autonomy. In such circumstances, suicide can become a rational alternative to foregoing life-sustaining treatment. The request of the autonomous patient and the absence of a beneficence-based obligation to continue treatment combine to provide the physician with the moral authority to perform euthanasia.

The appeal to respect for autonomy in the justification of euthanasia was abandoned some time ago in The Netherlands because it turned out that physicians sometimes killed patients who were not able to consent. Family members consented for them.⁷ The Groningen Protocol, which requires parental consent, also dispenses with the appeal to autonomy. The appeal to beneficence carries the entire burden of the justification offered by Verhagen and Sauer.

Verhagen and Sauer's defense of their protocol is afflicted with an assortment of problems. For starters, they do not explain the role parents take when they provide surrogate consent for neonates. The primary moral relationship of family members and parents to a patient is one of obligation—namely, to protect and promote the patient's life, health, and other interests.⁸ The burden on parents of providing care is a legitimate ethical consideration, but it is secondary to parents' fiduciary obligations.⁹ Parents' decision-making rights are constrained by their fiduciary obligation to authorize medical treatment reliably expected to benefit the patient clinically.¹⁰ It is only when survival is not in the patient's health-related interest that killing the patient is consistent with the parents' fiduciary responsibility.¹¹

A second problem is that the protocol does not rest on ethically justified clinical criteria for identifying the circumstances in which killing the patient accords with the duty of beneficence. Such criteria are essential because, as the patient's fiduciaries, the physician and parents alike face a steep burden of proof to justify killing a patient. The burden of proof could be met by showing that killing the patient would not violate either the...