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  • The Human Right to Die With Dignity: A Policy-Oriented Essay
  • Jordan J. Paust* (bio)

Death with dignity, either alone or with others, is certainly preferable to death without dignity, whether it be lingering or rather sudden. When one can choose the time of one’s death or knows of its impending inevitability, dignity seems all the more desirable. But what aspects of the process or experience of dying with dignity, certainly otherwise unique for each human being, are most relevant to law, especially human rights law? Is there and should there be a human right to die with dignity? What might the content and contours of such a right involve? Choice, respect, recognition of the worth of each person, whether dying or a survivor?

In an arena nearly outside of legal attention, hospice 1 already affords such a right and each of the latter possibilities to terminally ill patients. With or without hospice, a caring family and responsible, caring health professionals can provide the same experience for the dying person and their family or friends. There are undoubtedly other institutional and group arrangements that can also suffice. In any event, human rights law does not address the hospice experience directly, nor indeed death or dying. And hospice, although quite conforming to human rights values, is not global, does not reach far enough yet, and does not reach even in the direction of all who choose death or who are dying—nor do I imagine that it should. [End Page 463]

I. the General Problem: Contextual Complexities and Overreaching Domestic Laws

Laws, however, (although here not human rights laws) intrude rather directly in circumstances outside the hospice experience and, in my opinion, they pose significant affronts to what should be recognized more generally as a human right to die with dignity. More particularly, I have in mind domestic laws addressing an anathema for hospice, 2 and those prohibiting all aspects of potentially complex processes of suicide and/or assisted-suicide and even assisted-death. Do such laws serve human dignity? Do they serve a right to die with dignity? Do they even address a choice that the law should judge?

A. Contexual Complexities

The complexities of context to which such general legal prohibitions might relate are enormous, and yet, such laws often intrude with a simplistic, broad, even antihuman prohibition of the ending of one’s own life or the assistance of others in ending life. A series of introductory questions demonstrates merely some of these complexities. What, in fact, is prohibited suicide or assisted-suicide? Are distinctions with respect to conduct [End Page 464] such as active versus passive (for example, act or omission, “killing” or “letting die”) 3 realistic? Is heroic self-endangerment or self-extinction “suicide”? Are certain actions in war “suicide”? When law has failed to provide adequate health care and alternatives, and there is suffering and indignity [End Page 465] accompanying disabilities or disease, is choice to be considered differently? Indeed, is choice legally different for those who are terminally ill, just “ill,” not ill at all, for an elderly couple abandoned by society if not their children, when fragile lives seem broken?

Who should make such choices—the individual, family members, health professionals, legislators, or lawyers and judges? Should they be made secretly or openly, with or without evident consent of the individual? Should we test or differentiate on the basis of whether consent is informed, uninformed, misinformed, competent, incompetent, or not really possible (for example, where the individual is “experiencing” a quality of life perhaps appropriately referred to as “vegetative state”)? Should we consider whether the consent comes from the seemingly rational or irrational, from those with tangled dreams, from the very young or very old? Should problems related to the development and allocation of material resources or medical appropriateness make a difference? 4 And whose dignity, needs, demands, interests, and concerns are most important—those of the dying [End Page 466] person, of close survivors, or of society more generally? A law or legal decision unmindful of relevant policies at stake and features of context such as those noted above is altogether too simplistic, too dangerous, too inhuman. What pain, what consequences...

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pp. 463-487
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