On September 13, 2022, the “CCNE” (French National Consultative Ethics Committee) published recommendation N° 139 entitled: “Ethical Issues Relating to End-of-life: Autonomy and Solidarity“. It states that: “there is an ethical way to enact active assistance in dying, under certain strict, non-negotiable conditions”. The strict conditions are summarized (page 4), with more detailed information given at the end for the 20 points (page 35). Essentially it recommends for palliative care to be reinforced and for “some unavoidable ethical prerequisites” in the event that euthanasia and assisted suicide are legalized: a medium-term life expectancy, informed consent, making collegial medical decisions, documented by written records.
This viewpoint is an unprecedented volte-face for the Ethics Committee. In its’ 2013 recommendation N°121: “End-of-life, Individual Autonomy and the Desire to Die”, the CCNE excluded euthanasia. It declared that it is essential to maintain the legal distinction between “allowing someone to die” and “putting someone to death”.
It also reiterated that “by prohibiting doctors from deliberately provoking death, people are thereby protected at the end-of-life; it would be dangerous for society if doctors could participate in ‘imparting death’ “. At that time, assisted suicide was also ruled out. The committee considered that “any move towards authorizing active assistance in dying could be interpreted as a threat for those who are vulnerable, who might wonder if they would be truly accompanied with appropriate medical treatment if they expressed their wish to continue their lives until its’ natural end.”
The previous report focused on the essential distinction between natural death and inducing death, on protecting people at the end-of-life and their relationship with caregivers, and the need to reassure the most vulnerable that they would have access to care. Moreover, given the abuses which had already been observed abroad, they reiterated their reservations for legalizing euthanasia.
How does the Ethics Committee justify its volte-face?
Without mentioning the details of the composition of the Ethics Committee, which undoubtably plays a role in the vote, the CCNE gives some factors to justify its’ volte-face.
- Context
The CCNE mentions some “developments that have become more pronounced“:
the end-of-life has gradually become more medicalized,
life expectancy continues to rise, combined with a likelihood of diminished health,
elderly persons are living in conditions where they become more and more socially isolated,
society increasingly retains individual autonomy and performance as being core values,
there is stronger public demand for legalization, which culminated in the recent attempt to pass the Falorni bill in April 2021, and some foreign countries are leaning towards legalization.
- The case of individuals with medium-term life expectancy
The CCNE considers that “the current legal framework is satisfactory for those with short-term life expectancy”, which would seem to warrant keeping the legislative status quo. However, the CCNE observes that “some people with a medium-term life expectancy suffer from serious and incurable diseases with unbearable pain and are unable to find relief for their distress“. On this particular point, no documents or studies have been provided by the CCNE to describe or quantify these cases, to better understand the situation. It is essential to provide in-depth information since these cases are mentioned as an important justification for the volte-face.
- The right to life threatened by other rights
The CCNE acknowledges that the right to life is enshrined in Article 2 of the European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms). Nonetheless, the CCNE declares
that Article 8, which recognizes the right to having one’s private life respected, allows the States to concede a right to autonomy and freedom for self-determination. Thus, the CCNE construes that there is no obligation to live and that if a person “considers that his condition is no longer compatible with his personal requirements for dignity”, he may request for “his right to self-determination to prevail over his right to life”. This reasoning on which the conclusions of the recommendation is based, avoids answering the following issue: why should society accede to such a request by providing services for assisted suicide or euthanasia, especially when we are talking about such a fundamental precept for a society as the ban to kill? Even though there seems to be a social consensus according to opinion polls, the CCNE notes in page 14 that these opinion polls “do not always accurately reflect the characteristics and true intensity of societal requests“. Moreover, the CCNE itself advises against holding a referendum (page 37) “because of the extreme complexity of the issue “.
Dissenting Voices
Eight of the forty Ethics Committee members openly voiced their misgivings about this latest recommendation. They rationalized that developing palliative care is a prerequisite to any further discussions, to clarify the report’s ambiguity on this point. The three issues they have reservations about resemble those in the 2013 report and include:
- the limitation of one’s claim for individual autonomy, detached from any social and interpersonal impact,
- the protection of the most vulnerable and suicide prevention, and
- addressing the ethical dilemma for physicians whose Hippocratic oath forbids them to “distribute poison to anyone” or to “initiate such suggestions”.
The CCNE’s latest recommendations have forsaken ethics. They are propped up on stilts that cannot prevail in the face of economic pressure or the cultural demands arising from unappeasable individualism.
