Kamisar's Argument on Euthanasia

This essay thoroughly examines Yale Kamisar's arguments against the legalization of euthanasia, focusing on three main objections presented in his essay "Euthanasia Legislation: Some Nonreligious Objections." The first objection centers on the difficulty in determining the voluntariness of patient consent, considering the influence of drugs, emotions, and family pressure. The second objection highlights the potential for errors in medical decision-making, including misdiagnosis and the possibility of future cures for currently incurable illnesses. The third objection utilizes a slippery slope argument, warning that legalizing voluntary euthanasia could lead to involuntary euthanasia. The essay then critically evaluates each of Kamisar's arguments, considering counterarguments and relevant case studies from countries like the Netherlands and Oregon, which have legalized euthanasia under specific conditions. The essay also addresses the use of the Nazi euthanasia program as an example of a slippery slope, questioning its appropriateness as a direct comparison to modern medical euthanasia discussions. Ultimately, the essay concludes by acknowledging the validity of some of Kamisar's concerns while also pointing out weaknesses in his arguments and the lack of empirical evidence supporting the slippery slope theory in countries with legalized euthanasia.

Delineate and evaluate Kamisar’s argument on euthanasia
Introduction
Yale Kamisar, a distinguished university professor at University of Michigan Law School,
express his viewpoint in euthanasia in a few of his essays: “Euthanasia Legislation: Some
Nonreligious Objections”1, “Against Assisted Suicide – Even a Very Limited Form”2,
"Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia"3. In the first
part of my essay, I am going to focus on his essay “Euthanasia Legislation: Some
Nonreligious objections” and delineate Kamisar’s arguments against euthanasia. I will be
elaborating on (1) the difficulty in determining the voluntariness of consent (2) the
possibilities of errors in medical decision making, (3) The slippery slope argument which
may lead to the legislation of involuntary euthanasia. In the second part of my essay, I
am going to evaluate his argument.
1) Kamisar’s arguments on euthanasia
Regarding euthanasia, Kamisar is not an absolutist in opposing the legalisation of
voluntary euthanasia and has pointed out that voluntary euthanasia may be justifiable
morally as long as the patient fulfils the following conditions:
(1) presentlyPresently incurable,
(2) beyondBeyond the aid of any respite which may come along in his life expectancy,
suffering, (3) intolerable and
(4) un-mitigable pain and of a
(5) Ffixed and (6) rational desire to die4.
However, Kamisar sees certain drawbacks in the legalisation of voluntary euthanasia. In
his essay “Euthanasia Legislation: Some Nonreligious Objections”, Kamisar has given
three nonreligious main arguments against euthanasia in response to Glanville William’s
viewpoint that euthanasia can be condemned only according to a religious opinion5.
1 Tom L.Beauchamp; Seymour Perlin, Euthanasia Legislation: Some Nonreligious Objections, Yale Kamisar
Excerpted from Ethical Issues in Death and Dying (Prentice-Hall, Inc., Englewood Cliffs, New Jersey,
1978) p.220-231
2 Yale Kamisar, Against Assisted Suicide – Even a Very Limited Form (University of Detroit, 1995)
3 Yale Kamisar, Physician Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia (University of
Michigan Law School, 1995)
4 Tom L.Beauchamp; Seymour Perlin, Euthanasia Legislation: Some Nonreligious Objections, Yale Kamisar
Excerpted from Ethical Issues in Death and Dying (Prentice-Hall, Inc., Englewood Cliffs, New Jersey,
1978) p.221
5 "Euthanasia can be condemned only according to a religious opinion, this should be sufficient for the
present day to remove the prohibition from the criminal law"

Kamisar has divided his essay in three main part: The Choice, The “Hopelessly Incurable”
Patient And The Fallible Doctor, Voluntary Versus Involuntary Euthanasia which has bring
out his three nonreligious main arguments against euthanasia.
1.1) The Choice
Regarding the degree of voluntariness of the patients’ consent towards euthanasia, his
viewpoint is the following:
Is he [the patient] truly able to make euthanasia a “voluntary” act? There is a good deal
to be said, is there not.6
Kamisar sees the danger that the legalisation of voluntary euthanasia will be abused as it
is very difficult to determine whether the patients’ consent to euthanasia is voluntary or
not. Kamisar has provided two main reasons for this argument. First, Kamisar believes
that patient’s decisions to undergo euthanasia may be influenced by the effect of drugs
and negative emotions. Kamisar, in his essay supports Dr. Benjamin Miller regarding the
lucid moment faced by the patients will influence their decision-making. According to Dr.
Benjamin Miller, a severely ill person will have distorted judgment especially during the
worst moments of illness. The capacity for courageous and rational thought are seen to
deviate because of the toxic and pain effect of the disease.
In Kamisar’s essay, he has also quote Dr Benjamin Miller's words to his support his
viewpoint that the lucid moments faced by the patients will influence their decision-
making:
Anyone who has been severely ill knows how distorted his judgment became during the
worst moments of the illness. Pain and the toxic effect of the disease, or the violent
reaction to certain surgical procedures may change our capacity for rational and
courageous thought.7
Glanville Williams, The Sanctity of Life and the Criminal Law by Glanville Williams (New York: Alfred A
Knopf, 1957) p.302
6 Tom L.Beauchamp; Seymour Perlin, Euthanasia Legislation: Some Nonreligious Objections, Yale Kamisar
Excerpted from Ethical Issues in Death and Dying (Prentice-Hall, Inc., Englewood Cliffs, New Jersey,
1978) p.222
7 Dr Benjamin Miller, Why I Oppose Mercy Killing (Woman’s Home Companion, June 1950) p.103

Second, even though the patient’s decision towards euthanasia is known to be “clear
and incontrovertible”, Kamisar sees the risk of abuse if legislation of voluntary
euthanasia is justifiable since there is a chance that the decisions made by the patients
are influenced by their family members:
Some who are not really tired of life, but think others are tired of them………….Will not
some feel an obligation to have themselves “eliminated” in order that funds allocated for
their terminal care might be better used by their families or financial worries aside, in
order to relieve their families of emotional strain involved.8
Due to the influence of drugs, depression and family members, Kamisar doubts that the
voluntariness of the consent of the patients’ decisions on euthanasia.
1.2) The “Hopelessly Incurable” Patient And The Fallible Doctor
In this section, Kamisar has provided two arguments. First, Kamisar believes that there
may be chances that physicians will make the wrong judgments on the patients’
conditions, as doctors are mere human and might make honest mistakes like other
people due to the human mind and its limitations.9 given that
Doctors are only human beings, with few if any supermen among them. They make
honest mistakes, like other men, became of the limitations of the human mind.9
In this case, the patient’s conditions may be exaggerated which leads to wrong
judgments. Besides the misjudgement of the patient's condition, Kamisar further raised
the point that given today's advanced technology, there is always a possibility of the cure
in presently incurable illnesses in the future, thus if voluntary euthanasia was to made
legalised, some patients might die unnecessarily.
1.3) Voluntary Versus Involuntary Euthanasia
Kamisar has formulated a slippery slope argument which Griffiths and van der Burg
8 Tom L.Beauchamp; Seymour Perlin, Euthanasia Legislation: Some Nonreligious Objections, Yale Kamisar
Excerpted from Ethical Issues in Death and Dying (Prentice-Hall, Inc., Englewood Cliffs, New Jersey,
1978) p.224
9 , Tom L.Beauchamp; Seymour Perlin, Euthanasia Legislation: Some Nonreligious Objections, Yale
Kamisar Excerpted from Ethical Issues in Death and Dying (Prentice-Hall, Inc., Englewood Cliffs, New
Jersey, 1978) p.225

outline the argument in a precise way:
If we allow A (the use euthanasia at the request of terminally ill patients), B (abuse of
euthanasia, that is, ending the life of vulnerable patient groups without their consent)
will necessarily or very likely follow. B is morally not acceptable; therefore, we must not
allow A. 10
Kamisar has provided three main reasons in his essay. First, Kamisar has seen that the
reasons proposed by the proponents of voluntary euthanasia are as well applicable for
some involuntary euthanasia cases, for example, the "congenital idiots’’, the
permanently insane” and the senile11. Second, he quotes data from a poll which shows
that American show more support for euthanasia for defective infants more than those
who are incurably ill. Third, in support of the wedge argument, Kamisar as well
mentions the laments happened in Nazi Germany, which Leo Alexander12 names it as the
“small beginnings” theory13. He further And expresses his concern that the law of
legalisation of voluntary euthanasia will be abused, meaning that we will inevitably slip
down the slippery slope towards Nazism. He suggests that the legal machinery might
end up killing people who are considered to be nuisance to others rather than killing
people who are nuisance to themselves, thereby taking a strong stand against
Euthanasia. :
The legal machinery initially designed to kill those who are a nuisance to themselves
may someday engulf those who are a nuisance to others.14
10
11
12 Alexander was the first one to apply the Nazi analogy to medical ethics
13 The beginnings at first were merely a subtle shift in emphasis in the basic attitude of the physicians. It
started with the acceptance of the attitude, basic in the euthanasia movement that there is such a thing in
life not worthy to be lived. This attitude in its early stages concerned itself merely with the severely and
chronically sick. Gradually the sphere of those to be included in this category was enlarged to encompass
the socially unproductive, the ideology unwanted, the radically unwanted and finally all non- Germans.
But it is important to realise that the infinitely small wedge in lever from which this entire trend of mind
received its impetus was the attitude towards the non-rehabilitable sick.
14

2) Evaluation of Kamisar’s arguments
2.1) Evaluation on "The Choice."
2.1.1) Conditions under the influence of drugs and emotions
Kamisar argues that the patient under the influence of drugs and negative mental
conditions may not be able to make a rational decision on whether to undergo
euthanasia or not. Since the patient is not competent to make rational judgements,
Kamisar doubts euthanasia to be a voluntary act. 15that
Is he [the patient] truly able to make euthanasia a “voluntary’ act?15
I personally favour the arguments made by Kamisar’s argument, and I also see the risk
that the law for the legalization of euthanasia may be exploited since it is difficult to
determine the voluntariness of consent of the patients who under the negative effects of
drugs and emotions. Lord Donaldson MR in Re T (An Adult) (Consent to Medical
Treatment), have also suggested that the doctor should have greater capacity to
commensurate for taking a grave decision by understanding the gravity of the situation.
17
15

As suggested by Lord Donaldson MR in Re T (An Adult) (Consent to Medical Treatment);
CA 199316:
What matters is that the doctors should consider whether at that time he had a capacity
which was commensurate with the gravity of the decision which he purported to make.
The more serious the decision, the greater the capacity required.17
I consider having the capacity to commensurate with the gravity of decisions is an
important requisite for patients to make their own medical decisions voluntarily. As
terminally ill patients may be under the influences of drugs and negative emotions,
suffering confusions, distortion and vacillation18, there is a possibility that these effects
may alter the patients’ capabilities to commensurate with the gravity of decisions. Even
in some countries like Britain, according to the Mental Capacity Act 200519, a lack of
mental capability can be due to confusion, drowsiness or unconsciousness because of
an illness of the treatment for it. If the patients are at the lack of capabilities to
commensurate the seriousness of decision under the influences of medication or lucid
moments20, it is not possible to say that the choice made by the patients for undergoing
euthanasia is a voluntary act.
2.1.2) Clear and incontrovertible conditions
Kamisar believes that even though the patient is under a clear and incontrovertible
condition, the patient may not necessarily agree to undergoing euthanasia voluntarily,
i.e. the patient is under the influence of family factors.
The decision has to be voluntary and must be made free of coercion while making it in
favour of euthanasia. But the motivation behind the reason is irrelevant. It has been
seen that the decision of euthanasia is made so as to benefits others as well but it’s
decision solely depends on the personal choice of the patient.22 (
As suggested by Steven J.Wolhandler21):
The decision must be voluntary. A patient's decision in favour of euthanasia is only
16
17
18
19
20
21

voluntary if made free of coercion. The patient's motivation for making his decision is
irrelevant. Although the euthanasia may be made for the benefit of others, it is
nevertheless the patient's own choice.22
If a patient is going to opt for euthanasia due to family pressure, I would see that the
patient is making this choice voluntarily as he is taking the sense of guilt and family
feelings into consideration. It is his personal decision to weigh the feelings of the family
more than his personal choice. Therefore, the patient is not violating yet he take his
family’s feelings and the sense of guilt into consideration and weighted his family’s
feelings more important than its own life when making the decision of whether to
undergo euthanasia. Thus, this does not violate the voluntariness of consent of the
patient.
2.1.3) ‘’The Choice’’ conclusion
I agree with Kamisar that it is very difficult to determine the voluntariness of consent of
patient under the influence of drugs and negative emotions when it comes to the
decision of euthanasia, yet see some of the loopholes in Kamisar’s argument in the case
that patients’ decisions are clear and incontrovertible are highly evident.
In reality, I believe that for the justification of legalisation of voluntary euthanasia, a
major question should be first resolved first: when the patient should make the decision
of whether to undergo euthanasia or not as if what Kamisar wonders:
If consent is given at a time when the patient’s condition has so degenerated that he has
become a fit candidate for euthanasia, when, if ever, will it be clearly incontrovertible?23
2.2) Evaluation of The “Hopelessly Incurable” Patient And The Fallible Doctor
2.2.1) Discovery of New Treatment
Kamisar argues that the medical decision made by the doctors may be mistaken as they
may diagnose that the patients’ illness to beare incurable prematurely. Additionally, as
Kamisar suggests that there is always a possible cure in the future. I do not doubt the
fact that there are possibilities for the discovery of new cure treatment in the future
22 Cornell Law Review Vol. 69 Issue 2 Jan 1984 “Voluntary Active Euthanasia for the Terminally Ill and the
Constitutional Right to Privacy. Steven J. Wolhandler p.380
23

given the advanced technology nowadays.
Glanville Williams24 mentioned in his essay "Euthanasia Legislation: A Rejoinder to the
Nonreligious Objections."25,
When a new medical discovery is claimed sometimes commonly elapses before it
becomes tested sufficiently to justify large-scale production of the drug, or training in
the techniques involved. This is a warning period when euthanasia in the particular class
of case would be probably be halted away. Thus it is quite probable that when the
discovery becomes available, the euthanasia process would not, in fact, show any
mistakes in this regard.26
I share the same viewpoint with Professor William and believe that the probability of
this type of errors to occur is remote as the discovery of a new treatment will take a
considerable amount of time. For instance, according to US Food & Drug Administration,
the discovery and development of a new drug requires multiple steps which take
substantial amount of time: discovery and development; preclinical research; clinical
research; FDA review; FDA Post- Market Safety Monitoring, which might take substantial
amount of time:. It is thus very unlikely for a new treatment or new drug to arise
unexpectedly within a short period.27
2.2.2) The wrong medical treatment made by the doctors
Concerns of legislation of voluntary euthanasia arise because there may be a possibility
that there is a misdiagnosis by the doctors which can probably affect the decisions of
patients in deciding whether to undergo euthanasia or not. Medical errors made by
doctors are undeniably inevitable. However, there are in fact solutions for compensating
this drawback of the legalization of voluntary euthanasia.
Euthanasia in the Netherlands28
The law in the Netherlands ‘allows a medical review board to suspend prosecution of
doctors who performed euthanasia when each of the following conditions is
24
25
26
27
28 Under the ‘'Termination of Life on Request and Assisted Suicide (Review Procedures) Act."

fulfilled………… (4) There must be consultation with at least one other independent
doctor who needs to confirm the conditions29 above.30
Euthanasia in Oregon
The law [Death with Dignity Act] applies only to adults of sound mind who have, in the
opinion of at least two doctors……..31
Both countries have legalised voluntary euthanasia with the condition that the patient
who wants to undergo euthanasia must get the approval of at least two doctors.
Undoubtedly, medical errors, misdiagnosis are inevitable, yet with the approval of at
least two doctors, the risk of misdiagnosis can be greatly reduced.
2.3) Evaluation of “Voluntary versus Involuntary Euthanasia."
2.3.1) Empirical Data
Kamisar concerns that the legalisation of voluntary euthanasia will cause us to slip down
the slippery slope toward the legislation of involuntary euthanasia and repeating the
tragedy of Nazi killing. However, empirically, there shows no evidence of this causation:
Studies from Netherlands
From the research paper “Two Decades of Research on Euthanasia."32 from the
Netherlands, the results shows:
The frequency of ending of life without explicit patient request did not increase over the
studied years. Also, there is no evidence for a higher frequency of euthanasia among the
elderly, people with low educational status, the poor, the physically disabled or
chronically ill, minors, people with psychiatric illnesses including depression, or racial or
ethnic minorities, compared with background populations.33
The research done in the Netherlands shows no evidence that the slippery slope
argument will occur after the legalisation of voluntary euthanasia.
29
30 The Law and Ethics of Dementia
由 Charles Foster由Jonathan Herring由Israel Doron p200
31 Contemporary Moral Problems由由由James White p.158
32
33

2.3.2) The Nazi euthanasia programme
I doubt whether Kamisar’s citation of the Nazi euthanasia programme is appropriate for
supporting the wedge argument since even though euthanasia that we discussed in
bioethics today and the Nazi euthanasia programme bear some similarities, yet the
nature of the two are not the same. First, the motivation for the two are different: the
motivation for Nazi euthanasia programme is for genocide purposes which is not even
considered the Nazi’s euthanasia programme by Peter Singer34 even does not consider
the acts conducted by Nazis as a euthanasia programme34 or as J Green suggested it was
more like a cult of people who did not meet the standards set by the Nazis for
normality35, while the motivations for euthanasia in the medical field nowadays is for the
lessening of the sufferings and pain of the patients.
2.3.3) Arguments where euthanasia of defective infants are supported
Kamisar has quoted the result from a poll showing that Americans support for the
euthanasia of defective infants more than those for the incurably ill patients. However,
as R.G. Frey and Christopher Wellman suggests that both are arguments are highly
strong and offer immense support to euthanasia especially in the case of :
There are strong arguments that can be offered in support of euthanasia in the case of
severely defective infants- arguments that Kamisar does not even address36.
For example, Peter Singer believes that infants do not possess self-consciousness and,
rationality which are key characteristics of human beings37 and he believes killing of
infants not to be morally equivalent and not wrong as killing a person38.:
Killing a disabled infant is not morally equivalent to killing a person. Very often it is not
wrong at all.38
34"In fact, the Nazis did not have a euthanasia program, in the proper sense of the word. Their so-called
euthanasia program was not motivated by concern for the suffering of those killed."
35
36
37
38

For this possible arguments, Kamisar fails to provide any support of viewpoint give an
address to them. Thus, this leads to a conclusion that the risk of the slippery slope may
be not the main reasons to account for or even may not have a direct causal relationship
with the results of the poll cited by Kamisar.
2.4) Conclusion
Kamisar has attempted to provide some non-religious objections for the legislation of
euthanasia under the sections of The Choice, The “Hopelessly Incurable” Patient and the
Fallible Doctors and Voluntary versus Involuntary Euthanasia. Kamisar has raised certain
good points as discussed under 2.1.1. However, some of the arguments provided are
arguable.