By Michael Regenstreif
Last month, the Supreme Court of Canada issued a unanimous decision in the case of Carter vs. Canada striking down the criminal prohibition of doctor assisted death in Canada. The Court also suspended the judgment for one year to allow Parliament to create appropriate laws to regulate the matter.
The judgment has implications on many levels, including the rights of both patients and physicians, the concerns of loved ones, as well as moral and religious dilemmas.
For some time, we’ve been hoping to introduce a new (occasional) feature – the Rabbis’ Round Table – to the Ottawa Jewish Bulletin in which rabbis drawn from the various Jewish denominations represented in Ottawa would discuss issues of importance. This important Supreme Court decision provides a vital opportunity to introduce the Rabbis’ Round Table.
We invited rabbis representing the five major Jewish denominations active in Ottawa to submit an article illustrating their thoughts and/or the position of their movements on the Court’s decision or the issues it addresses.
The invited rabbis were Rabbi Reuven Bulka (Orthodox), Rabbi Barry Schlesinger (Conservative), Rabbi Norman Klein (Reform), Rabbi Elizabeth Bolton (Reconstructionist) and Rabbi Menachem Blum (Chabad).
Articles by four of the rabbis follow. Rabbi Schlesinger declined to participate in this first Rabbis’ Round Table.
Supreme Court decision need not be divisive
By Rabbi Reuven Bulka
Congregation Machzikei Hadas
The decision everyone was anticipating has come, and it was not even close. The Supreme Court of Canada was unanimous in deciding that not allowing the option of doctor-assisted end-of-life is an infringement of the fundamental right of “security of the person” guaranteed under the Canadian Charter of Rights and Freedoms.
The reaction has been predictably divided, as much as the decision itself was predictable. Unanimous decisions are usually predictable.
There are a number of observations to make concerning this decision. The first is that we should not blame the Supreme Court. That august body reflects Canada, and it is safe to say that this is the case in this instance. Witness the rare unanimity.
The second observation is that this decision need not be divisive. Media have presented the applause and the boos – but the decision itself actually creates an opportunity for everyone to come together.
Religions, with some exceptions, are against suicide of any type, and certainly the doctor-assisted variation. At the same time, religious leaders appreciate (or should) that Canada as a country embraces a wide spectrum, a broad constituency of religious and non-religious groups.
Everyone is entitled to rights, which include, happily, the right to religious expression, and equally happily, the absence of the right to impose religion or non-religion on anyone.
Granting those in particularly painful and agonizing situations the right to choose the way of dying does not deny anyone the right to reject doctor-assisted death. Looking at the decision from a purely “human rights” perspective, the Supreme Court has done nothing more than expand the parameters of rights when it comes to dying.
If we look at the decision from this vantage point, we now have a unique opportunity to come together to assure that the new right does not lead to new wrong. Those for and against, religious and non-religious, have as a common agenda the challenge to assure that all rights are protected.
We need to assure that no doctor is ever pushed into doing what is against that doctor’s religious, moral or ethical principles. In a word, a medical option dare not become required medical practice.
We need to make sure that every Canadian is granted the care of his or her choosing, as was the reality before the Supreme Court decision.
We need to assure that all religions are unencumbered in enunciating their religious principles regarding end of life.
We need to make sure that the approach to any legislation that derives from this decision clearly affirms the right to life for everyone, and that any disability or illness does not in any way compromise that right to life, and the treatment that such situations demand. For example, treatment for cancer, even an advanced and painful cancer, must continue to be available. And persons with disabilities should never feel that the medical world has turned its collective back on them.
We need to make sure this legislation does not stand in the way of expanding the availability of first-class palliative care to all Canadians. On the contrary, in an atmosphere of coming together via appreciating everyone’s right, we should see even more palliative care capacity.
We need to make sure that the safeguards any legislation prescribes contain within them an impeccable system of oversight, which is robust and agile, to prevent the slightest intrusion on anyone’s rights regarding death, the reality that we will all inevitably face. This will protect everyone, no matter what his or her choice.
There are, of course, other issues that will need to be tackled in this most complicated matter, a matter which, whether or not we realize, is a direct result of the incredible advances in life-enhancing and life-saving medicine we have made in the past decades.
We have come to a vital juncture in Canada’s history. All the points above can be embraced by everyone, regardless of their own personal position. In a spirit of mutual respect for each other, and for life, we can make this a unifying moment, wherein no one imposes, no one is imposed upon, and everyone’s dignity, however self-defined, is protected.
Personal evaluation of ‘quality of life’ is acceptable criterion to end one’s life – if the person is an adult of sound mind
By Rabbi Norman Mark Klein
I agree with the Supreme Court of Canada decision in Carter vs. Canada. Asked to respond to the decision in this forum, I do so now, not as the Reform response, but, rather, as one Reform rabbi’s personal response to the issue of whether euthanasia (physician-assisted dying or “mercy killing”) is permissible under any circumstances.
In this opinion, I differ not only from my non-Reform colleagues, but also from the printed Responsa issued over the years by the Reform Movement through the Central Conference of American Rabbis (CCAR) Responsa Committee (though there may be other Reform rabbis who agree with my position in part or in toto, as each rabbi in our movement is allowed to come to his or her own judgment on a given issue).
One statement in the Responsa particularly struck me as relevant to the Supreme Court judgment, although my conclusion runs directly counter to that of the authors of the piece, “On the Treatment of the Terminally Ill .”
It says, “We are uncomfortable with arguments for assisted suicide that proceed from judgments concerning the ‘quality of life.’ While this standard may be persuasive to many, the quality of life by its nature is virtually impossible to determine. That is to say, the decision that ‘my life is no longer worth living’ is an inescapably subjective one; it cannot be quantified, verified, or tested against any principle other than the conviction that one’s suffering is no longer tolerable … Once we have adopted ‘quality of life’ as our standard, we have no principled reason to oppose the suicide of any person (with the possible exception of children and the insane, who by definition cannot make a ‘responsible choice’) … So long as a person concludes that ‘I do not want to live like this,’ we would have no right to oppose that decision.”
In this argument, the CCAR Responsa Committee, fearing for the lack of ability to restrict those who might choose such a way to end their lives based on any reasonable distinction, chose to discount any rationale-based ‘quality of life.’
To the contrary, it is the very subjective nature of such a rationale that leads me to accept one’s own personal evaluation of ‘quality of life’ as an acceptable criterion to end one’s life – provided that person is an adult of sound mind.
What I find convincing in the Supreme Court ruling is the following justification in the full text of the ruling: “The prohibition on physician-assisted dying infringes the right to life, liberty and security of person in a manner that is not in accordance with the principles of fundamental justice. The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but, more specifically, to protect vulnerable persons from being induced to commit suicide at a time of weakness.”
Through thoughtful and careful legislation, a way can be found to ensure the life and security of such persons, so that the dystopic society pictured in the science fiction film Soylent Green, where people are encouraged to commit suicide by the state, does not occur. In my opinion, the individual’s rights over his or her own body, when not impinging on the life and liberty of others, trumps all principles and theologies regarding the inviolability of life itself and its preservation at all costs.
Mercy and justice at the end of life
By Rabbi Elizabeth Bolton
Judaism is grounded in binary paradigms. The chaos at creation is tohu and vohu. Then comes earth and water, light and darkness, night and day, male and female.
The Rabbis extend the paradigm in theory and in practice; think of Hillel and Shammai. Our innate proclivities are described as yetzer hatov and yetzer hara, good and bad. The Holy One is the Source of chesed as well as din/gevurah, love and mercy balanced with justice and power.
“I set before you this day life and death and give you blessing and curse … choose life (Parshat Nitzavim, Deuteronomy 30:19).”
Yet, no one among our people can deny that, in the interstices of life and death, there is a vast realm of uncertainty.
To sit with a suffering loved one, knowing that death is merely biding its time – be it a matter of weeks, months or years – is such a realm between. We ask a multitude of whys, and there may not be answers. We contrast their previous healthy state with their present withered or helpless one, feeling we are not bearing witness to a life choice, but to a protracted and unjust death sentence. We advocate fiercely for palliative care, home-based care, community care, political care, insurance care. We wonder what they would have wished.
We shall continue to do all of this. And now, for some, there is another choice. At the heart of the Supreme Court decision is the concern that the criminal ban on physician-assisted death infringed on patients’ right to life, “as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.”
I do not believe there is a single meaning inherent in suffering. When I provide spiritual support as a chaplain and as a rabbi, my presence in the hardest moments of witness or of saying farewells must serve to guide and comfort people in their meaning-making. Those who have prepared wisely and well, and have communicated their wishes about dying and life-sustaining measures clearly, are giving their loved ones a great gift. Now, in Canada, we all have the full range of options to make those choices for ourselves.
Others may discuss more fully perspectives from halachah, and the authoritative paths our rabbis have navigated through the issues of dying and related interventions, from the use of life support in terminal illness, to brain death and other complex matters. We know those discussions have ranged through the centuries, long before the medical and technological advances of modern times created the extraordinary capacities before us to sustain and extend life. I rejoice in such achievements, just as fiercely as I bring prayer for healing, and then for ease to those on the slow, uncertain journey towards their last life-breath.
In the Talmud, there is an unnamed maid whose actions resonate through the centuries (Ketubot 104a). Rabbi Yehuda Hanasi is dying, and his students are praying unceasingly for his recovery. Having closely witnessed the agony of his condition, she climbs up to the roof and drops a jug to the ground. The shattering sound momentarily distracts the students, and his soul immediately departs.
As the legal landscape shifts to permit medical assistance in dying, I cherish and thank this wise woman, as well as the wise women and men of our Supreme Court, for removing the barriers to such chesed (mercy).
Life is sacred and a gift from God
By Rabbi Menachem M. Blum
Ottawa Torah Centre Chabad
When looking at the recent Supreme Court of Canada’s ruling on doctor assisted death, we can note the keyword that is the driving force behind this unanimous decision. The key word is “rights.” The court explained that suffering patients have a constitutional right to doctor-assisted suicide. They looked at the Criminal Code’s ban on assisted suicide as an encroachment on the most basic rights one is entitled to.
When looking at this issue from the perspective of rights, it becomes clear why it was a unanimous opinion. The starting point is the belief that each individual is endowed with basic rights (life, liberty, security, etc.), which he or she is entitled to protect. These rights are all protected and listed as legal rights in Section 7 of the Canadian Charter of Rights and Freedoms. The function of the legal system is to ensure these rights are not violated. The basic legal position is that, as long as we have ensured that these rights are protected, our responsibilities in relation to others and in relation to life have been satisfied. The right to life, liberty and security of the person should not exclude the right of one to waive his right to life.
The Jewish perspective, however, is that we are not here just to enjoy our own rights to life and liberty. Rather, we have been endowed with inalienable obligations, duties and responsibilities towards life, as the entire world (including ourselves) belongs to God. Even our relationship with our own lives is defined through the lens of responsibility as opposed to rights. From a religious perspective, and that’s not only Judaism, life is sacred and a gift from God, and we are charged with the responsibility to protect it regardless of whether that life resides in our own body or someone else’s.
The Radbaz, a halachic commentator on Maimonides, put it this way: “Man’s life is not his property, but the property of the Holy One, blessed be He.”
We say it in our prayers every morning, “My God, the soul which you have placed within me is pure. You have created it, You have formed it, You have breathed it into me and You preserve it within me. You will eventually take it from me.”
In other words, a person’s life (soul) is on loan from God. We are just the guardians who are entrusted with using it properly and returning it when the time comes. When the time comes, “You will take from me.”
These two perspectives of rights and obligations are not only relevant to significant issues such as this recent ruling. They are perspectives that have implications on every detail in our lives, on our outlook on life and on the decisions we make.