Do healthcare facilities have the right to refuse to carry out an act of euthanasia ?


In Belgium, the words of Monseigneur de Kesel, archbishop of Malines-Brussels, concerning conscientious objection in Belgian hospitals, caused a lot of controversy. Very quickly, they were relayed by the announcement of the refusal by a catholic rest home to accept that an act of euthanasia should be carried out within its walls. Grégor Puppinck gives a clear insight of the debate based on fundamental rights. Interview.

 

What is your opinion concerning the Belgian controversy on conscientious objection?

GP:The fact that the rest home refused the access to a physician who had come to carry out an act of euthanasia on one of its residents is, in itself, not surprising.  The controversy that followed is a consequence of the liberalisation of euthanasia and is the expression of a confrontation of “values”, more and more frequent in society.

Nowadays, we live in a society that calls itself tolerant and pluralist and who, consequently, has set up a double level of morality. The contemporary democratic mind pushes people into accepting a wider range of individual freedoms against a so-called traditional morality, this leading to a great tolerance on a collective level. Indeed, individuals tolerate the legalisation of euthanasia, abortion, or “gay marriage”, because they do not believe they have the right on an individual level to oppose what is put forward as the freedom of others.  But this does not, however, mean that all these individuals agree with this way of going about things .Besides, it is quite often by calling upon the legitimacy of tolerance and respect of diversity that these practices are legalized.

We are thus faced with a double level of morality: a collective level that calls itself tolerant, pluralist and, in the end, that is actually quite neutral, and an individual level, where each person individually, hangs on to his/her beliefs.

This double level of morality arouses conflicts. It is the case in this controversy, in which a person has called upon the collective law against the beliefs of a religious rest home. By doing this, by claiming to oblige a catholic institution to collaborate with euthanasia, such a person goes against the spirit of pluralism.

 

Do health institutions have the right to call upon conscientious objection?

GP: In its strict sense, the right to “conscientious objection” is guaranteed only to people who have a moral conscience. Institutions do not have this ontological conscience. This being said, the institutions founded upon moral or religious beliefs have the right to function according to their beliefs.

Thus, in the facts, it is not really the right to conscientious objection which is questioned, but the combination of two fundamental rights: the right to freedom of association and to freedom of religion.

They guarantee to companies and/or associations the right to operate in conformity with their beliefs. This right particularly guarantees “the autonomy of institutions and religious communities”. It is recognized on an international and European level. On a number of occasions, the European Court of Human Rights recognized this right, in particular that of catholic hospitals, to be opposed to abortion. This is applicable to euthanasia. Speaking of which, the Parliamentary Assembly of the Council of Europe also confirmed this right in its resolution concerning the “right to conscientious objection in lawful medical care”. This resolution declares, in its first paragraph that: “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia (…) for any reason” [1].

 

 One of the arguments put forward against the conscientious objection of institutions lies on the fact that they are funded by the community. What do you have to say about this?

GP: A private institution does not have to do everything the law allows simply because it receives subsidies. More importantly, the agreement that binds the State to a given health institution cannot totally deprive this institution from the right to fully enjoy its fundamental rights. It is clear that this institution never gave up on enjoying its religious freedom, and I cannot imagine that the Belgian government had the intention of violating that right.

Conscientious objection is not a question of subsidy. The fact that they receive subsidies changes nothing to the moral judgement one can make concerning euthanasia. In some countries, a large percentage of physicians are paid by the state; they however maintain their right to conscientious objection.

 

How can the issues that come from this double level of morality be solved?

GP: The right approach is one based on conciliation and not on opposition of rights. It is also the approach chosen by the European Court: it is for the state to guarantee both the fundamental right of conscientious objection (and by analogy the respect of the principle of autonomy), and, at the same time, the right to have recourse to legalized practices, and in this case, euthanasia. The European Court of Human Rights made it clear concerning euthanasia; it is for the government to organise the medical or social system in order for both rights to be respected. In any case, the “right to abort” recognized in a country cannot restrain the fundamental right to conscientious objection guaranteed by the human rights. The same goes for euthanasia: the freedom of religion and conscience is a human right; it therefore overrules the “right to be euthanized” which is only an internal moral value of Belgium.

In this case, the resident of the retirement home chose confrontation in order to force this religious institution to bend its own beliefs and make his right prevail over the right of this institution: this is all but tolerant and pluralist. It is all the more shocking that he should have known when he asked to be taken into a catholic institution that it would be opposed to euthanasia; his attitude is not right. On the contrary, it is an attitude of conciliation that one should choose. In practice, conciliation, would have been for that person to choose another place to be euthanized, as it was suggested to him.  Choosing confrontation means trying to override the right of a minority by the right of the majority. However in a democratic society, it is not always the right of the majority that prevails –otherwise it would be the dictatorship of the majority- but rather the research of the equality of people in their ability to exercise their fundamental rights.

 

 

[1] PACE, Resolution 1763 (2010) of October 7th, 2010 concerning the « right to conscientious objection in lawful medical care”.