Commercial Assistance For Suicide

Most people who endorse physician-assisted suicide are against commer- cially assisted suicide – a suicide assisted by professional non-medical providers against payment. The article questions if this position – endorse- ment of physician-assisted suicide on the one hand and rejection of com- mercially assisted suicide on the other hand – is a coherent ethical position. To this end the article first discusses some obvious advantages of com- mercially assisted suicide and then scrutinizes six types of argument about whether they can justify the rejection of commercially assisted suicide while simultaneously endorsing physician-assisted suicide. The conclusion is that they cannot provide this justification and that the mentioned position is not coherent. People who endorse physician-assisted suicide have to endorse commercially assisted suicide as well, or they have to revise their endorse- ment of physician-assisted suicide.

1. INTRODUCTION

For many years, there has been a fierce controversy regarding the question of the ethical evaluation of assisted suicide. Surprisingly, there is broad agreement on one point, namely the rejection of commercial assistance for suicide. ‘Commercial assistance for suicide’ means that professional non-medical providers assist people in the implementation of their suicidal intents in return for payment. Not only opponents of physician-assisted suicide (PAS) but also most of its proponents think that commercially assisted suicide (CAS) is immoral and should not be permitted – if they discuss this form of assisted dying at all.1 For whilst the legitimacy or illegiti- macy of PAS is the subject of intense discussion, the question of CAS leads a miserable existence within the international ethical discussion.

However, the issue is in no way far-fetched. Firstly, in some countries at least, there is ethical and political dis- cussion on this topic. In Germany, for example, not only have some cases of CAS come to public attention in recent years, but also several legislative initiatives to pro- hibit CAS were launched.2 Secondly, the issue of CAS seems to be reasonable because of the well-known general tendency towards commercialization of various areas of

1 H. Schöch & T. Verrel. Alternativ-Entwurf Sterbebegleitung (AE- StB) [Alternative Blueprint on End-of-life Care in Germany], Goltdammer’s Archiv für Strafrecht (GA). 2005; 553–588: 582; B. Schöne-Seifert. 2006. Ist ärztliche Suizidbeihilfe ethisch verantwortbar? [Is Physician Assisted Suicide Ethically Justifiable?]. In: F. Petermann, editor. Sterbehilfe. Grundsätzliche und praktische Fragen: Ein interdisziplinärer Diskurs. St. Gallen: Institut für Rechtswissenschaft

und Rechtspraxis, 45–67; C. Rehmann-Sutter & L. Hagger. Organised Assistance to Suicide in England? Health Care Anal 2013; 21: 85–104: 92, 99. 2 Bundesrat. 2006. Entwurf eines Gesetzes zum Verbot der geschäftsmäßigen Vermittlung von Gelegenheiten zur Selbsttötung – Gesetzesantrag der Länder Saarland, Thüringen, Hessen [Draft Law for a Prohibition of Commercial Mediation of Opportunities of Suicide – Proposal of the Federal States Saarland, Thüringen, Hessen], Bundesrats-Drucksache 230/06. Available at: www.bundesrat .de/SharedDocs/drucksachen/2006/0201–0300/230–06.pdf?__blob =publicationFile&v=1 [accessed 28 April 2014]; Deutscher Bundestag. 2012. Gesetzentwurf der Bundesregierung. Entwurf eines Gesetzes zur Strafbarkeit der gewerbsmäßigen Förderung der Selbsttötung [Draft Law of the Federal Government. Proposal for a Law for the Punish- ability of the Commercial Promotion of Suicide], Drucksache 17/11126, Available at: http://dip21.bundestag.de/dip21/btd/17/111/1711126.pdf [accessed 28 April 2014].

Address for correspondence: Roland Kipke, Internationales Zentrum für Ethik in den Wissenschaften (IZEW) /International Centre for Ethics in the Sciences and Humanities, Universität Tübingen, Wilhelmstr. 19, 72074 Tubingen, Germany. Tel: 07071-29-77 982/Fax: 07071-29-5255. Email: kipke@izew.uni-tuebingen.de www.izew.uni-tuebingen.de Conflict of interest statement: No conflicts declared

Bioethics ISSN 0269-9702 (print); 1467-8519 (online) doi:10.1111/bioe.12140 Volume 29 Number 7 2015 pp 516–522

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life.3 Thirdly, the issue is important due to theoretical reasons, namely as a touchstone for the coherence of the ethical position of the proponents of PAS.

This third aspect is the focus of this article, for the almost complete agreement on the negative assessment of CAS is surprising. More precisely, the fact is astonishing that even the proponents of PAS oppose CAS. For, it is, of course, hardly surprising that the opponents of PAS also object to CAS. However, why do liberal proponents of PAS oppose a practice when it is done by non-physicians for money while they affirm the same practice in case it is done by physicians without payment? Although a com- mercialization in issues concerning life and death is often seen as suspiciously immoral, we have to ask if this assess- ment is justified, and if CAS has even any advantages over PAS. Obviously, there is a widespread discomfort con- cerning CAS. However, we have to ask if this discomfort is rational also for liberal advocates of PAS.

The question is, therefore, are the differences between PAS and CAS so significant that they justify such a dif- ferent ethical assessment? In other words, is it a coherent ethical position to endorse PAS and to refuse CAS? That is the question I will examine in this article. My aim is not to advocate CAS. On the contrary, my aim is to scrutinize the coherence of the position of PAS’ proponents based on the issue of CAS.

To this end, first, I will clarify what exactly is meant by ‘CAS’ here and which prerequisites I assume. Subse- quently I will briefly point out which reasons a proponent of PAS could find to argue for CAS. The main part of the article, then, consists in an explanation and an examina- tion of five groups of possible arguments against CAS. It is not about discussing arguments against assisted suicide in general – something that has often been done before – but about discussing those arguments that could speak specifically against CAS. Some of these arguments are related to the conditions for the legitimacy of assisted suicide, some to the potential negative outcomes and some to the commercial character of the assistance itself. Finally, I will draw a conclusion.

2. TERMINOLOGY

What exactly is meant by the term ‘commercially assisted suicide’ hereinafter? First, ‘assisted suicide’ is defined as committing suicide by using means that are intentionally provided by another person for this purpose. ‘CAS’ means that persons who wish to commit suicide are sup- ported in a businesslike fashion, for remuneration. In the majority of cases, the core of this support might consist in providing a lethal dose of a drug to enable the person to

kill herself. Furthermore, the assistance can consist of counselling, accompanying the suicidal person during the dying process, and further services connected with the suicide. ‘Businesslike’ means that the suicide assistants intend to provide their service on a continuing basis and to earn (a part of) their livelihood from it. CAS, as it is understood here, is, therefore, not a one-off act and it is not (only) done as a favour. Nor is it an assistance that takes place only in a private setting and in which the financial interests of heirs play a role. It is not, in princi- ple, excluded that physicians offer such commercial ser- vices (especially in private practices and privately funded health systems). However, as it is understood here, CAS is only provided by non-physicians.

A third type of assistance to suicide, which is to be distinguished both from commercial and physician’s assistance, is the organized non-commercial suicide assis- tance. Here, lay organizations offer assistance to suicide, without asking for payment beyond expenses. This type of assisted suicide has been practised for many years in Switzerland.4 In order not to complicate the investiga- tion, I do not consider this organized non-commercial suicide assistance here.

Therefore, the type of assistance to suicide in the fol- lowing investigation is different from the mainly dis- cussed assistance by physicians. However, the nature of suicidal wishes in question is the same. Most proponents of assisted suicide consider only autonomous decisions for suicide in severe or terminal diseases to be legitimate. The following considerations are also only about such suicidal decisions.

One more terminological clarification: the debate about PAS is characterized by a variety of different posi- tions. To keep the argumentation in the following clear, I am only referring to opponents and proponents of PAS – knowing that the spectrum of positions is more complex. For the following argument, however, a consideration of this complexity is not required.

3. OBVIOUS ADVANTAGES OF COMMERCIALLY ASSISTED SUICIDE

When I examine the possible arguments against CAS, some aspects will emerge that argue at second glance not against but for CAS. Before I do that, I will explain briefly what could, at first glance, already support CAS from the perspective of advocates of PAS.

The opponents of PAS argue, among other things, that PAS is contrary to the medical ethos and the purpose of

3 M.J. Sandel. What Money Can’t Buy. New York: Farrar, Straus and Giroux; 2012.

4 A. Hurst & A. Mauron. Assisted Suicide and Euthanasia in Switzer- land: Allowing a Role for Non-Physicians. BMJ 2003; 326: 271–273; R. Andorno. Nonphysician-Assisted Suicide in Switzerland. Camb Q Healthc Ethic 2013; 22: 246–253.

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medicine,5 that it corrupts medicine and leads to a situa- tion where doctors are no longer wholeheartedly commit- ted to their severely ill patients,6 and that it undermines the trust that is necessary for successful relationships between doctors and patients.7

These arguments are weak when it comes to CAS. If not physicians but laypersons assist people in their sui- cides, no breach of medical ethos may be present and medicine cannot be corrupted. This would deprive the opponents of two main arguments against assisted suicide: a deontological argument (medical ethos) and a consequentialist argument (corruption of medicine, loss of confidence). Proponents would no longer have to prove that assistance to suicide does not contradict the medical ethos8 and that no negative impact on medicine and the doctor-patient-relationship is to be expected.9

The problems simply do not arise. Another problem that is specific to PAS would also fall

away. According to the prevailing view of the propo- nents, doctors (on the condition of permission for PAS) would not be obliged to provide assistance to suicide. Whether the individual physician provides such assis- tance or not is to be left to his own personal decision.10

Although this practice seems to be well justified by the principle of autonomy it could be very problematic for persons who seek assistance for their suicide. Whether their wish is fulfilled or not does not depend on clear, generally applicable criteria, but on the personal attitude of the physician. Thus, people with suicidal wishes may have to undergo a stressful search for a willing doctor in a situation where they suffer from great psychological strain. Obviously, this problem would not occur with commercial assistants. With their offer, they leave no doubt as to their willingness to support autonomous sui- cidal wishes. The suicidal person would no longer depend

on the personal attitudes of his/her doctor. (This advan- tage of CAS would largely cease to exist if doctors opposed to PAS were required by public policies to make their opposition publicly known.)

As we can see, CAS has considerable advantages, even at first glance – of course, only if suicide assistance is basically considered to be legitimate. Therefore, it is all the more important to examine the persuasiveness of the arguments that seem to speak specifically against CAS.

4. COMPETENCE FOR ASSESSING THE AUTONOMY OF THE REQUEST FOR ASSISTED SUICIDE

A first group of arguments contests that in CAS the (same) conditions are given that are set up by proponents as criteria for the legitimacy of PAS. This includes the competence of the suicide assistants to examine the mental condition of the persons willing to commit suicide and to assess the degree of autonomy of their suicidal intents. All proponents regard the autonomy of suicidal intent as an indispensable prerequisite for the justifiabil- ity of any assistance to suicide. In those countries where PAS is permissible, it is also a condition for its impunity. According to the argument, only physicians have the nec- essary expertise to assess the decision-making ability of their patient appropriately and to correctly diagnose a psychiatric disorder that impairs the autonomy of the patient.11 Therefore, only doctors should be allowed to carry out assistance to suicide.12

This argument shows a great confidence in the psychi- atric diagnostic skills of physicians. Is that confidence justified? The most common psychiatric disorder, and, at the same time, the disease that is most commonly associ- ated with suicidal intentions, is depression. Several studies clearly show that a large number of physicians fail to recognize the depressive disorders of their patients.13

This is particularly remarkable because people with depression account for about 10% of a GP’s patients.14 If doctors often fail to identify depressive disorders, how could they detect more subtle manipulations to which the patients may be exposed by their social environment?

5 E.D. Pellegrino. The False Promise of Beneficent Killing. In: L.L. Emanuel, editor. Regulating How We Die: The Ethical, Medical, and Legal Issues Surrounding Physician-Assisted Suicide. Cambridge MA/London: Harvard University Press; 1998. p. 71–91; D. Callahan. When Self-Determination Runs Amok. In: J. Howell & W.F. Sale, editors. Life Choices. A Hastings Center Introduction to Bioethics. Washington, DC: Georgetown Univeristy. Press: 1995. p. 249–257: 255–256. 6 J. Gay-Williams. The Wrongfulness of Euthanasia. In: R. Munson,

editor. Intervention and Reflection. 5th ed. Belmont CA: Wadsworth; 1996. p. 168–171. 7 W. Gaylin et al. Doctors Must Not Kill, JAMA. 1988; 259: 2139–

2140; E. Emanuel. What Is the Great Benefit of Legalizing Euthanasia or Physician-Assisted Suicide? Ethics 1999; 109: 629–642: 636–637.

8 D.W. Brock. Voluntary Active Euthanasia. In: D.W. Brock. Life and Death. Philosophical Essays in Biomedical Ethics. Cambridge: Cam- bridge University Press. 1994; 202–232: 218–219. 9 Ibid; J.M. Dieterle. Physician-assisted suicide: A New Look at the

Arguments. Bioethics 2007; 21: 127–139. 10 Brock op. cit. note 8, p. 229; R. Dworkin et al. Assisted Suicide. The Brief of the Amici Curiae. In: J.P. Sterba, editor. Morality in Practice. 7th ed. Belmont: Thomson Wadsworth; 2004. p. 177–183, 180; Schöch, Verrel, op. cit. note 1, p. 586.

11 K. Faber-Langendoen & J.H.T. Karlawish. Should Assisted Suicide Be Only Physician Assisted? Ann Intern Med 2000; 132: 482–487: 483. 12 Schöne-Seifert op. cit. note 1, p. 64; Brock op. cit. note 8, p. 230. 13 S.G. Henriques et al. Recognition of Depressive Symptoms by Phy- sicians. Clinics (Sao Paulo) 2009; 64: 629–635; A.J. Mitchell, A. Vaze & S. Rao. Clinical Diagnosis of Depression in Primary Care: A Meta- Analysis. Lancet 2009; 374: 609–619; V. Swami. Mental Health Literacy of Depression: Gender Differences and Attitudinal Antecedents in a Representative British Sample. PLoS ONE 2012. DOI:10.1371/ journal.pone.0049779. 14 A. Berghöfer et al. Screening for Depression and High Utilization of Health Care Resources Among Patients in Primary Care. Community Ment Health J 2014. DOI: 10.1007/s10597-014-9700-4.

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Therefore, it is not justified to say that doctors are in general particularly able to assess the conditions for an autonomous decision for suicide. To think that would be to have an unrealistic image of physicians’ skills.

While doctors are always obliged to assess the ability of autonomy of their patients, since their informed consent is a necessary condition for the legitimacy of any medical procedure, it is often about far less serious interventions. Therefore, it can be regarded as acceptable or at least less problematic if the evaluation is carried out more superfi- cially. However, the decision on suicide assistance is a decision of life and death. Here, the greatest thoroughness and certainty of judgment is required. If anything, psy- chiatrists might most likely have the necessary diagnostic skills. In the debate, however, it is usually referred to as physician-assisted suicide, not to psychiatrist-assisted suicide. But even the clinical assessment of patients’ decision-making capacity by psychiatrists is considerably affected by their own ethical evaluation of PAS, as study results suggest.15 Furthermore there is one non-medical profession that is able to carry out the required assessment at least as well, if not better than, the average physician: namely psychologists. Overall, then, the argument of the outstanding diagnostic competence of physicians as an argument against CAS is not convincing.

Even if one wants to insist that only people with medical training should carry out (or should take part in) the assessment of the degree of autonomy of the person with suicidal intent, this does not generally speak against CAS. It would be worth considering whether the assess- ment of the degree of autonomy of the patient’s wish should be (partially) outsourced from the commercial assistance of suicide. This would mean that suicidal persons are not assessed by the commercial assistants themselves but by psychiatric professionals.

Therefore, with regard to the diagnostic competence, we cannot find a valid objection against CAS based on several reasons.

5. FURTHER COMPETENCES

In addition to the competence for assessing the ability of autonomy, further competences are ascribed to physicians that are seen as conditions for ethically justifiable suicide assistance, and that commercial assistants allegedly do not have at all or only to a lesser degree. One is the ability to provide information on the available options, including alternatives to suicide.16 Secondly, there is the competence for psychosocial care of suicidal persons and possibly also

the family members before and during the dying process.17

The third relevant competence is the skilful management of the means that are necessary for an adequate implemen- tation of the suicide.

The competence for providing adequate information about possible alternatives to suicide covers various matters. On one hand, it is the ability to provide informa- tion on medical options. Undoubtedly, this ability is usually larger among physicians than among non- professionals. However, most people with a desire for suicide assistance are seriously ill or close to death; thus the spectrum of medical alternatives is limited. If curative options no longer exist, as in the terminal stage of cancer, the only possibility available is palliative care. Even pro- fessional commercial suicide assistants might be able to acquire an appropriate knowledge of these options. However, in order to make sure that suicidal persons get all relevant medical information, it is conceivable that medical counselling could be separated from the actual suicide assistance. But the autonomous suicidal desires do not depend in every case on a serious or terminal illness. In Switzerland, for example, a significant proportion of people who die by assisted suicide are just tired of life.18

Above all, the necessary counselling about alternatives to suicide goes far beyond the medical terrain. The deci- sion for or against suicide is indeed not a medical decision in a strict sense. Rather, it is a decision mainly based on psychological, philosophical, ethical, and – depending on the person – spiritual dimensions. It is about the impor- tance of self-determination, the potential acceptance of a non-accelerated dying process, the acceptance of illness and death, the possible value of impaired life, the under- standing of dignity, and the evaluation of one’s life. Adequate counselling about alternatives to suicide would, therefore, mainly have the characteristics of a life-end coaching – and thus the second above-mentioned competence is addressed. For this purpose, most doctors are not qualified.19 If individual physicians have this com- petence, it is not because they are doctors. If these psy- chosocial and ethical competences are to be expected of particular professions, we have to think rather of psycho- therapists, pastors or ethics consultants.

In addition, such an appropriate consultation of sui- cidal persons is, nowadays, often extremely difficult or even impossible for physicians due to the current struc- tures of medical care. They are often under enormous time pressure and have very little time to take care of the individual patient. Sufficient time, however, is essential for a careful and thorough clarification of the big ques- tions that are at stake. Particularly, a proper remunera-

15 L. Ganzini et al. Evaluation of Competence to Consent to Assisted Suicide: Views of Forensic Psychiatrists. Am J Psychiatry 2000; 157: 595–600. 16 Schöne-Seifert op. cit. note 1, p. 64.

17 Ibid: 65. 18 S. Fischer et al. Suicide Assisted by two Swiss Right-to-Die Organi- sations. J Med Ethics 2008; 84: 810–814. 19 Faber-Langendoen, Karlawish, op. cit. note 11, p. 484.

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tion would allow the commercial suicide assistant to take enough time for his or her client.

All this suggests that physicians do not possess, in any particular way, the second above-mentioned competence: the competence for psychosocial support.20

Is at least the ability of the correct application of lethal drugs a good reason to leave the assistance of suicide to doctors instead of commercial providers, as some authors claim?21 No, a doctor does not normally learn (in educa- tion and medical practice) how many grams of sodium pentobarbital cause a quick death. Above all, the neces- sary knowledge about the correct dosage is limited and can easily be acquired by non-physicians. This is also not contradicted by the fact that, in many countries, regula- tions exist that prohibit the use of lethal drugs by non- physicians. Either these regulations could be relaxed, so that certain non-physicians may obtain such authoriza- tion,22 or the regulation might remain and the prescrip- tion would have to be given only by doctors who work together with the commercial suicide assistants. This is similar to the situation in Switzerland, where (non- commercial) lay organizations have been assisting people for many years in their suicide by lethal substances that are prescribed by doctors.23

Overall, we can state that the competences necessary for assistance to suicide cannot be found only or even mostly in physicians, at least not in all physicians. The necessary competences for assistance to suicide do not speak against CAS.

6. INAPPROPRIATE INFLUENCE ON THE SUICIDAL PERSON

Another argument against CAS refers to the autonomy of the suicidal persons. Here, however, the focus is not on the ability for its assessment, but on its infringement by the suicide assistant. The profitability of CAS would depend not least on the number of customers, and, there- fore, the providers, it is argued, have a great interest in their customers’ death. They also have a motive to influ- ence the customer’s decision to that effect. If the autonomy of the suicidal wish is violated in that way, the assistance to suicide loses its legitimacy. Even if the com- mercial suicide assistant does not make the customer’s decision for suicide less autonomous, an influence in this direction would be problematic. According to many pro- ponents, suicide and suicide assistance are acceptable only as a last resort. Therefore, alternatives to suicide are preferable if they are acceptable to the persons con-

cerned; thus, they should also be intensively made aware of these alternatives. A commercial interest in suicide would oppose to this effort.24

As a preliminary objection, it must be remembered that commercial suicide assistants are likely to have a great self-interest in carefully assessing the voluntariness of the decision of their customers and not curtailing the autono- mous nature of that decision in any way. For the impu- nity of their actions would depend on these conditions.25

Moreover, there is always the risk of interference, even with PAS. The expectation that this risk does not exist or is minimal in physicians has no basis in fact. Rather, doctors regularly influence the decisions of their patients to a significant extent.26 This can be done intentionally and unintentionally, by rational argument and especially by the non-argumentative influence of the medical com- munication. Studies have shown that doctors’ assessment of the quality of life and of the suicidal wishes of seriously ill patients depends significantly on the psychological situation of the doctors themselves, and that they system- atically underestimate the quality of life of their patients.27 Quite a few doctors also advocate directive counselling, even on morally controversial issues.28 It is probable that this is not fundamentally different with regard to their decisions for or against suicide.

The risk of interference by doctors might be not just equally high but even higher, due to their social role and the expectations about them. Even in post-paternalistic times, doctors enjoy a high reputation. Patients trust their judgments greatly in matters of health and life, and they need to have this trust due to the asymmetrical doctor- patient-relationship.29 The role of commercial suicide assistants would be in contrast to this. They might not experience this general credit of trust and most people might be more sceptical about their judgments. There- fore, the risk of unreflected interference would be smaller.

20 Ibid: 484. 21 Schöne-Seifert op. cit. note 1, p. 65. 22 Ibid. 23 Hurst, Mauron op. cit. note 4; Andorno op. cit. note 4.

24 Schöch, Verrel, op. cit. note 1, p. 582. 25 K. Gavela. Ärztlich assistierter Suizid und organisierte Sterbehilfe [Physician-assisted Suicide and Organized Euthanasia]. Berlin, Heidelberg: Springer; 2013. p. 254. 26 A. Edwards et al. Presenting Risk Information: A Review of the Effects of ‘Framing’ and Other Manipulations on Patient Outcomes. J Health Commun 2001; 6: 61–82; C. Chao et al. Adjuvant Chemotherapy for Breast Cancer: How Presentation of Recurrence Risk Influences Decision-Making. J Clin Oncol 2003; 21: 4299–4305; A. Moxey et al. Describing Treatment Effects to Patients. How They Are Expressed Makes a Difference. J Gen Intern Med 2003; 18: 948–959. 27 D. Lulé et al. Quality of Life in Fatal Disease: The Flawed Judge- ment of the Social Environment. J Neurol 2013; 260: 2836–2843. 28 M.S. Putman et al. Directive Counsel and Morally Controversial Medical Decision-Making: Findings from Two National Surveys of Primary Care Physicians. J Gen Intern Med 2013. DOI: 10.1007/s11606- 013-2653-4. 29 A. Coulter. Patients’ Views of the Good Doctor. Doctors Have to Earn Patients’ Trust. BMJ 2002; 325: 668–669; T.L. Beauchamp & J.F. Childress. Principles of Biomedical Ethics, 6th ed., New York, Oxford: Oxford University Press; 2009. 40–41.

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If one still wants to minimize the risk of undue influ- ence by commercial suicide assistants, this may be achieved by appropriate regulations. On one hand, it is conceivable that the payment of the fee does not depend on the completed suicide, but has to be paid in full by the customers already in the stage of counselling. Hence, the assistant would have no incentive to persuade the cus- tomer to commit suicide for the sake of profit. On the other hand, it is worth considering whether the counsel- ling of the suicidal person should be institutionally sepa- rated from the actual assistance to suicide, so that the assistants have no undue influence in counselling.

7. PRESSURE ON PATIENTS

Other arguments against CAS are focused on possible negative outcomes. There are fears that the presence of commercial providers would lead to a pressure of expec- tation on seriously ill people to wish for assisted suicide.30

This argument may give some cause for concern, as it is often put forward against PAS,31 but is rejected by its proponents.32 It is hard to see why such pressure should occur only with CAS but not with PAS, or why it should occur more with CAS. If the argument were correct, then it would be true in the same way for PAS.33 Properly understood, it is not an argument that speaks specifically against CAS.

One might even suspect that pressure of expectation on patients is rather caused by PAS, since patients already have contact with doctors and thus with the potential suicide assistants. In contrast, to get in touch with com- mercial suicide assistants would require a separate step. In addition, the commercial element could also prevent pressure of expectation or at least prevent people from succumbing to it lightly, since CAS would come at a cost, while PAS (as it is mostly understood) would be free of charge.

If additional pressure of expectation should arise from CAS at all, this would happen because of corresponding advertising, not because of the commercial offer in itself. By advertising, the commercial suicide assistants appear before the public and shape public perception of the opportunity and accessibility of assisted suicide. There- fore, if at all, a ban on advertising (not on CAS) could be justified.34 A ban on advertising is easy to implement and much less invasive than a prohibition of CAS.

8. ARGUMENTS AGAINST COMMERCIALITY

A fifth group of possible arguments against commercial assistance to suicide is aimed at the commercial element itself. The element of payment alone, however, cannot be a moral issue because we pay for a variety of services, which is generally not considered to be a problem. Doctors always earn their living from the needs of their patients: no one takes offence. If suicide assistance – of course, always from the perspective of liberal supporters – is not wrong, nor is the element of payment per se, then the moral problem of CAS, if it exists at all, must consist of the specific connection between these two elements. What could make this connection so problematic?

One could argue that the commercialization consti- tutes a normalization or appreciation of suicide, which is not socially desirable. Even if PAS is acceptable or desir- able in certain conditions, assisted suicide must always be a last resort and remain an exception. Through CAS, however, the assistance to suicide becomes a business process and, thus, a part of ordinary social life. (This argument is not to be confused with the consequentialist argument that CAS leads to an increase in the suicide rate, which has already been addressed above.)

This is a considerable argument. In contrast to the above-discussed arguments, it does not fail because of being based on unrealistic expectations or being directly applicable to PAS.35 Possibly, the widespread rejection of CAS is attributable mainly to such beliefs as are expressed in this argument. However, the argument has another problem: it is based on a concept of the good; more precisely, on a notion of a desirable social condition that is probably not even shared by all people. Such an argument can hardly be put forward from a liberal point of view.36 For, according to the prevailing liberal convic- tion, the good is significant only for the individual or for a particular community and should not be the basis of generally binding rules. This is certainly the case for con- cepts of the good that go beyond fundamental assump- tions and represent concrete ideas of a common good. In particular, it applies to concepts of the good that do not enjoy general approval. The right has the primacy over the good, and the state has to be neutral with regard to these concepts of the good. This liberal idea of state neutrality is also raised repeatedly as an argument for the

30 Bundesrat op. cit. note 2, p. 3; Deutscher Bundestag op. cit. note 2, p. 6. 31 Y. Kamisar. Against Assisted Suicide – Even a Very Limited Form. U Det Mercy L Rev 1995; 72: 735–769: 760; Emanuel, op. cit. note 7, p. 637–639. 32 Brock, op. cit. note 8, p. 222. 33 Gavela, op. cit. note 26, p. 259. 34 Ibid.

35 Although one can ask if PAS does not raise the same problem. If PAS was once legalized, and also in publicly funded health care systems (and if a commercialization is not originally intended), the questions would arise regarding whether physicians should be paid for their assistance with suicide and how much they should get. 36 R. Dworkin. Liberalism. In: S. Hampshire, editor. Public and Private Morality. Cambridge: Cambridge University Press; 1978. p. 113–143; J. Rawls. A Theory of Justice, Oxford: Oxford University Press; 1999; R. Nozick. Anarchy, State, and Utopia. Oxford: Blackwell; 1974.

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legalization of PAS.37 The above presented argument against CAS is, therefore, in conflict with core convic- tions of liberal thinking.

However, if one wants to soften this classic liberal conviction and to concede the truth of the argument (i.e. if one recognizes concepts of the good as legitimate reasons for binding rules), a different problem arises. For then he or she has also to accept arguments that reject PAS because of an understanding of the common good. Although the argument cannot directly be transferred to PAS, it can readily be considered as a normalization and appreciation of suicide. This is because with doctors a profession would support suicide that has great social significance and enjoys great recognition, so that suicide would get an appreciation that it would not have other- wise. Therefore, the argument of the normalization and appreciation is not convincing as a specific argument against CAS, either. It is either beyond the scope of liberal convictions, or it opens the door for similar argu- ments against PAS.

With Michael Sandel, one could argue that the commer- cialization of something corrupts this thing. Thus, if some- thing can be bought, it is thereby inadequately treated, damaged, debased or degraded to a commodity.38 Trans- ferred to CAS, we have to speak of a debasement of dying. However, is this an argument that the liberal proponents of PAS could adopt? To this end, we would need a binding concept of dying in dignity, which could justify the exclu- sion of certain types of dying. However, such a concept does not exist. It is notoriously controversial what digni- fied dying is. This argument of corruption is also based on a concept of the good, as Sandel explicitly says.39 This means that this argument meets the same objection as the argument of the normalization and appreciation: in the liberal framework, concepts of the good do not commonly apply as a legitimate basis for general rules. Within this framework, what is good or dignified dying is not some- thing to be decided by society or the state, but by every individual on the basis of his or her personal values. If one wants to soften this liberal idea, at least partially (i.e. if one ascribes certain general validity to arguments of the good), then we have to state again that arguments of the common good can also be turned against PAS. If they have validity in relation to the permission of CAS, there is no reason why they should not have validity in relation to the per- mission of PAS.

Are there other arguments that could be brought against the commercial element of CAS? Some arguments are familiar to us from discussions of other commercial- ized practices in the field of biomedicine. Thus, it is argued against legalizing organ trafficking that this

would lead to exploitation or self-exploitation of poor people.40 Alternatively, some argue against premium payment for the voluntary sterilization of drug-addicted women by arguing that it is a bribe.41 However, these arguments do not apply to CAS, because the persons concerned here are not paid for performing a certain action but use a service for which they pay. Thus, it is not the case that a service is paid for that would not come about in any other way. The desire for suicide assistance does not come about because of commercial offers, but it would just be more easily satisfied by them.

9. CONCLUSION

We have examined a number of arguments that are spe- cifically put forward against CAS or could be put forward against the issue. This investigation has shown that there is not a single ethical reason that speaks persuasively only against CAS. Either the arguments do not apply to CAS, or they do apply but equally or even more so to PAS. At most, some considerations speak for certain regulatory restrictions on CAS, but not for a ban. The failure of the arguments consists in wrong assumptions such as an unre- alistic idea of medical skills or a naive image of physi- cians, in the wrong equation of CAS with unregulated CAS and in the inconsistent assertion of certain reasons. If one has no general objection to assisted suicide, there are many more reasons for CAS than for PAS to occur.

To reject CAS while endorsing PAS is, therefore, not ethically justifiable: it is not a coherent ethical position. Therefore, the position of the liberal advocates of PAS has to be revised. Either they have to expand their advocacy to include CAS and therefore radicalize their position con- siderably or they have to revise their rejection of some arguments that are generally raised against assisted suicide. In both cases, it would no longer be the same position.

If one does not want a society in which suicide and its support is normal and taken for granted like other ser- vices, and if one wants to adhere at the same time to the claim of coherence for their own ethical position, the only possibility is to reject PAS. Those who do not endorse CAS cannot endorse PAS, either.

Acknowledgements

I thank Robert Ranisch and one anonymous reviewer of this journal for helpful comments on earlier drafts of this paper.

Roland Kipke PhD is a philosopher and Managing Director of the International Centre for Ethics in the Sciences and Humanities at the University of Tübingen. His research areas include ethical theory, metaethics, political philosophy, and bioethics.

37 Dworkin et al. op. cit. note 10. 38 Sandel op. cit. note 3. 39 Ibid: 11, 202.

40 D. Joralemon & P. Cox. Body Values. The Case against Compensat- ing for Transplant Organs. Hastings Cent Rep 2003; 33: 27–33. 41 Sandel op. cit. note 3, pp. 43–47.

Roland Kipke522

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