31 BYU J. Pub. L. 333 (2016-2017)
Legalization of Assisted Suicide and Euthanasia: Foundational Issues and Implications

handle is hein.journals/byujpl31 and id is 349 raw text is: 







    Legalization of Assisted Suicide and Euthanasia:
           Foundational Issues and Implications

                            Sean Murphy*

                            ABSTRACT

    This paper  takes a general  approach  by examining   foundational
issues, and the primary  focus is on  a single jurisdiction: Canada. It
outlines the current legal criteria for euthanasia and assisted suicide
in Canada,  identifying differences in criteria for the procedures set by
the Supreme   Court  of Canada,  Quebec's  unique provincial  euthana-
sia la w, and the Criminial Code.
    Commentary drawing from anecdotal reports from eight dissent-
ing physicians offers some insight into their experience since legaliza-
tion of the procedures. Material  from  the public record provides ad-
ditional context, and the commentary   is informed  by diffculties that
have  arisen in relation to morally contested procedures.  The  experi-
ence  of dissenting physicians is affected by a number of variables, in-
cluding cultural and social dynamics, differing beliefs, differing moral
and  social sensitivity and individual personalities. Four  sources  of
stress are identied: the demand   for collaboration in killing, the pro-
spect ofpunishment,   the continuing  need  to distinguish between co-
operation  and collaboration, and  concern for their patients. Particu-
lar concerns  of palative   care physicians  are discussed, as well  as
concerns  shared by other dissenting physicians.
    A  detailed review of the moral  underpinnings   of the trial court
decision in Carter v. Canada  demonstrates  that morality precedes and
drives law. From   this it is argued that a judge will either assume or
construct a moral justi6cation  that supports a decision, even if this is
not explicitly articulated in legal reasoning. These assertions are test-
ed against the ruling of the Irish High Court in Fleming  v. Ireland &

* Sean Murphy has been the Administrator of the Protection of Conscience Project since its
inception in 1999, responsible for its day-to-day management and operations. The Project is a
non-profit, non-denominational initiative with international interests that advocates for free-
dom of conscience among health care workers. It does not take a position on the morality of
contentious procedures, but critiques policies of coercion, encourages accommodation and
promotes clarification and understanding of the issues involved to assist in reasoned public dis-
cussion.


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