從典型案例及民意調查看安樂死在中國立法之必要性

Euthanasia Should Be Legalized in China

Abstract

LANGUAGE NOTE | Document text in Chinese; abstract also in English.

中國大陸已發生多起爭議大、影響面廣的典型主動安樂死案例。醫學界內外多形式、大範園、多層次的民意調查充分顯示了各界、各階層民眾對安樂死的普遍關注。從典型案例引起的民眾反映以及各種調查數據結果分析可以看出，中國大陸的安樂死實踐亟待法律的保護和規範。

本文還通過《中國醫學倫理學》雜誌6 年間主動安樂死案數的統計及多次有關主動安樂死調查問卷的統計分析得出結論：

1.在中國大陸主動安樂死的實踐已走在理論研究之前，如不及時求諸法律保護和規範，將出現許多連鎖性問題，波及整個社會的方方面面。

2. “故意殺人罪”是經常被冠於“主動安樂死案”的罪名，如不及時具體立法，不僅會阻礙醫務人員實施必要的安樂死從而踐行符合白己的道德良心的決策，而且會出現一些別有目的的失範行為，從而殃及醫患雙方的利益。

3.安樂死的立法可根據具體的國情、民情、依秩序、依範園、多層次逐步實施。

This essay briefly illustrates the first Chinese legal case of active euthanasia in 1986 and a hotly debated lawsuit in 1994. It also offers other euthanasia cases that occurred between 1989 and 1995. It further provides the outcomes of a series of surveys made by a variety of Chinese institutions and individuals concerning the issue of euthanasia. Based on the analysis of these lawsuits, particular cases, and survey results, the essay argues that euthanasia should be legalized in China. In particular, the essay argues for the following points.

First, it is misleading to place euthanasia cases under the category of Article 132 of current China's Criminal Law ("the crime of intentionally killing a human"). Although most surveys showed that more than 50 percent of the Chinese people advocated euthanasia, thus far all defendants in China’s lawsuites regarding euthanasia have been judged guilty by the courts in light of Article 132. Interestingly, all defendants have been sentenced only in the lightest sense of the crime of "killing." This was because the courts took into consideration the "good motivation" and "mild harm to society" that the behavior of the defendants involved. This way of judging, we believe, involves a category mistake. The objects of euthanasia are terminally ill patients. They usually live in unbearable agony or undignified situations that they judge unworthy of living. They voluntarily request their physicians and families to terminate their lives in painless ways. The matter is not whether those involved in euthanasia should be punished heavilyor lightly. Rather, placing such cases under the crime of murder is misleading. What we really need is a new particular statute that both legalizes and regulates such cases so that they are no longer considered in terms of the crime of murder.

Second, claiming that performing euthanasia is against humanism is begging the question. Some Chinese opposers to euthanasia claim that because humanism implies the overriding value of human lives over all other things, physicians committed to humanism should always try every means to save life, but should never be involved in any killing, either euthanasia or physician-assisted suicide. Ironically, many Chinese advocates of euthanasia also use the concept of humanism to lay out their reasons to support euthanasia. For them, the fundamental requirements of humanism are to reduce human sufferings, value the quality rather than the quantity of human life, and respect the wishes of patients. They take euthanasia as the most humanistic choice in certain circumstances.

In fact, humanism is an ambiguous concept. There are as many different senses and requirements of humanism as there are different types of humanism. What humanism implies regarding the issue of euthanasia depends upon which particular theory of humanism is accepted. No one should be forced by others to accept one particular sense of humanism that he/she considers inhumane. No one has moral authority to coerce those who oppose euthanasia to accept or to be involved in any act of euthanasia. However, by the same token, opposers to euthanasia should not use the law to prohibit advocators of euthanasia from accepting or performing euthanasia. In our opinion, making a particular statute on euthanasia will create the opportunities that will better protect opposers from being involved in it involuntarily and ensure that advocates gain access to it safely.

Finally, some people object to legalizing euthanasia in China because they are afraid that it will cause social instability. According to their view, given the reality that there are still a substantial number of Chinese people who object to euthanasia (although more than 50 percent of Chinese people support it), if euthanasia were legalized, these people would be upset and dissatisfied with the society and thereby social solidarity and stability would be undermined. However, we believe this concern involves a confusion between two different attitudes. One attitude is that "I, as one person, do not permit myself to participate in any act of euthanasia because I believe it is morally wrong." The other attitude is that "I, as one person, do not permit anyone to participate in any act of euthanasia because I believe it is morally wrong." The first attitude does not lead to objection to the legalization of euthanasia. Only the second attitude leads to objection to the legalization. In our opinion, most Chinese opposers to euthanasia in fact hold the first rather than the second attitude. Therefore, the worry of causing social instability due to legalizing euthanasia is in fact groundless.

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