Ending the Life of a Newborn: The Groningen Protocol

Hilde Lindemann; Marian Verkerk

The Hastings Center Report. 2008;38(1):42-51. 

In This Article

How the Protocol Was Developed

To understand the protocol, one must set it against the backdrop of the wider Dutch practice of euthanasia and assisted suicide. In the Netherlands, euthanasia is usually understood to mean ending the life of another person at their express request. Assisted suicide is taken to mean providing another person with the means to commit suicide. Under Article 294 of the Dutch Criminal Code, suicide is not a criminal offense, but assisted suicide is. Euthanasia is likewise a criminal offense under Article 293 of the Code.

However, since the Termination of Life on Request and Assisted Suicide Act went into effect on April 1, 2002, both of these articles have included special grounds for immunity from criminal liability. This means that termination of life or assisted suicide are not offenses if performed by doctors who comply with the "due care" criteria of the act and report their actions to the medical examiner. The medical examiner performs an external examination to ascertain how the patient died and what substances were used to terminate life. He or she then sends all the necessary documents and any others that may be relevant to one of the five regional review committees—each made up of at least one legal specialist, one physician, and one expert on ethical or philosophical issues—whose duty it is to assess them. On the basis of the documents, the committee decides whether the physician acted in accordance with the due care criteria.

About 1,950 cases of euthanasia are reported to the review committees every year, and while committees occasionally request additional information from a physician, cases are generally approved without further action. Most of the physicians who perform euthanasia are huisartsen (literally, "house doctors")—family-care physicians who pay house calls and typically have an established and ongoing relationship with their patients. Most of the patients who receive euthanasia are end-stage cancer patients.

The due care criteria, aimed at insuring that euthanasia is correctly performed, are these: 1) a voluntary and well-considered patient request; 2) the presence of unbearable suffering without prospect of improvement; 3) informed consent; 4) no reasonable alternative; 5) consultation with at least one other independent physician; and 6) a medically appropriate termination of life.

As might have been expected, much of the language in the protocol's "Requirements" section was drawn directly from the euthanasia due care criteria. Provision 1 (that the request is voluntary) could not be incorporated into the protocol, as babies are incapable of voluntary requests. But provisions 2, 5, and 6—hopeless and unbearable suffering, consultation by an independent physician, and terminating life in a medically appropriate manner—were taken over nearly verbatim by the Groningen committee. Provision 3 (that the patient be informed) was imported into the Groningen requirement that both parents give informed consent. Provision 4 (no reasonable alternative) does not appear in the protocol's requirements, but under "Information needed to support and clarify the decision about euthanasia," alternative treatments are to be described and presumably judged unacceptable.

Where the authors erred, we believe, is in carrying the language of "euthanasia" into the protocol. That word causes confusion because in the Netherlands it is reserved for terminating the life of a mentally competent patient at the patient's considered request. Babies are not mentally competent, so they can neither judge for themselves that their lives are unbearable nor request that they be helped to die. In the case of infants, then, rather than speak of euthanasia, we think it is better to use the language of "ending life."

The Groningen committee also relied on legal precedents to develop the protocol. In 1996, the courts acquitted doctors in two cases, one involving a newborn with an extreme form of spina bifida, and the other an infant with severe trisomy 13. In both cases, despite palliative care, the babies suffered extensively and the doctors ended their lives with lethal drugs. "The courts accepted," wrote Verhagen and Sauer, "that the physicians had to choose between the duty to retain life (and accept the severe suffering) and the duty to limit the suffering (and end the life of the child). They considered the choice to end the life of the infants justified because there was no alternative."[16]

There is, of course, an alternative; what Verhagen and Sauer meant to say is that the alternative is worse than death. What is important here, however, is that in both cases the decision to deliberately end life was made only after it had been decided that all other medical treatments should be withdrawn. Neither baby fell into the category of group 3.

Finally, the Groningen committee considered twenty-two instances of life-ending interventions that were reported to district attorneys' offices between 1997 and 2004, all involving "infants with very severe forms of spina bifida."[17] Again, in all these precedents, the decision to end life was preceded by a decision to withhold further life-sustaining treatment. The prosecutor assessed each case by means of four criteria: whether the babies had endured hopeless and unbearable suffering and a very poor quality of life, whether the parents had consented, whether an independent physician had been consulted, and whether the physician had ended the infants' lives in accordance with proper medical standards. None of the physicians were prosecuted.

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