Bringing clarity to the provision of nutrition and hydration to the terminally ill, dying, or those in persistent vegetative state (PVS).
Hearing about “health care proxies,” “living wills,” “durable power of attorney” can be somewhat baffling to the ordinary person, especially to the person of faith.1 For he or she knows that these legal instruments are meant to address end-of-life care which, owing to the advances in technology, raises not only medical but ethical issues, as well. One such issue concerns the administration of food and hydration to the terminally ill, or to the dying. I would like to address that issue within the ethical framework of natural law theory which, it is to be noted, seems to be enjoying a certain resurgence even in the legal community. In that community, two prominent names come to mind: John Finnis of Oxford, and Robert George of Princeton;2 though not to be ignored are Robert Bork, and Hadley Arkes;3 and, as we know from their confirmation hearings, Justices Scalia and Thomas.
If anything, natural law theory, with its pedigree reaching back to ancient times, is eminently rational and coherent, owing to the genius of the 13th century philosopher and theologian, St. Thomas Aquinas. Such was his systematic approach to natural law that, thereafter, no comprehensive treatment of the topic ever omits his name. In his Summa Theologica, Prima Secundae, he addresses natural law in the course of treating law as such [qss. 91-95] , and then throughout the Summa, treats other key components of the theory, like the nature of the “good,” or of freedom, or of justice, or of personhood, or of a moral act. To be noted is St. Thomas’ handling of specific moral issues, like that of killing in self-defense (qs.64. a.7), and that of suicide (ibidem, a.5), which yield distinctions still in play today and, as we will see, relevant for our topic on nutrition and hydration.
I believe that the lynch pin of natural law theory is found in its presupposition that every creature, according to its make-up, that is, its nature, seeks its own fulfillment. The creature strives to realize to the full what it is constitutionally. All natures below man do so instinctively. While man, with the peculiarity of a nature comprised of free will and intellect must—notwithstanding his lower functionings—choose that which will fulfill and perfect his nature. This inherent drive, or dynamism, found in a thing makes its behavior inherently purposeful which, according to Aristotle, equates with its “good.” That is, relative to a thing’s nature, purpose and good are synonymous, so that in achieving the purpose of its being, a thing is simultaneously realizing its good. Hence, Aristotle’s definition, “good is that toward which all things aim.”
Whether through a rational analysis of human nature, or by way of intuition, man has come to recognize what is for him constitutionally good and purposeful. In natural law theory, contemporary moralists, like Germain Grisez 4 and John Finnis, 5 have enumerated that good into eight categories, such as: the good of life, or the good of knowledge, or the good of friendship —each an objective end or goal, of which the maintenance and pursuit makes for human flourishing. Can a human being flourish without life, or knowledge, or friendship, or work, or recreation? Hardly. These goods, which admit of sub-categories of goods—like health, and sexuality, and art, and research, to name but a very few—serve also as objective measures against which human acts can be weighed. Acts which are considered good, advance these goods as fulfilling our nature; while acts which are considered evil, or bad, undermine or destroy these goods, and consequently ourselves.
Of course, the question of why humans commit evil acts has dogged philosophers and theologians for millennia. Within the logic of natural law, which equates good and purpose, human beings choose even evil for the purpose, or good, of self-fulfilment. Like any other nature, we humans cannot help but act toward that end, however misguided we are in using our freedom. It is the achievement of natural law—refined through centuries of reflection even to the present day—to stand as “a body, or ordered set of propositions, formed by practical reason, about what-is-to-be done.”6
With that the case, our topic asks what is to be done when a person finds the intake of food and water a severe burden. The traditional answer, arrived at by reasoning from propositions or principles within natural law, has been rather clear, as we shall see momentarily. But the issue, today, has become more complex, owing to medical interventions that by-pass what formerly was the only means for ingesting food, namely, by oral feeding. Moreover, the wrenching situations of Nancy Cruzon, Karen Quinlan and Terri Schiavo have added to the issue another dimension, that of feeding the comatose who show little or no chance of recovery.
I mentioned earlier that St. Thomas Aquinas introduced some distinctions, serviceable for reasoning the issues of killing in self-defense and of suicide. As to killing in self-defense, he acknowledged two effects: one lying within the intention of the assaulted individual, one lying outside it. For St. Thomas, to preserve one’s life is a legitimate intention, while the killing of the offender is legitimatized by public authority and for the common good. Of interest here in St. Thomas reasoning is his distinction between an act intended—in this case, preserving one’s life—and, an act permitted—that of killing. In light of his reasoning about other types of acts, notably voluntary and involuntary, there emerged the distinction between a direct act and an indirect act. None of these distinctions is without bearing on the topic we are exploring. Thus, for example, where a patient is dying, it is morally permitted to withhold nourishment; while if the patient is otherwise able to ingest food and water, such withholding would be considered as direct killing and morally impermissible.
However, the distinction which comes especially to bear in the medical area with application to the issue of food and hydration, is the distinction between ordinary and extraordinary. The terms are not from St. Thomas, and, for that matter, neither is the distinction. The distinction suggested itself to the sixteenth century Spanish moralists based on what St. Thomas says about suicide, and, specifically, about the positive norms for preserving one’s life (ST, Secunda Secundae, qs.64, a.5). The Spanish moralists questioned how far the obligation extended to preserve the good of life and health. Must one resort to every means, they asked? In his response, Francisco de Vitoria (1483-1546) cited the example of the intake of food imposing a severe burden. He offers the following opinion:
If a sick person is able to take nourishment with the hope of life, he has the obligation to take it, just as he must be given it if he is not able to do so himself…if the decline of the spirit is so great and the alteration of appetite is so much, so that the infirm is able to take nourishment only with great trouble and almost a certain torment, then it can be considered an impossibility and one is excused from sin.7
Vitoria, and his contemporaries, recognized that food must be taken or given if it offered “hope of benefit,” but saw no obligation in the face of “a certain impossibility.” This they spelled out as “excessive labor,” for example, in swallowing; “extreme torment;” “prohibitive costs;” and “psychological repugnance.” Incidentally, these conditions applied to other situations as they do even today, such as: certain cancer treatments, or to invasive, and/or frequent surgeries. What bears noting in the response of Vitoria, and the other Spanish moralists, is the fact that they are not addressing the actual medical means but rather “the moral character that the utilization of the means has for the person in particular.”8 That is, the focus is on the person, and his moral obligation, to care for the good of life and health.
It was at the end of the sixteenth century, that the Spaniard Domingo Banez introduced the terms “ordinary” and “extraordinary” in reference to the medical means themselves. Thus, in speaking of the medical means available for preserving one’s life and health, Banez considered a means ordinary if it were:
- Scientifically established (i.e., it is a tried and true procedure);
- Statistically successful (i.e., it works in a majority of cases);
- Reasonably available (i.e., it can be readily secured).9
If one of these criteria was absent, the medical means were to be considered extraordinary, and, therefore, non-obligatory. What may seem strangely familiar to us today is that the Spanish commentators were confronting moral issues raised by the then advances in medical technology and new treatments. One such treatment was surgical amputation, at a time when asepsis and anaesthesia were not known. The question troubling Banez concerned the moral obligation to submit to such a painful and gruesome procedure.
Be that as it may, since the 16th century, Catholic theologians have embraced the moral and medical distinction between ordinary and extraordinary means—as put forth by Vitorio and Banez—in numerous twentieth century magisterial pronouncements.
Even in their day, the medical situation was changing, prompting further inquiry into natural law. So, too, today, particularly in what concerns the topic of nutrition and hydration. No longer limited to oral feeding, patients may receive nourishment, fluids, and medication using parenteral feeding (which bypasses the digestive system), through intravenous (IV) infusion, or enteral feeding, using a gastrointestinal tube. While enteral feeding requires surgery, none of these modes of delivering nourishment entails “excessive labor,” “extreme torment,” “prohibitive costs” or “psychological repugnance.” In underdeveloped countries, these modes of feeding may be viewed as medically extraordinary and non-obligatory. In modern, developed countries, they are considered medically ordinary means. With this the case and where the patient stood to benefit, the Holy See since 1981 has consistently taught that food and hydration are morally obligatory.
Left unclear until Pope John Paul’s address in March, 2004, was whether that official teaching applied to comatose patients, unfortunately referred to as those in a “persistent vegetative state” (PVS). With regard to this class of unconscious patients, the moral issue of enteral feeding, also called “artificial nutrition and hydration” (ANH), hinged on determining the medical status of the patients, their condition to feel pain and suffering, and most importantly, the benefits, if any, to be gained. Not to be overlooked were the expenditure of time, effort and resources, and, the stress and grief of family members. To be more precise: what was at issue was not the medical means for delivering nourishment but rather whether nourishment was morally required at all for a PVS patient. In Vitorio’s terms, the question was whether feeding and hydration offered the comatose “hope of life” or constituted an “impossibility.”
Until the Pope’s 2004 statement, the general consensus among American bishops—notwithstanding some conferences of bishops who dissented—favored administering food and water to PVS patients “as long as this is of sufficient benefit to outweigh the burdens involved to the patient.”10 In 1992, the Pennsylvania Conference of Bishops published a very substantive document remarkable for its clarity. Of note, is the description the bishops offered of the various states of unconsciousness (coma, PVS, psychiatric pseudocoma, and locked-in state), none of which equates with “dead” or “brain dead.” While acknowledging that PVS patients, after six months, faced the least likelihood of recovery, the bishops, nevertheless, alerted us that:
The patient in the persistent vegetative state is not imminently terminal (provided that there is no other pathology present). The feeding—regardless of whether it be considered treatment or as care—is serving a life-sustaining purpose. Therefore, it remains an ordinary means of sustaining life and should be continued.11
A little more than a decade later, Pope John Paul followed with his pronouncement to the international congress of Catholic medical associations. The Holy Father articulated the general principle concerning the administration of food and nutrition to PVS patients. He said:
I should like particularly to underline how the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use, furthermore, should be considered, in principle, ordinary and proportionate, and as such morally obligatory, insofar as and until it is seen to have attained its proper finality which in the present case consists in providing nourishment to the patient and alleviation of his suffering.12
I have sought to expound on natural law theory in order to provide a context for understanding the moral issue of food and hydration, even as it pertains to the comatose patient. How highly relevant, given today’s moral and legal climate, that the principles which frame the issue from the natural law perspective derive from the questions of killing and suicide? Those, today, who trumpet the “right to die” cloak the reality that such a right, when exercised is, in fact, an act of killing or suicide.
In our present culture, we must wonder if the confidence natural law places in human reason with regard to its reliability, both to know the good and how to attain it, is misguided. After all, a highly advanced civilization, such as ours, has devised, in the name of what is good for our species, innumerable ways to kill its newest members and to dispatch with so-called “dignity” its aging, sick and dying members. There is no dignity in killing our most vulnerable members, among whom we ourselves shall be counted someday. In drawing up a “living will,” or designating a health care proxy for our waning years, we should insist on one of the most human and caring of acts, namely, that of being fed.
- For needed help, see www.nrlc.org., “Will to Live.” ↩
- John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), Moral Absolutes (Washington, D.C.: The Catholic University of America Press, 1988); Robert P. George, In Defense of Natural Law (USA: Oxford University Press, 2001), Making Men Moral (USA: Oxford University Press, 1995), Natural Law and Public Reason (Washington, D.C.: Georgetown University Press, 2000). ↩
- Robert H. Bork, “Natural Law and the Constitution,” First Things (March, 1992), 16-20; Hadley Arkes, Russell Hittinger, William Bentley Ball and Robert H. Bork, “Natural Law and the Law: An Exchange,” Ibid. (May, 1992), 45-54. ↩
- Germain Grisez, Christian Moral Principles: The Way of the Lord Jesus, Vol.1, (Chicago: Franciscan Herald Press, 1983), 121-125. ↩
- Finnis, Natural Law and Natural Rights, 59-90. ↩
- William E. May, An Introduction to Moral Theology (Huntington, Indiana: Our Sunday Visitor Press, 1991), 41. ↩
- Paulina Taboada, MD, PhD, “Ordinary and Extraordinary Means of the Preservation of Life: The Teaching of Moral Tradition,” available at www.catholicculture.org/culture/library/view. ↩
- Ibidem. ↩
- For a brief history of the distinction: Gary M. Atkinson, “Theological History of Catholic Teaching on Prolonging Life,” in Moral Responsibility in Prolonging Life Decisions, ed. Donald McCarthy and Albert Moraczewski, O.P., (St. Louis: The Pope John Center, 1981), 95-115; see also, Benedict Ashley, O.P. and Kevin O’Rourke, O.P., Health Care Ethics, (St. Louis, MO: The Catholic Health Association of the United States, 2nd ed., 1982), 382-385. ↩
- National Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Services (Washington, D.C.: United States Catholic Conference, 5th ed., 1995), Article 58, pp. 21-22. ↩
- “Nutrition and Hydration: Moral Considerations, “ A Statement of the Catholic Bishops of Pennsylvania, revised 1999, available at www.pacatholic.org/bishops-statements/nutrition-and-hydration-moral-considerations/. ↩
- Address of Pope John Paul II to the Participants in the International Congress on “Life-sustaining Treatments and the Vegetative State: Scientific Advances and Ethical Dilemmas, “on March 20, 2004, L’Osservatore Romano, 13 (March 30, 2004), 5. ↩