By Hannah Rahim
The regulation of medical assistance in dying (MAID) is drastically different between the U.S. and Canada. Comparing the hasty liberalization of MAID in Canada with the more wary approach of the U.S. can yield important learnings for both countries.
An overview of MAID laws in Canada and the U.S.
In 2016, the Parliament of Canada passed a federal law enabling eligible Canadian adults to request MAID. At the time, the law required a person’s natural death to be “reasonably foreseeable” for a person to be eligible for MAID. The law did not specify a length of time until death that constituted “reasonably foreseeable,” and courts rejected an interpretation based on lifespan. For instance, the 2017 case A.B v. Attorney General of Canada held that “natural death need not be imminent and that what is a reasonably foreseeable death is a person-specific medical question to be made without necessarily making, but not necessarily precluding, a prognosis of the remaining lifespan.” “Reasonably foreseeable” was thus not interpreted to limit eligibility to those with fatal conditions who were nearing the end of life and instead meant that “how or when the patient’s natural death will occur is reasonably predictable.”
In 2018, two Quebec residents with non-terminal but debilitating and degenerative medical conditions that caused them unbearable suffering challenged the constitutionality of the “reasonably foreseeable” criteria in the case Truchon v. Attorney General of Canada. The Court struck down the “reasonably foreseeable” requirement as violative of the Canadian Charter of Rights and Freedoms. The federal government did not challenge this decision and instead amended the law in 2021 to expand access to MAID to individuals whose deaths are not reasonably foreseeable. Under current law, a patient must be suffering from a “serious and incurable illness, disease, or disability…in an advanced state of irreversible decline in capability” and experiencing “enduring and intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable.” As of March 2024, persons whose sole medical condition is a mental illness will also be eligible for MAID.
In the U.S., access to MAID is much more restricted. MAID is only legal in 10 states (CA, ME, OR, CO, MT, VT, NJ, WA, HI, NM) and the District of Columbia. In these states, a patient must be diagnosed with a terminal illness that will lead to death within six months to be eligible for MAID.
Ethical considerations in regulating MAID
Canada’s MAID laws have been criticized for positioning death as an easier alternative to addressing the root causes of patients’ suffering. MAID is fully covered by insurance in all Canadian jurisdictions, while many Canadians struggle to access prescription drugs or health-related social needs like housing, food, and disability support services. Canada’s law does not require that all reasonable treatments be made available before a patient can access MAID, a requirement in all other jurisdictions that permit MAID. In a disturbing case, a 51-year-old Ontario woman with severe sensitivities to chemicals chose MAID after fruitlessly searching for two years for affordable housing free of cigarette smoke and chemical cleaners.
Canada’s MAID law has some safeguards to prevent patients from being coerced into MAID, such as requiring cognitive capacity to consent, voluntary informed consent, assessors and witnesses who are independent of each other and who have no conflicts of interest, and waiting periods between different stages of the process. However, these safeguards are not sufficient, as evidenced by cases of vulnerable individuals opting for MAID as they felt that they had no alternative.
Human rights observers for the United Nations, including the Special Rapporteur on the rights of persons with disabilities, have expressed concerns that Canadian MAID laws are based on ableist assumptions that devalue the lives of people with disabilities and imply that life with a disability is worse than death. The laws put vulnerable persons at risk and may contravene Article 10 of the Convention on the Rights of Persons with Disabilities, which Canada has ratified.
On the other hand, MAID advocates have argued that prohibiting MAID or restricting it to terminally ill patients is paternalistic by preventing individuals who are experiencing intolerable suffering and who are capable of decision-making from escaping their suffering. To quote Nicole Gladu, a Quebec resident with post-polio syndrome who successfully challenged the “reasonably foreseeable” criteria for MAID, “vulnerability is a concept used ad nauseum by paternalistic people in good health for standing in the way of MAID.” U.S. states that do not allow MAID, or even those that allow it for patients with six months to live, are arguably denying some patients a right to die with dignity. The right to die peacefully may offer patients more dignity than the alternative, where death may be unpredictable and unpleasant.
Toward a more balanced approach
When evaluating these arguments for and against access to MAID, it is critical to consider whether an individual’s suffering stems wholly from their physiological condition or whether social disadvantage also contributes. While MAID may enable some patients to die with dignity, in other cases it can enable undignified living conditions by creating an easier and less costly remedy for suffering. To quote the disability ethics professor Heidi Janz, “until people have a choice in how and where they live, it can never be a free choice on how to die.”
Socioeconomic disparities among people with disabilities clearly shape their experience with MAID. For instance, Nicole Gladu, quoted above, has argued that her disability does not make her vulnerable, that she has traveled the world and lives independently in a 14th floor condo with a beautiful view, and that she wants the right to die at a time of her choosing. In contrast, Roger Foley, a resident of Ontario with a degenerative neurological disorder, alleged in a lawsuit that health care workers encouraged him to request MAID rather than supporting him in obtaining the home care assistance he required. While Gladu’s suffering was primarily due to medical causes, Foley’s was largely due to the denial of appropriate care.
Designing a regulatory framework for MAID that allows patients like Gladu to exercise autonomy in their right to die while preventing the exploitation of patients like Foley is extremely challenging. Canada’s liberal approach poses too great a risk of exploitation of vulnerable patients while the cautious approach of the U.S. may cause unneeded suffering for other patients. An ideal approach might allow patients to access MAID to relieve intolerable suffering even if they had more than six months to live but include stronger safeguards against the coercion of vulnerable patients than Canada. Any form of access to MAID must be accompanied by initiatives to improve equity in the social determinants of health – patients should have had an opportunity for a life with dignity before resorting to seeking a death with dignity.
