Hastings Center Report

Since its publication in 2005,¹ the Groningen Protocol has been under fire both in the Netherlands and outside it. The purpose of the protocol is to set a standard of practice for doctors to responsibly end the lives of severely impaired newborns, but it also lays out procedures for reporting doctors' decisions to authorities. Doctors who end the life of a baby must report the death to the local medical examiner, who in turn reports it to both the district attorney and to a recently created review committee. (The procedure differs in this respect from the black-letter law governing voluntary euthanasia. There, the medical examiner sends the report only to the regional review committee, which alerts the district attorney only if it judges that the physician acted improperly.) The protocol was created by a committee of physicians and others at the University Medical Center Groningen in consultation with the Groningen district attorney and has been ratified by the National Association of Pediatricians, but it does not give physicians unassailable legal protection. Case law has so far protected physicians from prosecution as long as they act in accordance with the protocol, but no black-letter law exists in this area.

The protocol stands accused of various crimes: (1) it is aimed primarily at babies with spina bifida, many of whom could lead satisfactory lives;² (2) it fails to distinguish with clinical precision between babies whose prognosis of death is certain and those who could continue to live;³ (3) it allows parents to commit infanticide as a means of escaping an unwanted burden of care;⁴ (4) it lets doctors decide what is an acceptable quality of life;⁵ (5) it lets doctors determine the morality of their own actions;⁶ (6) it provides a purely procedural response to the problem of measuring subjective suffering;⁷ (7) it condones [End Page 42] infanticide rather than preventing spina bifida or promoting its early detection via fetal ultrasound, followed by abortion;⁸ and (8) it offers an incoherent criterion for deciding whether to end an infant's life—it requires that the infant experience "hopeless and unbearable suffering," but neonates cannot suffer because they lack the ability to realize intentions, desires, and hopes for the future.⁹

Many of these claims rest on a serious misunderstanding and, together, they give a highly distorted picture of the protocol. In this paper we attempt to clear up these misunderstandings by several acts of translation: we render into English the Dutch words in which the protocol was written, but at the same time we try to convey to an English-speaking readership the relevant aspects of the Dutch cultural and social background that make those words intelligible. And then, because we want to make ethically intelligible the practice that the protocol is intended to guide, we engage in a further act of translation—first we explain the shared moral understandings that form the context in which Dutch physicians sometimes end the lives of severely impaired newborns, and then we identify the issues for which understandings have not, or have not yet, become shared. Through these translations we argue for the moral permissibility, in the Dutch context, of physician intervention to bring about the death of babies who fall within the category the protocol is meant to address.