A Legal Guide for Child Killers

Many cultures have killed their children. Canaanite and Phoenician parents burned their children on braziers before idols. The Carthaginians did the same. Proof of child sacrifice has been discovered near Stonehenge. The Incas and Aztecs sacrificed children during droughts. Child sacrifice is now a growth industry in Uganda, where witch doctors procure and sacrifice children for about $400.

Killing children in the United States is sometimes associated, however, with two annoying complications. The first is legal prosecution for murder. The second is moral condemnation. The recent travails of Philadelphia physician Kermit Gosnell illustrate the dangers faced by the imprudent child killer in the United States.    

Fortunately, recent developments in Belgium enable the prudent child killer to avoid these complications. This guide outlines a step-by-step process for legally killing children of any age, without the risk of legal prosecution and without unwanted moral condemnation.

Where to kill. Until recently, Uganda was the only nation providing acceptably low risks of prosecution and condemnation for killing children. On March 2, 2014, however, Belgium adopted a new law permitting the legal killing of any age child.
Supporters of the Belgian law argue it compassionately ends the suffering of incurably ill children. On paper, the new law establishes three pro forma requirements that must be met before the child can be legally killed. As explained below, however, these pro forma requirements are easily satisfied or even avoided with the guidance of competent legal counsel.
Once these pro forma requirements are met, the prudent liquidator can kill any age child for almost any reason. Any inconvenience involved in satisfying these pro forma requirements is negligible considering the complete immunity they provide. Furthermore, the Belgian law contains no residency requirement for either the child or his killer.
How to kill. The first pro forma requirement is that the child understands the meaning of euthanasia. The non-legal mind may think it impossible to satisfy this requirement with very young children, particularly children who cannot yet speak. To the legal mind, however, impossibility implies permission. Belgian law is based on the Code Napoléon, the revived civil law of ancient Rome. Under the maxim impossibilium nulla obligato est, no law can impose an obligation to perform an impossible act. The requirement that the very young child understand the meaning of euthanasia can thus be disregarded in most cases as an impossible – and thus legally invalid – requirement. Otherwise, the intended purpose of the new law would be thwarted.  
The second pro forma requirement is that the child's parents and physician approve the killing. This requirement is easily satisfied, at least in Belgium. Dr. Jutte van den Werff Ten Bosch is a pediatric oncologist at Brussels University Hospital who favors the new law. According to Dr. van der Werff Ten Bosch, parental consent is not a problem in most cases. "Most parents don’t want their child to suffer," she explains. "If the child says, ‘I really want to die,’ 90 percent of parents will let him. The best parents are the ones who let their children go.”
Physicians' approvals are also easy to obtain in Belgium. Dr. Jan Bernheim, professor of medicine at the Free University of Brussels and a pioneer in palliative care, supports the new law because it gives legal protection to Belgian doctors already killing children. "In reality," Dr. Bernheim explains, "pediatricians are compelled by compassion to end the lives of quite a few children with the agreement of their parents. They've had to do it clandestinely, with the risk of being charged by prosecutors. Now they'll be able to do it in a legal way." The law even encourages doctors to "suggest" euthanasia to their young patients.

Dr. Peter Deconinck agrees with Dr. Bernheim. Dr. Deconinck, a leading advocate of the new law, testified before the Belgian Senate that “We all know that euthanasia is already practiced on children… Yes, active euthanasia.” Dr. Deconinck should know. He is president of the Belgian medical ethics organization Reflectiegroep Biomedische Ethiek. He also heads the intensive care unit of the Queen Fabiola Children's Hospital in Brussels.

The third pro forma requirement is that the child possesses a “capacity of discernment.” Fortunately, the Belgian law wholly fails to define the term "capacity of discernment.” In the legal world, undefined requirements equate to no requirements at all. Undefined requirements cannot be violated.

Legal critics complain that the new law is radically inconsistent with all other provisions of Belgian law regarding legal capacity. Belgian law, for example, denies children the legal capacity to execute contracts. Belgian law also forbids children from buying alcohol. Belgian law deems children incapable of using alcohol responsibly.

The only legal capacity granted to children by Belgian law is the capacity to consent to their own killing. Children receive this extraordinary legal capacity at birth, and they cannot be parted from it. Children retain this capacity even under the duress of "unbearable suffering," notwithstanding the fact that duress voids legal capacity under Belgian law for all other persons in every other legal context.   

Dr. Jutte van den Werff Ten Bosch curtly dismisses concerns that children suffering "unbearable" duress are incapable of prudently consenting to their own killing. “Children are not tiny humans that we can boss around,” she insists. “Children with terminal diseases like cancer mature much faster than other children. They think a lot about their life and death and how they’d like their death to be. And sometimes they’re more courageous than their parents."
Dr. Peter Deconinck agrees. "Children today are not like they were 50 years ago," says Deconinck. "They have mature minds."

Avoiding moral condemnation.  In addition to avoiding legal prosecution, the prudent child killer can now avoid moral condemnation by claiming the moral high ground and adopting the arguments of the new Belgian law's supporters. The prudent child killer should argue, for example, that killing children is more compassionate than letting them live and easing their pain through advancements in palliative care.

The prudent child killer might also invoke the true-life ordeal of Belgian mother Linda van Roy from Schilde, Belgium. Linda van Roy's daughter died at ten months, but Linda was the real victim. She had to endure months of observing her child's palliative sedation. "That whole period of sedation, you always need to give more and more medication, and you start asking questions," van Roy said. "And you say, 'What's the use of keeping this baby alive?' "

Eventually van Roy withheld food and liquid to kill her child. Nevertheless, it took days for her daughter to die a painful death from dehydration. Under the new law, van Roy could have ordered a lethal injection much earlier. That would have spared van Roy weeks of inconvenience and emotional discomfort.

The future is bright. Justice Holmes wrote in 1921 that "a page of history is worth a volume of logic in understanding the law." If Holmes was right, history indicates that the future is bright for those who wish to extend the Belgian license to kill beyond young children. Belgium has permitted limited euthanasia of adults since 2002, but this new law promises that the scope of legal killing can soon be expanded to include the chronically sick, the mentally defective, the socially unproductive, the aged, the ideologically unwanted, the racially, unwanted, or anyone else "whose life is not worthy of being lived."  

Dr. Leo Alexander, a Chicago psychiatrist, was Consultant to the Secretary of War of the United States and the chief medical expert at the Nuremberg Doctors' Trial in 1947. Dr. Alexander attributed the origins of the Nazi atrocities to laws just like the new Belgian law.

The first direct order for euthanasia was issued by Hitler on September 1, 1939, and an organization was set up to execute the program. An organization devoted exclusively to the killing of children was known by the euphemistic name of "Realm's Committee for Scientific Approach to Severe Illness Due to Heredity and Constitution."
[T]his program was merely the entering wedge for exterminations of far greater scope in the political program for genocide of conquered nations and the racially unwanted. The exterminations included the mentally defective, and patients suffering from infirmities of old age and from various organic neurologic disorders such as infantile paralysis, Parkinsonism, multiple sclerosis and brain tumors.
Whatever proportion these crimes finally assumed, it became evident to all who investigated them that they had started from small beginnings. The beginnings at first were merely a subtle shift in emphasis in the basic attitudes of the physicians. It started with the acceptance of the attitude, basic in the euthanasia movement, that there is such a thing as life not worthy to be lived.
This attitude in its early stages concerned itself merely with the severely and chronically sick. Gradually, the sphere of those to be included in this category was enlarged to encompass the socially unproductive, the ideologically unwanted, the racially, unwanted, and finally all non-Germans. But it is important to realize that the infinitely small wedged-in lever from which the entire trend of mind received its impetus was the attitude towards the non-rehabilitable sick." [1]

As Dr. Alexander explains, the horrors of the Nazi era began with an attitude of acceptance towards killing children and killing the non-rehabilitable sick. In other words, the Nazi atrocities began with precisely the attitude of acceptance reified in the new Belgian law.    

John Oliver Tyler teaches Law and Jurisprudence at Houston Baptist University and has practiced civil litigation since 1978. Certified by the Texas Board of Legal Specialization in both Civil Trial Law and Personal Injury Trial Law, John holds a JD from Southern Methodist University and a Ph.D. in Philosophy from Texas A&M. He can be reached at jtyler@hbu.edu

[1] Dr. Leo Al­exander, "Medical Science under Dictatorship," 241 New England Journal of Medicine 39 (1949) (italics added).