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Back in 2015, the Supreme Court justices who unanimously struck down the Criminal Code provision against medical assistance in dying (MAID) couldn’t foresee how Canada’s assisted dying program might evolve to the point it is today. I don’t mean that figuratively – in their written decision, they implied that they simply couldn’t see it happening.

The justices downplayed fears of a slippery slope taking hold in Canada by dismissing evidence brought forth by a bioethics professor about the excessively permissive regime that had taken hold in Belgium. They wrote that “Belgium is the product of a very different medico-legal culture” and that comparisons “offer little insight into how a Canadian regime might operate.” They added that the extreme examples cited “would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions.”

Yet seven years later, the parameters referenced in Carter v. Canada have shifted considerably. Death no longer has to be “reasonably foreseeable” in order for a patient to qualify for MAID, thanks to a Quebec Supreme Court decision that struck down the condition as unconstitutional. As of March, Canadians whose sole underlying medical condition is mental illness will also be eligible for MAID. The stories from Belgium that might have seemed anomalous and anecdotal to the court in 2015 have started appearing in Canada as well: about the option of MAID being offered to a veteran seeking treatment for post-traumatic stress disorder, and of Canadians seeking assisted death because of a dearth of chronic-care options. And now MAID for minors – mature minors and, as recently raised by the Quebec College of Physicians, even for infants – has entered public consideration.

On Oct. 7, Louis Roy from the Quebec College of Physicians appeared before the Special Joint Committee of Medical Assistance in Dying and raised the notion of extending assisted dying to babies up to a year old “who are born with severe deformations, very grave and severe medical syndromes, whose life expectancy and level of suffering are such that it would make sense to ensure that they do not suffer.” This would, in practice, be euthanasia. Speaking on behalf of the college’s board of directors, Dr. Roy noted that the protocol is already in practice in the Netherlands (albeit, in extremely rare circumstances).

Proponents of this idea might argue that the extension of assisted dying to infants isn’t so far off the status quo: Parents already have the option to withdraw life-sustaining medical interventions from babies suffering from grievous, fatal conditions. By this view, the main difference would be to allow for active intervention to facilitate accelerated death (to expedite relief from pain and suffering), rather than passive withdrawal to allow for natural death. (Anti-abortion activists might also argue that termination is already a form of euthanasia, but Canadian law, which only assigns personhood after birth, does not view abortion that way.)

Yet extending MAID to babies in Canada would be far more complicated as a matter of law. For starters, the Supreme Court struck down the prohibition on assisted dying because of the view that it infringes on Section 7 of the Charter of Rights and Freedoms, which holds that everyone has the right to life, liberty and security of the person. In its decision, the Court noted that Section 7 “recognizes the value of life, but it also honours the role that autonomy and dignity play at the end of that life,” and reasoned that to prohibit assisted dying is to deprive individuals of their Charter-protected rights.

In other words, the court established that MAID is about more than relieving suffering. It’s also about allowing individuals to preserve their image and self-worth before they become incontinent, bed-ridden, delusional and so on. It could be argued that this consideration of dignity at the end of life wouldn’t apply to infants in the same way as it does to adults, however; babies are, by nature, utterly dependent on others for survival. To expedite death for them cannot be justified as a matter of preserving dignity.

More consequential, however, is the precedent that extending MAID to babies would set: Namely, that it would be a form of MAID in which consent is not required as a condition of approval. Such a shift away from consent-centred MAID might have profound implications for the severely disabled, for the elderly with advanced forms of dementia, and for others who might have extreme difficulty or are otherwise unable to speak for themselves on life-and-death medical decisions.

Consent requirements have already loosened somewhat in Canada. Those whose death is reasonably foreseeable may now waive the requirement for final consent immediately before receiving MAID if they are at risk of losing the capacity to do so. Still, that’s much different from never requiring consent from the individual at any point in the assisted dying process.

Skeptics may say this discussion is all for naught – that MAID in this country would never evolve to the point of never requiring consent. But members of Canada’s Supreme Court couldn’t imagine we would get where we are now, either.

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