Nimisha Jha, Advocate, High Court of Patna
A detailed study of the judicial decisions with reference to Article 21 and the current judicial standing on Euthanasia after the landmark judgment in Aruna’s ((Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454))case.
Life is the most precious creation of God in this world. No matter how advanced science hasbecome, the beauty of nature and creation of life and cause of death remains an unfoldedmystery. Life cannot be created so taking away of life made legally punishable. But there arecircumstances where even law is in a dilemma over the issues of life and death. And one suchcase is that of mercy killing or euthanasia ((Euthanasia (Mercy Killing): A Comparative Analysis of U.K. and Indian Position ; Diwakar Shukla
http://www.internationalseminar.org/XIII_AIS/TS%204/9.%20Mr.%20Diwakar%20Shukla.pdf (last visited on 21/08/2015 at 20:00).)).
“Euthanasia” is a broad term for mercy killing – taking the life of a hopelessly ill or injured individual in order to end his or her suffering. Mercy killing represents a serious ethical dilemma. People do not always die well. Some afflictions cause people to suffer through extreme physical pain in their last days, and euthanasia may seem like a compassionate way of ending this pain. Other patients may request euthanasia to avoid the weakness and loss of mental faculties that some diseases cause, and many feel these wishes should be respected ((Right to Die – “To be or not to be?” ; Manbir Kaur:
Indian Streams Research Journal ISSN 2230-7850 Volume-3 | Issue-12 | Jan-2014)).
The increased importance given to individual autonomy in the twentieth and twenty-firstcenturies has been a major reason for lateral thinking in the direction of legalizingeuthanasia ((Though the medical intervention in the process of dying started in the nineteenth century, the efforts to hasten death to relieve pain started in the early twentieth century. Anne Kornhauser, The Modern Art of Dying: A History of Euthanasia in the United States, 30 POLITICAL AND LEGAL ANTHROPOLOGY REVIEW(2007) (Book Review). <www.westlaw.com>)).
Every human being is desirous to live and enjoy the fruits of life till he dies. But sometimes a human being is desirous to end his life by use of unnatural means. To end one’s life in an unnatural way is a sign of abnormality. When a person ends his life by his own act we call it “suicide” but to end life of a person by others though on the request of the deceased, is called “euthanasia” or “mercy killing” ((Position of Euthanasia in India – An Analytical Study ; Caesar Roy https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0CC8QFjAC&url=http%3A%2F%2Fwww.researchgate.net%2Fprofile%2FCaesar_Roy%2Fpublication%2F259485727_POSITION_OF_EUTHANASIA_IN_INDIA_-
_AN_ANALYTICAL_STUDY%2Ffile%2F5046352c2cac3a199d.pdf&ei=_Pb1U6rzGIW2uASqmYDIAw&usg=AFQjCNHGF0m8gYm2ZdPS3ruDD4L93MLdbg&sig2=jI3BAOjtICMJ85qDLEbaDQ (last visited on 21/08/2015 at 19:30).)).
Euthanasia is mainly associated with people with terminal illness or who have become incapacitated and do not want to go through the rest of their life suffering. A severely handicapped or terminally ill person should have the right to choose to live or die. The right to choose to live or die should not be a right allocated for bodied individuals of sound mind but to all human beings. Euthanasia is a controversial issue which encompasses the morals, values and beliefs of our society ((Ibid.)).
Euthanasia has been a much debated subject throughout the world. The debate has become increasingly significant because of the recent developments in Netherlands and England euthanasia has been allowed. As a result many of the nations across the world are now hotly debating whether or not to follow the Dutch example. Recently our Supreme Court in Aruna Shanbaug case ((Supra note 1))has already given its decision on this point and allowed passive euthanasia in India.
Euthanasia societies are emerging rapidly in all parts of the globe to seek publicopinion and to pressurize the legislature to pass legislation in this respect ((The first euthanasia society was established in London in 1935. Subsequently it spread to America (1938) and other parts of the globe.)).The euthanasiadebate has now become increasingly significant because of the developments inNetherlands, Canada, Oregon, Belgium and Columbia where euthanasia has been allowed in therecent period of time.
The term euthanasia comes from the Greek words “eu”-meaning good and “thanatos”-meaning death, which combined means “well-death” or “dying well”. It refers to practice of ending life in a painless manner ((Available at http://www.apiindia.org/pdf/pg_med_2008/Chapter-02.pdf (last visited on 21/08/2015 at 19:30).)). It may be defined as intentional killing by act or omission of a dependant human for his or her alleged benefit. Euthanasia literally means “good death”. Euthanasia, Mercy killing or Physician Assisted Suicide may be referred to as murderous by some and merciful by others and hence it is always surrounded by controversy which arises from serious moral and legal issues involved in it ((Supra note 3
Euthanasia can be classified into active and passive or alternatively into voluntary, involuntary and non-voluntary. Active euthanasia means putting an end to the life of an individual for merciful reason by a medical practitioner by giving a lethal dose of medication to the patient. Passive euthanasia takes place where methods such as removing artificial life support systems such as ventilators, hydration, etc are resorted to ((Supra note 9)).
There have been debates on the need to legalise euthanasia in India too. The Law Commission has recommended legalising euthanasia for terminally ill patients. Currently speaking however, euthanasia is undoubtedly illegal in India as there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. Right to life is the most fundamental and natural human right. Constitution of India declares in Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The text of article 21 has remained the same throughout the years but the context has been intellectually interpreted by the Indian judiciary, so as to read in variety of other related rights so necessary for true enjoyment of the right to life.
But recently decision given by Supreme Court in the Aruna Shanbaug case ((Supra note 1))broke new ground. In this case, SC has sanctioned passive euthanasia or withdrawal of life support systems on patients who are brain dead or in a permanent vegetative state. But at the same time court clarified that active euthanasia was a crime under law and would continue to remain so.
Position of Euthanasia in India – An Analytical Study; Caesar Roy ((Supra note 5)):
The writer believes that voluntary euthanasia should also be allowed in India and that the legislature should step in and makes a special law dealing with all the aspects of euthanasia. The recommendations laid down in the Reports of Law Commission of India and guidelines given in the Aruna’s case ((Supra note 1))are to be taken into consideration when any law on that point is to be framed to prevent the mal practices and misuse of euthanasia. Besides, if the suggestions laid down above are implemented then the chances of misuse of euthanasia would be greatly reduced.
Euthanasia (Mercy Killing): A Comparative Analysis of U.K. and Indian Position; Diwakar Shukla ((Supra note 2)):
The writer says while legislative reforms are awaited, in this regard in India, one needs to look in to the impact of the defences available to the doctors under IPC. Sections 76, 81 and 88 of IPC are sufficient enough to provide defense to the doctors conducting euthanasia in good faith. While there exists no doubt on the permissibility of passive euthanasia, the active euthanasia, if conducted to avoid greater harm, would be entitled to legal protection under section 81. On this point the Indian position is not very much dissimilar to that of Dutch position. While the Netherlands’ position is clearer due to the specific legislation, Indian position remains unclear in the absence of legislation.
But in Aruna Ramchandra Shanbaug v. Union of India ((Supra note 1))the Apex court of India rejected a plea for its use on a woman in a vegetative state but issued guidelines allowing for the use of ‘passive’ euthanasia for terminally ill patients through the withholding of treatment.
Right to Die – “To be or not to be?”; Manbir Kaur ((Supra note 3)):
The writer comments that while deciding the debate on right to die, the conflict between the principle of sanctity of life and the rights of self determination and dignity of a human being needs to be resolved. Rather than allowing right to die as a general rule by legalizing euthanasia, it may be allowed as necessary exception only in rarest of rare cases, in passive form in appropriate cases where the individual is dying and gives informed consent or where he or she cannot give consent and as per the genuine medical opinion, the death is near and certain and, to withdraw the life support system is in the best interest of the patient and by recent decision in Aruna Shanbaug case ((Supra note 1))the Supreme Court has taken step in right direction and now it is the turn of government and the HCs to follow the guidelines given by the court.
Euthanasia In India; Krishanu Das ((http://www.legalservicesindia.com/article/article/euthanasia-in-india-787-1.html (last visited on 21/08/2015 at 7:41pm).)):
The writer expresses his doubts as follows by saying that Euthanasia could be legalized, but the laws would have to be very stringent. Every case will have to be carefully monitored taking into consideration the point of views of the patient, the relatives and the doctors. But whether Indian society is mature enough to face this, as it is a matter of life and death, is yet to be seen.
Euthanasia: A Dilemma between Right to live and Right to die; Rahul Chawla ((http://www.isrj.net/UploadedData/3463.pdf (last visited on 21/08/2015 at 8:15pm).)):
The writer points out that our earnest effort at the present juncture, should only reinforce the reasoning adopted by the Supreme Court. On taking stock of the pros and cons, it is better to maintain the legal status quo as stated by the Supreme Court and legalize Passive Euthanasia, while laying down affirmative laws to overlook its bona fide and effectuate implementation.
Legalization of Euthanasia in India with specific reference to the Terminally Ill: Problems and Perspectives; Tania Sabastian ((http://jils.ac.in/wp-content/uploads/2011/12/Tania-Sebastian.pdf (last visited on 21/05/2015 at 8:00pm).)):
The writer comments that The ultimate outcome of this debate remains uncertain. It must, however, be remembered that an acrobatic argument that acknowledges technological advances but dismisses the evolving ethical issues which pose uncomfortable and disturbing questions is unfair to the community of patients.
STATEMENT OF PROBLEM
Euthanasia has been a much debated subject throughout the world. The debate has become increasingly significant because of the recent developments in Netherlands and England euthanasia has been allowed. As a result many of the nations across the world are now hotly debating whether or not to follow the Dutch example. Recently our Supreme Court in Aruna Shanbaug casehas already given its decision on this point and allowed passive euthanasia in India. The paper seeks to analyse in detail the need for euthanasia in India and the judicial trend in favour of right to a dignified death.
This paper seeks to study the recent debate in India on euthanasia, make a comparative study on various nations which allow different forms of euthanasia and the judicial interpretation of the fundamental right to life under Article 21 which after 2011 has included the addendum of right to die a dignified death.
EVOLUTION OF EUTHANASIA
The term euthanasia comes from the Greek words “eu”-meaning good and “thanatos”-meaning death, which combined means “well-death” or “dying well” ((Supra note 9)). Hippocrates mentions euthanasia in the Hippocratic Oath, which was written between 400 and 300 BC the original Oath states: “To please no one will I prescribe a deadly drug nor give advice which may cause his death ((Supra note 2)).”
Despite this, the ancient Greeks and Romans generally did not believe that life needed to be preserved at any cost and were, in consequence, tolerant of suicide in cases where no relief could be offered to the dying or, in the case of the Stoics and Epicureans, where a person no longer cared for his life.
In ancient Greece and Rome helping others die or putting them to death was considered permissible in some situations. For example, in the Greek city of Sparta newborns with severe birth defects were put to death. Voluntary euthanasia for the elderly was an approved custom in several ancient societies. Many ancient texts including the Bible, the Koran and the Rig-Veda mention self destruction or suicide ((Supra note 5)).
In India, the history of Vedic age is replete with numerous examples of suicides committed on religious grounds. The Mahabharata and the Ramayana are also full of instances of religious suicides ((Supra note 9)).
Most Hindus would say that a doctor should not accept a patient’s request for euthanasia since this will cause the soul and body to be separated at an unnatural time. The result will damage the karma of both doctor and patient. Other Hindus believe that euthanasia cannot be allowed because it breaches the teaching of ahimsa (doing no harm). However, some Hindus say that by helping to end a painful life a person is performing a good deed and so fulfilling their moral obligations. Govardana and Kulluka, while writing commentaries on Manu, observed that a man may undertake the mahaprastha (great departure) on a journey which ends in death when he is incurably diseased or meets with a great misfortune, and that, it is not opposed to Vedic rules which forbid suicide ((Laws of Manu, translated by George Buhler, Sacred Books of the East by F. Maxmuller (1967 reprint). Vol. 25, page – 206)).
There are two Hindu views on euthanasia ((Supra note 9)):
- By helping to end a painful life, a person is performing a good deed and so fulfilling their moral obligations.
- By helping to end a life, even one filled with suffering, a person is disturbing the timing of the cycle of death and rebirth. This is a bad thing to do, and those involved in the euthanasia will take on the remaining karma of the patient.
The same argument suggests that keeping a person artificially alive on a life-support machines would also be a bad thing to do. However, the use of a life-support machine as part of a temporary attempt at healing would not be a bad thing. The ideal death is a conscious death, and this means that palliative treatments will be a problem if they reduce mental alertness ((Supra note 5)).
Muslims are against euthanasia. They believe that all human life is sacred because Allah gives it, and that Allah chooses how long each person will live. Human beings should not interfere in this.
- a) Life is sacred –
Euthanasia and suicide are not included among the reasons allowed for killing in Islam.
Do not take life, which Allah made sacred, other than in the course of justice. If anyone kills a person – unless it be for murder or spreading mischief in the land- it would be as if he killed the whole people.
- b) Suicide and euthanasia are explicitly forbidden
“Destroy not yourselves. Surely Allah is ever merciful to you.”
Christians are mostly against euthanasia. The arguments are usually based on the argument that life is a gift from God and that human beings are made in God’s image.
Birth and death are part of the life processes which God has created, so we should respect them. Therefore no human being has the authority to take the life of any innocent person, even if that person wants to die ((Id.)).
Sikhs derive their ethics largely from the teachings of their scripture, Guru Granth Sahib, and the Sikh Code of Conduct (The Rehat Maryada). The Sikh Gurus rejected suicide (and by extension, euthanasia) as an interference in God’s plan. Suffering, they said, was part of the operation of karma, and human beings should not only accept it without complaint but act so as to make the best of the situation that karma has given them ((Id.)).
Historically, as the oft-quoted definition in Black’s Law Dictionary suggests ((Black’s Law Dictionary, 4th edn.)), death was: “The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.”
English Common Law from the 14th century until the middle of the last century made suicide a criminal act in England and Wales. Assisting others to kill themselves remains illegal in that jurisdiction.
However, in the 16th century, Thomas More, considered a saint by Roman Catholics, described a utopian community and envisaged such a community as one that would facilitate the death of those whose lives had become burdensome as a result of “torturing and lingering pain” ((Supra note 2)).
Since the 19th Century, euthanasia has sparked intermittent debates and activism in North America and Europe. According to medical historian Ezekiel Emanuel, it was the availability of anaesthesia that, ushered in the modern era of euthanasia. In 1828, the first known anti-euthanasia law in the United States was passed in the state of New York, with many other localities and states following suit over a period of several years ((Ibid.)).
After the Civil War, voluntary euthanasiawas promoted by advocates, including some doctors. Support peaked around the turn of thecentury in the US and then grew again in the 1930s ((Id.)).
In an article in the Bulletin of the History of Medicine, Brown University historian Jacob M.Appel documented extensive political debate over legislation to legalize physician-assistedsuicide in both Iowa and Ohio in 1906. Appel indicates social activist Anna S. Hall was thedriving force behind this movement. According to historian Ian Dowbiggin, leading publicfigures, including Clarence Darrow and Jack London, advocated for the legalization ofeuthanasia.
Euthanasia societies were formed in England in 1935 and in the USA in 1938 to promoteeuthanasia. Although euthanasia legislation did not pass in the USA or England, in 1937, doctorassistedeuthanasia was declared legal in Switzerland as long as the doctor ending the life hadnothing to gain. During this same era, US courts tackled cases involving critically ill people whorequested physician assistance in dying as well as “mercy killings”, such as by parents of theirseverely disabled children ((Id.)).
Euthanasia brings about many ethical issues regarding a patient’sdeath. Some physicians say euthanasia is a rational choice for competent patients who wish todie to escape unbearable suffering. Others feel that aiding in the patient’s death goes against aphysician’s duty to preserve life.
EUTHANASIA AND SUICIDE
Suicide and euthanasia cannot be treated as one and the same thing. They are twodifferent acts. Therefore, we shall have to make a distinction between ‘euthanasia’ and‘suicide.’ Suicide as mentioned in Oxford Dictionary ((Oxford Advanced Learner’s Dictionary of Current English. (2000). Sixth Edition. ; Oxford University Press.))means the act of killing yourselfdeliberately. Therefore, suicide could be termed as the intentional termination of one’slife by self- induced means for various reasons, such as, frustration in love, failure inexaminations or in getting a good job, but mostly it is due to depression. Euthanasia hasnot been defined in the religious books but since it is very close to concept of suicide,therefore it can be presumed that it is prohibited by all religions. In Indian law intentionis the basis for penal liability. An act is not criminal act if it is committed or omittedwithout the intention and law of crimes in India is based on the famous Roman maxim,“Actus non facit reum nisi men sit rea.” Now applying the above maxim in cases ofeuthanasia one may conclude that since the victim has given the consent to die therefore,the accused is not liable for any offence. But does giving consent for killing a person absolves the offender from his criminal liability is very important question. If answer tothis question is in affirmative then euthanasia is not an offence. But the Indian law is veryclear on this point ((Supra note 5)).
One may argue that giving the consent absolves a person from liabilityor he may plead the defense of “volenti non fit injuria.” Law relating to consent ascontained in Indian Penal Code is very exhaustive and leaves no ambiguity to explain it.
Section 87 of the Indian Penal Code clearly lays down that consent cannot be pleaded asa defense in case where the consent is given to cause death or grievous hurt. The BombayHigh Court in Maruti Shripati Dubal case ((Maruti Shripati Dubal v. State of Maharashtra; 1987 Cri.L.J 743 (Bomb).))has attempted to make a distinction betweensuicide and euthanasia or mercy killing. According to the court the suicide by its very nature is an act of self-killing or termination of one’s own life by one’s act without assistance from others. However, euthanasia means the intervention of others human agency toend the life. Mercy killing therefore cannot be considered in the same footing as onsuicide. Mercy killing is nothing but a homicide, whatever is the circumstance in which itis committed ((Should Euthanasia be Legalised in India?; Shreyans Kasliwal
http://www.ebc-india.com/lawyer/articles/592.htm (last visited on 21/08/2015 at 21:45).)).
In another case ((Naresh Marotrao Sakhre v. Union of India; 1995 Cri.L.J 95 (Bomb).)),the Bombay High Court also observed that suicide by itsvery nature is an act of self-killing or self-destruction, an act of terminating one’s own actand without the aid and assistance of any other human agency. Euthanasia or mercykilling on the other hand means and implies the intervention of other human agency toend the life. Mercy killing is thus not suicide. The two concepts are both factually andlegally distinct. Euthanasia or mercy killing is nothing but homicide whatever thecircumstances in which it is affected ((Supra note 19)).
Herein, the concept of assisted suicide is also involved, which can be defined asproviding an individual with the information, guidance and means to take his or her ownlife with the intention that it will be used for this purpose. Assisted suicide isdistinguished from active euthanasia in the sense that the in the former, person must takedeliberate steps to bring about his or her own death. Medical personnel may provideassistance, but the patient commits the act of suicide while in active euthanasia, it is thedoctor who ends the life of the patient. When a doctor helps people to kill themselves it iscalled ‘doctor assisted suicide’ ((Ibid.)).
Our Supreme Court in Gian Kaur v. State of Punjab ((1996 (2) SCC 648)), clearly held that euthanasia andassisted suicide are not lawful in our country. The court, however, referred to theprinciples laid down by the House of Lords in Airedalecase ((1993(1) All ER 821 (HL).)), where the House of Lordsaccepted that withdrawal of life supporting systems on the basis of informed medicalopinion, would be lawful because such withdrawal would only allow the patient who isbeyond recovery to die a normal death, where there is no longer any duty to prolong life.
TYPES OF EUTHANASIA
According to Black’s Law Dictionary (8th edition) euthanasia means the act or practice of killing or bringing about the death of a person who suffers from an incurable disease or condition, esp. a painful one, for reasons of mercy.
Encyclopedia of ‘Crime and Justice’, explains euthanasia as an act of death, which will provide a relief from a distressing or intolerable condition of living. Simply euthanasia is the practice of mercifully ending a person’s life in order to release the person from an incurable disease, intolerable suffering, misery and pain of the life.
In the modern context euthanasia is limited to the killing of patients by doctors at the request of the patient in order to free him of excruciating pain or from terminal illness. Thus the basic intention behind euthanasia is to ensure a less painful death to a person who is in any case going to die after a long period of suffering ((Supra note 40)).
Euthanasia may be classified as follows ((Supra note 5)):-
(1) Active or Positive
(2) Passive or negative (also known as letting-die)
Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today.
1. Active Euthanasia:
Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony.
2. Passive or Negative Euthanasia:
Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.
3. Voluntary Euthanasia:
It is voluntary when the euthanasia is practiced with the expressed desire and consent of the patient. Voluntary euthanasia is primarily concerned with the right to choice of the terminally ill patient who decides to end his or her life, choice which serveshis/her best interest and also that of everyone else.
4. Involuntary Euthanasia:
When the patient is killed without an expressed wish to this effect, it is a form of involuntary euthanasia. It refers to cases wherein a competent patient’s life is brought to an end against the wishes of that patient that oppose euthanasia; and would clearly amount to murder.
5. Non-Voluntary Euthanasia:
It refers to ending the life of a person who is not mentally competent to make an informed request to die, such as a comatose patient. In Non-Voluntary euthanasia the patient has left no such living will or given any advance directives, as he may not have had an opportunity to do so, or may not have anticipated any such accident or eventuality. In cases of non voluntary euthanasia, it is often the family members, who make the decision.
The general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive Euthanasia is legal even without legislation provided certain conditions and safeguards are maintained.
A further categorization of euthanasia is between voluntary euthanasia and non voluntary euthanasia. Voluntary euthanasia is where the Consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent ((Supra note 40)).
Active Euthanasia is a crime all over the world except where permitted by legislation ((Supra note 2)).
In India, active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide).
Active euthanasia is taking specific steps to cause the patient’s death, such as injecting the patient with some lethal substance, e.g. sodium Pentothal that causes a person deep sleeps in a few seconds, and the person instantaneously and painlessly dies in this deep sleep. A distinction is sometimes drawn between this petition on the euthanasia and physician assisted dying, the difference being in who administers the lethal Medication. In euthanasia, a physician or third party administers it, while in physician-assisted suicide it is the patient himself who does it, though on the advice of the doctor.
In many Countries/States the latter is legal while the difference between “active” and “passive” euthanasia is that in active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life. An important idea behind this distinction is that in “passive euthanasia” the doctors are not actively killing anyone; they are simply not saving him. Thus, proponents of euthanasia say that while we can debate whether active euthanasia should be legal, there can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life ((Ibid.)).
TERMINAL ILLNESS: DEFINITION
Defining the term “terminal illness” has proved to be a daunting task. Among the plethora of definitions, an “illness”, almost unanimously, is said to be an abnormal condition of the body, or a disability ((JONATHAN HERRING, MEDICAL LAW AND ETHICS 505 (2008) (citing the view of ‘Union of the Physically Impaired People against Segregation’).)). The World Health Organisation defines health as “a state of complete physical, mental and social wellbeing and not merely the absence of disease and infirmity”. ((Preamble, WORLD HEALTH ORGANIZATION, http://www.who.int/peh-emf/ publications/Preamble1.pdf))In light of the existing ambiguity in defining terminal illness coupled with rapid progress in life prolongation methods, the pertinent question is whether the right to life relates to forcefully staying alive or should it mean a meaningful “natural” life free from forceful medical intervention? For the purposes of this project, however, terminally ill can be safely construed as an illness which not only has no cure, but also whose ultimate conclusion is death itself ((Supra note 21)).
LEGISLATIONS IN SOME COUNTRIES RELATING TO EUTHANASIA OR PHYSICIAN ASSISTED DEATH
Euthanasia in the Netherlands is regulated by the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002”. ((Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001.))It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care.
These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee.
The legal debate concerningeuthanasia in the Netherlands took off with the “Postma case” in 1973, concerning a physicianwho had facilitated the death of her mother following repeated explicit requests for euthanasia ((Supra note 40)).
While the physician was convicted, the court’s judgment set out criteria when a doctor would notbe required to keep a patient alive contrary to his will. This set of criteria was formalized in thecourse of a number of court cases during the 1980s.
Termination of Life on Request and AssistedSuicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia andphysician assisted suicide in very specific cases, under very specific circumstances. The law was proposed by Els Borst, the Minister of Health. The procedures codified in the law had been aconvention of the Dutch medical community for over twenty years ((Supra note 2)).
The Northern Territory of Australia became the first country to legalize euthanasia by passing the Rights of the Terminally Ill Act, 1996. It was held to be legal in the case Wake v. Northern Territory of Australia (( 109 NTR 1))by the Supreme Court of Northern Territory of Australia. But later a subsequent legislation that was the Euthanasia Laws Act, 1997 made it again illegal by repealing the Northern Territory legislation.
Euthanasia was legalized in Albania in 1999, it was stated that any form of voluntary euthanasia was legal under the rights of the Terminally ILL act of 1995. Passive euthanasia is considered legal if three or more family members consent to the decisions ((Supra note 19)).
Euthanasia was made legal 2002. The Belgian Parliament had enacted the ‘Belgium Act on Euthanasia’ in September 2002, which defines euthanasia as “intentionally terminating life by someone other than the person concerned at the latter’s request”. Requirements for allowing euthanasia are very strict which includes the patient must be major, has made the request voluntary, well considered and repeated and he/she must be in a condition of consent and unbearable physical or mental suffering that can be alleviated. All these acts must be referred to the authorities before allowing in order to satisfying essential requirements ((Ibid.)).
United States of America:
Active Euthanasia is illegal in all states in the states of Oregon, Washington and Montana.
Laws in the United States maintain the distinction between passive and active euthanasia. Euthanasia has been made totally illegal by the United States Supreme Court in the cases Washington v. Glucksberg ((521 US 702 (1997).))and Vacco v. Quill ((521 US 793 (1997).))but physician assisted dying is legal in the states of Oregon under the Oregon Death with Dignity Act, 1997, in Washington under Washington Death with Dignity Act, 2008 and in Montana by the State judiciary and not the legislature ((Supra note 40)).
In Canada, patients have the right to refuse life sustaining treatments but they do not have the right to demand for euthanasia or assisted suicide. In Canada, physician assisted suicide is illegal as per section 241(b) of the Criminal Code of Canada. The Supreme Court of Canada in Sue Rodriguez v. British Columbia (Attorney General), (([1993) 3 SCR 519))said that in the case of assisted suicide the interest of the state will prevail over individual’s interest.
The Belgian Parliament legislation ‘Belgium Act on Euthanasia’ was made euthanasia legal in May, 2002 which is quite similar to that passed in the Netherlands.
According to Article 115 of Swiss Penal Code, suicide is not a crime and assisting suicide is a crime if only if the motive is selfish. It does not require the involvement of physician nor is that the patient terminally ill. It only requires that the motive must be unselfish.
Switzerland has an unusual position on assisted suicide; it is legally permitted and can be performed by non-physicians. However, euthanasia is illegal.
An important distinction in UK law exists between active euthanasia and passive euthanasia.
In England, the House of Lords in Airedale NHS Trust v. Bland ((1993(1) All ER 821 (HL).))permitted non voluntary euthanasia in case of patients in a persistent vegetative state. It was a case relating to withdrawal of artificial measures for continuance of life by a physician. It was held that it would be unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. It was further held that if a person, due to accident or some other cause becomes unconscious and is thus not able to give or with-hold consent to medical treatment, in that situation it is lawful for medical men to apply such treatment as in their informed opinion is in the best interests of the unconscious patient. It is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be. All the judges of the House of Lords in this case were agreed that Anthony Bland should be allowed to die.
After the Airedale ((1993(1) All ER 821 (HL).))case as decided by the House of Lords it has been followed in a number of cases in U.K., and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime. The question, however, remains as to who will decide what the patient’s best interest is and whether he is in a persistent vegetative state (PVS] ((Supra note 5.)).
POSITION IN INDIA:
The legal position of India cannot and should not be studied in isolation. India has drawnits constitution from the constitutions of various countries and the courts have repeatedly referred to various foreign decisions.
In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killingthere is an intention on the part of the doctor to kill the patient, such cases would clearlyfall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in suchcases there is the valid consent of the deceased Exception 5 to the said Section would beattracted and the doctor or mercy killer would be punishable under Section 304 forculpable homicide not amounting to murder. But it is only cases of voluntary euthanasia(where the patient consents to death) that would attract Exception 5 to Section 300. Casesof non-voluntary and involuntary euthanasia would be struck by proviso one to Section92 of the IPC and thus be rendered illegal.
The law in India is also very clear on theaspect of assisted suicide. Right to suicide is not an available “right” in India – it ispunishable under the India Penal Code, 1860. Provision of punishing suicide is containedin sections 305 (Abetment of suicide of child or insane person), 306 (Abetment ofsuicide) and 309 (Attempt to commit suicide) of the said Code. Section 309, IPC hasbeen brought under the scanner with regard to its constitutionality. Right to life is animportant right enshrined in Constitution of India. Article 21 guarantees the right to lifein India. It is argued that the right to life under Article 21 includes the right to die.
Therefore the mercy killing is the legal right of a person. After the decision of a fivejudge bench of the Supreme Court in Gian Kaur v. State of Punjab ((1996 (2) SCC 648 : AIR 1996 SC 946))it is well settled thatthe “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The Court held that Article 21 is a provision guaranteeing “protection of life and personal liberty” and by no stretch of the imagination can extinction of life be read into it.
In existing regime under the Indian Medical Council Act, 1956 also incidentally deals with the issue at hand. Under section 20A read with section 33(m) of the said Act, the Medical Council of India may prescribe the standards of professional conduct and etiquette and a code of ethics for medical practitioners. Exercising these powers, the Medical Council of India has amended the code of medical ethics for medical practitioners. There under the act of euthanasia has been classified as unethical except in cases where the life support system is used only to continue the cardio-pulmonary actions of the body. In such cases, subject to the certification by the term of doctors, life support system may be removed ((Supra note 5)).
In Gian Kaur’s((1996 (2) SCC 648 : AIR 1996 SC 946))case section 309 of Indian Penal Code has been held to be constitutionally valid but the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment.
The Delhi High Court in State v. Sanjay Kumar Bhatia ((1985 Cri.L.J 931 (Del.).)), in dealing with a case under section 309 of IPC observed that section 309 of I.P.C. has no justification to continue remain on the statute book.
The Bombay High Court in MarutiShripati Dubal v. State of Maharashtra ((1987 Cri.L.J 743 (Bom.).))examined the constitutional validity of section 309 and held that the section is violative of Article 14 as well as Article 21 of the Constitution. The Section was held to be discriminatory in nature and also arbitrary and violated equality guaranteed by Article 14. Article 21 was interpreted to include the right to die or to take away one’s life. Consequently it was held to be violative of Article 21.
ARUNA’s CASE: A NEW LEGAL DIMENSION
Recently the judgment of our Supreme Court in Aruna Ramchandra Shanbaug v. Union of India ((Supra note 1))opened the gateway for legalization of passive euthanasia. In this case a petitionwas filed before the Supreme Court for seeking permission for euthanasia for one ArunaRamchandra Shanbaug as she is in a Persistent Vegetative State (P.V.S.) and virtually adead person and has no state of awareness and her brain is virtually dead. Supreme Courtestablished a committee for medical examination of the patient for ascertaining the issue.
Aruna Shanbaug, who was working as a nurse at KEM Hospital, was assaulted on the night of November 27, 1973 by a ward boy. He sodomised Aruna after strangling her with a dog chain. The attack left Aruna blind, paralysed and speechless and she went into a coma from which she has never come out. She is cared for by KEM hospital nurses and doctors. The woman does not want to live any more. The doctors have told her that there is no chance of any improvement in her state. Her next friend (a legal term used for a person speaking on behalf of someone who is incapacitated) describes Shanbaug: “her bones are brittle. Her skin is like ‘Paper Mache’ stretched over a skeleton. Her wrists are twisted inwards; her fingers are bent and fisted towards her palms, resulting in growing nails tearing into the flesh very often. Her teeth are decayed and giving her immense pain. Food is completely mashed and given to her in semisolid form. She chokes on liquids and is in a persistent vegetative state.” So, she, through her ‘next friend’ Pinki Virani, decided to move the SC with a plea to direct the KEM Hospital not to force feed her. And on 16th December 2009, the Supreme Court of India admitted the woman’s plea to end her life. The Supreme Court bench compromising Chief Justice K G Balakrishnan and Justices A K Ganguly and B S Chauhan agreed to examine the merits of the petition and sought responses from the Union Government, Commissioner of Mumbai Police and Dean of KEM Hospital.
On 24th January 2011, the Supreme Court of India responded to the plea for euthanasia filed by Aruna’s friend journalist Pinki Virani, by setting up a medical panel to examine her. The three-member medical committee subsequently set up under the Supreme Court’s directive, checked upon Aruna and concluded that she met “most of the criteria of being in a permanent vegetative state”. However, it turned down the mercy killing petition on 7th March, 2011. The court, in its landmark judgement, however allowed passive euthanasia in India. While rejecting Pinki Virani’s plea for Aruna Shanbaug’s euthanasia, the court laid out guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves the withdrawing of treatment or food that would allow the patient to live ((Supra note 19)).
Lastly the Court dismissed the petition filed on behalf Shanbaug and observed that passive euthanasia is permissible under supervision of law in exceptional circumstances but active euthanasia is not permitted under the law. The court also recommended to decriminalized attempt to suicide by erasing the punishment provided in Indian Penal Code.
The Court in this connection has laid down the guidelines which will continue to be the law until Parliament makes a law on this point ((Supra note 20)).
- A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
- Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale’s ((1993(1) All ER 821 (HL).))case as this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.
In this case question comes before the Court is under which provision of the law the Court can grant approval for withdrawing life support to an incompetent person. Then the Court held that it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. The High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders.
According to the instant case, when such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist; one should be a psychiatrist, and the third a physician ((Supra note 20)).
The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench.
After hearing the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.
The High Court should give its decision assigning specific reasons in accordance with the principle of ‘best interest of the patient’ laid down by the House of Lords in Airedale’s case ((1993(1) All ER 821 (HL).)).
THE EUTHANASIA BILL
A bill proposing legalisation of euthanasia was introduced in the Lok Sabha as “The Euthanasia (Permissionand Regulation) Bill, 2007” (hereinafter, “The Bill”] ((The Euthanasia (Permission and Regulation) Bill, 2007, No. 55. If passed, the bill would provide for a compassionate, humane and painless termination of the life of an individual who are permanently invalid or bedridden because of an incurable disease. Chandrappan (who moved the bill in the house) says, “If there is no hope of recovery for a patient, it is only humane to allow him to put an end to his pain and agony in a dignified manner.”)). Thestatement of objects and reasons states that in cases ofpersons with “no hope of recovery”, active euthanasia gives away out and that it is a better alternative “than committingsuicide, which is an offence under the present penal provisions”.
The bill goes on to state that “before making euthanasia legal, sufficient checks and balances at the institutional level are necessary to ensure that the system is not misused by unscrupulous elements” ((Statement of Objects and Reasons)).
Additionally, it has to be ensured thatthe “life of the patient is taken only after due process has been adhered to and in a humane and compassionate manner in the presence of family members and elected representatives” ((Statement of Objects and Reasons)).The bill states that:
“a person who is completely invalid and/or bedridden or who cannot carry out his daily chores without regular assistance, can either himself or through persons authorised by him have the option to file an application for euthanasia (an instance of active euthanasia) with the civil surgeon or the Chief Medical Officer (CMO) of the district government hospital” ((Statement of Objects and Reasons)).
The CMO is to thereafter place the application before a medical board which will then examine the actual condition of the patient. A certificate recommending the patient’s case for euthanasia will be issued in the event the board is convinced of the non-curable nature of the disease ((K.P.M. Basheer, Legalize Euthanasia, Says Panel, THE HINDU, Jan. 8, 2009, http://www.thehindu.com/todays-paper/tp-national/tp-kerala/ article370554.ece.)). The major objection to the bill was that such authority legitimately provided to the act performed by a physician would make murder of the patient all the more convenient for the physician. This was rebutted by the argument that a skilled physician always knows the ways of killing the patient without leaving a trace. The bill has subsequently lapsed ((See Status of the Bill at http://184.108.40.206/newlsbios_search/Default.aspx.)).The 2007 bill took, and rightly so, a proactive attitude towards active euthanasia, rendering solace to terminally ill patients ((Supra note 21)).
THE LAW COMMISSION OF INDIA RECOMMENDATIONS
The Law Commission in its 42nd Report ((Available at http://lawcommissionofindia.nic.in/1-50/Report42.pdf))recommended the repeal of section 309 of India Penal Code. The Indian Penal Code (Amendment) Bill, 1978, as passed by the Rajya Sabha, accordingly provided for omission of section 309. Unfortunately, before it could be passed by the Lok Sabha, the Lok Sabha was dissolved and the Bill lapsed.
The Later the Law Commission in its 210th Report ((Available at http://lawcommissionofindia.nic.in/reports/report210.pdf))submitted that attempt to suicide may be regarded more as a manifestation of a diseased condition of mind deserving treatment and care rather than an offence to be visited with punishment. The Supreme Court in GianKaur focused on constitutionality of section 309. It did not go into the wisdom of retaining or continuing the same in the statute. The Commission has resolved to recommend to the Government to initiate steps for repeal of the anachronistic law contained in section 309, IPC, which would relieve the distressed of his suffering.
This 196th Report ((Available at http://lawcommissionofindia.nic.in/reports/rep196.pdf))of the Law Commission on ‘Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)’ is one of the most important subjects ever undertaken by the Law Commission of India for a comprehensive study.
This Report is relating to the law applicable to terminally ill patients (including patients in persistent vegetative state) who desire to die a natural death without going through modern Life Support Measures like artificial ventilation and artificial supply of food.
The Commission has given the following recommendations ((Supra note 20)):
- Obviously, the first thing that is to be declared is that every ‘competent patient’, who is suffering from terminal illness has a right to refuse medical treatment (as defined i.e. including artificial nutrition and respiration) or the starting or continuation of such treatment which has already been started. If such informed decision is taken by the competent patient, it is binding on the doctor. At the same time, the doctor must be satisfied that the decision is made by a competent patient and that it is an informed decision. Such informed decision must be one taken by the competent patient independently, all by himself i.e. without undue pressure or influence from others.
It must also be made clear that the doctor, notwithstanding the withholding or withdrawal of treatment, is entitled to administer palliative care i.e. to relieve pain or suffering or discomfort or emotional and psychological suffering to the incompetent patient (who is conscious) and also to the competent patient who has refused medical treatment.
- We propose to provide that the doctor shall not withhold or withdraw treatment unless he has obtained opinion of a body of three expert medical practitioners from a panel prepared by high ranking Authority. We also propose another important caution, namely, that the decision to withhold or withdraw must be based on guidelines issued by the Medical Council of India as to the circumstances under which medical treatment in regard to the particular illness or disease, could be withdrawn or withheld.
In addition, it is proposed that, in the case of competent as well as incompetent patients, a Register must be maintained by doctors who propose withholding or withdrawing treatment. The decision as well as the decision-making process must be noted in the Register. The Register to be maintained by the doctor must contain the reasons as to why the doctor thinks the patient is competent or incompetent, as to why he thinks that the patient’s decision in an informed decision or not, as to the view of the experts the doctor has consulted in the case of incompetent patients and competent patients who have not taken an informed decision, what is in their best interests, the name, sex, age etc. of the patient. He must keep the identity of the patient and other particulars confidential. Once the above Register is duly maintained, the doctor must inform the patient (if he is conscious), or his or her parents or relatives before withdrawing or withholding medical treatment.
If the above procedures are followed, the medical practitioner can withhold or withdraw medical treatment to a terminally ill patient. Otherwise, he cannot withhold or withdraw the treatment.
- A patient who takes a decision for withdrawal or withholding medical treatment has to be protected from prosecution for the offence of ‘attempt to commit suicide’ under sec. 309 of the Indian Penal Code, 1860. This provision is by way of abundant caution because it is our view that the very provisions are not attracted and the common law also says that a patient is entitled to allow nature to take its own course and if he does so, he commits no offence.
Likewise, the doctors have to be protected if they are prosecuted for ‘abetment of suicide’ under sections 305, 306 of the Penal Code, 1860 or of culpable homicide not amounting to murder under sec. 299 read with sec. 304 of the Penal Code, 1860 when they take decisions to withhold or withdraw life support and in the best interests of incompetent patients and also in the case of competent patients who have not taken an informed decision. The hospital authorities should also get the protection. This provision is also by way of abundant caution and in fact the doctors are not guilty of any of these offences under the above sections read with sections 76 and 79 of the Indian Penal Code as of today. Their action clearly falls under the exceptions in the Indian Penal Code, 1860.
We are also of the view that the doctors must be protected if civil and criminal actions are instituted against them. We, therefore, propose that if the medical practitioner acts in accordance with the provisions of the Act while withholding or withdrawing medical treatment, his action shall be deemed to be ‘lawful’.
- We have therefore thought it fit to provide an enabling provision under which the patients, parents, relatives, next friend or doctors or hospitals can move a Division Bench of the High Court for a declaration that the proposed action of continuing or withholding or withdrawing medical treatment be declared ‘lawful’ or ‘unlawful’. As time is essence, the High Court must decide such cases at the earliest and within thirty days. Once the High Court gives a declaration that the action of withholding or withdrawing medical treatment proposed by the doctors is ‘lawful’, it will be binding in subsequent civil or criminal proceedings between same parties in relation to the same patient. We made it clear that it is not necessary to move the High Court in every case. Where the action to withhold or withdraw treatment is taken without resort to Court, it will be deemed ‘lawful’ if the provisions of the Act have been followed and it will be a good defence in subsequent civil or criminal proceedings to rely on the provisions of the Act.
- It is internationally recognized that the identity of the patient, doctors, hospitals, experts be kept confidential. Hence, we have proposed that in the Court proceedings, these persons or bodies will be described by letters drawn from the English alphabet and none, including the media, can disclose or publish their names. Disclosure of identity is not permitted even after the case is disposed of.
- The Medical Council of India must prepare and publish Guidelines in respect of withholding or withdrawing medical treatment. The said Council may consult other expert bodies in critical care medicine and publish their guidelines in the Central Gazette or on the website of the Medical Council of India.
ARGUMENTS IN FAVOUR OF LEGALIZING EUTHANASIA
From Ram’s jalasamadhi to Mahatma Gandhi and Vinoba Bhave’s fast till death (in which Bhave died), euthanasia existed in Indian society. The judiciary has also viewed euthanasia from a sympathetic angle, which is evident from the observation of the various judges in cases dealing with right to suicide.
- The major argument in favour of allowing exercise of right to die is that, it is a way to end extreme unbearable pain caused due to disease, infirmity of body or mind or some incurable ailment ((Supra note 3)).
- Exercising the right to die provides a way of relief when a person’s quality of life is low. Doesn’t modern technology keep people alive who would have died in the past? Should people be forced to stay alive being “hooked up” to machines? It also causes physical, emotional and financial stress on the relatives and family members of the dying patient. Neither the law nor medical ethics requires that “everything be done” artificially to keep a person alive. Comprehensive and compassionate end-of life care includes the promotion of comfort and the relief of pain, and at times, foregoing life-sustaining treatments. In cases of terminal illness the medical professionals do not prolong the life of a person; instead they prolong the death of that person ((Supra note 40)).
- Some argue that, if option to die in case of people facing terminal illness is allowed, family members may save on unproductive medical expenses. It may free up medical funds of the state to help other needy people. In a country like India where millions of people live below the poverty line and cannot afford any expenses on medical treatment and may die due to non affordability and non availability of medical help, given the paucity of state funds for public health facilities; the funds thus freed may be utilized to save lives of these poor and needy persons ((Supra note 3)).
- Another argument is that recognition of right to die is a case of freedom of choice or individual liberty. Constitution guarantees the fundamental rights and freedoms to people where the positive right includes the negative right. For example, the freedom of speech carries along with it the freedom not to speak. The right to carry on business includes the right to close down the business; in similar manner, the right to live should include within it- the right not to live. People should not be forced to stay alive. It is the right of an individual to make a choice, whether to live or not to live i.e. right to die ((Supra note 40)).
ARGUMENTS AGAINST LEGALIZING EUTHANASIA
- There is an intense opposition from the religious groups and people from the legal and medical profession. According to them it is not granting ‘right to die’ rather it should be called ‘right to kill’ ((Supra note 3)).
- Allowing Euthanasia devalues human dignity and will offend the principle of sanctity of life. Euthanasia will leave sick, disabled or vulnerable people with less protection than the rest of the population and could even be seen as providing a “cloak for murder”.
- Today, advanced medical research is constantly being made in the treatment of pain and diseases. Accepting incurability of diseases will be underestimating medical science. Many diseases which had no cure in the past are curable and controllable today with the help of research in medical field ((Supra note 40)).
- Where euthanasia has been first been legalized for only terminally ill people, later on it may become non-voluntarily. In countries where assisted suicide is allowed, it has moved into mercy killings of deformed babies, and into allowing mentally ill people to kill themselves rather than seek treatment ((Supra note 3)).
- It is usually believed that, patients with terminal illness have only two options: either to die slowly in unrelieved suffering orexercise their right to die. However, there is a middle way, that of creative and compassionate caring. Research in Palliativemedicine shows that virtually all unpleasant symptoms and chronic pain experienced in terminal illness can be either relievedor substantially controlled ((Supra note 40)).
A patient with a terminal illness is vulnerable. He lacks the knowledge and skills to alleviate his own symptoms, and may wellbe suffering from fear about the future and anxiety about the effect his illness is having on others. Patients who on admissionsay ‘let me die’ usually after effective symptom relief are most grateful that their request was not acceded to. Losing theopportunity of caring for vulnerable people denies us an essential part of our humanity. The answer is not to change the law, butrather to improve our standards of care ((Supra note 40)).Allowing the exercise of right to die would put emotional, financial and psychological pressure on patients, especially ondisabled persons, to choose to die rather than be a burden on their families ((Supra note 3)).
- Physicians and other medical care people should not be involved in directly causing death. It creates incentives to do lessmedical research and to save money on medical care by offering people poison pills. There is no way to control assisted suicideonce you make it legal. In a country like India where poverty and corruption is rampant, there is no foolproof way to write thelaw without opening it to abuse.
Thus, opponents strongly argue that euthanasia should be allowed only in rarest of the rarecases. If this is not done then surely it will lead to its abuse.
SUGGESTIONS AND RECOMMENDATIONS
The risk and fear of misuse and abuse could be done away with proper safeguards and specific guidelines. Though in this regard the 196th Law Commission Reportand the guidelines given in the Aruna’scase are there and guidelines will continue to be the law until Parliament makes a law on this point. In spite of those some suggestions are given below to check the misuse ((Supra note 5)):
- The circumstances in which it would be lawful for a medical practitioner to cease or to authorize the cessation of life-sustaining treatment of a patient who has no spontaneous respiratory and circulatory functions or whose brainstem does not register any impulses.
- A euthanasia request should come from a patient suffering from unbearable pain from an incurable condition, the physician must follow certain ‘due care’ criterion. He must –
(i) Be convinced that request was voluntary, well consider and lasting.
(ii) Be convinced that the patient was facing unremitting and unbearable suffering.
(iii) Have informed the patient about his situation and prospects.
(iv) Have reached the firm conclusion with the patient that there was no reasonable alternative solution.
- The right of medical practitioner responsible for the treatment of a terminally ill patient to increase the dosage of medication, with the object of relieving pain and distress, even if the secondary effect of this may be to hasten the patient’s death.
- Terminate life should be in a medically appropriate fashion. Like that the practice is to administer an injection to render the patient comatose, followed by a second injection to stop heart.
- A person who is going to die;
(i) Must completely understand what will happen.
(ii) Must know about all other kinds of treatment.
(iii) Must freely repeat their wish to die over a period of time.
(iv) Must be suffering from something that will not stop or go away.
- Whether it would be lawful for a medical practitioner to act on the request of a well informed, mentally competent and terminally ill patient to end his/her suffering by administering or providing a lethal agent.
- There should be an explicit and repeated request by the patient which leaves no reason for doubt concerning his desire to die; mental and physical suffering of the patient must be very severe with no prospect of relief.
- The circumstances in which a Court may order the cessation of medical treatment or the performance of any medical procedure which would lead to the termination of a patient’s life.
- A quasi-judicial officer be appointed by the appropriate authority under the proposed statute to supervise all cases of euthanasia within a feasible territory.
Such officer must be reasonably well versed with the medical science. Any doctor who feels that his patient’s request to die should be fulfilled would report such a case to the said supervising officer. The supervisor would then interview the patient to satisfy himself whether the request is free, voluntary and persistent. The supervisor would also then refer the case to a minimum of two other experienced doctors to get their opinion on the case. If both the doctors so referred feel that the patient is beyond recovery, that there is no alternate treatment available and that death would be a more suitable option for him then the supervisor would inform the patient’s relatives about the patient’s request and the doctor’s opinion. Finally the supervisor would issue a certificate allowing the doctor to let the patient die.
- When the patient is dead, a coroner must look at the body and check the facts of the case. If case is not found for euthanasia, penal proceeding may be initiated. Though the procedure outlined above may seem cumbersome. The above mentioned safeguards are necessary to minimize the chances of misuse of the right of euthanasia.
Moreover, in a country like India where there is tremendous pressure on the availablemedical facilities, euthanasia is all the more necessary for the maximum utilization of thelimited facilities.
From the above discussion we can conclude that no such law could be guaranteed to be free of the possibility, if not the likelihood, of abuse, chiefly centered on the lives of other sick persons who did not want their lives taken. An especially dangerous aspect is that such abuse may be easily made undetectable. Thus although mercy killing appears to be morally justifiable, its fool-proof practical applicability seems near to impossible. It may be acknowledged that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. Moreover, dying is not only a personal or individual affair and the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole ((Supra note 3)).
Thus, while deciding the debate on right to die, the conflict between the principle of sanctity of life and the rights of self determination and dignity of a human being needs to be resolved. Rather than allowing right to die as a general rule by legalizing euthanasia, it may be allowed as necessary exception only in rarest of rare cases, in passive form in appropriate cases where the individual is dying and gives informed consent or where he or she cannot give consent and as per the genuine medical opinion, the death is near and certain and, to withdraw the life support system is in the best interest of the patient and by recent decision in Aruna Shanbaug case ((Supra note 1))the SC has taken step in right direction and now it is the turn of government and the HCs to follow the guidelines given by the court ((Supra note 3)).
The ethics of euthanasia, being value debate, still remains as a debatable issue. Just like other value debates, it also seems to be never ending. Since the law follows ethics in most of cases, the dilemma in the field of euthanasia can also be seen in the laws of different countries. The Netherlands’ legislation in this regard is one of the most comprehensive legislation for two obvious reasons. On the one hand, it lays down the essential criteria to be complied with before conducting euthanasia and on the other hand, it provides checks and balances by establishing Review Committees. Therefore euthanasia is not conferred as a matter of right to the patient, but has been made as an exception to the liability of the doctor in the Dutch law ((Supra note 2)).
Indian judiciary, on the other hand, has always been in confusing state of mind on the issue of euthanasia. In Maruti Shripati Dubal and P. Rathinam, the court held that suicide is permissible and euthanasia, in whatever circumstances, would amount to homicide, and therefore not permissible. The Supreme Court, in Gian Kaur, recognized the legality of the passive euthanasia, but could not conclusively decide on the issue of passive euthanasia. More importantly, focus of all these cases were on suicide and abatement to suicide, and not on euthanasia.
At last while legislative reforms are awaited, in this regard in India, one needs to look in to the impact of the defences available to the doctors under IPC. Sections 76, 81 and 88 of IPC are sufficient enough to provide defense to the doctors conducting euthanasia in good faith. While there exists no doubt on the permissibility of passive euthanasia, the active euthanasia, if conducted to avoid greater harm, would be entitled to legal protection under section 81. On this point the Indian position is not very much dissimilar to that of Dutch position. While the Netherlands’ position is clearer due to the specific legislation, Indian position remains unclear in the absence of legislation. But in Aruna Ramchandra Shanbaug v. Union of India ((Supra note 1))the Apex court of India rejected a plea for its use on a woman in a vegetative state but issued guidelines allowing for the use of ‘passive’ euthanasia for terminally ill patients through the withholding treatment.
The ultimate outcome of this debate remains uncertain. It must, however, be remembered that an acrobatic argument that acknowledges technological advances but dismisses the evolving ethical issues, which pose uncomfortable, and disturbing questions is unfair to the community of patients ((Supra note 21)).