SabKuch Legal
  Legal Masla Koi Bhi Ho Hal Milega Online

Articles

EUTHANASIA- IS IT ACCEPTABLE?

By: Ayush Pandia

Third Position in SKL Article writing competition 2019-20

What is ‘Euthanasia’?

Euthanasia is generally termed as painless and quick death for the purpose of getting out the life of suffering, pain and mental agony. The definitions as mentioned in the dictionaries defines euthanasia as— “the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma”[1]; “the act or practice of killing or authorizing the death of hopelessly ill or injured people (such as people or pets) in a relatively painless manner for reasons of mercy”[2]. Euthanasia is also referred to as ‘Right to die with dignity’.

An English philosopher, Francis Bacon, first used euthanasia in the 17th century. He refers it to an easy, happy and painless death. It was the physician’s duty to alleviate the physical suffering from the patient’s body.

History

The practice of euthanasia can be traced from Greece and Rome in the 17th century. Socrates, Plato, and Seneca supported the ideology of euthanasia. The word euthanasia is derrived from the Greek word "εὐθανασία", which means good death. In the early modern period, Francis Bacon in his book Euthanasia media gave the difference between ‘euthanasia interior’ and ‘euthanasia exterior’. Euthanasia interior means, separation of soul and death; and euthanasia exterior means ending physical life easily, without pain.

In a German encyclopedia from the 18th century, euthanasia has been defined as a very gentle and quiet death, which happens without painful convulsions.[3] Medical historian, Karl Friedrich Heinrich Marx, said that it is the moral obligation, duty to ease the patient off the suffering of death by the means of medication, support, and mitigation.

In the 1800s many types of painkillers and liquids came into play with the objective of killing the pain of death. But later on, these were used to terminate people. Then debates and controversies started regarding euthanasia, questioning the use of euthanasia; questioning the rationality and morality of using this method of ending life; and the legal aspect of it. Regarding the use of chloroform to deliberately end the life of terminally ill patients, Samuel Williams in one of his publications mentioned that in all the cases where there is no hope of illness and the patient suffers a painful illness then the patient should be provided a rapid painless death by the medical assistant and such practice should be recognised.[4]

Annie Besant considered it a duty towards the society to die voluntarily and painlessly if one thinks or it is evident that he/she is a burden to the society.

Movements of euthanasia started in many countries like the US, Britain, and Germany.

In the US, Felix Alder was the first prominent American to argue to permit suicide in the cases of chronic illness. The movement in the US was mainly because of the medical aspect. The issue was to legalize voluntary suicide, giving the right to the people to terminate their lives to free themselves from the burden of pain and suffering. Alder and Robert Ingersoll both argued to legalize voluntary euthanasia, giving liberty to the terminally ill patients. In the General Assembly of Ohio in 1906, Henry Hunt made the first attempt to legalize euthanasia in the United States. He did so on the behalf of Anna S. Hall who was a major figure in the euthanasia movement in the US in the 20th century. After 1906, the debate over euthanasia started getting cold.

In Germany, in 1939 an event took place of the killing of a severely disabled infant during the Nazi rule. It was the first case of euthanasia sponsored by the state. After this, a secret Nazi decree let to mass mercy killing of mentally as well as physically handicapped people, which amounted to the death of almost 3 Lakh people.[5] Also, 5000-8000 children were killed after they were forcefully taken from their parents.[6] After these incidents, the ‘euthanasia campaign’ of mass murder emerged.

Since then the debate of euthanasia continues worldwide.

Indian perspective

The issue of euthanasia came into the picture when a case drew the attention of the whole country.[7] The case facts were that Aruna Shanbaug was a nurse working in a hospital named King Edward Memorial Hospital, in Mumbai. On 27 November 1973, a sweeper of the same hospital attacked her, who tied her neck with a dog chain and tried to rape her. He then with the intention to immobilize her twisted the chain around the neck, this leads to a loss in oxygen supply and she went in a vegetative state. The next day, she was found lying on the floor, surrounded by blood by a cleaner. She was treated in the same hospital since the incident and was kept alive by a feeding tube. Six years passed but she did not come out of the coma. A social activist named, Pinki Virani filed a petition to the Supreme Court of India under Article 32[8] of the Indian Constitution, pleading the court to grant to discontinue the life support to Aruna as the situation violates her right to live life with dignity under Article 21[9] of the Constitution of India.

But the court rejected the plea on the ground that the only hospital could make such plea and Ms. Virani did not have the locus standi.[10] The bench held active mercy killing of patients to be illegal but the exception was made in case of patients suffering acute ailment, they are allowed to die by the means of poisonous injection or by other means.

Recently the Supreme Court gave the verdict legalizing passive euthanasia in India in the case of Common Cause v. Union of India and Another[11]. There is a reasonable restriction laid down in the judgment, which is there must be consent by the patients and the termination must be either to a person who is terminally ill or to a person in a vegetative state. This allows the withdrawal of life support from the persons suffering in a vegetative state. This decision has been influenced by the case of Aruna Shanbaug.[12]

Global status

Everywhere in the world, euthanasia is illegal unless there is any provision mentioned in any statue of that country. But passive euthanasia is considered legal even if there is no legislation mentioning the same, provided there is the maintenance of certain safeguards and conditions. There are countries where the law related to euthanasia already exists and has provisions allowing active euthanasia or doctor-assisted suicide. There are currently 29 countries that have allowed euthanasia in some way or another.

Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002 regulates euthanasia in the Netherlands. “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”[13].

In Switzerland, in The Swiss Penal Code under article 115, “assisting suicide is a crime if, and only if, the motive is selfish. The code does not give doctors a special status in assisting suicide; although, most likely they will have access to adequate medications. Ethical guidelines have warned doctors against prescribing deadly drugs”.[14]

In the US, in the states of Oregon, Washington and Montana, active euthanasia is legal.

In Belgium, the Parliament legalized euthanasia in 2002 and euthanasia through lethal injection to children in 2014.[15]

Right to Die v. Right to life

Article 21[16], of the Constitution of India, gives the rights to the citizen of the country to live their lives with dignity. Right to Life, the literal meaning is that every person has the right to live their life as they want. But according to the provisions, there is a reasonable restriction conferred by the state, as stated under article 21— “except according to the procedure established by law”. Whereas the Right to Die means that, the person has the right to end his/her life. The constitutional validity of section 309 of the Indian Penal Code was challenged under article 21 in the Supreme Court of India, in the case of P. Rathinam v. Union of India[17]. The court ruled that ‘right to life’ under article also includes the right not to live a forced life. But this decision was overruled in the case of Gian Kaur v. the State of Punjab[18]. The court declared that ‘right to life’ does not include ‘right to die’. The same was held in the case of Common Cause v. Union of India and Another[19].

Live with ‘dignity’

From the case of P. Rathinam to the recent case of euthanasia[20], everywhere it is mentioned that the right to life means the right to live one’s life with dignity. Similarly, in the case of the right to die, euthanasia includes the right to die with dignity. The significance of the word dignity is important as observed by the Court in the case of Francis Coralie v. Union Territory of Delhi[21]:

“The right to live includes the right to live with human dignity and everything that follows, namely the essential necessities of life such as adequate nutrition, clothes and shelter over the head and structures to read the writing and express yourself in different forms , who move freely, mingle and mingle with other human beings and must include the right to basic needs the basic needs of life and also the right to perform functions and activities as the minimum expression of the human self.”

Also, in the cases of Bandhua Mukti Morcha v. Union of India[22], Peoples Union for Democratic Rights v. Union of India[23],  Chandra Raja Kumar v. Police Commissioner Hyderabad[24] and State of Maharashtra v. Chandrabhan[25], right to life includes dignity has been observed.

 Rationale

The Supreme Court has clearly stated the reason for allowing euthanasia in India. Passive euthanasia will be provided only to terminally ill patients or patients in a vegetative state. These people have very low chances to recover, it is very evident from their health conditions that they will not be able to live the life like they used to do or would have lived if they were not trapped in a life full of pain and mental agony. The euthanasia will only be provided with the consent of the aggrieved person. In the case of the people in a vegetative state, one on behalf of him/her may plead to grant euthanasia. Since life becomes a burden for such people, it has been observed that it will be better to end life, according to them, so that they can get relief from the mental and physical pain and suffering that will continue in the future.

Conclusion

Apart from the current allowance of passive euthanasia in India to only two classes of people as mentioned, there can me more recommendations like life termination of child/infant; restrictions to the passive euthanasia allowance bypassing the laws mentioning the same. Like in Belgium active euthanasia has been allowed to the infants who might suffer in the future due to physical and mental agony. It can be concluded on the basis of the analysis of the judgment of the Supreme Court of India and statues and provisions in other countries, that euthanasia is acceptable to meet the needs of those, who won’t be able to live their lives with dignity if they are not given the right to die.

The issue of assisted suicide by a doctor must be incorporated into the issue of euthanasia as its sub-issue. According to the theory of libertarianism, people have the right to their own life first and hence it can be inferred that assisted suicide is correct. “For the libertarian, laws banning assisted suicide are unjust, for the following reason: If my life belongs to me, I should be free to give it up. And if I enter into a voluntary agreement with someone to help me die, the state has no right to interfere.[26]

Rules and regulations are yet to be made under the statutory laws- limiting the scope of euthanasia, discussing the role of active euthanasia that if it will be necessary, guidelines for getting proofing done for the grant of euthanasia. Enforcement of the draft bill by the Law Commission of India should be introduced in the parliament to make the Supreme Court’s verdict effective.[27]

 

[1] Oxford English Dictionary.

[2] Merriam-Webster Dictionary.

[3] Johann Heinrich Zedler, The Grosses vollständiges Universal-Lexicon aller Wissenschafften und Künste.

[4] Samuel Williams, Essays of the Birmingham Speculative Club.

[5] Irene Zoech. "Named: the baby boy who was Nazis' first euthanasia victim", Telegraph.co.uk., Retrieved 4 July 2017.

[6] Genocide Under the Nazis Timeline: 24 July 1939, BBC, Accessed 23 July 2011.

[7] Aruna Ramchandra Shanbaug v. Union Of India & Ors, WRIT PETITION (CRIMINAL) NO. 115 OF 2009.

[8] Remedies for enforcement of rights conferred by this Part:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

[9] Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.

[10] J. Venkatesan, Supreme Court disallows friend's plea for mercy killing of vegetative Aruna, The Hindu.

[11] WRIT PETITION (CIVIL) NO. 215 OF 2005.

[12] Malini Menon, Suchitra Mohanty, Supreme Court upholds passive euthanasia, allows living wills in landmark judgment, Reuters.

[13] Mounica Kasturi, Aruna Ramchandra Shanbaug v. Union Of India: Case Analysis, Lawoctopus.

[14] supra note 13.

[15] Belgian Senate votes to extend euthanasia to children, BBC.

[16] Supra note 9.

[17] AIR 1994 SC 1844 : (1994) 3 SCC 394.

[18] AIR1996 SC 946 : (1996) 2SCC 648.

[19] Supra note 11.

[20] Common Cause v. Union of India and Another, WRIT PETITION (CIVIL) NO. 215 OF 2005.

[21] 1981 AIR 746, 1981 SCR (2) 516.

[22] 1984 AIR 802, 1984 SCR (2) 67.

[23] 1982 AIR 1473, 1983 SCR (1) 456.

[24] AIR 1998 AP 302.

[25] 983 AIR 803, 1983 SCR (3) 327.

[26] Michael J. Sandel, Justice- What is the right thing to do?

[27] 241st report of Law Commission of India.

© Sabkuch Legal Pvt. Ltd. All Rights Reserved.