Author: Lovepreet Kaur, V year student at Sri Guru Granth Sahib World University, Fatehgarh Sahib, Punjab
“I lived my whole life following others’ wishes. Let me follow my own wish in my death”.
- Shon Mehta(The Timingila)
Introduction
What should a person choose – ‘to die with dignity’ or ‘to live an awful life’? The situation arises a conflict between ‘the preservation of life’ and ‘one's autonomy overhis/her body’. Right to life is a moral as well as a fundamental right and the Supreme Court in its various judgments has clarified that theright to life does not merely indicates humanly existence, it means living a dignified life.So, the moot question of conflict is:If a person is living a life,worse than death, thenwhether an aid to end his life is legally acceptable or not ?
The assistance in ending the life of a hopeless person,living in an unbearable and miserable condition is known as euthanasia, whose legality is always surrounded by the heated arguments around the globe. Though some countries have warmly welcomed it, while others are still in a dilemma. These significant contemporary contentions are an epicentre to the debates to the concept of Euthanasia.
What is Euthanasia?
The term ‘Euthanasia has its genetics in Greek, where, ‘Eu’meaning ‘good’ and ‘thanatos’ meaning ‘death’, which on combining means ‘good death’.¹Euthanasia is a social, legal, ethical, medical as well as psychological issue which means ending the life of a terminally ill patient who is experiencing great pain and sufferings. It is an intentional call for death, when the natural death is not at the door.
According to the Oxford Dictionary, Euthanasia is defined as, “the painless killing of a patient suffering from an incurable and painful death or in an irreversible coma”².
British House of Lords Select Committee on Medical Ethics defined Euthanasia as, “a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering"³.
We often wish a person as, “May you live long”, but sometimes a persons prays for death, instead of life. A healthy person cannot imagine the sufferings of a bed ridden person andthat too when there is no hope of recovery. In such a situation, ending a person’s life either directly or indirectly, withor without his wish, particularly to erase hissufferingsis known as euthanasia.
Types of Euthanasia
Active Euthanasia: In this form, a person directly and deliberately ends the life of sufferer⁴.It is basically killing the patient and is most unaccepted form, both from moral as well as legal perspective. For instance,injecting a lethal dose of drug to kill the patient.
Passive Euthanasia: In common parlance , it means ‘letting someone die’. In this form of euthanasia, no deliberate actis performed to end a patient's life. They are allowed to die by withholding or withdrawing a treatment. No curative steps are taken to save the patient’s life.⁴
For instance, switching off a machine which is pumping somebody’s heart,or withdrawing a treatmentwhich may extend a short span of their life are the some of the acts where no direct step is taken to end patient’s life but still the instances will ultimately result into the death.
Voluntary, Non voluntary and Involuntary Euthanasia: In voluntary euthanasia, there is a formal request by the patientto end his life whereas non – voluntary euthanasia occurs when the patient lacks ability to consent, such as where the person is in coma, where the person is too young or senile or his brain is completely damaged. In such cases, the decisions about their choice to live or die are made by some third party.
In involuntary euthanasia, a person is killed against his wish. In this form of euthanasia, a person is either not asked about his will or chooses life but is anyways killed.⁵
Historical overview : a religious perspective
Since ages, the position of euthanasia is foggy. Some believe it to be a good deed for the betterment of the sufferer while others condemn it for ending a person's life without his fault.Historically, the issue was more closely related to the moral and religious sentiments of a person, considering the sanctity of life. Terminating an individual’s life even if he proposes to do so was always considered sin, till the concept of ‘good death’ evolved in Greek.
Around 5th century BC – 1st century BC, in old Rome andGreece , aiding a sufferer to die, suicide and infanticide were admissible. They believed that they had a right to kill the hopeless patients even without asking their permission. Euthanasia was considered as a part of their medical practice. Butfollowing the words in the Hippocratic oath which stated, “I will give no deadly medicine to anyone if asked for, nor suggest any such counsel”, some physicians desisted from this practice. The Hippocratic Oath prohibited the doctors from giving a deadly drug to anybody, not even if asked for. Thus, the oath ignited a debate to the practice of euthanasia⁶.
During Middle Ages, that is, around 13th century, Jewish and Christians were completely against the euthanasia. Christians believed that human being is a creation of god and thus every individual has right to live. Every human should respect the god's gifted life anddeath is in the hands of God.
Even in India, different people had different notions regarding euthanasia. The religious writings such as Vedas, Quran and Bible had sayings about intentional death or suicide. Some Hindusfirmly believe that euthanasia is forbidden as it is against the teachings of ahimsa(avoidance of violence), while others believed that the benevolent act to help a painful person to end his miserable life is a good deed. The critics believe that euthanasia is an interference in natural life cycle created by god.
Life Cycle according to Hindu mythology
As per the beliefs of the Hindu community, Lord Brahma, Vishnu and Shiva are the pioneers of natural life cycle and perform the following functions :
BRAHMA --------> VISHNU --------> SHIVA Life Creator Preserver Destroyer Muslims completely opposed euthanasia. Following the words of Holy Quran,“When their time comes they cannot delay it for a single hour nor can they bring it nor can they bring it forward by a single hour”, Muslims believed that no one has a right to take away Allah's created life, unless it is specified by the Shari’a and the law⁷.
Global Scenariodepicting legality of euthanasia
Different movements and efforts were initiated to legalize euthanasia and at present many nations accept euthanasia in hopeless cases.Due to the religious beliefs attached to the process of life and death, it becomes more sensitive to argue on the issue. While some nations have cleared the legal status of euthanasia, while the others are still in dilemma.
Netherlands
The proposal for change in the law regarding euthanasia trigerred extreme controversy and debate. Conservative Christian parties strongly opposed the legalization of euthanasia and assisted suicide but finally, in 2001,Netherlands became the first European nation to legally permit the mercy killing of terminally ill patients who will die within theforeseeable future. Children as young as 12 can request assisted dying but the parental consent is required for the children below the age of 16.
Belgium
Following Netherlands, Belgium became the second country to legalize euthanasia, subjected to some statutory safeguards. Belgium's ‘Act Concerning Euthanasia’ (Euthanasia Act 2002), came into effect in September, 2002 which permits doctors to perform euthanasia at the request of competent patients. The Act defines Euthanasia as, ‘intentionally terminating life by someone other than the person concerned, at the latter’s request.Further, in 2014, Belgium legalized euthanasia for children by the lethal injection, with the approval of the parents.
Canada
In February, 2015 in the decision of Carter v. Carter, the Supreme Court of Canada ruled the need to change the parts of The Criminal Code to satisfy the Canadian Charter of Rights and Freedom. It further directed that the parts that prohibited medical assistance in dying would no longer be valid. Following the Court's order the Parliament of Canada in June 2016, passed federal legislation that allows eligible Canadian adults to request medical assistance in dying.
Thus, in Canada, euthanasia and assisted suicide for adults suffering from “grievous and irremediable conditions” whose death is “reasonably foreseeable”, is allowed whereas in Quebec only euthanasia is allowed. Further in March, 2021, Parliament passed a revised legislation that makes changes to who may be eligible to obtain medical assistance in dying and the process of assessment.
The United Kingdom
Euthanasia is illegal in the United Kingdom. Depending upon the circumstances, euthanasia is regarded as either manslaughter or murder and the penalty for same is the life imprisonment. But in the recent years, there have been many legal challenges to the offence of assisted suicide, especially from terminally ill patients to choose their right to die.⁸
Euthanasia and Indian Legal System
To live a dignified life is a natural right of humans, assigned to him atbirth. Confining the definition of life to mere breathing process is contrary to the basic human rights. Life should include other essentials too such as food, shelter, peace, clothing etc., under its domain. No person should be deprived of this inalienable right to life and so is recognized by the Constitution of India under the Article 21 which states, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
The Supreme Court through its judicial activism and creativity has time to time widened the scope of Article 21 and has cleared in various judgments that the right to live is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. But the question which grabs the attention is- Does ‘right to life’ include ‘right to die’? Considering such questions, the Bombay High Court in State of Maharashtra v. Maruty Sripati Dubal⁹, held that right to life guaranteed by Article 21 includes a right to die and the court held Section 309, I. P. C. which provides punishment for attempt to commit suicide as unconstitutional .
Contrary to the decision of the Bombay High Court inMaruty Sripati Dubal's case, the Andhra Pradesh High Court in Chenna Jagadeeswar v. State of A. P¹⁰. Held that the right to die is not a fundamental right within the meaning of Article 21 and hence Section 309 I. P. C. is not unconstitutional.
Similar questions were raised in P. Rathinam v. Union of India¹¹, in which the petitioners challenged the validity of Section 309 as the violative of Article 14 and 21 of the Constitution . Agreeing with the view of the Bombay High Court in Maruti Sripati Dubal case, a Division Bench of the Supreme Court held that a person has a ‘right to die’ and declared Section 309 I. P. C. unconstitutional. The Court in this case cleared the contentions whether “Right to live” under Article 21 includes “Right not to live” or right to die by stating that right to live gives a person right to terminate his life. In the instant case, the Court rejected the plea that euthanasia should be legalized.
Gian Kaur v. State of Punjab –‘Right to life’ does. not include ‘Right to die’
Facts: In the instant case, Gian Kaur and her husband, Harbans Singh were convicted by the trial court under Section 306 of the Indian Penal Code for the offence of abetting suicide of their daughter-in-law, Kulwant Kaur. They were sentenced with an imprisonment of 6 years each and were liable to pay a fine of ₹2000/- or in default of paying the same, further imprisonment of 9 months would be imposed. They further appealed to the High Court where the sentence of alone Gian Kaur has been reduced to the rigorous imprisonment for three years.The convicted approached to the Supreme Court through the Special Leave Petition against their conviction.
Issue: It was argued the Article 21 which guarantees right to life also includes right to die, as held in P. Rathinam v. Union of India, so abetting the suicide is an assistance in enforcing Article 21.
Judgment: A five Judge Constitution Bench of the Supreme Court overruled the P. Rathinam’s case and held that “right to life” under Article 21 of the Constitution does not include “right to die” or “right to be killed”.
In reference to euthanasia, the Court cleared that ‘right to life’ including the right to live with human dignity would mean the existence of such a right up to the end of natural life. It may include the right of a dying man to also die with dignity when his life is ebbing out. But the right to die with dignity at the end of life is not to be confused with the right to die an unnatural death curtailing the natural span of life. The Court reiterated that the argument to support the views of permitting termination of life in cases where the man is terminally ill or in vegetative state by accelerating the process of natural death when it was certain was not available to interpret Article 21 to include therein the right to curtail the natural span of life.¹²
A New Dimension in Indian Legal Context :Aruna’s Case
The judgment of the Supreme Court in the case of Aruna Ramachandran Shanbaugh v. Union of India, legalized the passive euthanasia with guidelines in India.In the case, a writ by filed by Ms. Pinki Virani claiming to be the next friend of the victim with a prayer to stop feeding the victim and let her die peacefully. Where earlier on one hand, the Supreme Court in Gian Kaur v. State of Punjab held that right to life doesnot include right to die and gave a negative view about unnatural death of a person, in the instant case, the verdict paved a new way for passive euthanasia for hopeless patients living in persistent vegetative state.
Facts: The victim was a staff nurse in King Edward Memorial Hospital, Parel, Mumbai. She was attacked by a sweeper in the hospital on 27 November, 1973. The attacker wrapped a dog chain around her neck and tried to rape her. Finding her menstruating, he sodomised her. It was alleged that the strangulation by the dog chain stopped the supply of oxygen to the brain due to which her brain got damaged.
In the petition to end Aruna’s miserable life, it was submitted that her physical condition was very weak and she reduced to a skeleton and had bed sores. It was alleged that she was in a persistent vegetative state and her brain was virtually dead.
The Supreme Court established a Committee of Doctors to ascertain the issue. The report submitted that the victim had some brain activity and she recognized the persons around her. She breathed normally and her pulse rate, respiratory rate and blood pressure were normal.
Lastly, the Court dismissed the petition praying for direction to end her life and observed that active euthanasia is not permitted under the law whereas passive euthanasia can be permitted with guidelines in some exceptional cases. The Supreme Court in a two Judge Bench, Justice Markandey Katju and Justice Gyan Sudha Misra, laid down the following guidelines to the law of passive euthanasia, till the law made by the Parliament on the subject :
1. A decision to end the life support of the victim has to be taken either by parents or the spouse or other close relative, or in the absence of any of them, by a person or a body of persons acting as a next friend. Even the doctors attending the patient can taken the decision but the decision taken must be bona fide in the interest of the patient.
2. Considering the contention that the provision may be misused by some unscrupulous persons with the help of unscrupulous doctors, it was held that the decision to end the life of the patient requires approval from the High Court concerned. The guideline is in consonance with the doctrine of Parens Patriae.Thus, the High Court can grant approval for withdrawal of life support to such hopeless patients.
The Law Commission Report- After Aruna's Case
Though, till date there is no law in India which accepts euthanasia but it cannot be denied that no debates have been ignited in this context. In 2006, based on 196th Report of the Law Commission of India, a bill named as ‘The Medical Treatment of Terminally- ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006 was proposed to frame provisions regarding euthanasia. But the government at that time opted not to make any law on euthanasia. The judgment in Aruna's case is a small step in the journey of legalizing euthanasia. In the contemplation of the case, on 20th April, 2011, the Union Law Ministry wrote a letter to the 19th Law Commission to submit a report on possibility of framing laws regarding euthanasia in India taking into consideration 196th Report of the Law Commission. On 11th August, 2011 a report titled ‘Passive Euthanasia- a relook’ was submitted to the Government of India by the Law Commission. Aligning with the guidelines observed in Aruna's case, the report again proposed for making legislation on ‘Passive Euthanasia’ and drafted a bill named as ‘The Medical Treatment of Terminally ill patients(Protection of Patients and Medical Practitioners) Bill. The Bill deals with ‘Passive euthanasia’ and ‘Living Will’ Active euthanasia was not recommended according by the bill as it may be abused by the doctors. The bill defined Living Will as, “A document in which a person states his/her desire to have or not to have extraordinary life prolonging measures used when recovery is not possible from his/her terminal condition”. The concept of advance medical directive(living will) or medical power of attorney executed by a person was declared void under the para 11 of the bill.
Common Cause v. Union of India
In the instant, a new concept of ‘Living Will or Advance Directive’ came into the legal recognition. The petitioner filed a writ petition under Article 32 of the Constitution, contending that the right to die with dignity must be declared as a fundamental right under the ambit of right to live with dignity guaranteed under Article 21 of the Constitution. Further, the directions must be issued to the respondents to adopt a suitable procedure in consultation with the State Government, according to circumstances, to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled – ‘My Living Will, Attorney Authorization’. The document should be presented to the hospital to act appropriately if the executant is admitted to the hospital with serious illness, threatening to terminate his life. A committee of experts including doctors, social scientists and lawyers should be appointed to further examine the matter.
In response, the Union of India and some states in their affidavit emphasised on Article 37, 39 and 47 directed states to take appropriate steps essential for apposite governance.
Instead of ‘Living Will’, the Court used the terminology ‘Advance Medical Directive’ and in the exercise of the power under Article 142 of the Constitution and the law stated in Vishaka v. State of Rajasthan, laid down the principles governing execution of Advance Medical Directive and laid the guidelines to give effect to passive euthanasia where there are advance directives. In the judgement of instant case, the Court issued safeguards in the execution of advance directive, the contents of advance directive of recording and its preservation and effects, refusal of permission to withdraw medical treatment by the Medical Board, revocation or inapplicability of advance directive and when there is no advances directive etc.¹³
Reasons for legalizing euthanasia
Endsmiseries of hopeless patients: Everyperson has a right to live which is a fundamental as well as a natural right but life is something more than just physical survival. In context to euthanasia, the major contention raised is that it is better to end a hopeless life than to live in a state of sheer pain. It is better to die at once than by dying every second, living an unbearable life.
Reduces medical burden: With the advancements in medical field, undoubtedly, many patients have been blessed with new lives. But when the death of a patient is inevitable, then sustaining his life with the use of medical treatments and technologies is a kind of burden.
A patient’s autonomy: Right to life is a personal right. Every person has an inalienable right to do such acts which pleases him, then why a person is denied a right to end his life when he is living in an unbearable condition? It is often argued that one must have a right to choose death over a miserable life.
Ignorance by family members and relatives: When a patient is bed ridden from a long period of time, gradually his family members and close relatives loose their interest in serving him. The patient is just a heap of burden even for his close ones. A similar fact was submitted in Aruna's case that her parents were dead and her close relatives had no interest in her. So in this instant case, it was prayed to end her life for her better.
Suggestions
Having conversations regarding euthanasia is a sensitive issue, closely related to emotional and religious beliefs of an individual. While some nations have cleared their opinion over right to choose wilful death, others are still in dilemma. India is one such nation which is still holding debates over legalizing euthanasia. Surrounded bya tonne of discussions, euthanasia is still a crime in India. Though, Aruna's case, paved a way for voluntary euthanasia with some guidelines, still there is no proper law governing it.
In regards to the legalization of euthanasia, it is submitted that analysing the burden on medical facilities of the country, when the hopeless patient is himself asking to get rid of his miseries, it would be better to provide opportunity to a patient who has fair chances of recovery rather than the one whose death is inevitable. Further, considering the main contention raised over legalizing euthanasia that it can be misused by the doctors, it is submitted that proper provisions must be framed to examine the terminally ill patients to safeguard their interests.
Another major contention that is raised is that the decision to end a patient’s life can prove contrary to his best interests. In this regards, it is humbly stated that a legislation must be framed only governing voluntary euthanasia, where the patient himself requests to end his life, not against the involuntary or non voluntary euthanasia, where the consent of the patient is disregarded.
Lastly, it is humbly submitted that considering the need of time, an appropriate decision must be taken regardingeuthanasia, keeping in view the best interests of the nation and its citizens.
Endnotes
1 https://www.medicinenet.comMedical Definition of Active Euthanasia
3 https://www.advocatekhoj.comIntroduction| Passive Euthanasia- A Relook | Law Commission of India Reports
4 https://www.bbc.co.uk.comActive and Passive Euthanasia
5http://medicine.missouri.eduEuthanasia-MU School of medicine
6 www.latimes.comThe Hippocratic Oath and the terminally ill
7 http://core.ac.ukEuthanasia in Islamic View
8 https://www.theweek.co.uk The Countries Where Euthanasia is Legal
9 https://indiankanoon.orgMaruty Sripati Dubal V. State of Maharashtra AIR 1986
10 https://indiankanoon.orgChenna Jagadeeswar V. State of Andhra Pradesh AIR 1987
11 https://lawcorner.inP Rathinam V. Union of India 1994
12 https://indiankanoon.orgSmt. Gian Kaur V. The State of Punjab 1996
13 https://indiankanoon.orgCommon Cause(A Regd. Society) V. The Union of India AIR 2018