I. INTRODUCTION: “This is not a matter of life

I.                  
INTRODUCTION:

“This is not a matter of life versus death,
but about the timing and manner of an inevitable death.” Euthanasia has been a topic of immense
debate since time immemorial and till date the ambiguities are attached to the
concept of assisted suicide and the ethics behind it. In ancient Greece and
Rome, euthanasia was a common practice where voluntary death was preferred over
endless agony1. The
primary ambiguity is embedded into the age old issue persisting in medical
ethics also known as the Hippocratic Oath2.
Criticize and banned by religious institutions, this topic of euthanasia brings
one question in forefront as to whether living a life consists of mere
existence or a human life in true sense? Also how can some religious or ancient
thought process decides the way and time to embrace the inevitable death of a
body that is existing with external life-support systems having no life in its
own? Right to life is a basic fundamental right bestowed upon the human kind, guaranteed
under the Constitutional framework as well as numerous International
instruments interpreted in various ways. If a person has the undisputed right
to life then the right to die with dignity in case of incurable, degenerative,
disabling life condition should also be a undisputed right.

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II.               
DEFINITION

Originated from Greece, the word “Euthanasia” is derived from the Greek
words ‘eu’ and ‘thanotos’ which literally mean “good death”. Euthanasia
can be bifurcated into various forms that include:

·        
Active euthanasia: introducing external methods to cause death.

·        
Passive euthanasia: removal of the life support systems or
withdrawal of treatment to cause death.

·        
Voluntary euthanasia: death with consent.

·        
Involuntary euthanasia: death with consent from guardian.

·        
Physician assisted euthanasia: usage of physician prescribed medicine
administered either by the patient themselves or by a third party to end the
life.

Advancement of medical science has increased
the normal life expectancy of an individual. But the primary dilemma lies with
regard to providing appropriate care while respecting the patient autonomy,
especially in case of patients with terminal or incurable illness. Also the
enigma with respect to the patient’s rights and doctor’s responsibilities in
case of potential life limiting treatment decisions by strictly adhering to the
definition of law creates the primary issue of the debate. 

The law does not authorize such act of
assisted death by administration of lethal injections to patients suffering
from painful terminal disease and any doctor involved in such acts of mercy
killing can be prosecuted for murder or manslaughter or homicide. The famous
case of R vs. Cox3,
portrayed about the doctor’s dilemma of choosing between pain or death. Dr. Cox
administered a lethal dose of potassium chloride to his patient Lillian Boyes,
who was suffering from terminal illness described as the worst case of
rheumatoid arthritis, refused all therapeutic treatment and signed her death
warrant five days prior to the incident. The patient was going through
agonizing pain and wanted to end her life when all the treatments intensified
her pain and her decision was supported by her sons too.

This landmark case has therefore highlights a
situation as to what could be done when life becomes worse than death. Thus, it
choice should be given to every individual whether to live a gradual painful
life or a painless death. Henceforth extraordinary treatment problem can be
approached through the dichotomy laid down in the criminal law with respect to
commission and omission, the commission of the affirmative act that presume
criminality and the omission to provide for the treatment that is not providing
any benefit to the patients living condition which is termed as non-criminal.

 

III.            
LEGISLATIONS AND JUDICIAL ACTIVISM

The laws pertaining to Euthanasia vary from
one country to another as like any other law, the understandings as well as the
utility of the concept constitute various factors pertaining to the social as
well as economic status of the country.

United Kingdom:

Generally
under the English law, both euthanasia and assisted suicide are held illegal
and is either regarded as either manslaughter or murder. The maximum penalty is
life imprisonment. 

A
campaign was initiated for allowing the dying people with less than six months
of life the option to control their death, known as “Dignity for Dying”. Noel
Conway, a patient of motor neuron disease challenged the persisting UK laws on
assisted death.4

United States of America:

Modern interest in euthanasia in the United
States began in 1870, when a commentator, Samuel Williams, proposed permission
for euthanasia “in all cases of hopeless and painful illness” to
bring about “a quick and painless death.” to the Birmingham Speculative
Club. While active euthanasia is banned and condemned by being called
“mercy killing”, by the American Medical Association. Passive
euthanasia has been upheld by the Court. The idea of euthanasia began gaining popularity
in modern times not for the advent of new technologies for agonizingly
prolonging life but due to the discovery of new drugs, such as morphine and
various anesthetics for the relief of pain, which could also “painlessly”
induce death.

William’s proposal became a topic gaining
massive hype in media, books as well as various prominent journals. This led to
the debate in 1906, when Ohio legislature drafted its first bill legalizing
Euthanasia as “An Act Concerning Administration of Drugs etc. to Mortally
Injured and Diseased Persons”. Eventually the bill was rejected.
California in 1976, became the first State to legalize Euthanasia as a
“patient’s right to refuse life-prolonged treatment”.

Euthanasia reemerged in the 1970’s, when in
1976 California was the first state to legalize a patient’s right to refuse
life-prolonged treatment. The Legislature passed the Natural Death Act, which
allows for living wills, an advance directive to a doctor requesting the
withholding or withdrawing of life sustaining treatment. Today, all states have
some form of living will legislation. In addition, the individual who wishes to
have such a will may also designate a family member or friend as a proxy to
make the decisions for him or her should he or she is unable to make the
decisions. Some states also require the individual to sign a power of attorney
to do so.5

In the case of Washington v. Glucksberg6,
on March 6, 1996, for the first time in U.S. history, the the U.S. Court of
Appeals overturned a Washington State law that made assisted suicide a felony. Upon
being challenged under the “equal protection rights” enumerated in the 14th
Amendment of the US Constitution, the court noted that, under present law, a
dying patient on life support may have it removed legally, thus facilitating
death whereas another dying patient, suffering the similar illness, without any
life support system cannot avail any means to end his or her lives. The court,
ruled that, bans on assisted suicide constitute a violation of the rights of
the patient under the Fourteenth Amendment.7

BELGIUM

The Euthanasia commission of Belgium’s upper
house, the Senate, on 20th January, 2001, voted in favor of
exemption of euthanasia from criminal prosecution pertaining to certain conditions.
On 25th October, 2001, the law proposal was approved by the Senate
upon a significant majority. Finally on 16th May, 2002, the
legislation in favor of Euthanasia was established. There were certain
conditions that were laid down under which a doctor can practice euthanasia on
patients who are unbearably suffering with incurable illness.

·        
The
potential patient should be a Belgian resident.

·        
The
patient should be of a minimum age of 18 years to make such voluntary decision.

·        
The
section 3 of the act, states about adults or “emancipated minors”, i.e.
autonomous persons capable of making decisions, generally patients within the
age limit of 16-17 years. Such cases are considered as “borderline cases”.

·        
The
request from the patient should be a written one, with the document dated and
duly signed by the patient. In case the patient’s condition is critical,
rendering infeasibility to obtain signature, then an adult shall be appointed
on the basis of the patient’s choice to sign the request on their behalf. The
adult chosen should not have any interest over the patient’s property. Such
requests are signed in the presence of the Physician. The document shall

Ø  Include specification as to the reason behind
the inability of the patient to sign the request.

Ø  Include the name of the witness Physician.

Ø  Be included in the medical record.

Ø  The patient can waive the request at any
point of time in any manner. In such cases, the document shall be excluded from
the medical record and be handed over to the concerned patient.8

                  AUSTRALIA

The Australian Northern Territory Act and the
Oregon Death with Dignity Act also follows the aforementioned provision. It
further states that, any request for Euthanasia will be approved only in case
of patients suffering from constant, unbearable physical or mental pain which is
serious and incurable. A minimum lapse of 1 month gap is made a mandate between
the date of written request and the mercy killing, generally in case of
patients who are not “terminally ill”.9
This method at times become controversial as such decisions are often taken by
the patient as a consequence of unbearable pain. Some physicians opt for
palliative care, an approach, minimizing pain in terminally ill patients with
an extra layer of life support system that neither hasten nor slows down death.10
Palliation is contrary to euthanasia and is not much in demand which has led to
the gradual shutting down of the palliation units. In the case of Wake v.
Northern Territory of Australia 11the Supreme Court of
Northern Territory of Australia legalized euthanasia. But later a subsequent
legislation that was the Euthanasia Laws Act, 1997 made it again illegal.12

INDIA

India holds the doctrine of the “sanctity of
life” as absolute which states that human life is created in the image of God
and, therefore, possesses an intrinsic dignity which entitles it to protection
from unjust attack. The principle also abides by the fact that one must never
intentionally kill an innocent human being. The “right to life” is essentially
a right against intentional killing. Thus human life should be given special
priority over dignity of life simply because it is human.

Religiously inclined India had many
scriptures that dealt with this issue. 
Suicide was regarded as permissible in some circumstances in ancient
India. In the Chapter  on “The hermit in
the forest” in Manu’s Code13
says “Or let him walk, fully
determined and going straight on, in a north-easterly direction, subsisting on
water and air, until his body sinks to rest.” Getting rid of one’s body by
one of the modes such as drowning, precipitating burning or starving were
practiced by the great sages, exalted in the world of Brahman, free from sorrow
and fear”. The commentary by Manu says that a man may undertake the
mahaprasthana (great departure) on a journey which ends in death, when he is
incurably diseased or meets with a great misfortune, and it is it is taught in
the Sastras, which is not opposed to the Vedic rules which forbid suicide.

The massive debate about the legal standpoint
of Euthanasia in India was first witnessed in the case that touched upon the
proposition of “right to die” as a fundamental right under Article 21 of the
Indian Constitution was in the case of Gian
Kaur14. The
court ruled out the proposition stating “Right to die” is a negative right and
cannot be implied under “Right to life”.

The landmark case of Aruna Ramchandra Shanbaug15,
who was brutally raped in the hospital where she was employed as a nurse,
rendering her into a comatose state with no hope of survival, brought forth a
new dimension into the aspect of “right to die” and the concept of euthanasia. Although
the plea for euthanasia was rejected for Aruna, the Supreme Court allowed
passive euthanasia, opening a new gateway into the Indian Legal system. But it
is to be performed under strict legal supervision only in extraordinary
circumstances. Active euthanasia still remains illegal in India but post Aruna
Shaunbaug, the Court, suggested decriminalizing attempt to suicide under
Section 309 Indian Penal Code, by repealing the punishment provided in the act.
In this case the Court has put forth the concept of “Next friend” which needs
judicial interpretation to understand the concept in its true sense and who can
be the next best friend. The Court has absolutely ignored the condition and
interest of the patient and focused on the concept of “next friend”. The
Supreme Court referred to the doctrine of ‘Parens Patriae’, under Article 226
of the Constitution, the High Court is empowered to pass suitable orders on the
applications filed by the near relatives or next friend or the doctors/hospital
staff for the withdrawal of life support of an incompetent patient (such as a
minors).16

Pinki Virani who approached the court for euthanizing
Aruna and filed the PIL for the same, has not been considered as the next
friend rather the nurses who were taking care of Aruna for the past 30 years
were included under “next friend.” Therefore the outright denial of recognition
of the Right to Autonomy and self-determination of a person who is not capable
to give consent could prove to be a hazardous course of action for a patient
who is suffering from incurable diseases.17

The issue of concern behind placing reliance
upon the “next friend” upon the decision to withdraw life support system, the
friend or the relative might misuse the law for fulfilling their selfish
motives.

IV.           
Law Commission Report- ANALYSIS

The Law Commission of India in the year 2012
has laid down certain guidelines in its 196th Report on Passive Euthanasia.
The Commission has highlighted Apex Court’s decision in the earlier mentioned
landmark case of Aruna Ramchandra
Shanbaug vs Union of India. The Commission stated in the Report that it did
not deal with the unlawful aspect of euthanasia or assisted suicide but is
emphasizing upon withholding life support measures in case of patients with
terminal illness in a universal perspective.

The 17th Law Commission has
proposed a bill under the title “Medical Treatment to Terminally Ill Patients”
Protection of Patients and Medical Practitioners Bill, 2006.According to this
Bill;

·        
The
attending medical practitioner will have to obtain approval of three medical
experts prior to withdrawal of medical treatment to such patients and the
experts has to get due clearance from the High Court to give effect to such
decisions. The relatives of the patient along with the patient if he/she is in
a conscious state should be informed and a wait period of 15 days to be
followed prior to the withdrawal of the life support system.

·        
The
Chief Justice of High Court, prior to delivering approval, along with the Coram
of minimum two judges, the bench should also seek due approval from 3 reputed
doctors as nominated by the bench, generally constituting a neurologist, a
psychiatrist, and a physician.

·        
The
competent patient suffering terminal illness has the right to refuse treatments
and life sustaining measures and such decisions are binding upon the doctor.

·        
The Law
Commission of India clarified that incase a competent patient takes an
‘informed decision’ to refrain from life support systems, the patient is, not
guilty of attempt to commit suicide (u/s 309 IPC) nor is the doctor who omits
to give treatment, guilty of abetting suicide (u/s 306 IPC) or of culpable
homicide (u/s 299 read with Section 304 of IPC).

·        
The
doctor in charge of the patient should act in accordance to the best interest
of the patient.

·        
The
Medical council should issue guidelines for withholding or withdrawal of
treatment of the competent as well as incompetent patients suffering from
terminal illness.18

 

V.              
CONCLUSION

In the Gian Kaur’s19
case, it was observed in reference to the Article 21 of the constitution that “these
are not cases of extinguishing life but only of accelerating conclusion of the
process of natural death which has already commenced.” Thus the debates behind
euthanasia should now be neutralized and every forms of euthanasia should be
permitted by the law upon special inspection so that no person is made to live
on force as well as die on fallacies of any kind. The choice of death is not an
easy choice, but if a patient prays for death with dignity for ending the pain
that’s killing the person every moment, then it should be honored. The “pain”
concept does not only pertain to physical pain due to terminal illness, at
times mental impairment can be a primary reason too. Though such intrinsic pains
are not visible or explained, but that too diminishes the value of a human
worthy life, then it is a better option to put an end to it in a dignified
manner. Thereby Right to die should be given equal footing or could be made a
part of Right to life which is the basic right of every being and the
individual decision should be given respect after considering the quantum of
suffering the person is going through. A person who is suffering from
degenerative and incurable diseases or lying in a permanent vegetative state
then the person should be allowed to die with dignity because in mist of the
times he/she becomes a burden over the family and relatives.

Nevertheless, proper investigation should be
carried out to prevent misuse of the rights for any illegal or selfish motives.
Thus both active and passive euthanasia can become an honorable initiative if
practiced with due diligence and care.

 

 

 

 

1 Tania Sebastian, Legalization of euthanasia in india with
specific reference to the terminally ill: problems and perspectives,
Journal of Indian Law and Society, Vol- 2, Page- 354, (1st August,
2011)

2 Suresh Bada Math and Santosh K Chaturvedi,
Euthanasia: Right to life vs Right to
die, Indian Journal of Medical Research, IJMR, December 2012, 6:00 PM IST,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3612319/

3 (1992) 12 BMLR 38

4 Euthanasia and Assisted Suicide, https://www.nhs.uk/conditions/euthanasia-and-assisted-suicide/

5 The Law Teacher, United States Law And History On Euthanasia,
https://www.lawteacher.net/free-law-essays/medical-law/united-states-law-and-history-on-euthanasia-medical-law-essay.php

 

 

 

8 Raphael Cohen-Almagor, Euthanasia Policy and Practice in Belgium:
Critical Observations and Suggestions for Improvement, https://www.ieb-eib.org/nl/pdf/euthanasia-practice-in-belgium.pdf

9 George Buhler, Sacred Books of the East, Vol. 25, Page
204, (1967)

10 WHO Definition of Palliative Care, World
Health Organization, (28th January, 2018, 11:15 am. IST),xhttp://www.who.int/cancer/palliative/definition/en/.

11  5 NTLR 170 (1996)

12 Law
Teacher, Legal Brief In Support Of
Euthanasia,( 25th January 2018, 7:00 am IST),
https://www.lawteacher.net/free-law-essays/human-rights/legal-brief-in-support-of-euthanasia.php.

13Sacred Texts, The Laws of Manu, (26th
January, 2018, 9:15 pm. IST), http://www.sacred-texts.com/hin/manu/manu06.htm

14 2 SCC 648 (1996)

15 WRIT PETITION (CRIMINAL) NO. 115
OF 2009, 4 SCC 454 (2011)

16 The Law Commission of India, Passive Euthanasia- a relook, Report no.
241, Page 16 (August 2012)

17 Rakesh Shukla, “Is the ‘Next Friend’ the Best Friend?”, Economic
and Political Weekly, Vol. 46, No. 18 (APRIL 30-MAY 6, 2011), pp. 10-13,
23-01-2018 09:09 UTC, http///EUTHANASIA/nextfriend.pdf

18 The Law Commission of India, Passive Euthanasia- a relook, Report no.
241, Page 17-25 (August 2012)

19 1996 SCC (2) 648