Euthanasia

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Euthanasia

“Euthanasia” is derived from the Greek roots it means ‘well’ or ‘good’ and Thanatos means-death’ meaning ‘good death’.[1] In other words, it means the act or practice of putting to death painlessly, especially in order to release a person from incurable suffering. There are three types of euthanasia:-

i. euthanasia- it occurs when a person by his will requests for the termination of his life
ii. Non-voluntary euthanasia- it takes place when a person is not mentally fit to make an ‘informed request’ to terminate his life.
iii. Involuntary euthanasia- when a person has not made a request to terminate his life, it is called involuntary euthanasia.

Euthanasia and Right to Die

Oxford dictionary defines the right to die as “pertaining to, expressing, or advocating the right to refuse extraordinary measures intended to prolong someone’s life when they are terminally ill or comatose.”[2] It is a collorary conception to right to live with dignity.

History of Euthanasia in India

“Right to die” sought the attention of the Indians with State v Sanjay Kumar wherein, Delhi High Court criticized section 309 of IPC as ‘an anachronism and a paradox’. There were two sets of cases: Maruti Sripati Dubal v State of Maharashtra[3] and Chhena Jagadesswar v State of Andhra Pradesh, the judgment of these two cases was at loggerheads. Controversy arose regarding the validity of Section 309. In the former case, the Bombay High Court struck down the above section on grounds that it violates the right to life enshrined in Article 21 of the Constitution of India while the latter held it constitutionally valid. In P. Rathinam v Union of India[4] and in another, the court overruled Chhena Jagadesswar case and held that Section 309 of IPC deserves to be affected from the statute book to humanize our panel. Standing to reason such provision is stone hearted and irrational and it may result in punishing a person twice. Firstly, as he has suffered agony and secondly undergoing ignominy because of his failure to commit suicide. This kind of attempt causes no harm to other members of the society and so going by the rule of thumb the State’s interference is needless. Therefore, Section 309 violates Article 21 thereby void. Smt. Gian Kaur v State of Punjab was the next landmark case that came in the limelight. Right to life is exclusive of the right to die or right to be killed. The former is a natural right while suicide is unnatural termination or extinction of life and so incompatible with being inconsistent with the concept of the right to life. The existence of such a right up to the end of natural life is the acid test of the right to life including the right to live with dignity. What forms the core element is the dignified procedure of death.

However, passive euthanasia is one such issue that holds legal validity under this umbrella term on account of that these are not cases of extinguishing life but acts as a catalyst only for accelerating conclusions for the commencement of natural death that is already on cards meaning thereby that right to die with dignity is inclusive of right to live with dignity.

Aruna Ramchandra Shaunbaug v Union of India has not faded from our mind’s eye. A request was made to the court to stop giving food and water to this 59-year-old woman who was in permanent vegetative state thereafter this ‘right to die’ is no more trembling or hanging in balance. 

Common cause (A Registered Society) v Union of India

The Supreme Court in Common Cause (A registered society) v Union of India ruled that individuals had a right to die with dignity, allowing passive euthanasia and living will. When a patient advances instructions about the treatment given to him/her when they are terminally ill or unable to give consent in writing, the document is known as a living will. A Constitutional Bench comprising of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan decided the fate of a PIL filed by the NGO Common Cause in 2005.

The guidelines laid down are as follows:-

  • Advance Directive must be executed by an adult of sound mental health voluntarily in writing specifying clearly when the medical treatment has to withdrawn or no specific treatment should be given
  • The written note must state the circumstances under which the decision is taken. That the executor may withdraw his consent at any point in time. The note should also contain the guardian or a close relative whose consent is to be taken hen the person shall become incapable to do so.
  • The document ought to be signed by the executor in presence of two attesting witnesses countersigned by Judicial Magistrate of First Class. Both of them require to record their satisfaction that the document has been voluntarily executed. The JMFC shall keep one copy with him and forward one copy to the District Court and the competent officer of the local government.
  • The treating physician shall ascertain its authenticity from the JMFC. A medical board shall be constituted comprising the head of the treating department and at least three expert doctors having 20 years of experience. They shall visit the patient in the presence of the relative for arriving at a conclusion whether the medical treatment should be withdrawn or not.
  • The hospital shall inform the Collector, if the Medical Board certifies the actions, about the proposal. The Collector shall subsequently constitute another Medical Board comprising of Chief District Medical Officer and three expert doctors. They shall examine the patient and allow for the withdrawal of the treatment only if the patient is unfit to communicate.
  • This Board shall communicate to the JMFC who after visiting the patient shall permit for the implementation of the directive.
  • If the Medical Board refuses, the executor or his close relative shall move to the High Court.
  • The executor can withdraw consent at any time. The withdrawal of consent must be in writing. 

Distinction between Active and Passive Euthanasia

Active euthanasia occurs when the medical professionals, or another person, deliberately do something that causes the patient to die.[5]On the other hand, when the patient dies because the medical professionals either don’t do something necessary to keep the patient alive or when they stop doing something that is keeping the patient alive[6] is called passive euthanasia

Comparison with Other Countries 

Position in Australia

The State of Northern Territory of Australia in 1995 enacted “The Right of Terminally Ill Act, 1995 to permit the terminally ill patients to opt for mercy killing, i.e., euthanasia under the strict supervision of medical practitioners in accordance with the provisions of the Act. However, the Act was declared unconstitutional and subsequently repealed by the Senate on March 24, 1997.

Position in Netherlands and Belgium

The Dutch Parliament in 2001, approved a bill affirmatively legalizing the practice under the Royal Dutch Medical Association Guidelines for Euthanasia. Under the law, a patient must be “experiencing irremediable and unbearable suffering, have been informed of other medical options and been advised by at least one doctor besides the one offering suicide assistance”. The statute also recognizes the validity of written documents leaving the decision up to a physician if the patient is incapacitated.

Belgium too enacted a legislation permitting active euthanasia.

Position in Switzerland

Assisted suicide has been legalized in Switzerland but only for those patients who are mentally competent and suffering from an incurable disease. The Swiss Penal Code exempts people who assist a suicide for honourable motives.

Position in United Kingdom

Mercy killing Bill entitled ‘Assisted Dying for Terminally Ill Bill’ was introduced in House of Lords enabling a competent terminally ill person of major age suffering “unbearable” to request either assisted suicide or euthanasia.[7] However, the Doctors of the Royal College of Physicians and the Royal College of General Practitioners on May 9, 2006, issued a united plea against legalizing “mercy killing” that would allow patients to choose when to die.

Illustrations

Illustration 1: R. Pretty v Director of Public Prosecutor[8]

Mrs Dianne Pretty was critically ill and has no hope to recovery. She expressed her desire to her husband Pretty to help her in the process of bringing her life to a peaceful end. Her husband agreed provided he is not held guilty u/s 2(1) of the Suicide Act, 1961 for aiding and abetting suicide by the Director of Public Prosecutions u/s 2(4) of the said Act. The Director, however, refused to accord any such undertaking. The Queens Bench too turned down the petition. The HoL upheld the Directors decision. The European Court refused to intervene and held that ban on suicide assistance by the UK was not unconstitutional.

Illustration 2: Washington v Glucksberg[9]

Five physicians, three terminally plaintiffs, who wished to hasten their death (who have since died) and Compassion in Dying, a NGO, sued in District Court seeking a declaration that Washington Law banning assisted suicide is unconstitutional because it “places an undue burden” on the exercise of constitutionally protected “liberty interest”, “due process clause” which extends to a personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.[10] The District Federal Court held the suicide ban as unconstitutional. The Court of Appeal, however, reversed the District Court findings. The U.S. Supreme Court too rejected the petitioner’s contention.

Illustration 3: Monday v Bergstedt

This is a case from the State of Nevada of the United States wherein a patient who was terminally ill filed a petition to the District Court permitting discontinuance of respirator. The District Court granted permission which in the appeal was upheld by the Supreme Court of the State of Nevada.

Illustration 4: Roudriguez v British Columbia[11]

The Supreme Court of Canada dismissed the application of the plaintiff permitting her to seek the assistance of a doctor to commit suicide. Her bone of contention was that as long as she has the capacity to enjoy the life she would not die but when she is no longer able to enjoy the life she would choose to end her life. She was suffering from a progressive disease of the motor neurons. There is no cure for this disease and the average duration of life is 3 years. But the disease does not usually affect the mind of the person.

Frequently Asked Questions (FAQs)

1. What euthanasia means?

When you intentionally end a person living in order to relieve him/her out of pain and suffering, the practice is termed as euthanasia. The doctor himself puts an end to his life upon his request. It can, therefore, be defined as actions or omissions resulting in the death of the terminally ill patient. It may take the form of active euthanasia (lethal injection) or passive euthanasia (withdrawing life support system).

2. What euthanasia does?

Euthanasia enables the patient to have a gentle and easy death. It brings a peaceful end to the dying process and thereby relieving the patient of his pain and suffering.

3. When euthanasia is appropriate?

Euthanasia is appropriate in cases of terminally ill people whose quality of life has been severely damaged by physical conditions such as incontinence, nausea and vomiting, breathlessness, paralysis and difficulty in swallowing majorly want euthanasia.[12]

4. How euthanasia benefits society?

It will contribute to the society by preventing cruelty and facilitating human rights. But there is every possibility for euthanasia to be misused. The fittest example is the Netherlands. At first, euthanasia was permitted only for the terminally ill who requested it, but then it was permitted for the chronically ill, for those whose suffering was psychological, and for incompetent patients, including children.[13] 

[References]

[1] Thomas L. Beachan The Justification of physician Assisted Death, 29 Ind L Rev 1173, 1175 (1996).

[2] Right-to-die. Retrieved on 12/09/18 from https://en.oxforddictionaries.com/definition/us/right-to-die.

[3] 1987 (1) BomCR 499.

[4] 1994 SCC (3) 394.

[5]Active and Passive Euthanasia. Retrieved on 09/08/18 from http://www.bbc.co.uk/ethics/euthanasia/overview/activepassive_1.shtml.

[6]Id.

[7] Hospitals to Allow Suicide, Times of India, December 14, 2005, pg-9 (Lucknow Edn.).

[8] (2002) 1 All ER 1 (HL).

[9] 521 US 702 (1997).

[10]K.D.Gaur, Textbook on Indian Penal Code, (5th edition, Universal Law Publication, 2015) at pg- 585.

[11](1993) DLR Lexis 1426.

[12] Ethics of euthanasia – Introduction. Retrieved on 08/08/18 from http://www.bbc.co.uk/ethics/euthanasia/overview/introduction.shtml.

[13] D. Benatar, PhD, A legal right to die: responding to a slippery slope and abuse arguments, Current Oncology, 18. Retrieved on 08/08/18 from http://www.current-oncology.com/index.php/oncology/article/view/923/751.

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Soma Sarkar
I am Soma Sarkar from Chanakya National Law University, Patna pursuing BA LLB (Hons.). My areas of interest include Criminal laws and Arbitration laws. I have a passion for research and legal writing. I am also an active member of Legal Aid Cell of my college and also member of Eucotopia, the environmental group of my college. My goal is to become an arbitrator.

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