Discourse Around Legalization of Euthanisia in India

Introduction

This Earth consists of living things such as animals, birds, insects, human beings, plants, etc. & nonliving things such as table, chair, pen, pencil, etc. In this world every living being is depended on each other through food chain and various other means in order to survival. Life is a precious and sacred gift from god to all living beings as it is mentioned in ancient religious texts. When life comes to an end it is called death which is a universal truth in this world. Life of a human being comes to an end by way of a natural or unnatural death. In natural death a person dies on account of illness or infirmity whereas in unnatural death a person dies due to reasons such as accident, murder, suicide & euthanasia. Murder is a type of homicide which means killing of a human being by another human being. Whereas suicide means a person voluntary taking his own life by performing any act.

The word “euthanasia” comes straight from the Greek terms “eu” which means good or well + “thanatos” which means death. So in literal sense the term euthanasia means the good death. Euthanasia also means mercy killing and it is a phenomenon of comparatively recent origin. In euthanasia, a person or another person on his behalf chooses death for himself mainly because of his medical conditions like terminal illness or permanent vegetative state and then he is put to death by someone else through any act or omission. Thus meaning of euthanasia can be wrapped up by saying producing painless death to a person suffering from any hopeless incurable and painful disease. Procedure of euthanasia contains complicated issues regarding legal procedural compliance in various countries across the world.

Euthanasia is mainly related to people with terminal illness or who have become incapacitated and don’t want to go through the rest of their life suffering. A severely handicapped or terminally ill person is supposed to have a right to choose between life and death. This right of a patient with terminal illness cannot be equated with an able bodied, sane person’s right.

Origin & Historical Background of the Euthanasia

First recorded use of the word ‘euthanasia’ was by Suetonius, a Roman historian, in his De Vita Caesarum - Divus Augustus (The Lives of the Caesars – The Deified Augustus) to describe the death of Augustus Caesar. Withdrawal or with-holding treatment was practiced in history, the correct term for this is orthothanasia, which means 'passive death.' In this method, the actions of curing the patient are never applied and his death is made easy in a passive form. In orthothanasia, the action of killing is not applied, but, passive actions are present in order to provide death.

It is believed that euthanasia first started in ancient Rome and Greek around 15th century. They did this by giving hemlock (poisonous plant) to the patients if they asked them to which would help them in an easy and quick death. In ancient India, taking a life is not considered an unusual way of ending a life. Hindu mythology describes the suicide of Lord Rama as Jal Samadhi. In times of Lord Buddha, it was called Mahaparinivaan. Satguru Sivaya Subramuniyaswami took his own life by ‘Prayopavesa’ (fasting to death) or in case of Jainism ‘Santhara’. Gandhi also supported the idea of willful death. Religions like Buddhism, Hinduism and Jainism supports the idea of willful death.

Difference Between Suicide and Euthanasia

Euthanasia and suicide cannot be considered as same. They are different in mental state and different state. In order to understand what the difference between suicide and euthanasia is, we need to understand what suicide is. Suicide can be said when a person intentionally ends his life by his own act. There are various reasons due to which suicide is committed, like long depression, ending of the will to live, heartbreak etc. On the other hand, euthanasia can be said as the act of ending the life with the help of another person with a clear will to do so.

The elements are required for the commission of the crime, which is consent and act. Suicide has both act and intention of a same person, but it’s not the same case for euthanasia, here the intention is for another person and act is performed by another. Section 87 of the Indian penal code says ‘act intended - harm’. It clears out the question that that consent cannot be pleaded as a defense in case where the consent is given to cause death or grievous hurt.

Under suicide the act is committed by a single person and also has the intention to commit it, whereas in euthanasia the act is committed by another person and the consent or the intention is of another person. Suicide is committed due to the absence of hope, where euthanasia is done to bring the person out of its pain and suffering of a disease.

Impact of the Euthanasia in Our Society

Confusion is created between euthanasia and suicide regarding its meaning and nature of act. Euthanasia appeared in society as a big controversial issue and started a debate over whether it is right or wrong to perform euthanasia on someone who is in need of it. Created a conflict among the law, religion and morality. For example, suppose if euthanasia is allowed by law of a country and it’s appeared to be moral to do that but religion of a particular community does forbid killing any person. This way conflict arises. Concept of a “Right to die with dignity” is emerged which is deal by courts and legislatures of a country. Again, the concept of a “Living Will” is emerged in society. Living Will is a document containing a written statement detailing a person’s desires regarding future medical treatment in a situation in which they are no longer able to express informed consent due to Persistent Vegetative State or Terminal Illness.

Reasons for Euthanasia

Unbearable pain

The question here is about the patients who suffer from unbearable pain to the extent that it cannot be treated and there is no scope of improvement wishes an easy and peaceful death. Medical science has been at its heights by inventing the lifesaving treatment and pain killers that could suppress the pain of a person with high dose, but being dependent on the pain killers for the rest of the life is also not a bright idea. If this continued for a long period then the patient makes a mentality of putting an end towards life, but death never the answer.

Should a person be forced to stay alive?

The second question that is asked in the time of euthanasia is that a person or patient should be forced to stay alive. In medical science, a doctor does everything that is required to keep the person alive as long as the procedure adopted are not contrary to the laws, but what if steps that are taken to keep a person alive have failed, so in that case should a person be forced to keep alive against the will of the person. These reasons are a bit of indicative in nature. It cannot be made necessary while considering euthanasia. Every case is different; the same standards do not apply to every case. Incurable disease or mental condition- What if a person has a disease that cannot be cured and he has to be in a hospital for the rest of his or her life and literally can never come out, so in this case the will to live seems to diminish and the person just wants to die. There was a case Brittany Maynard who was a 29 when she found out she had a brain tumor which was incurable and would die anyway in 6 months, she died in November 2014.

Classification of Euthanasia

On the basis of means or manner:

• Active euthanasia

A person directly and deliberately causes the patient’s death. Active euthanasia is brought by an act, a doctor giving patient a lethal dose of drugs or a person dies due to overdose of painkillers. In active euthanasia a person cannot cause his own death but require a person to help him. Example: - giving a lethal dose of a medicine, overdose of painkillers.

• Passive euthanasia

In passive euthanasia they don’t directly take the patient life but allow or let them die. This can be done by withholding or withdrawing a treatment. Example: switching of the life support, withdrawing the treatment, stop providing the medicine.

On the basis of consent:

• Voluntary euthanasia

When a person requests to die with his own consent or will. Example: when a person asking for help to die, stopping to eat or starving till death, stop taking the medication or medical treatment.

• Non-Voluntary euthanasia

A person who cannot give their own consent or unable to make their own decision. Example: person who is in coma, person who is severely brain damaged, a person, like there was a case in which Terri Schiavo, a women who was believed to be in a vegetative state since 1990, had her feeding tube removed after a long debate in 2005.

• Involuntary euthanasia

This kind of euthanasia is considered wrong at both ends. This is usually considered murder but not always. In this a person wants to live but is killed anyways. Example: A soldier has their lower body blown by a bomb blasted nearby. He is in great pain and beg the doctor to save his life but the doctor knows that he would not survive and die an agonizing death also as he had no pain killing, so the army doctor shoots him down and save him from an agonizing death.

Current Legal Position on Assisted Suicide, Suicide & Euthnasia

In cases of assisted suicide, section 305 & 306 of IPC 1860 which talks about the offence of Abetment of suicide would be applied. In cases of suicide, section 309 of IPC 1860 which talks about the offence of Attempt to commit suicide would be applied. In cases of voluntary euthanasia, there is the valid consent of the deceased to causing of his/her death then exception 5 of section 300 of the IPC 1860 would be attracted and the doctor or mercy killer would have punished under section 304 of IPC 1860 for culpable homicide not amounting to murder. Whereas in cases of non-voluntary and involuntary euthanasia would be struck down by proviso one to section 92 of IPC 1860.

In India, active euthanasia is illegal whereas passive euthanasia is legal. In such cases of euthanasia there is an intention on the part of the doctor or mercy killer to kill the patient; it would clearly fall under exception 1 of section 300 of the IPC 1860.

The Management of Patient with Terminal Illness: Withdrawal of Medical Life Support Bill or Passive Euthanasia Bill:

According to this drafted bill, hospitals will be required to set up approval committees for considering cases of passive euthanasia. In this bill, passive euthanasia means the withdrawal of medical treatment and life support system of a terminally ill patient. This bill states that all super-specialty hospitals should have approval committees on passive euthanasia. It also states that in case of misrepresentation of facts or placing forged documents before approval committees may lead to imprisonment of 5 to 10 years in jail and a fine of Rs. 20 lakh to Rs. 1 crore. The approval committee will decide on the applications for the execution of a “living will”, a written document that allows patients to explicitly state their desire against life prolonging measures when recovery is not possible from a terminal condition. This bill also provides for palliative care to patients even if they have opted for passive euthanasia. This bill does not encourage active euthanasia and here all provisions of this bill support passive euthanasia. ·

Medical Treatment of Terminally Ill Patients (Protection of patients & Medical Practitioners) Bill, 2016:

This drafted bill provides for the protection of patients and medical practitioners from criminal offences arising from withdrawing life-saving procedures or assisting for the right of a dignified death and states that palliative care (pain management) can continue. This drafted bill recognizes the Right to Die with Dignity. According to this bill, a terminally ill patient above the age of 16 years can decide on whether to continue further treatment or not. When a patient communicates his/her decision to the medical practitioner, such decision is binding on the medical practitioner subject to some conditions. Medical practitioner must be satisfied that the patient is “competent” and that decision has been taken on free will. There will be a panel of 3 independent medical practitioners or experts to decide on case by case basis. This bill also lays down the process for seeking euthanasia in case of an incompetent patient or a competent patient who has not taken an informed decision then start from the composition of the medical team to moving the high court for permission. This bill only legalize passive euthanasia, as discussed in the judgement related to Aruna Shanbaug’s case whereas active euthanasia is not being considered as it is likely to be used by unscrupulous individuals to attain their ulterior motives.

Cases Related to Euthanasia in India

In Maruti Shripati Dubal’s case, the Bombay High Court has attempted to make a distinction between suicide & euthanasia. According to the court, the suicide by its very nature is an act of self-killing or termination of one’s act without assistance from others. But euthanasia means the intervention of other human agencies to end the life. Therefore, euthanasia or mercy killing cannot be considered on the same footing as on suicide. Euthanasia is nothing but a culpable homicide not amounting to murder under Exception 5 of section 300 of IPC 1860, whatever circumstance in which it is committed. Also examined the constitutional validity of Section 309 and held that this section is a violation 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.

In Gian Kaur’s case, the five Judges bench of Supreme Court clearly held that euthanasia and assisted suicide are not lawful in our country. The court observed that the “right to life” guaranteed by Article 21 of the constitution does not include the “right to die”. 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. The true meaning of life enshrined in Article 21 is life with human dignity. Any aspect of life which makes a life dignified may be included in it but not that which extinguishes it. The right to die if any is inherently inconsistent with the right to life as is death with life. The Court also held that right to life under Article 21 does not include right to die or right to be killed and there is no ground to hold section 309 of IPC constitutionally invalid. In Aruna Shanbaug’s case, the Supreme Court rejected the plea for mercy killing of Aruna Shanbaug who has been in a Persistent Vegetative State (PVS) for the past 37 years and opined that based on the doctor’s report and the definition of brain death under the Transplantation of Human Organs Act, 1994, she was not brain dead. She could breathe without a support machine, had feelings and produced necessary stimulus. Though she is in a PVS, her condition has been stable. So, terminating her life was unjustified.

The court explained as to what is euthanasia. Euthanasia or mercy killing is of two types. 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 illness who is in terrible agony. 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. 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. While there is no legal difficulty in case of the former, the latter poses several problems. The present case dealt with passive non voluntary-euthanasia. The court had laid down elaborate guidelines for carrying out passive euthanasia and declared the active euthanasia is unlawful in our country.

International Aspects on Euthanasia

United Nation

Talking about the United States of America active euthanasia is illegal throughout the country, but assisted suicide is legal in some of the sates of US like Washington, Colorado, Oregon, Vermont, California, Montana, and DC. Patients have the right to refuse the burdensome treatment and refuse the medicine and also to take amount of lethal dose of medicine prescribed from a physician. There have been many laws regarding assisted suicide in states of America, like Oregon’s ‘death with dignity act’ which was enacted in 1997.

Australia

Northern territory of Australia was the first country to legalize euthanasia, it was passes due to the enactment of ‘the Rights of the Terminally Ill Act’, 1995. It was held legal by supreme court in the case of ‘Wake and Gondarra v. Northern Territory and Asche’. In 1997 the northern territory legislation was overlapped by the Australian federal government by the introduction of the euthanasia laws, which legalized it. Although in most of the country euthanasia is illegal and a crime. Though there has been process to legalize assisted suicide in the Australian state of Victoria. The law will come into effect in the mid-2019.

Belgium

In 2002, the Belgium government legalized euthanasia and became the second country to legalize euthanasia. The law says that the doctors can help the patients in ending their life when there is a clear and free consent as they are suffering unbearable pain, same can be applied to the patient that went in a coma or in a PVS (permanent vegetative state), but only if they gave the consent before going into a coma or PVS. Also Belgium became the first country to legalize euthanasia for the children, there is no age described for applying for euthanasia, the child should be conscious at the time if the decision, child need the approval of the parents. Till now no such case has been reported.

France

Euthanasia and assisted suicide both are illegal in France. The government of France promised to look into the ‘right to die with dignity’ but till now have not given any indication regarding legalizing euthanasia.

Netherlands

In 2002, Netherlands became the first country to legalize euthanasia and assisted suicide both. They imposed strict regulations regarding the euthanasia. A process called ‘palliative state’ has become a wide spread method for euthanasia, under this the patient is kept in a sedative come when the life expectancy remains only 2 to 3 weeks in that time the food and hydration pipe are removed.

United Kingdom

Euthanasia is illegal in United Kingdom. Lord Joffre had made many attempts between 2003 and 2006 for getting the bill introduced and passed in the parliament which would legalize voluntary euthanasia, but unfortunately all were rejected by UK parliament. In 1956, Judge Devlin in the trial of Dr. John Brock Adams said that ‘that causing death through the administration of lethal drugs to a patient, if the intention is solely to alleviate pain, is not considered murder even if death is a potential or even likely outcome.’

Switzerland

In Switzerland all kinds of active euthanasia are prohibited, like injective a deadly dose or injection of medicine but suicide is not considered a crime and assisted suicide is a crime if only the motive is selfish (Article 115 of Swiss Criminal Code). This regulation allows the non-resident foreigners to commit the voluntary euthanasia until and unless it is not based on self-interest.

Suggestion

“If you don’t share someone’s pain, you can never understand them truly. That’s the truth.” Debate over legality of active euthanasia is still going on and in our view; active euthanasia shall be allowed as per case basis after thorough examining the situation and facts of the case by Courts. Here Courts has ensured that no one should misuse, abuse or take undue advantage in the name of active euthanasia and respect the choice of person who wants euthanasia which is based on reasonable grounds such as unbearable pain, incurable disease, etc. Whether grounds are reasonable or not shall be determining by Courts as per case to case basis. The risk and fear of misuse and abuse could be minimized if proper procedures and safeguards are followed according to specific guidelines provided by Courts.

Conclusion

As the research has demonstrated that sometimes, euthanasia is also defined as killing a person rather than ending the life of a person who is suffering from terminal illness or persistent vegetative state also called as 'mercy killing'. In India active euthanasia is not allowed and whereas passive euthanasia is allowed only after famous case of Aruna Shanbaug which is decided by Supreme Court in 2011 and observed that passive euthanasia is permissible under supervision of law in exceptional circumstances. Now, it is supported by govt. through made a drafted bill regarding passive euthanasia. Euthanasia is not a common case because one in thousands situation doctors come across to observe the cases of acute patients. So mercy killing is not a common situation but quite a rare condition. Still people are feared that if euthanasia is allowed then it may misuse by doctors due to too much discretionary power is placed into the hands of doctors. At present technology is improved day by day due to which observed a radical change in the medical field as well as human perspective. Before legalization of euthanasia, we need to develop the mindset of the whole community towards forming the opinion about choosing death over life in necessary circumstances. In India there is need of maturity among its people to handle the issue of euthanasia and understanding its pros and cons thoroughly.