Euthanasia is a very very sensitive, highly emotive and legally complicated issue which has polarised the world.Euthanasia is a controversial subject, not only because there are many moral dilemmas associated with it, but also in what constitutes its definition.
The World Medical Association( WMA ) has defined euthanasia as "deliberate and intentional action with a clear intention to end another person's life under the following conditions:
The subject is a competent informed person with incurable illness who voluntary asked for ending his life.
The person who is acting knows about the state of this person and about his wish to die and is doing this action with an intention to end life of this person, the action is done with compassion and with out any personal profit "
One school of thought is of that opinion that there is no difference between Active and Passive euthanasia but other school is of the opinion that the distinction between active and passive euthanasia is morally significant, It is the same difference between love making and rape.
The Ethics of Euthanasia
Euthanasia is not a new concept in the medical fraternity, it was practiced in ancient Greek and Rome where Pagan physician used to perform frequent abortion, infanticide, voluntary and involuntary euthanasia by giving poison to the people as per their choice.
Nazi euthanasia program ACTION T4 in which 70,000 disabled, handicapped Germans were killed by active euthanasia. As per the Nzai empire the state has the right to control the life and death of its subject.
The idea of euthanasia began gaining ground in modern times in the mid 19th century with the discovery of new drugs, such as morphine(used to treat moderate to severe pain) and various anesthetics( Drug that causes unconsciousness or a loss of general sensation ) for the relief of pain, that could also painlessly induce death)
Traditionally, in most countries with a Christian tradition, euthanasia and physician assisted suicide was a morally condemned practice due to the sanctity of human life. Majority Hindu culture believe euthanasia upsets the reincarnation cycle and amounts to meddling with the divine. The proponents of Divine Command Theory are of the view that it violates god's authority over life and interfere with god's plan. According to this school, euthanasia or suicide violates duty to god and natural law. The other school within the religious tradition is of the view that euthanasia is morally acceptable if no damage is done to others.
However, the emergence of secular pluralistic societies gave a different meaning to the concept of personal autonomy, and the right to self-determination. According to this school Individual choice should be respected. Who is the government or church or family or any one else to decide, whether or not one take ones own life. Who owns me? I own my self, someone refusing to end my suffering is like some one telling me, I cant do something with my own property. The critic of this school is of the opinion that concept of personal autonomy and self determination will place society on a slippery slope that leads to detrimental social consequences. It will always be difficult to implement strong mechanisms of supervision and control with the potential for abuse of vulnerable populations. They rise certain fundamental questions like, A teen age boy so destroyed that he broke up with his girl friend , do we let that guy die? In many countries of the world(including India) do not have proper public health care system for terminally ill patients, in that case should we leave economics to determine their personal autonomy and right to self determination?
The liberty Limiting principle school argues that one should not be allowed to kill an innocent person including himself. This school advocates for law forcing people to wear helmet while driving two wheeler, buckling their seat belts while driving a car, etc.... The critics of this school asks, what about terminally ill patients who is undergoing immense pain, what about comatose patients? It is cruel and inhuman to refuse the plea of terminally ill patients. Many patients claim euthanasia because of their incapacity to engage in activities that give their life meaning.
From a utilitarian perspective, James Rachels in his book “The Elements of Moral Philosophy” suggested that euthanasia is “The morally right thing to do, on any occasion, is whatever would bring about the greatest balance of happiness over unhappiness, On at least some occasions, the greatest balance of happiness over unhappiness may be brought about by mercy killing "
From a strict medical ethics perspective, international guidelines following the Hippocratic Oath and the World Medical Association Declaration of Geneva still consider euthanasia and physician-assisted suicide as a orally forbidden practice. But ethics in medicine cannot stay completely static because social values evolve steadily by themselves.In the last decades the sociological background of many countries has changed dramatically, namely increase in life expectancy, decreased influence of religion, The nuclear family and substantial decrease of the birth rate and consequent breakdown of traditional family social security to the older family members especially with chronic and terminal conditions. So the goal should be to allow some responsiveness of medical ethics, so it can adapt to specific cultural settings.
Society for right to die with dignity in Mumbai interviewed 200 doctors, to find out about the acceptability of euthanasia in the medical fraternity, 78% believed patient should have right to choose in case of terminal illness, while 74% were in favor of passive euthanasia when death is imminent.
Practical arguments for and against euthanasia
For : To relieve a pain full death is an act of compassion and humanity
Against : Not all deaths are painful. Proper palliative care makes euthanasia unnecessary.
Against : Neglect of Healthcare by State. If euthanasia is legalized, then there is a grave apprehension that the State may refuse to invest in health (working towards Right to life), it will discourage the search for new cures and treatments. Legalized euthanasia has led to a severe decline in the quality of care for terminally-ill patients in Holland. It may also undermines the commitment of doctors and nurses to saving lives.
For : Encouraging Organ Transplantation, Euthanasia in terminally ill patients provides an opportunity to advocate for organ donation. This in turn will help many patients with organ failure waiting for transplantation. Not only euthanasia gives ‘Right to die’ for the terminally ill, but also ‘Right to life’ for the organ needy patients.
Against : Commercialization of Health Care, Passive euthanasia occurs in majority of the hospitals across the county, where poor patients and their family members refuse or withdraw treatment because of the huge cost involved in keeping them alive. If euthanasia is legalized, then commercial health sector will serve death sentence to many disabled and elderly citizens of India for meager amount of money.
For : Right to refuse medical treatment is well recognized in law, including medical treatment that sustains or prolongs life.The caregiver’s burden is huge and cuts across various domains such as financial, emotional, temporal, physical, mental and social.
Against : Miss use of law, In the era of declining morality and justice, there is a possibility of misusing euthanasia by family members or relatives for inheriting the property of the patient. It may be used as an opportunity to unscrupulously eliminate unwanted people, eg: elderly, mentally retarded, convicts and socially unwanted.
For : Lets not confuse the abuse with the use
Two famous personality who have gone for active voluntary euthanasia were Poet Dylan Thomas and the father of psychoanalysis Sigmund Freud
"Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide for the Dying" is a controversial 1991 book by Derek Humphry (A newspaper journalist and author who helped his wife, Jean, kill herself with an intentional overdose of medication after a long and painful decline from terminal cancer. Humphry wrote the book as a how-to guide for terminally ill people who wish to kill themselves)
Dr. Jack Kevorkian an euthanasia activist often portrayed in the media with the name of Dr. Death invented a machine called Thanatron (A euthanasia device engineered to allow an individual to die quickly with minimal pain).
He claimed to have assisted at least 130 terminally patients to end life.He was sentenced to 8 years imprisonment on the charge of 2nd degree murder.
Compatibility of Euthanasia within Indian legal & constitutional setup
Voluntary and non - voluntary euthanasia can be compared with section 309 of IPC ( attempt to commit suicide ) and Article 21 of Indian constitution, Involuntary euthanasia can be compared with section 307 of IPC ( attempt to murder )
Most of the fundamental rights along with the positive connotation, also have a negative connotation attached to it. For eg: Article 19 of the Indian constitution confers "right to freedom of speech & expression", at the same time this right also confers right to remain mute, i.e "right not to speak & express". Similarly, the question whether the "right to life" under Article 21 also includes, "right not to live", i.e "right to die" came up for consideration before judiciary
Maruthy Sripati Dubal vs State of Maharashtra (1986) Case
In this case a Bombay police constable who was mentally ill was refused permission to set up a shop and earn a living. Out of frustration he tried to set himself on fire outside the office of the municipal commissioner, Greater Bombay
The Bombay High Court held that the "right to life" guaranteed by Article 21 includes a "right to die" and consequently the court struck down section 309 of IPC ( which provides punishment for attempt to commit suicide) as unconstitutional.
Chenna Jagadeeswar vs state of Andhra Pradesh (1988) Case
In this case Andhra Pradesh High Court held that right to die is not a fundamental right within the meaning of Article 21 and hence upheld the constitutional validity of section 309 of IPC
P.Rathinam vs Union of India (1994) Case
A division bench of Supreme Court held that a person has a "right to die" and declared section 309 of IPC as unconstitutional. The court held that section 309 of IPC as "right to life which Article 21 of the constitution speaks of can be said to bring in its trial the right not to live a forced life", "Section 309 of IPC deserves to be effaced from the statue book to humanize our penal laws. It is a cruel and irrational provision and may result in punishing a person again ( doubly ) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide"
However, the court rejected the plea that euthanasia should be permitted by law because in euthanasia a third person is either actively or passively involved about whom it may be said that he aids or abets the killing of another person. There is a distinction between an attempt of a person to end his life and action of some other person to bring to an end the life of a third person.
Gian Kaur vs State of Punjab (1996) Case
A five judge constitution bench of the Supreme Court has overruled its earliest judgment in P.Rathinam vs Union of India and held that " right to life" under Article 21 of the constitution does not include "right to die" or "right to be killed".
Delivering judgement Mr Justice J S Verma observed "right to life" is a natural right embodied in Article 21 but suicide is an unnatural termination of extinction of life and, incompatible and inconsistent with the concept of "right to life". The court accordingly held that section 309 of IPC is not violative of Article 21 of the constitution.
Nikhil Soni vs Union of India (2015) Case
Santhara or Sallekhana is a Jain religious practice of voluntary fasting to death by gradually reducing the intake of food and liquid after taking a vow of santhara. There are similar practice in other religions like Prayopavesa in Hinduism, Sokushinbutus in Buddhism
A case was filed in Rajasthan High Court, The petitioner cited Santhara as a suicide and thus punishable under Section 309 of IPC and those who help facilitate the death of individuals observing Santhara under Section 306 of IPC.
The Rajasthan High Court banned the practice in August 2015 making Santhara punishable under Section 306 and 309 of IPC. The court stated that "the constitution does not permit nor include under Article 21 the right to take ones own life, nor can it include the right to take life as an essential religious practice under Article 25 of the constitution". The court further added that it is not established that Santhara is an essential practice in Jainism and therefore not covered by Article 25.
A batch of appeals were filed in the Supreme Court against this order. The petition by Akhil Bharat Varshiya Digambar Jain Parishad stated that Santhara was not an act to terminate one's life but a vow to purify the soul from the karmas, and it could not be equated with the offence of suicide. The appeal claimed it was unwise and improper to link a sacred practice of the Jain religion premised on ahimsa, with suicide
The Supreme Court on 31st August 2015, lifted the ban on practice of Santhara and stayed the Rajastan High Court order which had declared the Santhara a Penal Offence. The bench also admitted the appeal for hearing and granted leave. This means that the matter will come up for hearing only after other older appeals are decided.
Aruna Shanbag vs Union of India (2011) Case
Aruna Shanbag was a junior nurse at King Edward Memorial Hospital at Parel, Mumbai, while working she was sexually assaulted by a ward boy and remained in a vegetative state following the assault
On behalf of Aruna, her friend Pinki Virani, filed a petition in the Supreme Court arguing that the "continued existence of Aruna is in violation of her right to live in dignity". The nursing staff at KEM Hospital and the Bombay municipal corporation filed their counter petition in the case, opposing euthanasia for Aruna. The nurse at KEM Hospital were quite happy to look after Aruna, as they had been doing that for years.
Euthanasia is based on two different and conflicting philosophy of humanism on the one hand and compassion on the other hand. Compassion was shown by KEM Hospital nursing staff and Pinki Virani was the protagonist of humanistic view which give importance to human dignity.
On 7th March 2011, Supreme Court bench of Justice Markandey Katju and Justice Gyan Sudha Misra gave its landmark Judgement.The reviewing the stellar care given at KEM Hospital, gave a clear verdict that the nurse were the "next friend" of Aruna. The court rejected the plea to discontinue Aruna's life in support and active euthanasia by means of lethal injection but the Supreme Court of India passed a historic judgement-law permitting Passive Euthanasia in the country. As India had no law about euthanasia, the Supreme Court’s guidelines are law until and unless Parliament passes legislation. The following guidelines were laid down by court:
- A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
- Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.
- When such an application is filled, the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. A committee of three reputed doctors to be nominated by the Bench, who will give a report regarding the condition of the patient. Before giving the verdict, a notice regarding the report should be given to the close relatives and the State. After hearing the parties, the High Court can give its verdict
The Supreme Court specified two irreversible conditions to permit Passive Euthanasia Law in its 2011 Law:
- The brain-dead for whom the ventilator can be switched off.
- Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliatives be added, according to laid-down international specifications.
Aruna Shanbag died from pneumonia on 18th may 2015, after being in a Persistent Vegetative State for nearly 42 years.
What is Living Will ?
A living will, which is also called as Advance health care directive, is a document that lets people state their wishes for end-of-life medical care, in case they become unable to communicate their decisions.It can give invaluable guidance to family members and healthcare professionals if a person can’t express his or her wishes. Without a document expressing those wishes, family members and doctors are left to guess what a seriously ill person would prefer in terms of treatment. It has no power after death.
An NGO called Common Cause petitioned the Supreme Court to make living will a legal document and include right to die with dignity a part of right to life.
The five-Jude Constitution bench of Supreme Court sought the Centre’s response on living wills. The Government sought time to consider the report of the Law Commission on the issue, in order to prepare a Bill to facilitate passive euthanasia. The Constitution bench decided to put living will into cold storage by agreeing with the Government that the hearing of the case must be deferred to enable consideration of a legislation to legalise passive euthanasia.
Government in a quest for a legislative framework said it was open to making a law on the subject. The law commission too has proposed a legislation on “passive euthanasia”, it said, According to the Center, the decision to come out with a bill was taken after considering the directives of the apex court, the law commission’s 241st report and a private member bill introduced in Parliament in 2014. The Center said that initially, a meeting was held under the chairmanship of B.P. Sharma, secretary in the health and family welfare ministry in 2015, to examine the draft of The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill and the draft of The Euthanasia (Regulation) Bill. This move to introduce a bill is a welcome step to clear the grey areas in Euthanasia debate. Indeed, there is a difference between the moral acceptance of a practice and its legalisation. Legalisation implies a social shift in fundamental values because any law has a specific set of ethical principles in its internal framework.
The Constitution of India reads ‘right to life’ in a positive direction of protecting life. Hence, there is an urgent need to fulfill this obligation of ‘Right to life’ by providing ‘food, safe drinking water and health care’. Governments ‘Jan Aushadhi Scheme’ to make available quality generic medicines at affordable prices to all, especially the poor, throughout the country is a step in the right direction. On the contrary, most of the States till date have not done anything to support the terminally ill people by providing for hospital care. If the State takes the responsibility of providing reasonable degree of health care, then majority of the euthanasia supporters will definitely reconsider their argument. Investment in health care is not a charity; ‘Right to Health’ is bestowed under ‘Right to Life’ of our constitution.
