Euthanasia is imperative of contemporary society.Þ
Democracy is the foundation of
every civilized nation in which the human rights occupies the pre dominant place.
By virtue of human being, he possesses certain basic and inalienable rights
that are commonly known as human rights.[1]
In Menaka
Gandhi v. Union of India, justice
Bhagawathi explained the importance of fundamental rights in his own words,
“These fundamental
rights represent the basic values cherished by the people of this country [India ] since the Vedic times and they are
calculated to project the dignity of the individual and create conditions in
which every human being can develop his personality to the fullest extent. They
weave a ‘pattern of guarantee’ on the basic structure of human rights, and
impose negative obligation on the state not encroach on individual liberty in
its various dimensions”[2]
In 1689 Bill of rights were
consolidated into writing and consisting of rights and liberties to English
people.[3]
The American people incorporated the Bill of Rights into their Constitution.
The Indian constitution also adopted the fundamental rights in the Constitution.
Article 21 of the Indian constitution says “No person shall be deprived of his
life or personal liberty except according to procedure established by law” American
constitution provides that “No person shall … deprived of life, liberty, or
property, without due process of law ….”[4] Most
important right among the human rights is right to life because the other
rights could be enjoyed only right to life is guaranteed or secured.[5]
Constitutional guaranteed
fundamental rights have positive and negative dimensions. [6]
For example, Freedom of speech includes freedom not to speak, the right to
practice business and profession includes not practicing business and
profession. On the same logic, persistently the issue is raised before the
courts, whether the person’s right to life includes right to not to live. The
world community has expressed divergent opinion on the issue of right to die. The
debate has become increasingly significant because of the developments in the Netherlands , Belgium ,
Luxembourg
and Oregon of USA nations that have legalized the euthanasia. As result, the
concept of euthanasia surfaced again in India .
Recently our Apex Court
in Aruna Ramchandra Shanbaug v. Union of India
and others has legalized the de facto non-voluntary passive euthanasia
under certain circumstances and said it is difficult to recognize active
euthanasia in absence of comprehensive law by the Parliament.[7] In the light of these developments, the
author would like to analyze the concept of euthanasia and discuses certain
moral and legal questions and finally leave the readers to decide.
History of Euthanasia.
Concept
of Euthanasia is not modern phenomenon but as old as human civilization. The
great philosopher Plato had approved the euthanasia in case of terminally ill
people.[8]
Stoic’s philosophy also had accepted the mercy killing of person who had
incurable diseases. In fact the Stoic founder Zeno committed suicide in his old
age to get relive from the unbearable pain of foot injury.[9]
History has described how the Roman
Emperor Augustus “dying quickly and without suffering in the arms of his wife,
Liva, experienced the ‘euthanasia’ he had wished for”.[10] The word “euthanasia” was first used in a
medical context by Francis Bacon in the 17th century to refer to an easy,
painless, happy death, during which it was a “physician’s responsibility to
alleviate the physical sufferings of the body”. [11]
In 1935, C Killick Millard formed the
Euthanasia society of England
in association with Intellectual like George Bernard Shaw to promote the notion
of patient’s death incases of incurable diseases.[12]
In 1938, Euthanasia Society of America was formed.[13]
During 70s & 80s of 20th century, euthanasia became a subject
matter of extensive debate all over the world.
Concept of Euthanasia and its type.
The
naked truth is that no human being is immortal yet human being fears the death.
Life is most valuable, precious and unmatchable
thing in the universe. A person born always makes maximum effort to have life
more cherishable, floursihable and tries to enjoy every bit of life. Gradually
the understanding of life has changed and death is being viewed as just another
stage of life. The thought process of death is better than life under certain
circumstances circulated in the minds of few people and latter became world
phenomenon. Science of medicine has made the real difference between the life
and death. Advancement in medicine and technology has fundamentally enhanced
the quality of life and its expectancy during the last 100 years. With
increased life span, the focus is on quality of life than quantity. Patients who are suffering from the incurable
diseases with unbearable pain prefer death to life. Euthanasia gives liberty to
such patients to decide where to die, when to die and how to die.
The world suicide comes from the Latin words cida,
meaning, “To kill” and Sui meaning “oneself.”[14]
The word euthanasia comes from the Greek language. Eu means “good” while thanasia
means “death.” Thus, word refers to good death, and that comes without extended
suffering and pain.[15]
The American Medical Association’s Council on Ethical and Judicial Affairs defines
the term as fallows:
“Euthanasia is
commonly defined as the act of bringing about the death of a hopelessly ill and
suffering person in a relatively quick and painless way for reasons of mercy.”[16]
The Law Commission of India has
defined ‘Euthanasia’ is generally as an act of killing somebody painlessly,
especially for reliving the suffering of a person from incurable illness.[17]
To Constitute euthanasia, the doctor must form opinion that person suffers from
incurable diseases; such disease is causing unparallel pain or agony. Under
such circumstances, the patient has every right to refuse the medical treatment
and request the doctor to terminate his life. Euthanasia may be classified as voluntary,
involuntary, non-voluntary, and passive
or active.
Active
voluntary Euthanasia, Here it is ‘active’ in the sense that another
person injects lethal substance into the body of patient at his request.[18]
It is voluntary because it is done with patient express and informed decision.[19]
The patient expressly requests the doctor to terminate his life by injecting
some lethal medicine that is instrumental in causing the death. The patient
must be competent and sound mind at the time of expressing his inclination to
have death. It means minors and unsound persons are deprived of voluntary active
euthanasia privileges. Living will or Advance directive has become important
new device to help the terminally ill person to take decision about his death. Under
the circumstances where patient cannot take decision of his death due to coma
or vegetative state of body, can make use of living will or advance directive. A
living will or Advance directive is a written statement made by competent
person with purpose of providing direction about medical treatment of himself
in future when such person becomes incapable of giving direction. There are two
types of advanced directives. Instruction directives means, which focus on the
kinds of treatment that the person would like to, have under different clinical
situations. Proxy directive means patient authorizes another person to take
call on health decision if patient is unable to decide at the latter stage.
Passive
voluntary euthanasia, Here the medical treatment is withdrawn, or
withheld from a patient, at the patient’s request, in order to end the patient
life. The word ‘passive’ denotes that, there will be ‘omission’ by another
person to take measures to prolong a patient life. Voluntary means it is the
patient express wish based on his informed consent. For Example, The withdrawal of the life
supporting system on which the patient is kept alive. Every person has liberty
to decide to either have or continue medical treatment or not. The Doctors are
not supposed to provide the treatment or continue the medical treatment against
the contrary intention of the patient otherwise it amounts to violation of the
patients right to privacy or amounts battery of the patient.[20]
In passive euthanasia the patient dies in the ordinary course of nature because
the withdrawal of medical treatment by the doctor it self does not cause the
death of patient. The Law Commission held that the decision of patient must be
informed one otherwise; it is not binding on the doctor.[21]
Further commission held that informed decisions means, 1. The patient is
informed about the nature of his or her illness. 2. Any alternative form of treatment
that may be available. 3. The consequences of those forms of treatment. 4. The
consequences of remaining untreated.[22]
Non-voluntary
euthanasia is causing death of the person with the consent of his
surrogate. When the person is unable to give his consent because of various
reasons under such circumstances the doctors have only option of taking the
consent of surrogate who is in charge of that person’s care. Non-voluntary
euthanasia may be either Active or passive.
Involuntary euthanasia is
a death caused by another person contrary to the intention of the person being
killed. Involuntary euthanasia considered as murder because the death is caused
against the intention of the person who is dead. Involuntary euthanasia may be
either passive or active. Active involuntary euthanasia means a lethal
substance is injected contrary to the
intention of patient. Passive involuntary euthanasia means where medical treatment
is withdrawn contrary to the intention of patient in order to end the life of
the patient.[23]
Suicide and euthanasia both are overlapping. Suicide is broader than
the euthanasia .Suicide and euthanasia are described as irrational and rational
act respectively. Suicide is irrational because it occurs in depression.
Euthanasia is rational act because the decision made by a terminally ill
patient who is of sound mind and to avoid unbearable sufferings. Where the patient ends his life because of
incurable diseases is called euthanasia. On the other hand, the person ends his
life for any other reason is called suicide.
Physician assisted suicide
means Doctor facilitates death of patient by providing necessary means or
information to patient to commit suicide himself. For Example, Doctors
prescribes lethal drugs, thereafter patient takes such things by himself.
Physician assisted suicide is different from the euthanasia. In assisted suicide, the doctor gives the
medicine, which enables the patient to commit suicide. In active euthanasia, it
is doctor administers the lethal substance into the body of patient.
The medical science, which has
failed to cure certain diseases, has offered alternative means of keeping
patient alive on medical instrument for longer period that sometime causes
unbearable pain, which state have to take notice. However, States have responded differently to this
problem. Some States have legalized the euthanasia, other have made the active
euthanasia a criminal act and decriminalized the passive euthanasia and
physician assisted suicide. In respect of involuntary euthanasia States have
responded uniformly by criminalizing it. However, an opponent of euthanasia
attacks the active euthanasia is culpable homicide and passive euthanasia is
attempt to suicide. Further, they call the physician-assisted suicide as
abetment to suicide.
Legal status of Euthanasia in other countries.
In 1973, a physician in Netherlands
who had facilitated the death of her mother following repeated explicit request
for euthanasia was convicted, which is known as “Postma case”.[24]
However, the court laid down certain criteria by which the doctor need not keep
the patient alive contrary to his intention. These criteria were further consolidated
in the series of cases filed during the 1980’s. Legislator of Netherlands on 1 April 2002 enacted
the Termination of Life on Request and Assisted Suicide [Review Procedure] Act.[25]
The Act codified the ratio-decdendi of decided cases and legalized euthanasia
and physician assisted suicide. Under current Dutch law, euthanasia by doctors is
legal only in cases of “hopeless and unbearable” suffering. The doctor would
not be prosecuted for the euthanasia unless he fulfilled the following
conditions.
The patient’s suffering is
unbearable.
There is no prospectus of
improvement in the condition of the patient.
The patient has requested for the
euthanasia persistently.
The consent of the patient is
voluntary and free from all kind of influences.
The patient must have been
informed about all his conditions, prospectus and options.
Conditions of the patients must
be referred to another independent doctor who must confirm the above conditions.
The euthanasia process must be
carried out in medically approved methods under the presence of the doctor
because other persons accidentally should not consume the lethal substance.
The patient must be at least 12
years old. If the patient is between 12 and 16 years age, then the consent of
guardian must be obtained.
A regional review committee
assesses whether a case of euthanasia on request or assisted suicide is
complied with the due care criteria.
Legislation offers facility of
living will to the patient to express his written intention about euthanasia,
which can be used in case patient goes under coma at the latter stage. If the
above conditions were not met, the doctor would be prosecuted for offence.
Withdrawing or not commencing a treatment at the request of the patient is considered
normal medical practice.
The Belgium
and the Luxembourg
parliament legalized euthanasia in September 2002 and February 2008
respectively.
Euthanasia is seriously debated
in depth in the USA
because that society is highly motivated and influenced by morality and human
rights. Euthanasia became America ’s
national issue and gained momentum during1990s because of two persons committed
campaigning and propagating the idea extensively across the Nation. Derek
Humphry formed Hemlock Society in Oregon
State of America with objects of protecting
good life and good death. Hemlock was name of poison used by the ancient Greeks
to commit suicide. Derek Humphry in his ‘Jeans way’ book explained how he
killed his wife Jean who was suffering from terminal breast cancer. After her
repeated request to put an end to her sufferings, he succeeded in getting
lethal drug prescription from young doctor and gave it to his wife mixing in coffee;
wife drank voluntarily and died within short time in 1973 in England .[26]
In 1991, he published another book named as “Final Exit” which contained
detailed information about various poisonous and drugs that would help in
committing suicide. He explained systematically how to commit safe suicide. The
book became immediately bestseller across the America and in other European
nations. The issue of Physician-assisted suicide debate’s magnitude intensified
with rise of “Suicide Doctor” Jack Kevorkian’s popularity. Jack Kevorkian in
fact, admitted that he has helped more than 130 people to die.[27]
Kevorkian invented two machines and got patents over it that allowed a patient
to end his life in a merciful way. He called his first machine as the “Mercitron”
which delivers carbon monoxide, lethal gas, to the patient via a mask, causing
death of patient within five to ten minutes. He latter developed another
machine which is called as “Death Machine”. On April 13, 1999, Kevorkian was
convicted for second-degree murder and sentenced to ten to twenty-five years in
prison after CBS channel telecasted 60-minute record of 52-year-old Thomas
Youk’s suicide that was assisted by Kevorkian. He was released on parole in
June 2007 with stringent condition that he would not involve in assistance of
death. The euthanasia is the concept
based on ethical issues, which raise the questions like: is it right to commit
to suicide, is it ethical for someone else to help, and is it right to put
others to death at their request or at the request of family members? Number of cases filed before the American
Supreme Court to assert the patient’s right to euthanasia. In Cruzan V Director, MDH,[28]
Nancy Cruzan petitioner met with car accident, gone to coma and referred as
persistent vegetative state. She was fed by tube and her parents wanted to stop
medical treatment but her husband and state wanted to continue the medical
treatments because the state was meeting the medical expenses. Although the
court did find that a right to refuse treatment could be found in the Due
process clause of the V and XIV amendment of USA but refused to grant withdrawal
of medical treatment because lack of patient consent. This case recognized the
passive euthanasia unless there is consent of patient. Again in Washington Oregon State was first to enact the physician assisted
suicide law in the USA
titled as Death with Dignity Act. The Act contained stringent provisions; the
patient must be terminally ill and not having more than six months to live.
Patient must be above the age of 18 years. Patient must have made written and
two oral request for assistance suicide. Such request must be signed by
independent witness to make sure that consent was free. Counseling to be
provided to patient and he has liberty to withdraw consent at any time. Matter
needs to be reported to state. Patient himself must administer lethal substance
not by doctor.
On 17 January 2006, The USA Supreme Court by 6
to 3 majority up held the constitutional validity of Oregon ’s
Death with Dignity Act in Gonzalez v.
Oregon Washington another State allowed the
practice of physician assisted death in 2008 by passing Washington Death with
Dignity Act. The Supreme Court of Montana another state of USA, on 31 December
2009 followed the path of Oregon and
Washington State by holding that physician assisted death is not against the
public policy of State in Baxter v. Montana .[32]
In England , passive euthanasia is
legalized because House of Lords ruling and the active euthanasia and physician-assisted
suicide remain offence. Lord Goff Cheverly observed that, it is not lawful for
a doctor to administer a drug to his patient to bring about his death, even
though that course is promoted by a humanitarian desire to end his suffering
unless legislation legalizes the active euthanasia.[33]
Anthony Bland fan of football suffered
severe injury in football disaster in 1989. He was three years continuously in Persistent Vegetative State England .
Euthanasia in India
The provisions of the Indian Penal
Code and Article 21 of the Constitution regulate euthanasia. Any person
intentionally causes the death of another person is said to be committed
murder.[38]
On the other hand, the person causes the death of another with his consent the
offence is called, as culpable homicide does not amount to murder.[39]
Consent of dead man would mitigate the seriousness of offence, which reduces
the punishment to some extent. Consent plays very vital role in criminal law
and it has the effect of exonerating a criminal act. It is based on the
well-known Roman maxim volenti non-fit injuria, i.e., he
who consents cannot complain of it.[40]
General exceptions clause of IPC
provides the consent is good defense in criminal offence but not absolute.
Intended act is likely to cause death or grievous hurt; such acts are outside
the purview of consent.[41]
The person who gives consent should not be less than 18 years. When the doctors causes the death of patient with his consent
under the umbrella of euthanasia still he is held liable for culpable homicide
does not amount to murder because of limitation on the defense of consent. An
attempt to commit suicide is an offence under IPC.[42]
The patient who tries to inject lethal substance
into his body to relive himself from pain and agony of diseases amounts attempt
to commit suicide. When doctor provides
means to commit suicide, the patient commits suicide, such suicide is called as
Physician assisted suicide, for which doctor could be prosecuted for committing
the offence of abetment of suicide.[43] Until P.
Rathinam case, the High Courts have
had divergent views on the right to commit suicide. Delhi High Court in State v. Sanjay Kumar held that “It is
ironic that Section 309, IPC still continues to be in our Penal Code . . . Strange
paradox that in the age of votaries of Euthanasia . . . The continuance of
section 309, IPC is an anachronism unworthy of human society like ours”.[44]
The Bombay High Court held that, Section 309 is violation of right to life and liberty because the Article
21 has negative content of not to live.[45]
Court relied on the reasoning of R.C
Coopers ratio in which it was held that all fundamental rights should be
read as together.[46]
Fundamental right like freedom of speech includes right not to speak. Freedom
to carry business and profession includes not starting business or profession.
On these thoughts, the Bombay High Court concluded that right to life includes
right not to live. Further court held
that there is no clear demarcation between the acts, which would constitute the
attempt to commit suicide, and other acts, which would not, so it is violation
of Article 14 also.[47]
The Andhra Pradesh High Court differed form the Bombay and held that the Section 309 of IPC
is not ultra virus of Article 14 and 21.[48]
In P.
Rarthinam v. Union of India, the Supreme Court held that, Section 309 of IPC is volatile
of article 21 of the constitution and Justice Hansria observed that,
“Section 309 of the
Penal Code deserves to be effaced from the statute book to humanize our penal
laws. It is a cruel and irrational provision, and it may result in punishing a
person again [doubly] who has suffered agony and would be undergoing ignominy
because of his failure to commit suicide. Then an act of suicide cannot be said
to be against religion, morality, or public policy, and an act of attempted
suicide has no baneful effect on society. Further, suicide or attempt to commit
it causes no harm to others, because of which State’s interference with the
person is not called for.”[49]
The Court further said that
Article 21 has positive content but person cannot be forced to enjoy his life,
to his detriment, disadvantage or dislike. Put into simple words, court has
accepted that a person has right to die. Even though the euthanasia was not
issue in this case yet the court recognized patient’s right to refuse or
withdraw medical treatment which amounts passive euthanasia of common law
doctrine.[50]
The court expressed that patient’s desire to refuse or withdraw medical
treatment does not amount suicide rather an exercise of his constitutional
right to discontinue unwanted medical treatment.[51]
Court went one more step ahead by saying that legalization of suicide cannot be
denied or cut down merely because it may lead to acceptance of passive
euthanasia or any encouragement to persons for euthanasia.[52]
The court did not pronounce judgment on the validity of euthanasia because it
was not a specific issue before the court. The proponents of euthanasia with
bottom of their hearts welcomed courageous judgment of adventurous judicial
creativity because it has enhanced their demand of legalization of euthanasia. Equally,
the opponents of euthanasia criticized the decision on the basis that article
21 was wrongfully interpreted that will have bad repercussions on the society. Right
to die has become part of Article 21 that is being fundamental right, which
opened paradox box. Who can exercise it, when he can exercise, where he can
exercise, what are the limitations on this right? Has State or relative
exercise superior claim over the life individual than individual himself. If suicide
is legal, how could be abetment of suicide is offence? Can patient request a
doctor to provide means to terminate his life or ask him to terminate his life?
Can consent become absolute defense? Can it be taken in case of death? Only
time would answer all these questions.
The progress made by the
Judiciary through innovative interpretation in Rathinam case was reversed in Gian
Kaur v. State of Punjab
The court distinguished between
the right to life and other fundamental rights in respect of their positive and
negative contents. Right to speech includes not to speech and profession
includes and not to carry profession. While exercising such negative contents
of right, they are not performing any positive act. The matter is quite
different in case of right to life. The person who decides not to live has to
perform some positive act in order to end up his life. For example, consuming
poison or hanging himself. Therefore, Article 21 stands on different footing
and does not include right to die.[55]
The court’s distinction among these rights was not rational because it has
overlooked the negative means of committing suicide. The man who refuses to
take medical treatment, food and water, advances his death by his omissions
that is equal unto committing suicide. Doctors, Patients, his relatives, and
society have long back recognized this de facto right. Therefore, the right to
life includes right not to live by the negative process. Finally, the court
observed that euthanasia is immoral, unethical, and cannot be permitted under
the judicial decree. Nevertheless, the court said that if the legislators feel
that time is ripe to permit the euthanasia, they could do it by passing
appropriate legislation.[56]
The Supreme Court put the ball in the courtyard of Parliament.
Aruna Shanbaug provided another opportunity to Supreme Court to
evaluate the concept of euthanasia in the light of development in morality and the
medical sciences. Aruna Shanbaug was working as nurse in the King Edward
Memorial Hospital Bombay. Sweeper of the same hospital tried to rape her and in
that process, he caused irreparable damage to her brain on 27 November 1973,
since then she is in a Persistent vegetative state [PVS]. Her friend Ms Pinki
Virani filled writ petition before the Supreme Court for permitting of mercy
killing of Aruna Shanbaug, which was denied.[57]
The Supreme Court judgment was based on the ratio of The Airedale NHS Trust v.
Bland case decided by the House of Lords.[58]
The judgment has bought some hope
to the proponents of euthanasia even though it has not accepted the euthanasia
in total. The Supreme Court accepted the passive euthanasia is part of Article
21and rejected the active euthanasia unless parliament approves through
appropriate legislation. Court observed,
“The general legal
position all over the world seems to be that while active euthanasia is illegal
unless there is legislation permitting it; passive euthanasia is legal even
without legislature provided certain conditions and safeguards are maintained”.[59]
Supreme Court reasserted that the
active euthanasia is permissible only under legislation because the concept of
euthanasia is highly controversial and debatable issue and requires detailed
discussion about the pros and cons of it. Further, the court said right to die
is not part of Article 21.Nevertheless, it suggested to delete section 309 of IPC,
which makes attempt to commit suicide as offence because it is inhuman, and
harsh, as recommended by law commission,[60]
and England
has abolished it.[61]
The Court recognized non-voluntary
passive euthanasia under stringent substantial and procedural conditions
because the patient is not in position to consent for withdrawal of medical
treatment due to various reasons. On the other hand, the voluntary passive
euthanasia is not subjected to these limitations because the patient is in
position to give free consent. Supreme Court has laid down two Substantial
conditions for acceptance of non-voluntary euthanasia.[62]
First, the patient must be on life supporting system, without which he would
not survive. Second, there has been no significant development in the person’s
condition for long period at least a few years. Further, court cautioned that
any thing permissible beyond this when the patient is incapable of being able
to give consent would amount Judicial Murder.[63]
Procedural conditions make
mandatory for Parents, spouse, and relatives of patients to take decision of
withdrawal of medical treatment with consultation of doctor. There after, party
should file petition before the High Court under Article 226 for approval of
such decision. This has been added as precautionary measure because the greedy
relative of patient with collusion of unscrupulous doctor the passive
euthanasia is likely to misuse for inheritance of the property of patient.[64]
The High Court would constitute three members doctor panel that will examine
the patient and submits a report to the court. High Court in the capacity of Parens Patriae [one who acts as a parent and takes decision of the
patient] by giving due weight to the expert report and wishes of relative of
patient, the court either approve or reject the passive euthanasia. The Supreme
Court has said that High Court should give its decision speedily at the
earliest otherwise the matter may result in causing great mental agony to the
patient’s relative.
The critic of this judgment is
that simple matter is made complicated. Earlier relative of patient used to
request the doctor to withdraw the treatment due to various reasons.
Thereafter, Doctors considering the genuine reasons given by the relatives and
health status of patient used withdraw the treatment. The entire process of
doctor’s consultations with patient’s relative would end in few hours or day.
Now the poor patient and his relatives are caught in the hassle process of
legal battle. A doctor naturally, takes precautionary measures to avoid his
legal liability by insisting the relative of patient to get approval of High
Court for withdrawal of medical treatment. All we are aware of the Indian
Judicial system’s feature of delay in delivery of justice. Moreover, the
Supreme Court has not set the time limitation for approval. Patient’s relative
already burdened by the medical expenses further they are asked to bear huge
legal expenses and wait indefinitely till the High Court approves the
euthanasia, makes their struggle for
non-voluntary passive euthanasia is hard and difficult.
Another critical aspect of this
judgment is that the relative of patient who wants to claim fair chance of
euthanasia must prove before the High Court that the patient is already on life
supporting system for few years and no hope for improvement in his health. Because
the Supreme Court has said that, these conditions have to be complied, otherwise
claim of euthanasia is not fair.[65]
In routine practice, doctors used to make judgment of no hopes of patient’s
health improvement in few days or months that could not amount to economical burden.
These substantial and procedural conditions by the Supreme Court almost made
the claim of non-voluntary passive euthanasia are beyond the means of common
person.
In spite of these flaws, yet the
judgment is plausible because non-voluntary passive euthanasia is recognized. In
respect of active euthanasia, court sent message that the parliament is
empowered to pass euthanasia legislation that would not be considered as ultra
virus of Constitution. Proponents of euthanasia have won the half battle and
remaining battle is to put pressure on the Parliamentarians to pass the
legislation.
Following are the Merits and demerits of
euthanasia.
Merits.[66]
1] Respect of human rights and
self-determination.
Each person is master of his own
body. Neither State nor God has power to
decide about the person’s life and death. Proponents of euthanasia argue that
Constitution guarantees personal autonomy. Personal autonomy is the liberty to
make decision for oneself, free from outside influence and constraints, and the
capacity to act upon those decisions. The patient has every right to end his life
because of Constitution’s Guarantee of liberty.
2] Frees up medical funds to help others.
When patient is having incurable
disease, death is proximate, and intended to die, under such circumstances
incurring medical expenses on such patient is irrational and unviable. Spending
the same amount on other poor patients who are waiting for medical care would
improve their health and make such medical expenses rational.
3] Relief of extreme pain.
Human mutual agreement that human suffering
should be avoided, and relived when it occurs. The most compelling argument for
euthanasia has always been the one based upon the fact that some conditions are
so intolerable that only relief is death.
4] Freed from relatives sufferings.
The relative’s life of patient becomes
miserable or horrible when the patient is in coma or on persistent vegetative
state because they have to look after him continuously for longer period by
giving up their life priorities that would be harsh for them.
5] No difference between the active and passive
euthanasia.
Taking a human life is not the
same as allowing nature to take its course by allowing a patient to die. Modern medical technology has
significantly blurred the distinction between the active and passive
euthanasia. For example, withdrawals of respiratory system on which the person
is alive amounts to active not passive euthanasia because the moment the
respiratory system is switched off the patient dies which is called as “Pulling
the Plug.”. Refusing to provide life
supporting systems may be part of passive euthanasia but once provided life
supporting system on which the patient is alive otherwise he would not survive,
removal of such system amounts to active euthanasia and not passive.
6] Dignified death.
Euthanasia would encourage the people to
accept the death with simile and grace
Demerits.[67]
1] Abuse and Misuse.
It has been asserted that legalizing
euthanasia would result in abuse. Euthanasia would put into the hands of
unscrupulous parties a certain and easy method of being rid of an objectionable
relative.
2] Loss of future cure.
Today’s worst disease of patient
might be cured tomorrow because the science may find medicine for such disease.
Permitting euthanasia could have the most terrible result of putting to death a
person who would otherwise go on to live a full life.
3] Pressure on elder ill people.
It would fundamentally undermine the
relationship elderly or dependent relative and their families, with
overwhelming pressures being applied on people to “take the honorable course”
and ‘not to be a burden’.
4] Breach of Hippocratic Oath.
Doctors by taking Hippocratic Oath
pledge that they would never give deadly drug to any body if asked for it, nor
make a suggestion to this effect. If they involved in mercy killing it would
undermine patient’s trust and confidence thereby destroys integrity of medical
profession.
5] Expansion of “Slippery Slope”
or “wedge theory”.
Today the proponents of euthanasia may demand euthanasia
for terminally ill person, tomorrow for aged peoples, and day after tomorrow
for disabled people and so on which is called as” Wedge theory” or the “Slippery
slope”. According to this theory, voluntary euthanasia is just the thin edge of
wedge that, once in place, will be driven deeply into our society. Many
opponents of euthanasia fear that legalizing euthanasia would lead adopting
some of the Nazi-style killing of the elderly and socially disfavored. Nazi
Germany under the leadership of Adolf Hitler began pogrom on September 1, 1939,
under the title of “Order for Destruction of Lives Which Are Unworthy of Being
Lives.”[68]
Initially it was applied to mentally retarded and mentally impaired senior
citizens. Latter it was expanded to include all people of Jews background,
homosexual, and Gypsies. One critic of euthanasia explains,
“Once the respect
for human life is so low that an innocent person may be killed directly, even
at his own request, compulsory euthanasia will necessarily be near. This could
lead easily to killing all charity patients, the aged who are in public care,
wounded soldiers, all deformed children, the mentally afflicted, and so on. Before
long, the danger would be at the door of every citizen.”[69]
6] Immoral or against Nature.
Life is gift of Nature. Right –to-life
supporters argue that any self-inflected death is an irrational act. They
believe that life is sacred and should not be shortened. What they understand
is that suffering is part of life and often brings family together. It is
argued that the rejection of values, such as the sanctity of life and the
intrinsic value of life, and the acceptance of euthanasia and assisted suicide
erode the moral and social foundations of society.
7] Discourage of medical investment.
It would undermine the financing
of proper palliative care because euthanasia would be seen as cost effective
option. Indeed, it would be very cost effective.
8] Discourage research.
It would also undermine funding of research on
those areas of incurable diseases.
9] Risk of Mistake.
Even highly qualified,
specialized, experienced, and skilled doctors are likely to commit small
percentage of error in making the judgment of euthanasia. Under such
circumstances permitting entire medical profession to make decision of
euthanasia leads for major risk of mistake.
10] Religious disapproval.
The Christian, Muslim, Hindu and
other religions opposes the euthanasia and agree that there is no
justification, not even serve suffering, for taking a person’s life. In 1990,
Pope Johan Paul II issued a Declaration on euthanasia,
“Every one has duty
to lead his or her life in accordance with God’s plan. Intentionally causing
one’s own death, or suicide, is therefore equally as wrong as murder: such an
action on the part of a person is to be considered as a rejection of God’s
sovereignty and loving plan.”[70]
Conclusion.
The euthanasia is the product of
conflict between ideology and reality. Philosophically speaking the opponents
of euthanasia may not be wrong. Equally, proponents of euthanasia who asserts
their right based on the factual is also not on wrong side. Opponents and
proponents of euthanasia assert their rights based on Natural and Utility
theory of law respectively. Natural theory suggests anything is unjust,
unethical, and against nature, cannot be respected as law. Naturalist always
insists that any thing contrary to ethics is perversion of law. The death must
occur naturally and any attempt made by human being to occur death is
unacceptable and violation of natural law. An opponent of euthanasia proposes
that the sanctity of life is absolute. Utilitarian like, Jeremy Bentham and
Johan Stuart would like to build law upon the premises of practical utility
than ideology otherwise it could create much wide gap between the law and
society. They refused to accept blind morality or ideology unless it is
practical beneficial to community. Therefore, they proposed that harm to others
is ground for criminal liability but not harm to himself. Ronald Dworkin quotes
famous lines of Johan Stuart Mill of Liberty ,
“That the only
purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others. His own good, either
physical or moral, is not a sufficient warrant.”[71]
Jeremy Bentham in his Theory of
Legislation said, “[H]e who consents suffers no injury”.[72]
The principle is founded on two doctrines. First, every person is the best
judge of his own interest. Second, no man will consent to what he thinks
hurtful to himself.[73]
Utilitarian always held that harm to oneself is beyond the sphere of legislator
to make it offence. The euthanasia is being caused harm not to others but to
himself. Therefore, utilitarian never ever supports prohibition of euthanasia.
Both proponents and opponents of euthanasia agree the life they like profoundly
but differ in degree. Sanctity of life is absolute for opponents and
conditional for proponents. Once the life cease to be worthy to live, such life
should be allowed to give up is simple claim of proponents. Such demand would
not be considered as unjustifiable because it is emerged out of government
policies and community practice. Government has allowed the medical profession
to carry the sonograph of pregnant woman to make it sure that the growth of
child is perfect, healthy and normal.[74]
On the other hand, if the sonograph produces the result of imperfect or
abnormal growth of child, the government adopted the policy of allowing mother
to go for abortion and the community concedes such abortion.[75]
Naturally, analysis leads inference that the community and government prefer or
wishes unborn child in the womb of mother to be worthy to born alive. Therefore,
the question arises when the worthiness of life is relevant at the time of
birth and why not at the time of death. If unworthiness of life is not relevant
at the time of death, then it is not relevant at the time of birth also.
Abortion is part of person’s privacy that is now well-settled concept of person
liberty.[76]
Opponents of euthanasia, Government and judiciary have held that euthanasia is
immoral and unethical. Government has liberalized the norms of abortion and
community accepted it with open arms.[77]
If Abortion is legal, then there is no justifiable ground exist to deny the legal
recognition to euthanasia. The arbitrary and pragmatic choice of morality by
government is major hurdle in adjudicating the legal concept of euthanasia.
Certainly, the claim of proponents of euthanasia is worthy of not to be rejected.
Hart another critic of Natural
theory disagreed with John Stuart Mill that an adult’s self-inflected harm is
no warranty for legal intervention. He favoured the doctrine of “paternalism”
which authorizes State to prevent man causing physical harm to himself.[78]
Paternalism justified the criminal law in refusing the defense of consent to
homicide and assault. The same analogy is extended in case of attempt to commit
suicide or euthanasia. The individual has duties towards himself as also
towards his family and society, this would enable the State and family members to
claim their priority over his right to die.[79] Suppose a person is not in position to
discharge these duties to himself or to others due to health problems. Does government
justify in preventing such person from claiming euthanasia? If the government
response is affirmative, then such government or community would be regressive
one. The morality is not static but dynamic concept. Morality, which professes
that death, should be accepted when it occurs rather than make to occur is
outdated. Death is never the first choice, and people opt for this path only
because sufferings are intolerable and there is none other left to take care of
him.[80]
Therefore, rationality and fact suggests that let him die with grace.
It is open secret that suicide cannot
be prevented so that the England
decriminalized the attempt to commit suicide. Thousands of people help loved
ones die around the world. It takes place quietly in the homes of the
terminally ill as the family members and friends take active steps to bring
death of someone they love. More recently, in the U.K. , his mother, to rid him from
sufferings, injected Thomas Inglis with lethal dose of heroin.[81]
The doctors and nurses admit in privacy that they involved in assisted suicide.
Dr Pauline Smith of England
quoted in British Medical Journal [BMJ] “Our view us that the current law
doesn’t match the requirement of the 21st Century.”[82]
Many doctors in U.K.
are for assisted dying. A new group for health professional called the “Dignity
in Dying: Healthcare Professional for Change” has taken the task of challenging
the British Medical Association stance against assisted dying of terminally ill
people.[83]
In a 1989 issue of the New England Journal of Medicine, ten doctors associated
with nation’s leading hospitals and medical schools declared their belief that
“it is not immoral for physician to assist in the rational suicide of a
terminally ill person.” These issues have set dangerous precedents to those who
have no choice but to take matters into their own hands. Weak patient cannot
manage the above things looks for legalized euthanasia. Ironically, the law and
other institutions become strong and say with louder voice, “you must live with
pain until the nature takes your life.” The law becomes strong for weak persons
and weak for strong persons. The ground realty has proved that law has failed
in eradicating euthanasia; better option is to regulate it. Sooner or latter
recognition of euthanasia is inevitable and sooner is always better than
latter.
Opponents of euthanasia contended
that there is a potential danger of expanding the concept of euthanasia to
other category of persons that is known as “Slippery slope” or “wedge theory”.
The opponent of euthanasia highlights the Adolf Hitler’s pogrom of Destruction
of Lives Which Are Unworthy of Being Lived under the concept of euthanasia,
which was expanded to other class of people latter. This apprehension is not
genuine but mere myth or illusion. The pogrom of Nazi Government was not
euthanasia but in fact, it was Genocide, moreover it was dictator regime. We
are in the era of democracy based on the certain basic values, which are deep
rooted in the society. Therefore, we can not think incidents like Nazi
government in the today’s legal system. Just look at the Netherlands euthanasia Act that is
based on the precedents decided in 1980’s, which is effective from 2002, is
applied for only terminally ill people who have no more than six months to
live. Not single other category is added to the legislation. Oregon Death with
Dignity Act enforced since November 1994 is applicable for only terminally ill
people whose life is shorter than six months. These legislations empathically
disprove the “Slippery slope” threat and apprehension of opponents of
euthanasia is mere hype.
The opponents of euthanasia with
all their arms and ammunitions at their disposal, attack the legalizing the
euthanasia on the ground that it is likely to be misused or abused. The Law Commission
of India also expressed that there is great danger of abuse or mis-use of
euthanasia, it will be difficult to distinguish between a genuine case of
killing for misery with consent and a case of murder and that these practical
aspect must outweigh humanitarian considerations.[84]
If this is to be accepted, as valid justification for not enacting the law on
euthanasia, then there can be no laws because most of laws have been inherently
misused or abused. The Supreme Court in State
of Rajasthan v. Union of India, observed
“[I]t must be
remembered that merely because power, may sometime be abused, it is no ground
for denying the existence of power. The wisdom of man has not yet been able to
conceive of a government with power sufficient to answer all its legitimate
needs and at the same time incapable of mischief.”[85]
State cannot have law that is absolutely
free from its abuse. State has to enact the stringent law. If experience of
such laws proves that, it is defective one, then let the government, amends and
corrects the loopholes. In Kesavananda
Bharathi v. State of Kerala Opportunity
must be allowed for vindicating reasonable belief by experience.”[86]
This is how the State has to discharges its obligation. Mere on the
apprehension that it is likely to be abused so State should not enact the
euthanasia law is unfair and unjust. The Law Commission rightly commented while
drafting the POTA bill, “It is one thing to say we must create and provide
internal structures and safeguards against possible abuse and misuse of the act
and altogether a different thing to say that because the law is liable to be misused,
we should not have such Act at all.”[87]
Euthanasia is a balancing test
that weighs the patient’s right to privacy and self-determination against the
interest of the State in preserving life, the interest of relatives that might
desire that the patient continues to live, and the ethical image of the medical
profession.
Þ
S.G.Goudappanavar, B.Com. LL.M. gouri1000@gmail.com S.C.Nandimath law college, Bagalkot,
Karnataka.
[1]
Agarwal, H.O. International Law &
Human Rights, [15th Ed.], Allahabad :
Central Law Publication,
[2]
AIR 1978 SC 619
[3]
Pandey, J.N. The constitutional Law of
India, [47th Ed.], Allahabad :
Central Law Agency, [2010].p.53.
[4]
See, V and XIV amendment of USA
constitution.
[5]
Jeremy Bentham, Theory of Legislation,
Upendra Baxi, [Ed.], Bombay :
N.M.Tripathi Pvt.Ltd, [1995].p.60.
[6]
Maruti Shripti Dubai v. State of Maharashtra ,
1987 Cri LJ 743.
[7]
AIR 2011 SC 1290.
[8]
http//www. leaderu.com/org//probe/docs/euthan. Accessed on 29 may 2011.
[9]
http//www.orthodox wiki.org/Euthanasia. Visited on 29 may 2011
[10]
http://en, wilipedia, org/wiki/Euthansia Accessed on 31 march 2011.
[11]
Ibid.
[12]
Tarun Jain, “Mercy Killing: An Analysis” 2004 Cri.LJ. Journal, p.49.
[13]
Ibid.
[14]
Anne Wallace Sharp, The Right to Die,
New York : Lucent Books, [2009].p.42.
[15]Ibid,
p.27.
[16] Supra note 8.
[17]
The Law commission of India ,
196th Report on; Medical treatment to Terminally ill patients
[protection of patient and Medical practitioner] Chapter VII, p.302.
[18]
Ibid.
[19]
Ibid.
[20]
Schloendorff v. Society
of New York Hospital, 105 N.E. [1914],
W v. W [1972] AC 24, Sidaway
v. Board of Governors of the Bethlem
Royal Hospital and the Maudsley Hospital, [1985] AC 871.
[21]
Supra note 17.
[22]
Ibid, p.4.
[24]Http://en.wikiepeia,org
/wiki /Euthanasia-in-the-Netherlands. Accessed on 29 May 2011.
[25]
Ibid.
[26]
Anne Wallace Sharp, op. cit., p.35.
[27]
Ibid.
[28]
497 U.S.
261 [1990].
[29]
521 U.S.
702 [1997].
[30]
521 U.S.
702 [1997].
[31]
546 U.S.
243 [2006]
[32]
MT DA 09-0051, 2009 MT 449. www.wikipedia.org/wiki/Baxter_v._Montana.
Accessed on 21 August 2011.
[33]
Airedale NHS Trust v. Bland, [1993] ALL E.R. 82. [HL]
[34]
Ibid.
[35]
Ibid.
[36]
Ibid.
[37]
Ibid.
[38]
See, Section 300 of IPC.
[39]
See, Exception 5 to section 300 of IPC.
[40]
Gaur, K.D. The Indian Penal Code, [2nd
Ed.], Delhi :
Universal Law Publishing Co. Pvt. Ltd, [2000].p.130.
[41]See,
Section 87 of IPC.
[42]See,
Section 309 of IPC.
[43]
See, Section 306 of IPC.
[44]
1985 Cri LJ 931.
[45]
Supra note 6.
[46]
R.C.Cooper v. Union of India ,
AIR 1970 SC 1318
[47]
Supra note 45.
[48]
C. Jagadeeswar v. State of Andhra Pradesh
[49]
AIR 1994 SC 1844.
[50]
Ibid, p.1849.
[51]
Ibid.
[52]
Ibid, p.1867.
[53]
[1996] 2 SCC 649.
[54]
Ibid, p.660.
[55]
Ibid, p.659.
[56]
Ibid, p.665.
[57]
Supra note 7.
[58]
[1993] All E.R. 82 [H.L.]
[59]
AIR 2011 SC 1291.
[60]
See, The Law Commission of India, 42nd
report on Indian Penal
Code. P. 244.
[61]
England
suicide Act 1961.
[62]
Supra note 7 at 1291.
[63]
Ibid.
[64]
Ibid. p. 1332.
[65] Supra note 62.
[66]
Http://www,euthanasia.com/proscons,
Accessed on 30-5-2011.
[67]
http://orthodoxwiki.org/Euthanasia”
visited on 29 may 2011.
[68]
Anne Wallace Sharp, op. cit., p.32.
[69]
Ibid.pp.39-40
[70]
Ibid.p.36.
[71]Ronald
Dworkin, Taking Right Seriously, Delhi
[72]
Jeremy Bentham, op. cit., p.164.
[73]
Ibid.
[74]
Section, 4 of The Pre-Natal Diagnostic Techniques, [Regulation and Prevention
of Misuse] Act, 1994.
[75]
Section 3[2] [b] [ii] of Medical Termination of Pregnancy Act, 1971.
[76] Roe v. Wade. 410 US
113 [1973].
[77]
Medical Termination of Pregnancy Act, 1971. 42nd Law Commission of
India suggested that any abortion carried by registered medical practioner with
consent of woman within 3 moths from the pregnancy need not be considered as
offence.
[78]
Harris, J.W. Legal Philosophies, London : Butterworth, [1997].p.135.
[79]
Deshpande, V.S. “To be or not to be” [1984] 3 SCC [Journal].p.12
[80]
Prashant Aiyar, “To die on one’s own terms can be a boon, but ….” The Hindu,
Hubli [Ed.], March 13 2011. p.14.
[81]
Ibid.
[82]
Prasad, R. “Dying with dignity through assisted suicide”, The Hindu, Hubli
[Ed.], March 10 2011.p.17.
[83]
Ibid.
[84]
See, The Law Commission of India, 42nd report on Indian Penal Code, p.238.
[85]
AIR 1977 SC 1361.
[86]
AIR 1973 SC 1461.
[87]
See, The Law commission of India ,173rd
Report :Prevention of Terrorism Bill 2000, chapter III,1.10.1.p.5
