human, man, mourning

Euthanasia – A Controversial Solution for a Deathless Death

Life is the most precious thing we have but only when it is coupled with living. But what happens when you’re diagnosed with motor neuron disease like Diane Pretty or in a persistent vegetative state like Aruna Shanbaug or suffering from any degenerative, terminal illness? We all have a right to life, but what about the right to die? Or rather, a right to die with dignity?

Euthanasia is the act or practice of killing or permitting the death of hopelessly sick or injured individuals (such as persons or domestic animals) in a relatively painless way, for reasons of mercy. It is the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma. It is derived from the Greek word, Eu Thanatos which translates to a good death. Historically, the term was used to denote a gentle, natural, non-induced death. It was a peaceful, painless, swift death, almost like falling asleep. Since then, the use of the term has evolved considerably.

It was first coined in a medical context in the year 1605 by Francis Bacon when he used it to describe an easy, painless, and happy death during which it was the physician’s responsibility to alleviate the physical suffering of the body, though he did not approve of administration of poison by physicians to hasten death. This meaning was further replaced in the late 19th century when euthanasia started being used synonymously with mercy killing. It became a process of extermination of various groups. In fact, during the Nazi rule, Aktion T4 was a German attempt at mass killing people “unsuited to live”. This included the incurably ill, physically or mentally ill, emotionally distraught, and elderly people. Over time, however, this list went on to further include the handicapped and children under the age of three with serious hereditary diseases including suspected idiocy, down syndrome, and those born with deformities of all kinds. After this euthanasia went on to meaning the use of sedatives to secure an easy death or shortening lives of the terminally ill and in around the 1960s, once the field of medicine developed to the extent of artificially extending a person’s life, euthanasia became the practice of withdrawing the terminally ill from artificial life-prolonging medical measures.

Kinds:

Euthanasia may be active, passive, voluntary, non-voluntary, physician-assisted, or medically legitimate euthanasia.

Table 1

The legality of euthanasia in the world:

  • Euthanasia is illegal in most countries across the world. However, there are some countries wherein active euthanasia is legal, under certain conditions.
  • Switzerland doesn’t recognize euthanasia per se, but it allows for assisted suicide as Article 115 of the Switzerland Penal Code only penalizes assisting suicide if it is caused by a selfish motive. Therefore, assisted suicide is legal only if the motive of the assister is not selfish, the person committing suicide has legal capacity under Article 16 of their Civil Code, and if the act is committed directly by the victim and only with indirect assistance from said person (self-termination). There also exist organizations like EXIT, Dignitas, etc. which assist both citizens and non-citizens with assisted suicide services.
  • In Belgium, the Belgium Euthanasia Act was passed in 2002 decriminalizing voluntary euthanasia. The conditions under the law, however, is that the person seeking euthanasia must be over 18 years of age who are hopelessly ill and suffering from unbearable physical or mental pain that cannot be relieved and is a result of a serious accident or a pathological condition. Further, the patient (or an adult authorized by the patient in case the patient cannot consent) must make a written request duly signed and such a request of mercy killing shall only be approved after one month of the written request.
  • In the Netherlands, the Termination of Life on Request and Assisted Suicide (Review Procedures) Act was passed in April 2001. Under this Act, the patient’s suffering must be unbearable without scope for improvement (need not be terminal) and another independent physician must be consulted who should have the same opinion. Further, in case the patient is a minor aged between 12 and 16 years, parents will have to consent to it.
  • Luxembourg, Canada, Australia, and Colombia permit euthanasia for adults who are suffering unbearably from an incurable, terminal illness. The patients must voluntarily give their request for euthanasia in writing.
  • Some states within the United States of America such as Washington, California, Colorado, District of Columbia, Hawaii, Maine, New Jersey, Oregon, and Vermont have now legalized euthanasia in cases of a terminal illness.

Indian scenario

In India, an attempt to commit suicide is a criminal offense under Sec 309 of the Indian Penal Code, 1860. Further, under Sec 306 of the same Act, abetment to suicide is also a criminal offense which is punishable with imprisonment of up to 10 years and a fine. Our Constitution guarantees us the right to life and personal liberty under Article 21. But does the right to do something also include the right not to do it? This was the question that was posed before our honorable Supreme Court in P. Rathinam and others v. Union of India. It was argued that the right to speak and express or form associations under Article 19 also included within its ambit the right not to speak or not be a part of an association and therefore, the right to live must also include the right not to live.

After discussing at length the implications and causes of committing suicide and it’s the constitutional validity of Sec 309 of IPC, it was held that the right to life includes the right not to live i.e., to die. As an attempt to humanize penal laws, the Supreme Court in this case held that criminalizing an attempt to commit suicide is unconstitutional as it violates Article 21. However, 2 years after this judgment, it was reversed in Gian Kaur v. the State of Punjab.

In this case, the appellant, Gian Kaur, and her husband were convicted by a trial court under Sec 306 of IPC for abetting the suicide of Kulwant Kaur. It was argued by the appellant’s side that since in Rathinam’s case, the right to die was recognized under Article 21, abetting someone to commit suicide is merely assisting them in enforcing that fundamental right and hence, criminalizing assisting suicide equally violates Article 21. However, the court observed that such a parallel between the right not to speak, etc. and right to die cannot be drawn since the right not to speak is merely an omission while, right to die is an active act and therefore, the right to die isn’t a fundamental right under Article 21 and thus, neither Section 309 nor Section 306 of IPC was unconstitutional.
These were the major cases where an attempt to suicide or assisting suicide was discussed.

But, the first major case to discuss euthanasia was in the year 2011 in the Aruna Ramchandra Shanbaug v. Union of India and others , popularly known as the Aruna Shanbaug case. This was a writ petition filed before the Supreme Court of India under Article 32 of the Indian Constitution on behalf of Ms. Shanbaug by Ms. Pinky Virani as her next friend to stop feeding her as she was merely existing, completely unaware of anything for over 37 years.

On 27th November 1973, Ms. Aruna Shanbaug, a nurse, was sodomized by a hospital sweeper, and in an attempt to immobilize her during the act, she was choked with a dog chain. This strangulation cut off the supply of oxygen to her brain which put her in a persistent vegetative state. The court assigned 3 independent doctors to observe her and based on their report concluded Ms. Shanbaug was moderately responsive, had feelings and was well looked after by the hospital and also not brain dead as defined under the Transplantation of Human Organs Act, 1994.
Ms. Virani had no locus standi in the court since Aruna Shanbaug’s next friend, who can file a case, would be the staff of the hospital she was admitted in, the one that looked after her for 37 years and the hospital wanted to continue taking care of her. This being said, the Court observed the need to recognize passive euthanasia, holding that in case of active euthanasia, only the legislators can make a law but the court has the powers to lay down guidelines by incorporating the recommendations of the 196th law commission report for passive euthanasia. The following guidelines were laid down:

  • Under the doctrine of Parens Patriae, the Court, as guardians of all citizens has the authority to decide on withdrawing life support after hearing the family, close relatives, next friend, or hospital, in case of incompetent persons.
  • The Chief Justice of the High Court, on receiving such an application shall constitute a bench consisting of 2 judges who shall appoint 3 reputed doctors, a neurologist, a psychiatrist, and a physician, who will examine the patient and report their findings to the court
  • Notice shall be issued by the High Court to the parents/close relatives/ next friend etc. and the Court shall give its decision after hearing them.
  • The principle of “Best interest of the patient” laid down in Airedale’s case to be followed.

Shortly after, in May, 2015, Ms. Aruna Shanbaug passed away due to pneumonia.

However, there were still a lot of unclear concepts relating to euthanasia, in particular, the right to die with dignity. These concepts were clarified in 2018 in Common Cause (Registered Society) v Union of India where the Supreme Court recognized the right to die with dignity while also recognizing a person’s right to self-determination and refuse artificial life-prolonging medical treatment through living wills or advance medical directives.

A living will, here, refers to a written document allowing a patient to give instructions in advance about the medical treatment to be administered when he/she is terminally ill or no longer able to express informed consent, including withdrawing life support if a medical board declares that all lifesaving medical options have been exhausted.
Therefore, presently, India doesn’t recognize active euthanasia but allows for passive euthanasia and advance declaration of future treatments in the form of living wills.

Death is inevitable, but in modern civilized society, choosing the circumstances of our death must not be illegal. There is an urgent need for a law that recognizes euthanasia, every type of it. Dignity being an important aspect of life, every person deserves a dignified life and that includes a dignified death.

Life is not mere existence, it is living. It is having a choice, having control, having the power to make a decision and to act on it. But for those people who are unable to act on their wishes, who are at the mercy of others, or in incredible pain and helpless, due to some pathological disorder or an accident, a choice needs to be given on how they want to continue their life. Every person should have a choice till the end.

AUTHOR

-Moushami Nayak