● ABSTRACT:
Human death is an inevitable phenomenon which is sought to be delayed by medical advancement, out of the very natural human desire of living longer. But a contradictory picture appears when an individual wants to die voluntarily and thus leading to the much discussed question on the legality of furthering death, widely known as euthanasia or assisted suicide or mercy killing. This very practice holds immense significance in the modern era, when people are being vocal about the most prominent fundamental right, right to life as well as other rights upholding the dignity of human life. Euthanasia or assisted suicide refers to the act of ending the life of a person, either by applying lethal medicines or by withdrawing the life-support, medications etc. Whether to allow an active or a passive euthanasia or the practice
itself has been a debatable matter. The underlying intention of such practice being, ending all the agonies of a moribund person who is already suffering from an incurable disease, claims to have some sort of validation in a modern progressive society. This paper sets out to highlight the legality of the practice by indicating its requirement in our country at the backdrop of the prevalent socio-economic-psychological fabric. Further justification is given in line with the international scenario as well as the domestic scenario of adopting passive euthanasia as a legal one.
● KEYWORDS:
Euthanasia, mercy killing, Assisted suicide, right to die, right to life, living Will, terminal illness, suicide, persistent vegetative state.
● INTRODUCTION:
The idea of Euthanasia is premised on the very basis of right to die with dignity which is an allied aspect of right to life. When a terminally ill patient with the bare minimum chances of survival is allowed to die with dignity, Euthanasia takes place. It traces its etymology to two Greek words, Eu and Thanatos which constitutes a lawful mercy killing. Since the very purpose of granting Euthanasia lies in reducing the physical and psychological stress of a person in a persistent vegetative state, as well as the expenses of the treatment used for keeping the person alive, it comes without any criminal liability of homicide. But the issue crops up as to the very fundamental nature of Assisted killing and we land up to the famous legal debate on the validity of euthanasia, throwing much light on the crucial law-death nexus.
The central theme of the debate of law-death linkage or whether there at all exists any such link, revolves around the moral complexities involved in it as law cannot afford to promote any prima facie immoral practice of killing an individual. However, the underlying intention of such practice as discussed earlier although invokes the justification of conducting Euthanasia, raises another question that is- which one is more feasible? Directly causing the death by injecting lethal medicines or passively causing the death by withdrawing the life-support? Here comes the typologies of Euthanasia, where the former one is called active and the latter one is passive.
There are two other typologies as well – voluntary and nonvoluntary. The latter one takes place when the patient suffering from a persistent Vegetative state, cannot express his own will regarding his life, the next friend or relatives of the person decide on his behalf. But in the case of voluntary euthanasia particularly when it is an active one, begets more complexities. Though it is voluntary, it does not grant a blank cheque to any fit and healthy individual to cause his own death which drags another famous suicicde-euthanasia dichotomy and has been highlighted in this paper.
However, the lawmakers are still under the dilemma of implementing the very practice. Some countries have gone one step further to validate it while others are grappling with the legal and ethical challenges posed by this practice.
● RESEARCH METHODOLOGY:
This research paper is based on a doctrinal method as the secondary sources like books, websites, blog posts are referred to while writing the paper. It involves a clear cut analysis of the existing legal framework for euthanasia not only in the domestic set up but also in the international sphere.
● REVIEW OF LITERATURE:
Functionally euthanasia may seem similar to suicide as both involves the act of killing. Such an apparent similarity has veiled the legality of assisted killing as the practice of taking one’s own life has always been frowned upon, either by the existing laws or by the society. So in order to justify its legality, we need to trace the differences between these two practices which would keep euthanasia out of the purview of suicide and uphold its validity. Some relevant landmark decisions in the Indian context would be instrumental in this regard.
Section 309 of Indian Penal Code (IPC) imposes criminal liability on any person 1 whoever has attempted to commit suicide. The very underlying idea being letting the healthy person not die an unnatural death and thus keeping it out of the ambit of right to life. There have been recommendations on deleting this provision where it was argued that any sane person shall be entitled to decide how to lead his own life. The Indian judiciary itself has been in a topsy-turvy while determining the legality of suicide. P.Rathinam v. Union Of India , is landmark as the Apex Court had struck 2 down the validity of s.309 of IPC on the ground of being violative of Article 21 of the Constitution of India which upholds the right to life. The term right to life is given a 3
different connotation here where it was made inclusive of right to live with human dignity, mere animal existence where an individual cannot exercise his autonomy as to end his life would not be desirable in a progressive society. Hence it justifies the fact that the right to live brings in its trail, the right not to live a forced life. The same
1Indian Penal Code 1860, No. 45, Acts of Parliament, 1860 (India)
2 AIR 1844, 1994 SCC (3) 394
3 Right to Life
opinion has been reflected in another leading decision of State v. Sanjay Kumar Vati4 where the Court went on to examine that “In the age of votaries of Euthanasia, suicide should be criminally punishable”. Till this much the legal position has been 5 favourable towards Euthanasia as the contravening provision was struck down. But the Ld. Court had taken a remarkable stand in one famous decision of Gian Kaur v. State of Punjab where it added a different dimension to the very interpretation of 6 right to life leading to a more favourable legal paradigm for euthanasia. According to the court’s view, “ Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination and extinction of life and therefore incompatible and inconsistent with the concept of right to life”. Here the court had struck a balance between the unrestricted act of killing oneself and ending the life of a person already
at the verge of death, where the latter one was made permissible and the former one has been criminalised, thus keeping S.309 intact while tilting towards euthanasia. A terminally ill person already being deprived of a quality life, can find death a suitable alternative than merely surviving with the illness awaiting the death. Here Euthanasia may come to rescue, which the Ld. Court did not fail to understand.
● THE LANDMARK JUDGMENT:
The one leading judgment of Aruna Ramchandra Shanbaug v. Union of India (2011) has changed the entire legal paradigm of Euthanasia or assisted killing which 7 led one step towards the legalisation of the practice. The controversy arose when Aruna Shanbaug, a nurse by profession, was strangulated by one of the hospital staff. After the incident she went unconscious and reached the persistent vegetative state. Her frail and weak condition along with the bare minimum chances of survival has led to the claim of Euthanasia, in order to relieve her from the miserable pain of illness, particularly when her family had disowned her. Although the Apex Court had been prudent enough to consider the need for Euhtanasia in its 2011 judgement, by issuing
4 1990 AIR 749
5 Zia Mody, Ten Judgements That Changed India, 211, (Penguin Random House India, 2013). 6 1994 SC 1844
7 AIR 2011 SC 1290
certain guidelines for passive euthanasia, it rejected the petition filed by journalist, Pinki Viarni, claiming Euthansia for Aruna. It held that the decision to withdraw life-support must be taken by the next friend or the relatives of the patient which, as Ld. court opines, the journalist is not capable of. It was observed that the hospital authority had taken immense care of Aruna while the medical reports also concluded that she, though in a persistent vegetative state, is not brain dead nor comatose as she could show some responses, including showing the signs of discomfort, feeling the taste of food etc. The hospital authority, held to be the next-friend of Aruna, demanded the continuation of life-support and hence euthanasia could not be executed in her favour. But however, the Apex court in the instant case had set the ball in motion by looking into some pertinent questions on legalizing Euthanasia. It endeavored to understand the feasibility of both Active and passive euthanasia. This kind of distinction is very material here, as the court had been very careful while laying down the legal basis for a practice involving the act of killing. Such distinction helps us understand which one is safer and more ethical in terms of its severity. Further the international fabric where countries like the United States of America,
Mexico City, Ireland etc had legalized passive euthanasia, had prompted our Judiciary too to walk towards the same direction. In our country the very consideration for tilting towards passive euthanasia has been that it involves a mere withdrawal of life-support which is much safer from an overt act of applying lethal medicines as done in active euthanasia. The principle that a mere omission being always less preferred by law than an active commission in terms of constituting an offence, forms the basic principle of the legalization of passive euthanasia and attracts no liability. Hence it is preferred over the active one and thus refuting the criticisms that passively removing the life-support also amounts to an indirect murder. The main tenet being the best interest of such a terminally ill patient who is not expected to live a quality life with some incurable illness, is sound enough to combat the criticisms. Patients like Aruna even if kept alive, will not be able to lead a quality life merely with the ability to show some feeble biological responses. The court strengthened the point that such a person may be allowed to die a peaceful death with the help of passive euthanasia to escape the immeasurable pain of illness, although refused to grant
Euthanasia to Aruna.
Post Aruna’s case, in 2018, India had witnessed a remarkable shift in the sphere of passive euthanasia as a five-judge bench of the Supreme Court had issued a slew of directions to this effect after considering the right to die as a part of the sacrosanct fundamental right to life under Article 21 of the constitution. The landmark stance was taken in Common Cause v. Union of India on a petition filed by a registered society 8 called Common Cause. It prayed for issuing certain guidelines like- executing “Living Wills” in the event of terminal illness. The Ld. Apex Court did not fail to understand the need of the hour and promptly authored those guidelines. Basically it allowed any sane adult suffering from a terminal illness to express his living will through an advance directive which should be voluntary and based on an informed consent of the patient. Here the judiciary had gone to a remarkable extent of considering the ‘living Will’ of such a person by virtue of which he can do away with any medical treatment and embrace death. Further attestation by a notary or a gazetted officer would be requisite to ensure the voluntariness of such a will. Such a judicial mandate is premised on the very idea of ensuring a dignified life to every citizen even though the person is terminally ill and the same has been well-justified in the statement made by the Constitution Bench where it uttered, “Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity… ” . Such a progressive step had added one more feather to the cap of Indian 9 Judiciary as it well understood the requirement and made our country on the same footing with many other developed nations.
● INTERNATIONAL SCENARIO:
The international scenario has shown much contradictions while adopting assisted suicide which is driven by different socio-political-economical structures of a country. Though the general trend has shifted towards accepting euthanasia since every welfare
8 AIR2018 SC 1665
9https://www.outlookindia.com/website/story/kudos-to-sc-on-euthanasia-order-but-involving-judiciary-in-pulling -the-plug-is-a/309331#:~:text=In%20their%20judgement%20they%20state%20that%20an%20%E2%80%98adv anced%20medical%20directive%20would%20serve%20as%20a%20fruitful%20means%20to%20facilitate%20t he%20fructification%20of%20the%20sacrosanct%20right%20to%20life%20with%20dignity%E2%80%99.
state takes into consideration the best interest of its citizens, some countries are still lagging behind in terms of adopting the practice.
Canada has adopted a restrictive stand while dealing with the matter in one landmark case of Rodriguez v. British Columbia where a lady sought assisted killing as she 10 was suffering from a terminal illness. While the Canadian Apex Court was skeptical while granting the relief to the petitioner, it observed that section 241(b) of the Criminal Code, which was challenged in the instant case, is valid as it seeks to curtail the unrestricted act of killing. The courts, being aware about the existing circumstances, held that any lack of restriction may lead to the abuse and the state should be empowered to put restrictions on such immoral practice of self-killing. Later on in 2016, a series of restrictions were enacted through the Medical Assistance in Dying (MAID) Act, which critics termed to be more restrictive.
Netherlands had witnessed the impetus for legalising euthanasia in one leading “Postma Case” where one physician had caused the death of her mother on her 11 repeated requests of euthanasia. The court while convicting the person had recognized the need for advancing the death of a terminally ill patient which raised many controversies. However the Netherlands got crowned as the first country in the world to legalise euthanasia in 2002, after enacting a legislation to that effect. The legislations laid down a few prerequisites like- age of majority, voluntary consent, soundness of mind and incurable health condition for seeking euthanasia.
Columbia too had legalised euthanasia in 1997, by allowing every person suffering from complex illness, hardly leaving any chance of survival, to undergo euthanasia. Such a trend of legalising euthanasia in these as well as other prominent countries like Switzerland, Netherlands, Belgium, few parts of the United States, Austria actually implies that most of the advanced economies of the world are forward looking. But
almost all of them have to tackle the stigmas attached to the practice and no legislation can be full-proof in this regard and it is more or less subject to the reasonable discretion exercised by the Judiciary even though the legislations provide a mechanism. The practice itself being too advanced to be acceptable in the society, the courts have to be cautious while justifying its validity. In those afore-said countries, as
10 1993 Sep 30;[1993] 3:519-632
11 Sheldon, T. 2007. Obituary: Andries Postma. British Medical Journal 334: 320.
it appears from their legislations and some leading case laws, the judiciary has exercised its foresightedness and accordingly granted euthanasia. However as it appears from the international paradigm as well as the domestic one, it is notable that reduction of pain and suffering of terminally ill patients has been of prime consideration for allowing euthanasia, while the mere practice of granting euthanasia to a fit and healthy person has been outlawed. This very consideration adds more input to the interpretation of the law-death nexus, by implying the dynamic character of every legal framework which truly cares for upholding human dignity.
● SUGGESTIONS:
Heterogeneous societies tend to attach a lot of stigma to this very practice of euthanasia. However, the law needs to strike a balance between the individual and the social needs. In a modern society the very connotation of right to life should not be restricted to mere right to exist notwithstanding whether it is an animal existence or not. Euthanasia is effective to bring about change by allowing such a practice where an individual may die peacefully instead of suffering an incurable disease. A mere animal existence would ultimately compromise the quality of human life and hence would frustrate the very purpose of giving a constitutional mandate on right to life.
Effective legislation may improve the situation by ensuring strict surveillance in this regard. The practice would be operative only when there is a situation like terminal illness. The legislation shall contain a different interpretation for right to life inclusive of right to die and provisions should be made regarding “Living Will’ as discussed in the Common Cause’s case. Special emphasis should be laid on tracing the distinction between these two practices, giving more preference to the Passive over the Active one. Besides, the medical practitioners should be made aware about the legal nitty gritties involved. Further, there has to be a broad social acceptance of
the practice which can be achieved through raising literacy and awareness in this regard.
However, apart from stigmatisation there could be instances of voluntary death often being confused with Euthanasias, whereby a healthy individual may want to end his life voluntarily. Here the courts have to put restrictions by drawing the subtle
difference between voluntary death and euthanasia. The same issue cropped up in one landmark case of C.A.Thomas Master v. Union of India 2000 where the court had 12 termed the act of voluntary death as equivalent to suicide which is not permissible by law. There has been attempts to keep voluntary death out of the purview of suicide through the contentions, which however stood no basis and got rejected. This is one more instance where the Indian judiciary had been prudent enough to opine that euthanasia may rescue a terminally ill person from the sufferings of illness, but suicide or any act of self killing, be in the disguise of voluntary death would cause loss to the society. Thus the loopholes may still persist due to the apparent similarity between euthanasia and suicide, to what some sort of clarity may be added through proper legal interpretation.
● CONCLUSION:
The law-death nexus, as discussed in the entire paper, is not as easy as it could be mentioned in one single phrase. It involves a lot of complex issues as the crux of the matter is much more nuanced which requires a thorough understanding and a safe handling as well. The laws governing human life or the fundamental rights to that matter are much more straightforward as advocating the right to life is in a much safer zone than promoting the right to die. Even after the judicial intervention into the matter, society, which is an expression of collective will, still hesitates to implement the same practice. Due to the prima-facie nature of euthanasia, it has been stigmatised in a heterogeneous society. However, allowing passive euthanasia is an intelligent attempt by the Indian judiciary keeping in mind the best interest of a terminally ill patient. The court had been careful about the ethical challenges present in the course and hence it had preferred the passive practice over the active one. This not only helped in achieving a balance between the individual and social wants but also upheld the dynamic nature of law by prioritising the dire necessity of relieving an ill person
over redundant moral implications which are liable to be obsolete in a progressive society.
AUTHOR
Srijita Majumder
St. Xavier’s University Kolkata
12 2000 Cr.L.J. 3729 (Kerala High Court)
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