ABSTRACT
Euthanasia is always under debate in our legal system. Many argue that if we bring euthanasia into practice , this will lead to disposing off people with incurable and debilitating diseases from the society. This would be against the human rights of these persons. On the other hand many argue that, people with such incurable and debilitating diseases should be allowed to die with dignity Euthanasia means good health , this term was originated from Greece.
There have been many petition raising the issue of euthanasia, relating to every angle of constitutional validity , like – article 21 : Right to Life of the Indian constitution , malified intention , right to die etc. , every such aspect has to be taken in consideration.
People supporting euthanasia say, Euthanasia will provide a way to the patient to get rid of that intolerable pain . The person is lingering to death, he/she is suffering a lot, providing a proper chance of right to die with dignity is very important for a person under ethical and legal grounds. On the other hand , many say it is essential to access the mental status of the individual seeking for euthanasia. In classical teaching, attempt to suicide is a psychiatry. Hence, attempted suicide is considered as a sign of mental illness.
After a landmark judgement ,Passive euthanasia was made legal in India. India now comes amongst those countries which recognizes passive euthanasia This verdict made passive euthanasia possible in India in certain conditions which will be decided by the High Court. It is lawful for doctors to take a decision to give, withhold or withdraw medical treatment if they consider that to be the appropriate action to be taken in the best interests of the patient. There should be a proper procedure followed in passive euthanasia , doctors should without any unlawful action check the patient , and then continue with the procedure.
In our country , we can see improvement , with strengthening right to die with dignity with enabling passive euthanasia , but along with that we need to take precautions.
INTRODUCTION
Euthanasia means good health , this term was originated from Greece. In its literal meaning euthanasia refers to killing someone without pain who wants to die because he/she is suffering from a disease that cannot be cured. Euthanasia has two types : Active and Passive Euthanasia.
Active euthanasia refers to an deliberate act if administrating lethal drugs[1], to end an incurably or terminally ill patients life. Whereas Passive Euthanasia refers to an act of intentionally letting a patient die by withholding artificial life support systems .
The topic of euthanasia is always under debate in our legal system. Many argue that if we bring euthanasia into practice , this will lead to disposing off people with incurable and debilitating diseases from the society. This would be against the human rights of these persons. On the other hand many argue that, people with such incurable and debilitating diseases should be allowed to die with dignity. Also there is a lot of burden on caregivers , be it emotional, financial or physical , caregivers suffer a lot taking care of their loved one , even when they know that the dieses is not curable and they will not able to save the patient.
In our Indian legal system Active euthanasia is never considered as an option , it is said to be totally unethical to inject lethal drugs to kill a patient suffering from incurable dieses . But debate always there for the Passive euthanasia . There have been many petition raising the issue of euthanasia, relating to every angle of constitutional validity, like – article 21: Right to Life of the Indian constitution, malafide intention , right to die etc. , every such aspect has to be taken in consideration. After the case of Aruna Shanbaug[2] , Passive euthanasia has become legal in India, with its conditions and guidelines.
EUTHANASIA – ASSISTED SUCIDE?
Suicide is an intentional act of ending your own life , this act can be indued by various reasons such as fear of failure , frustration , toxic relations etc. Under article 21 of The Constitution of India , everybody is provided with Right to life and Personal liberty. But Right to die is not included in right to life, so it always raised question about the constitutional validity of suicide. Therefore, Under section 309 of IPC , whoever attempts to commit suicide and does any act towards the commission of such act shall be punished , with imprisonment of 1 year. In the year of 2017, the decriminalisation of section 309[3], took place. Suicide is a very dangerous step that anybody would take if he/she is in an extreme state of mind , therefore putting some behind the bar for attempt to commit suicide , would not do justice, because person attempting to commit such act is already in a very weak mental stage , he/she requires counselling , thus mental health act 2017 was introduced , under which people who have attempted to commit crime would be provided help.
Euthanasia has a different meaning than suicide euthanasia doesn’t include, the person killing himself. In the case of State of Bombay v. Maruti Shripati Dubal[4], the difference between Suicide and Euthanasia was stated.
Assisted suicide – Providing the person with the information means and guidance for killing himself/ taking his or her own life. Now , here the question arises that , is Euthanasia – Assisted suicide?
So, assisted suicide is different from euthanasia , because is assisted suicide person is himself taking his life, whereas in euthanasia its removal of life support or administration of drugs , done by medical practitioner.
In landmark case of Gian Kaur v. State of Punjab[5].- Euthanasia and assisted suicide were held unlawful.
EVOLUTION OF EUTHANASIA IN INDIA
A Person who is in a vegetative state, a person who is suffering from a incurable disease , is in a phase where everyone knows that his life wont be saved. In the modern times we have seen many petition arguing for legalizing euthanasia.
India law system who has fully opposed the idea of euthanasia , has faced many questions by the people, there are number of arguments relating to the legalization of euthanasia, which have lead to the evolution of euthanasia in India.
ARGUMENTS FOR LEGALIZATION: Euthanasia will provide a way to the patient to get rid of that intolerable pain . The person is lingering to death, he/she is suffering a lot, providing a proper chance of right to die with dignity is very important for a person under ethical and legal grounds.
Care giving is very stressful part for the family members of the patient, especially when it is already said that the person has an incurable disease and cannot be saved , Euthanasia will be very important and beneficial for reliving the caregivers.
Nobody wants to die, nobody wants their loved one to die, but in the circumstances of an incurable dieses, euthanasia can play a great role in reliving the stress of patient and care givers. It will thus provide the very right to person suffering from incurable disease to, die with dignity.
In the landmark case case of Common Cause v. UOI – it was stated that an incompetent person , suffering, in pain , who cannot take decisions on his own, if in case of passive euthanasia, weather to withdraw his external support or not, in that case it is upon the court on to decide.
ARGUMENTS AGAINT LEGALIZATION
Eliminating the invalid:
Euthanasia oppress argue that if we embrace ‘the right to death with dignity’, people with incurable disease will disappear from the society . The practice of care will be vanished and people will start getting rid of other people instead of indulging in care giving.
If euthanasia is legalized ,State may slow down in working towards the betterment of health and bringing treatment for the incurable disease and will get an escape from this. Legalized euthanasia has led to a severe decline in the quality of care for terminally-ill patients. Hence, in a welfare state there should not be any role of euthanasia in any form.
Malafide intention:
In the era of declining morality and justice, there is a possibility of misusing euthanasia by family members or relatives can be seen , just for the sake of their own benefit .
CONSTITUTIONAL VALIDITY
Right to die with dignity
Under article 21 of Indian Constitution , Right to life and personal liberty[6].
Right to life doesn’t include right to die , but it does include right to die with dignity, A person who is suffering from a incurable disease cannot be treated, therefore he ho /she would eventually die, keeping the patient on external support just for the sake of keeping him alive ,
such patient is suffering from pain, Putting euthanasia In practice in such case would secure this persons right to die with dignity therefore protecting his/her fundamental right: article 21.
The Court extensively considered Indian and international precedent, including the decision in K.S. Puttaswamy & Anr. Vs. Union of India & Ors. [7]and held that the right to die with dignity was a fundamental right under Article 21. The Court also validated the use of Advance Medical Directives, noting that through this mechanism individual autonomy could be safeguarded in order to provide dignity in death.
THE CASE OF ARUNA
In this case Passive Euthanasia was made legal in India. It has a lot of guidelines and conditions applied to it.
Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was mercilessly attacked by a sweeper who tried to rape her , but when found that she was menstruating that time , he sodomized her , he wrapped a dog chain around her, neck was beating her with the chain and suffocated her by twisting the chain across her neck. Next morning she was found lying on the floor covered with blood.
It’s been 36 years since this incident now, Aruna has been surviving on mashed food and external support, she is paralyzed and cannot move and doctors claim that there is no scope of improvement, and she is entirely dependent on the external medical support to keep her alive.
This devastating incident is a land mark case in the revolution of euthanasia in India, Aruna’s friend who has been seeing Aruna in such conditions , suffering in pain approached to the court in order to seek justice for Aruna , she had applied that now there is no scope that Aruna would be able to be treated and get better , so to relive her from such pain , external support have to be removed , euthanasia have been illegal in India , but after seeing Aruna condition , such case , was taken under consideration and Aruna was provided with passive euthanasia which was the first ever time in India , and had guidelines and conditions applied to it.
Therefore Aruna’s case became a revolution.
The issues raised:
When a person is in a permanent vegetative state [8], isn’t it illegal to remove external support keeping that person alive.
Should the whishes of a considered who has previously expressed a wish not to have lifesustaining treatments in case of futile care or a PVS?
In Aruna Shanbaug’s case Supreme Court laid down guidelines for passive euthanasia.
India now comes amongst those countries which recognizes passive euthanasia
PASSIVE EUTHANASIA IN INDIA
The guidelines provided for withdrawal of life support system which can ultimately lead to a person’s death. This verdict made passive euthanasia possible in India in certain conditions which will be decided by the High Court.
GUIDELINES LAID BY THE GOVERNMENT – PASSIVE EUTHANASIA
Following are the guidelines to be followed for the passive euthanasia:
In the event, the executor becomes terminally ill with no hope of recovery and cure of the ailment, the treating physician shall ascertain its authenticity from the jurisdictional JMFC.
After examining the patient the physician is required to inform the family members about the condition of the illness and about the treatment available, and the consequences if lest untreated.
If Medical Board certifies that the instructions be carried out, the hospital shall inform the collector about the proposal. A medical board comprising of chief district medical officer along with 3 expert doctors is made, this team will examine the patient and then further will guide for the process required.
After the examination the board will communicate the decision to JMFC and he/she will visit the patient and finally according to the procedure will allow for passive euthanasia decision
LIABILITY OF DOCTORS
Where a patient is not competent, it is lawful for doctors to take a decision to give, withhold or withdraw medical treatment if they consider that to be the appropriate action to be taken in the best interests of the patient. In application of passive euthanasia it is important for doctors , to take all precautions, and not to leave even a slight , possibility of treatment of the patient. Any unlawful act by doctor may cause a legal liability .
MALIFIED INTENTION
In the modern times, we all see that morality and loyalty is declining therefore , legalization of passive euthanasia can be misused. ‘Mercy killing’ should not lead to ‘killing mercy’ in the hands of the noble medical professionals. There can be incidents where , relatives with their personal bad intention want to kill the patient and they can use such , opportunity of passive euthanasia
Hence, to keep control over the medical professionals, the Indian Medical Council Regulations, 2002 discusses euthanasia briefly ,There is an urgent need to protect patients and also medical practitioners caring the terminally ill patients from unnecessary lawsuit.
There should be a proper procedure followed in passive euthanasia , doctors should without any unlawful action check the patient , and then continue with the procedure.
In our country , we can see improvement , with strengthening right to die with dignity with enabling passive euthanasia , but along with that we need to take precautions.
REFERENCE WITH OTHER COUNTRIES
Netherland
Euthanasia in the Netherlands is regulated by the Termination of Life on Request and Assisted Suicide (Review Procedures) Act ,2002[9].
Switzerland:
According to article 115 of swis penal code the assisted suicide is only considerd crime If the reason is criminal .
USA: In all states of USA active euthanasia is legal and assisted suicide is legal in states like Oregon, Washington and Montana. Further, Washington and Montana also have similar legislations in place. Countries like Belgium, Canada have also joined the move. countries such as Spain, UK, do not start the practice of euthanasia.
SUGGESTIONS
In my opinion , Euthanasia is a very controversial topic when it comes to oue legal system.
As there are several for and against arguments for euthanasia, we see both positive and negative side. We see many arguing about the necessity of euthanasia for the one who is just suffering and many arguing for the negative impact that euthanasia will bring, we all know that euthanasia legalization is a very big step of our government , being such a controversial topic , euthanasia servers justice to innocent patient who suffering from incurable disease, and it is still sad that many mean people take advantage of such laws and use euthanasia illegally .
I think , when it comes to right to die with dignity , its very important, that passive euthanasia is allowed in the country, because patients suffering from incurable diseases really are in a lot of pain and to relive them from such pain , euthanasia can be very helpful.
On the other hand, govt. should keep check on the misuse of euthanasia , be cause in modern times loyalty and morality is lost, people deceive each other for personal gain therefore, euthanasia as a law can be misused and can lead to death of a innocent.
To maintain the proper balance govt and medical practitioners should , take proper precautions.
REVIEW OF LITERTURE
I researched for this topic in articles, magazines, books and euthanasia is nicely explained, but since In India euthanasia is a new concept , so I found the source that read , not very clear . With the advancement in euthanasia , people will get much clearer picture and I believe articles would be more clear about the situation , and I found legal and ethical review accuretly given.
Overall literature provided was sufficient and good.
CONCLUSION
I would like to say that the right to have one’s life terminated at will is subject to social, ethical, and legal strictures. But every situation has exception and euthanasia is such a thing that is the last solution one can opt , because no one wants to loose their loved one , no one wants to give consent for death , but suffering and not getting better is an issue , which passive euthanasia can only address , following such circumstances , Indian government has also taken decision which are exposed to exploitation also.
If the person is in such vegetative state or in coma and is suffering from pain and even after consultation , he/she is not in a treatable condition, then passive euthanasia come handy but it should not be used to exploit someone.
And legalizing passive euthanasia is a good step and government should also work in strengthening the health and should follow passive euthanasia with all the guidelines.
SUBMITTED BY – MUGDHA KAPOOR
B.A.L.L.B(H), 2020-2025
[1] Lethal drugs – Drugs such as poison KLC etc.
[2] Aruna Shanbaug v/s Union of India | LawFoyer
[3] Decriminalisation of Section 309 of IPC: – Youth Forum
[4] State of Maharashtra v Maruti Shripati Dubal August 1996 – Judgement – LawyerServices
[5] State Of Punjab v. Gian Kaur And Another | Supreme Court Of India | Judgment | Law | CaseMine
[6] Article 21 of The Constitution of India – The Expanding Horizons (legalserviceindia.com)
[7] K.S. PUTTASWAMY V. UNION OF INDIA » (lawaudience.com)
[8] Permanent Vegetative state – A state in which person does not show any signs of awareness.
[9] The ongoing discussion on termination of life on request. A review from a German/European perspective – PubMed (nih.gov)