Euthanasia: The Contemporary Art of Dying By: Aman Kumar and Richa Hudilwala

The Authors, Aman Kumar and Richa Hudilwala are 3rd Year students of  Dr. Ram Manohar Lohiya National Law University, Lucknow, Uttar Pradesh.

INTRODUCTION

The issue of Euthanasia is penumbra of ethical debate and ambiguity. The contenders of this debate bring in legal, moral, societal and bio-ethical arguments to yield opponents to their side. Neither the debate regarding Euthanasia is contemporary nor is the concept in itself unfamiliar to our society. Francis Bacon used the term ‘Euthanasia’ for the first time in medical context during the 17th Century. The term “euthanasia” evolved from Greek language and artlessly meant ‘good death.’ It refers to an act, which brings death in order to shorten the agony and suffering of terminally ill person.

Based on informed consent, euthanasia can be classified into three types-Voluntary Euthanasia (wherein the person actively gives his consent), Non Voluntary Euthanasia (wherein the consent of the person is unavailable, it mainly includes patients in coma or people who are unable to give consent), and Involuntary Euthanasia (where it is induced against the will of the person). On the basis of achieving these outcomes euthanasia can be divided into Active and Passive variants. To elaborate, Active Euthanasia consists of a ‘commission’ to achieve the end and entails the use of some lethal substance or force whereas Passive Euthanasia consists of an ‘omission’ and involves the withholding of treatment necessary for the continuation of life.

TRACING THE EVOLUTION OF THIS PRACTICE

Tracing the origin of euthanasia gives us an idea of this act being very deep rooted. Prior to Hippocrates’s oath, Euthanasia was a routine practice for the physicians and they assumed that they had the authority to kill patients who gave up the hope of recovery. The physicians did not even ask for their permission. For them Euthanasia was an act of kindness and a part of their medical practice. However, Hippocrates considered this act of killing as a barrier to the establishment of confidentiality between physicians and patients. He believed that it would lead to a disbelief in the minds of public and they would start suspecting their physicians.[1] Consequently, this led him to specifically mention in his Hippocratic Oath, the absenteeism from the use of the deadly drug. As time progressed, we saw mass euthanasia program of Nazi government called “AKTION T4” which targeted residents of institutions and hospitals caring for the mentally disabled and psychiatric patients. This program enabled the doctors to grant ‘mercy death’ to the patients who were judged ‘incurable.’ This represented the ideology called ‘life unworthy of life.[2]’

Under this programme, about 2,75,000–3,00,000 people were killed during 1939–1945.[3] Because of the involvement of large number of people in this mass euthanasia program, the idea of euthanasia echoed to every corner of the post-world war contemporary world. Euthanasia became the crude topic of debate and discussions across the world. Ranging from the legislatures to medical councils, everyone analyzed the concept of mercy killing. For Pro-Euthanasia human right activists ‘Right to Die’ became the new sought right. Netherland became the first country to legalize this practice. Legislations advocating Euthanasia were also passed in Washington (2008), Vermont (2013), California (2015) and various other countries. However, the laws regarding Euthanasia varied from country to country, some allowed Active euthanasia, others allowed Passive euthanasia and a few countries like Netherlands, Belgium, Colombia, Luxembourg and Canada gave complete liberty to its citizen in matters of death.

LEGISLATIVE AND JUDICIAL DEVELOPMENTS IN INDIA

India being the largest democracy still has no legislation regarding Euthanasia. Perhaps the only reason, which can be attributed to this, is the collusion between legislations of our country and public outcry. Conventionally, legislature of our country legislate on the topics which affect the masses(vote banks) and Euthanasia being a personal affair fails to gather attention of public and national media. Despite 73 years of independence there never has been a major outcry regarding euthanasia.

However, the role of judiciary in this perspective cannot be undermined.  Nonetheless, various judgements have been delivered on this issue by different courts. The first case wherein the Right to Die came before the Delhi High Court is the case of State vs. Sanjay Kumar,[4] wherein the court criticized Section 309 of Indian Penal Code as being anachronism of a humane society. This decision was followed by two conflicting decisions of the Bombay High Court and the Andhra Pradesh High Court in the cases of Maruti Sripati Dubal vs. State of Maharashtra[5] and Chenna Jagadeeswar vs. State of Andhra Pradesh[6] respectively. In the former case, Section 309 was considered violative of Article 21 of the Indian Constitution while in the latter case, the court held Section 309 to be constitutionally valid.

In the landmark case of P. Rathinam vs. Union of India[7],the Honorable Supreme Court of India stated that, Section 309 of the Indian Penal Code deserved to be effaced from the statute book to humanize our penal laws.[8] The case of P. Rathinam was perhaps the first judgment where the judiciary showed its interest to humanize the penal laws and fulfilled the criteria of it being liberal. It stated that if an act of an individual does not have any bane on society, the state should not interfere in regulating such acts.  Soon, this decision was overruled in Smt. Gian Kaur v. State of Punjab,[9]wherein the court held that Article 21 does not include right to die.The court further observed that right to life is a natural right but suicide being unnatural termination of life is incompatible with it.[10]

In Aruna Ramchandra Shanbaug v. Union of India,[11] the Hon’ble Division Bench of the Supreme Court, comprising Justice Markandey Katju and Justice Gyan Sudha Mishra delivered a landmark judgement, which actually adjudicated on the issue of ‘passive euthanasia’ and declared it legal. The court also gave elaborate guidelines for getting passive euthanasia approved by the state.[12]

However, later on the Supreme Court while adjudicating on a PIL filed by NGO Common Cause, observed that the judgment in Aruna Shanbaug case was based on a wrong interpretation of judgment in Gian Kaur v. State of Punjab.It was inconsistent in itself and therefore court referred the issue to a constitution bench to decide the important question of law, deciding whether Article 21 of the Indian Constitution includes in its ambit the right to die with dignity or not. The Apex court while answering this held that the word ‘life’ in Article 21 has to be construed as ‘right to die with dignity’ being part of the ‘right to live with dignity’. What followed from this exposition was that a dying man who is terminally ill or in a persistent vegetative state can make a choice of euthanasia and this choice can be held within the facet of Article 21 of the Constitution. Thus, the Supreme Court has finally ruled that the interest of the patient shall override the interest of the State in protecting the life of its citizens. The right to live with dignity attaches throughout the life of the individual. The Court thus, clarified that Article 21 covers within its ambit only passive euthanasia and not active euthanasia[13]. 

Nonetheless, the adjudication which was hoped to end one debate started another. The judgement triggered the debate on Active Euthanasia vs. Passive Euthanasia. In this discourse, there has always been an artificial and impractical demarcation drawn by the courts and religious institutions. There is no legally intelligible difference between deliberately doing (active) and not doing (passive) something that leads to death. The basic contention referred here is that the withdrawal of life support which is the classic form of passive euthanasia involves taking an “active” step to hasten the death of terminally ill patients and it is the patient’s “consent” which gives legitimacy to the act[14].

Therefore, the “consent” of similar nature by the patient for injecting a lethal dose by the physician as an “active” step to hasten the death is considered as illegal. And since euthanasia is an issue closely related to society’s morals, if spoken morally there is no “moral” difference between killing and letting die as the intention is fundamentally the same in both the case. 

CONCLUSION

Death is anyway the natural outcome but its process is not and the same should not be regulated by the state. Further, it is also very unethical of the state government to have the authoritative power and use it to prolong the suffering of the terminally ill patients and their family members and to make them exploit their family resources. In Kartar Singh Vs. State of Punjab[15], the court held that the Article 21 i.e. Right to life and Dignity includes “Pursuit of Happiness and Excellence”. If Someone’s pursuit of happiness includes a painless and quick death, is it unethical on their part to do so? Moreover, when the act is been allowed passively it happens on the thoughts and judgements of  others , so why not allow it actively where one can decide for themselves. Is it to say that others can take a better decisions regarding one’s life.?

Legislation is most dignified and authoritative articulation of the societal values. In India, undeniably euthanasia is illegal. Having due consideration to this, together with judicial pronouncements there is a huge cry for the proper legislation on legalization of Active Euthanasia. But as above mentioned, courts in the paper have legalized passive euthanasia but also desired to have a proper legislation for the same. The same was propounded by Law commission of India in its 196^th report on ‘Medical Treatment to terminally Ill Patients’ in March 2006 providing for guidelines to legalize euthanasia. To prevent the misuse of this very proposition, recommendations given by the commission should be considered which includes that the ‘competent patient’ can refuse medical treatment and his ‘informed decision’ should be respected by the doctors. The record of the patient seeking such request should be maintained, containing all the relevant details and such details to be kept confidential. Also, Medical council of India should provide for proper Guidelines in context to the medical treatment of such patients and such guidelines must be strictly adhered.[16]Apart from above, the legislation should also provide for proper investigation of sufferer’s psyche, family, financial condition together with the cause of the patients medical condition. The law should also advance clarity in the term of ‘physician’ who can administer euthanasia. Consultation with the other physicians should be made mandatory.

If all the above conditions together with many other provisions as required in the appropriate legislation are fulfilled, the misuse of the euthanasia can be prevented to a larger extent and can lead to its proper implementation benefitting the one who desired for.

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