From the moment of his birth, a person is clothed with basic human rights. Right to life is one of the basic as well as fundamental right without which all rights cannot be enjoyed. Right to life means a human being has an essential right to live, particularly that such human being has the right not to be killed by another human being. But the question arises that if a person has a right to live, whether he has a right not to live i.e whether he has a right to die? Whiling giving this answer, the Indian courts expressed different opinions. In M.S Dubal vs. State of Maharastra, the Bombay High Court held that right to life under article 21 of the Indian Constitution includes ‘right to die’. On the other hand in Chenna Jagadeeswar vs. State of AP, the AP High Court said that right to die is not a fundamental right under Article 21 of the Constitution. However in P. Rathinam’s case Supreme Court of India observed that the ‘right to live’ includes ‘right not to live’ i.e right to die or to terminate one’s life. But again in Gain Kaur vs State of Punjab, a five member bench overruled the P.Rathainam’s case and held that right to life under Article 21 does not include Right to die or right to be killed.
‘Right to life’ including the right to live with human dignity would mean the existence of such right up to the end of natural life. This may include the right of a dying man to die with dignity. But the ‘right to die with dignity’ is not to be confused with the ‘right to die’ an unnatural death curtailing the natural span of life. Thus the concept of right to life is central to the debate on the issue of Euthanasia. One of the controversial issues in the recent past has been the question of legalizing the right to die or Euthanasia. Euthanasia is controversial since it involves the deliberate termination of human life. Patient suffering from terminal diseases are often faced with great deal of pain as the diseases gradually worsens until it kills them and this may be so frightening for them that they would rather end their life than suffering it. So the question is whether people should be given assistance in killing themselves, or whether they should be left to suffer the pain cause by terminal illness.
The term Euthanasia comes from two Ancient Greek words: ‘Eu’ means ‘Good’, and ‘thantos’ means ‘death’, so Euthanasia means good death. It is an act or practice of ending the life of an individual suffering from a terminal illness or in an incurable condition by injection or by suspending extra ordinary medical treatment in order to free him of intolerable pain or from terminal illness.Euthanasia is defined as an intentional killing by an act or omission of person whose life is felt is not to be worth living. It is also known as ‘Mercy Killing’ which is an act where the individual who, is in an irremediable condition or has no chances of survival as he is suffering from painful life, ends his life in a painless manner. It is a gentle, easy and painless death. It implies the procuring of an individual’s death, so as to avoid or end pain or suffering, especially of individuals suffering from incurable diseases. Oxford dictionary defines it as the painless killing of a person who has an incurable disease or who is in an irreversible coma. According to the House of Lords select Committee on Medical Ethics, it is “a deliberate intervention under taken with the express intention of ending life to relieve intractable suffering”.Thus it can be said that Euthanasia is the deliberated and intentional killing of a human being by a direct action, such as lethal injection, or by the failure to perform even the most basic medical care or by withdrawing life support system in order to release that human being from painful life. It is basically to bring about the death of a terminally ill patient or a disabled. It is resorted to so that the last days of a patient who has been suffering from such an illness which is terminal in nature or which has disabled him can peacefully end up his life and which can also prove to be less painful for him. Thus the basic intention behind euthanasia is to ensure a less painful death to a person who is in any case going to die after a long period of suffering. Euthanasia is practiced so that a person can live as well as die with dignity. In brief, it means putting a person to painless death in case of incurable diseases or when life become purpose less or hopeless as a result of mental or physical handicap.
This research paper thus deals with one of the most debated subjects in the world, is euthanasia. The debate is regarding the legalization of euthanasia. This debate is a continuing one as some people are of the view that life is sacred and no one has got the right to end it whereas on the other hand some say that life belongs to oneself and so each person has got the right to decide what he wants to do with it even if it amounts to dying.
In our day to day life we often come across terminally ill patients that are bedridden and are totally dependent on others. It actually hurts their sentiments. Looking at them we would say that death would be a better option for them rather than living such a painful life; which is painful physically as well as psychologically. But if on the other hand we look at the Netherlands where euthanasia is made legal, we will see that how it is abused there. So following its example, no one wants euthanasia to be legalized in India. But the question that lies before us is which will be a better option. In this paper, some basic issues regarding euthanasia are discussed and then it is left to the reader to decide which course would be better: legalizing or not legalizing euthanasia. Although the Supreme Court has already given its decision on this issue, yet some doubts persist on its execution.
DIFFERENCE BETWEEN SUICIDE AND EUTHANASIA:
There is a conceptual distinction between suicide and euthanasia. In a suicide a man voluntarily kills himself by stabbing, poisoning or by any other way. No doubt in suicide one intentionally attempts to take his life. It is an act or instance of intentionally killing oneself mostly due to depression or various reasons such as frustration in love, failure in examinations or in getting a good job etc. on the other hand, in euthanasia there is an action of some other person to bring to an end the life of a third person. In euthanasia, a third person is either actively or passively involved i.e he aids or abets the killing of another person. It is important to mention in this context that there is also a difference between ‘assisted suicide’ and ‘euthanasia’. Assisted suicide is an act which intentionally helps another to commit suicide, for example by providing him with the means to do so. When it is a doctor who helps a patient to kill himself (by providing a prescription for lethal medication) it is a ‘physician assisted suicide’. Thus, in assisted suicide the patient is in complete control of the process that leads to death because he/she is the person who performs the act of suicide. The other person simply helps (for example, providing the means for carrying out the action). On the other hand euthanasia may be active such as when a doctor gives a lethal injection to a patient or passive such as when a doctor removes life support system of the patient.
Euthanasia is a complex matter; there are many different types of euthanasia. Euthanasia may be classified according to consent into three types.1. Voluntary euthanasia- when the person who is killed has requested to be killed.
2. Non-voluntary euthanasia- when the person who is killed made no request and gave no consent. In other words, it is done when the person is unable to communicate his wishes, being in coma.
3. Involuntary euthanasia- when the person who is killed made an expressed wish to the contrary. In other words, it is involuntary when the person killed gives his consent not to die.
There is a debate within the medical and bioethics literature on whether or not the non-voluntary or involuntary killing of persons can be regarded as euthanasia, irrespective of consent. Some say that consent is not considered to be one of their criteria. However others see consent as essential. According to them killing of a person without the person’s consent (non-voluntary or involuntary) is not euthanasia. It is murder and hence euthanasia can be voluntary only. Euthanasia can be also divided into two types according to means of death.
1. Active euthanasia- it is also known as ‘Positive Euthanasia’ or ‘Aggressive Euthanasia’. It refers to causing intentional death of a human being by direct intervention. It is a direct action performed to end useless life and a meaningless existence. For example by giving lethal dose of a drug or by giving a lethal injection. Active euthanasia is usually a quicker means of causing death and all forms of active euthanasia are illegal.
2. Passive euthanasia- it is also known as ‘Negative Euthanasia’ or ‘Non-Aggressive Euthanasia’. It is intentionally causing death by not providing essential, necessary and ordinary care or food and water. It implies to discontinuing, withdrawing or removing artificial life support system. Passive euthanasia is usually slower and more uncomfortable than active. Most forms of voluntary, passive and some instance of non-voluntary, passive euthanasia are legal.
There is no euthanasia unless the death is intentionally caused by what was done or not done. Thus, some medical actions often levelled as ‘Passive Euthanasia’ are no form of euthanasia, since intention to take life is lacking. These acts include not commencing treatment that would not provide a benefit to the patient, withdrawing treatment that has been shown to be ineffective, too burdensome or is unwanted, and the giving of high doses of pain-killers that may endanger life, when they have been shown to be necessary. All those are part of good medical practice, endorsed by law, when they are properly carried out.
GLOBAL POSITION
In England, following a series of decisions of the House of Laws relating to euthanasia vary greatly and are constantly subject to changes as cultural values shift and better ‘Palliative care’ or treatments become available. In some countries it is legalised or in others, it is criminalized.
AUSTRALIA
The Northern Territory of Australia became the first country to legalize euthanasia by passing the Rights of the Terminally ILL Act, 1996. It was held to be legal in the case of Wake v. Northern Territory of Australia by the Supreme Court of Northern Territory of Australia. Subsequently the Euthanasia Laws Act, 1997 legalised it. Although it is a crime in most Australian states to assist euthanasia, prosecution have been rare. In 2002, the matter that the relatives and friends who provided moral support to an elder women to commit suicide was extensively investigated by police, but no charges were made. In Tasmania in 2005, a nurse was convicted of assisting in the death of her mother and father who were both suffering from incurable illnesses. She was sentenced to two and half years in jail but the judge later suspended the conviction because he believed the community did not want the woman put behind bars. This sparked debate about decriminalization of euthanasia.
ALBANIA
Euthanasia was legalized in Albania in 1999, it was stated that any form of voluntary euthanasia was legal under the rights of the Terminally ILL act of 1995. Passive euthanasia is considered legal if three or more family members consent to the decisions.
BELGIUM
Euthanasia was made legal 2002. The Belgian Parliament had enacted the ‘Belgium Act on Euthanasia’ in September 2002, which defines euthanasia as “intentionally terminating life by someone other than the person concerned at the latter’s request”.Requirements for allowing euthanasia are very strict which includes the patient must be major, has made the request voluntary, well considered and repeated and he/she must be in a condition of consent and unbearable physical or mental suffering that can be alleviated. All these acts must be referred to the authorities before allowing in order to satisfying essential requirements.
NETHERLANDS
Netherlands is the first country in the world to legalise both euthanasia and assisted suicide in 2002. According to the penal code of the Netherlands killing a person on his request is punishable with twelve years of imprisonment or fine and also a assisting a person to commit suicide is also punishable by imprisonment up to three years or fine. In spite of this provision, the courts of Netherlands have come to interpret the law as providing a defence to charges of voluntary euthanasia and assisted suicide. The defence allowed is that of necessity. The criteria laid down by the courts to determine whether the defence of necessity applies in a given case of euthanasia, have been summarized by Mrs. Borst-Eilers as follows;
1. The request for euthanasia must come only from the patient and must be entirely free and voluntary.
2. The patient’s request must be well considered, durable and persistent.
3. The patient must be experiencing intolerable (not necessarily physical) suffering, with no prospect of improvement.
4. Euthanasia must be the last resort. Other alternatives to alleviate the patient’s situation must be considered and found wanting.
5. Euthanasia must be performed by a physician.
6. The physician must consult with an independent physician colleague who has experience in this field.
Thus, though active euthanasia is technically unlawful in the Netherlands, it is considered justified (not legally punishable) if the physician follows the guidelines.
In 2002, Netherlands legalised euthanasia. The law codified a 20 years old convention of not prosecuting doctors who have committed euthanasia in very specific cases, under very specific circumstances. It allows a doctor to end the life of a patient suffering unbearable pain from an incurable condition, if the patient so requests. The law requires a long standing doctor patient relationship, patient’s awareness of other available medical options and that the patient must have obtained a second professional opinion.
CANADA
In Canada, patients have the right to refuse life sustaining treatments but they do not have the right to demand for euthanasia or assisted suicide. The Supreme Court of Canada in Rodriguez vs Attorney,1994 General for British Columbia said that in the case of assisted suicide the interest of the state will prevail over individual’s interest.
U.S.A
There is a distinction between passive euthanasia and active euthanasia. While active euthanasia is prohibited but physicians are not held liable if they withhold or withdraw the life sustaining treatment of the patient either on his request or at the request of patient’s authorized representative. Euthanasia has been made totally illegal by the United States Supreme Court in the cases Washington v. Glucksberg and Vacco v. Quill. Only in Oregon, a state in America, physician assisted suicide has been legalized in 1994 under Death and Dignity Act. In April 2005, California State legislative committee approved a bill and has become 2nd state to legalise assisted suicide.
ENGLAND
Lords it is now settled that a person has a right to refuse life sustaining treatment as part of his rights of autonomy and self- determination. The House of Lords also permitted non voluntary euthanasia in case of patients in a persistent vegetative state. Moreover in a recent case, a British High Court has granted a woman, paralyzed from neck, the right to die by having life support system switched off( Dr. S.S Jaswal and S.C Baseen,civil and military law journal,p.g-90).
THE UNITED KINGDOM
Euthanasia is illegal in United Kingdom but on November 5, 2006 Britain Royal College of obstructions and gynaecologists submitted a proposal to the Nuffield Counsel of Bioethics calling for consideration of permitting the euthanasia of disabled new-born.
SWITZERLAND
According to Article 115 of Swiss Penal Code, suicide is not a crime and assisting suicide is a crime if only if the motive is selfish. It does not require the involvement of physician nor is that the patient terminally ill. It only requires that the motive must be unselfish. In Switzerland, euthanasia is illegal but physician assisted suicide has been made legal. However decriminalizing euthanasia was tried in 1997 but it recommended where a non- physician helper would have to be prosecuted whereas the physician would not.
Death is not a right, it is the end of all rights and a fate that none of us can escape. The ultimate right we have as human beings is the right to life, an inalienable right not even the person who possesses it can never take that away. It is similar to the fact that our right to liberty does not give us the freedom to sell ourselves into slavery. In addition, this right to die does not equal a right to ‘die with dignity.’ Dying in a dignified manner relates to how one confronts death, not the manner in which one dies since history recounts many situations of individuals facing degrading deaths in a dignified way. Of course, what this objection really relates to is the supposed lack of dignity of forcing someone to endure suffering rather than allowing them to end their life. However better pain alleviation techniques are a more moral solution to this problem than killing those who are suffering. The question whether Article 21 includes right to die or not first came into consideration in the case State of Maharashtra v. Maruti Shripathi Dubal . It was held in this case by the Bombay High Court that ‘right to life’ also includes ‘right to die’ and Section 309 was struck down. The court clearly said in this case that right to die is not unnatural; it is just uncommon and abnormal. Also the court mentioned about many instances in which a person may want to end his life. This was upheld by the Supreme Court in the case P. Rathinam v. Union of India. However in the case Gian Kaur v. State of Punjab it was held by the five judge bench of the Supreme Court that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The court clearly mentioned in this case that Article 21 only guarantees right to life and personal liberty and in no case can the right to die be included in it. In India, like almost in other countries, euthanasia has no legal aspect. In India there is no difference between active and passive euthanasia and no penal law yet introduced in I.P.C, which specifically deals with euthanasia. The every act of aiding and abetting the commission of suicide are punished under the section 306 of the I.P.C. Distinguishing euthanasia from suicide, Justice Lodha in Naresh Maratra Sakhee vs Union of India, observed that, “suicide by its nature is an act of self-killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia or Mercy killing on the other hand means implies the intervention of other human agency to end the life. Mercy killing is thus not suicide and the provision of section 309 does not cover an attempt at mercy killing. The two concepts are both factually and legally distinct. Euthanasia or Mercy killing is nothing best homicide whatever the circumstances in which it is affected.”
In case of physicians, there is an intention to cause death of patient, hence he can be charged under clause (1) of section 300 of I.P.C but where there is valid consent of the deceased, exception 5of section 300 is attracted and thus the act of the physician is considered as culpable homicide not amounting to murder under Part I of section 304. In case of non-voluntary and involuntary euthanasia, the act of physician can be fall under section 88 and 92 of IPC as there is an intention to causing death of a patient for his benefit. And other relatives who are aware of such intention either of the patient or of the physician can be charged under section 202 of IPC. The Supreme Court explained the position of Indian law on euthanasia in M.S.Dabal vs state of Maharashtra as under:
“Mercy killing is nothing but homicide, whatever the circumstances in which it is affected. Unless it is specifically accepted it cannot be offences. Indian Penal Code further punishes not only abetment of homicide, but also abetment of suicide”.
The followings are the arguments against euthanasia:1. The human life is gift of God and taking life is wrong and immoral human beings cannot be given the right to play the part of God. The one who suffers pain is only due to one’s karma. Thus euthanasia devalues human life.
2. It is totally against the medical ethics, morals and public policy. Medical ethics call for nursing, care giving and healing and not ending the life of the patient. In the present time, medical science is advancing at a great pace. Thus even the most incurable diseases are becoming curable today. Thus instead of encouraging a patient to end his life, the medical practitioners should encourage the patients to lead their painful life with strength which should be moral as well as physical. The decision to ask for euthanasia is not made solely by the patient. Even the relatives of the patient pay an important role in doing that. Hence, it is probable that the patient comes under pressure and takes such a drastic step of ending his life. Of course in such cases the pressure is not physical, it is rather moral and psychological which proves to be much stronger. The patient himself starts to feel that he is a burden on the relatives when they take such a decision for him and finally he also succumbs to it.
3. It is feared that if euthanasia is legalised then other groups of more vulnerable people will become at risk of feeling into taking that option themselves. Groups that represent disabled people are against the legalisation of euthanasia on the ground that such groups of vulnerable people would feel obliged to opt for euthanasia as they may see themselves as a burden to society.
4. It has a slippery slope effect, for example firstly it can be legalised only for terminally ill people but later on laws can be changed and then it may allow for non- voluntary or involuntary.
5. Acceptance of euthanasia as an option could exercise a detrimental effect a societal attitudes and on the doctor patient relationship. The doctor patient relationship is based on mutual trust, it is feared this trust may be lost if euthanasia is legalised.
6. When suicide is not allowed then euthanasia should also not be allowed. A person commits suicide when he goes into a state of depression and has no hope from the life. Similar is the situation when a person asks for euthanasia. But such tendency can be lessened by proper care of such patients and showing hope in them.
7. Patient would not be able to trust either doctors or their relatives as many of them were taking about patient’s painless dignified death and it became a euphemism for assisted murder.
8. Miracles do happen in our society especially when it is a matter of life and death, there are examples of patients coming out of coma after years and we should not forget human life is all about hope.
Followings are the reasons to legalise euthanasia;1. Euthanasia means ending the life a person who is suffering from some terminal illness which is making his life painful as well as miserable or in other words ending a life which is not worth living. But the problem is that how should one decide whether his life is any longer worth living or not. Thus, the term euthanasia is rather too ambiguous. This has been a topic for debate since a long time i.e. whether euthanasia should be allowed or not. At present, the debate is mainly regarding active euthanasia rather than passive euthanasia. The dispute is regarding the conflicts of interests: the interest of the society and that of the individual. Which out of these should prevail over the other? According to the supporters of euthanasia the decision of the patients should be accepted. If on the other hand we weigh the social values with the individual interest then we will clearly see that here the interest of the individual will outweigh the interest of the society. The society aims at interest of the individuals rather it is made with the purpose of assuring a dignified and a peaceful life to all. Now if the individual who is under unbearable pain is not able to decide for himself then it surely will hamper his interest. In that case it will surely be a negation of his dignity and human rights.
2. Euthanasia provides a way to relieve the intolerably extreme pain and suffering of an individual. It relieves the terminally ill people from a lingering death.
3. The essence of human life is to live a dignified life and to force the person to live in an undignified way is against the person’s choice. Thus it expresses the choice of a person which is a fundamental principle.
4. In many developing and under developed countries like India, there is lack of funds. There is shortage of hospital space. So, the energy of doctors and hospital beds can be used for those people whose life can be saved instead of continuing the life of those who want to die. Another important point on which the supporters of euthanasia emphasize is that a lot of medical facilities which amount a lot are being spent on these patients who are in any case going to die. Thus, they argue that rather than spending those on such patients, it will be much better to use such facilities for those who have even fair chances of recovery.
5. Article 21 of the Indian Constitution clearly provides for living with dignity. A person has a right to live a life with at least minimum dignity and if that standard is falling below that minimum level then a person should be given a right to end his life. Supporters of euthanasia also point out to the fact that as passive euthanasia has been allowed, similarly active euthanasia must also be allowed. A patient will wish to end his life only in cases of excessive agony and would prefer to die a painless death rather than living a miserable life with that agony and suffering. Thus, from a moral point of view it will be better to allow the patient die painlessly when in any case he knows that he is going to die because of that terminal illness.
6. Its aim is altruistic and beneficial as it is an act of painlessly putting to death to those persons who are suffering from painful and incurable diseases. So, the motive behind this is to help rather than harm.
7. It not only relives the unbearable pain of a patient but also relieves the relatives of a patient from the mental agony.
8. A point which is often raised against the supporters of euthanasia is that if such right will be granted to the terminally ill patients then there will be chances of abusing it. But the supporters argue that every right involves a risk of being abused but that doesn’t mean that the right itself should be denied to the people. We should rather look at the brighter side of it than thinking of it being abused.
NEW DIMENSION IN INDIAN HISTORY- ARUNA’s CASE
Aruna Shanbaug, who was working as a nurse at KEM Hospital, was assaulted on the night of November 27, 1973 by a ward boy. He sodomised Aruna after strangling her with a dog chain. The attack left Aruna blind, paralysed and speechless and she went into a coma from which she has never come out. She is cared for by KEM hospital nurses and doctors. The woman does not want to live any more. The doctors have told her that there is no chance of any improvement in her state. Her next friend (a legal term used for a person speaking on behalf of someone who is incapacitated) describes Shanbaug: “her bones are brittle. Her skin is like ‘Paper Mache’ stretched over a skeleton. Her wrists are twisted inwards; her fingers are bent and fisted towards her palms, resulting in growing nails tearing into the flesh very often. Her teeth are decayed and giving her immense pain. Food is completely mashed and given to her in semisolid form. She chokes on liquids and is in a persistent vegetative state.” So, she, through her ‘next friend’ Pinki Virani, decided to move the SC with a plea to direct the KEM Hospital not to force feed her. And on 16th December 2009, the Supreme Court of India admitted the woman’s plea to end her life. The Supreme Court bench compromising Chief Justice K G Balakrishnan and Justices A K Ganguly and B S Chauhan agreed to examine the merits of the petition and sought responses from the Union Government, Commissioner of Mumbai Police and Dean of KEM Hospital.
On 24th January 2011, the Supreme Court of India responded to the plea for euthanasia filed by Aruna's friend journalist Pinki Virani, by setting up a medical panel to examine her. The three-member medical committee subsequently set up under the Supreme Court's directive, checked upon Aruna and concluded that she met "most of the criteria of being in a permanent vegetative state". However, it turned down the mercy killing petition on 7th March, 2011. The court, in its landmark judgement, however allowed passive euthanasia in India. While rejecting Pinki Virani's plea for Aruna Shanbaug's euthanasia, the court laid out guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves the withdrawing of treatment or food that would allow the patient to live.
Ms Shanbaug has, however, changed forever India's approach to the contentious issue of euthanasia. The verdict on her case today allows passive euthanasia contingent upon circumstances. So other Indians can now argue in court for the right to withhold medical treatment - take a patient off a ventilator, for example, in the case of an irreversible coma. Today's judgement makes it clear that passive euthanasia will "only be allowed in cases where the person is in persistent vegetative state or terminally ill."
Recently in November 2007, a member of Indian parliament who belongs to the Communist Party of India introduced a bill to legalize euthanasia to the Lok Sabha, the lower house of representatives in the Indian parliament. C.K. Chandrappan, a representative from Trichur, Kerala, introduced a Euthanasia Permission and Regulation Bill that would allow the legal killing of any patient who is bedridden or deemed incurable. The legislation would also permit any person who cannot carry out daily chores without assistance to be euthanized.
"If there is no hope of recovery for a patient, it is only humane to allow him to put an end to his pain and agony in a dignified manner," said Dr. B. K. Rao, chairman of Sir Ganga Ram Hospital in New Delhi. "If it is established that the treatment is proving to be futile, euthanasia is a practical option for lessening the misery of patients."
Euthanasia is totally different from suicide and homicide. Under the Indian penal code, attempt to commit suicide is punishable under section 309 of IPC and also abetment to suicide is punishable under section 306 of IPC. A person commits suicide for various reasons like marital discord, dejection of love, failure in the examination, unemployment etc. but in euthanasia these reasons are not present. Euthanasia means putting a person to painless death in case of incurable diseases or when life became purposeless or hopeless as a result of mental or physical handicap. It is also differs from homicide. In murder, the murderer has the intention to cause harm or cause death in his mind. But in euthanasia although there is an intention to cause death, such intention is in good faith. A doctor apply euthanasia when the patient, suffering from a terminal disease, is in an irremediable conditions or has no chance to recover or survival as he suffering from a painful life or the patient has been in coma for 20/30 years like Aruna Shanbaug.
Therefore it is suggested that penal provision regarding attempts to commit suicide and abetment to suicide should be preserved in the interests of the society as a general rule but euthanasia (voluntary) should be permitted in certain circumstances as an exception to the general rule. Thus Indian Parliament should enact a law regarding euthanasia which enables a doctor to end the painful life of a patient suffering from an incurable disease with the consent of the patient. Parliament should lay down some circumstances under which euthanasia will be lawful as bellow;
A) consent of the patient must be obtained,
B) Failure of all medical treatments or when the patient, suffering from a terminal disease, is in an irremediable conditions or has no chance to recover or survival as he suffering from a painful life or the patient has been in coma for 20/30 years,
C) The economic or financial condition of the patient or his family is very low,
D) Intention of the doctor must not be to cause harm,
E) Proper safeguard must be taken to avoid abuse of it by doctors,
F) Any other circumstances relevant to the particular case
Thus, Euthanasia could be legalized, but the laws would have to be very stringent. Every case will have to be carefully monitored taking into consideration the point of views of the patient, the relatives and the doctors. But whether Indian society is mature enough to face this, as it is a matter of life and death, is yet to be seen.
If we carefully examine the opposition to the legalization of euthanasia, we can conclude that the most important point that the opponents raise is that it will lead to its misuse by the doctors. Thus, it is submitted that when a patient or his relatives can willingly put his life in the hands of the doctor trusting him, then why can’t a doctor be given such discretion to decide what will be in favour of his patient. Another doubt that is often raised is that if the doctors will be given discretion to practice voluntary euthanasia then surely it will gradually lead to asking for involuntary or non-voluntary euthanasia. But it is humbly submitted that a separate legislation should be made allowing only voluntary euthanasia and not involuntary or non-voluntary euthanasia. As has already been pointed out earlier, we also have to keep in mind the limited medical facilities available in India and the number of patients. This question still lies open that who should be provided with those facilities; a terminally ill patient or to the patient who has fair chances of recovery. As the patient himself out of his pain and agony is asking for death, doctor should not increasing that pain of his should allow euthanasia. It has been ruled in the Gian Kaur case that Article 21 does not include right to die by the Supreme Court. But one may try to read it as is evident in the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England. Thus, we can see that as the said right has been included in the ambit ofArticle 21, so this can also be included in Article 21. This question was not raised in the case earlier. Again the point that remains unanswered is regarding the abuse of this right by the doctors. But relevant safeguards can be put on this right and thus its abuse can be avoided. One of the safeguards can be that a proper quasi-judicial authority having a proper knowledge in the medical field can be appointed to look into the request of the patient and the steps taken by the doctor. To make it more full proof some two or three assistant officials including one from the legal field can also be appointed. This will avoid any abuse of this right granted to the terminally ill patients. Here, we have to regard the painful situation in which the patient is and top priority should be lessening his pain. Now when we already know that he is anyways going to die today or tomorrow and he himself is asking for death, there is no point that he should be denied with this right of at least leading a life with minimum dignity and willingly. Otherwise his life will be no better in that situation. Thus, considering the financial and medical facilities also, the question still lies open that what will be better-allowing euthanasia or not allowing euthanasia.
‘Right to life’ including the right to live with human dignity would mean the existence of such right up to the end of natural life. This may include the right of a dying man to die with dignity. But the ‘right to die with dignity’ is not to be confused with the ‘right to die’ an unnatural death curtailing the natural span of life. Thus the concept of right to life is central to the debate on the issue of Euthanasia. One of the controversial issues in the recent past has been the question of legalizing the right to die or Euthanasia. Euthanasia is controversial since it involves the deliberate termination of human life. Patient suffering from terminal diseases are often faced with great deal of pain as the diseases gradually worsens until it kills them and this may be so frightening for them that they would rather end their life than suffering it. So the question is whether people should be given assistance in killing themselves, or whether they should be left to suffer the pain cause by terminal illness.
The term Euthanasia comes from two Ancient Greek words: ‘Eu’ means ‘Good’, and ‘thantos’ means ‘death’, so Euthanasia means good death. It is an act or practice of ending the life of an individual suffering from a terminal illness or in an incurable condition by injection or by suspending extra ordinary medical treatment in order to free him of intolerable pain or from terminal illness.Euthanasia is defined as an intentional killing by an act or omission of person whose life is felt is not to be worth living. It is also known as ‘Mercy Killing’ which is an act where the individual who, is in an irremediable condition or has no chances of survival as he is suffering from painful life, ends his life in a painless manner. It is a gentle, easy and painless death. It implies the procuring of an individual’s death, so as to avoid or end pain or suffering, especially of individuals suffering from incurable diseases. Oxford dictionary defines it as the painless killing of a person who has an incurable disease or who is in an irreversible coma. According to the House of Lords select Committee on Medical Ethics, it is “a deliberate intervention under taken with the express intention of ending life to relieve intractable suffering”.Thus it can be said that Euthanasia is the deliberated and intentional killing of a human being by a direct action, such as lethal injection, or by the failure to perform even the most basic medical care or by withdrawing life support system in order to release that human being from painful life. It is basically to bring about the death of a terminally ill patient or a disabled. It is resorted to so that the last days of a patient who has been suffering from such an illness which is terminal in nature or which has disabled him can peacefully end up his life and which can also prove to be less painful for him. Thus the basic intention behind euthanasia is to ensure a less painful death to a person who is in any case going to die after a long period of suffering. Euthanasia is practiced so that a person can live as well as die with dignity. In brief, it means putting a person to painless death in case of incurable diseases or when life become purpose less or hopeless as a result of mental or physical handicap.
This research paper thus deals with one of the most debated subjects in the world, is euthanasia. The debate is regarding the legalization of euthanasia. This debate is a continuing one as some people are of the view that life is sacred and no one has got the right to end it whereas on the other hand some say that life belongs to oneself and so each person has got the right to decide what he wants to do with it even if it amounts to dying.
In our day to day life we often come across terminally ill patients that are bedridden and are totally dependent on others. It actually hurts their sentiments. Looking at them we would say that death would be a better option for them rather than living such a painful life; which is painful physically as well as psychologically. But if on the other hand we look at the Netherlands where euthanasia is made legal, we will see that how it is abused there. So following its example, no one wants euthanasia to be legalized in India. But the question that lies before us is which will be a better option. In this paper, some basic issues regarding euthanasia are discussed and then it is left to the reader to decide which course would be better: legalizing or not legalizing euthanasia. Although the Supreme Court has already given its decision on this issue, yet some doubts persist on its execution.
DIFFERENCE BETWEEN SUICIDE AND EUTHANASIA:
There is a conceptual distinction between suicide and euthanasia. In a suicide a man voluntarily kills himself by stabbing, poisoning or by any other way. No doubt in suicide one intentionally attempts to take his life. It is an act or instance of intentionally killing oneself mostly due to depression or various reasons such as frustration in love, failure in examinations or in getting a good job etc. on the other hand, in euthanasia there is an action of some other person to bring to an end the life of a third person. In euthanasia, a third person is either actively or passively involved i.e he aids or abets the killing of another person. It is important to mention in this context that there is also a difference between ‘assisted suicide’ and ‘euthanasia’. Assisted suicide is an act which intentionally helps another to commit suicide, for example by providing him with the means to do so. When it is a doctor who helps a patient to kill himself (by providing a prescription for lethal medication) it is a ‘physician assisted suicide’. Thus, in assisted suicide the patient is in complete control of the process that leads to death because he/she is the person who performs the act of suicide. The other person simply helps (for example, providing the means for carrying out the action). On the other hand euthanasia may be active such as when a doctor gives a lethal injection to a patient or passive such as when a doctor removes life support system of the patient.
Euthanasia is a complex matter; there are many different types of euthanasia. Euthanasia may be classified according to consent into three types.1. Voluntary euthanasia- when the person who is killed has requested to be killed.
2. Non-voluntary euthanasia- when the person who is killed made no request and gave no consent. In other words, it is done when the person is unable to communicate his wishes, being in coma.
3. Involuntary euthanasia- when the person who is killed made an expressed wish to the contrary. In other words, it is involuntary when the person killed gives his consent not to die.
There is a debate within the medical and bioethics literature on whether or not the non-voluntary or involuntary killing of persons can be regarded as euthanasia, irrespective of consent. Some say that consent is not considered to be one of their criteria. However others see consent as essential. According to them killing of a person without the person’s consent (non-voluntary or involuntary) is not euthanasia. It is murder and hence euthanasia can be voluntary only. Euthanasia can be also divided into two types according to means of death.
1. Active euthanasia- it is also known as ‘Positive Euthanasia’ or ‘Aggressive Euthanasia’. It refers to causing intentional death of a human being by direct intervention. It is a direct action performed to end useless life and a meaningless existence. For example by giving lethal dose of a drug or by giving a lethal injection. Active euthanasia is usually a quicker means of causing death and all forms of active euthanasia are illegal.
2. Passive euthanasia- it is also known as ‘Negative Euthanasia’ or ‘Non-Aggressive Euthanasia’. It is intentionally causing death by not providing essential, necessary and ordinary care or food and water. It implies to discontinuing, withdrawing or removing artificial life support system. Passive euthanasia is usually slower and more uncomfortable than active. Most forms of voluntary, passive and some instance of non-voluntary, passive euthanasia are legal.
There is no euthanasia unless the death is intentionally caused by what was done or not done. Thus, some medical actions often levelled as ‘Passive Euthanasia’ are no form of euthanasia, since intention to take life is lacking. These acts include not commencing treatment that would not provide a benefit to the patient, withdrawing treatment that has been shown to be ineffective, too burdensome or is unwanted, and the giving of high doses of pain-killers that may endanger life, when they have been shown to be necessary. All those are part of good medical practice, endorsed by law, when they are properly carried out.
GLOBAL POSITION
In England, following a series of decisions of the House of Laws relating to euthanasia vary greatly and are constantly subject to changes as cultural values shift and better ‘Palliative care’ or treatments become available. In some countries it is legalised or in others, it is criminalized.
AUSTRALIA
The Northern Territory of Australia became the first country to legalize euthanasia by passing the Rights of the Terminally ILL Act, 1996. It was held to be legal in the case of Wake v. Northern Territory of Australia by the Supreme Court of Northern Territory of Australia. Subsequently the Euthanasia Laws Act, 1997 legalised it. Although it is a crime in most Australian states to assist euthanasia, prosecution have been rare. In 2002, the matter that the relatives and friends who provided moral support to an elder women to commit suicide was extensively investigated by police, but no charges were made. In Tasmania in 2005, a nurse was convicted of assisting in the death of her mother and father who were both suffering from incurable illnesses. She was sentenced to two and half years in jail but the judge later suspended the conviction because he believed the community did not want the woman put behind bars. This sparked debate about decriminalization of euthanasia.
ALBANIA
Euthanasia was legalized in Albania in 1999, it was stated that any form of voluntary euthanasia was legal under the rights of the Terminally ILL act of 1995. Passive euthanasia is considered legal if three or more family members consent to the decisions.
BELGIUM
Euthanasia was made legal 2002. The Belgian Parliament had enacted the ‘Belgium Act on Euthanasia’ in September 2002, which defines euthanasia as “intentionally terminating life by someone other than the person concerned at the latter’s request”.Requirements for allowing euthanasia are very strict which includes the patient must be major, has made the request voluntary, well considered and repeated and he/she must be in a condition of consent and unbearable physical or mental suffering that can be alleviated. All these acts must be referred to the authorities before allowing in order to satisfying essential requirements.
NETHERLANDS
Netherlands is the first country in the world to legalise both euthanasia and assisted suicide in 2002. According to the penal code of the Netherlands killing a person on his request is punishable with twelve years of imprisonment or fine and also a assisting a person to commit suicide is also punishable by imprisonment up to three years or fine. In spite of this provision, the courts of Netherlands have come to interpret the law as providing a defence to charges of voluntary euthanasia and assisted suicide. The defence allowed is that of necessity. The criteria laid down by the courts to determine whether the defence of necessity applies in a given case of euthanasia, have been summarized by Mrs. Borst-Eilers as follows;
1. The request for euthanasia must come only from the patient and must be entirely free and voluntary.
2. The patient’s request must be well considered, durable and persistent.
3. The patient must be experiencing intolerable (not necessarily physical) suffering, with no prospect of improvement.
4. Euthanasia must be the last resort. Other alternatives to alleviate the patient’s situation must be considered and found wanting.
5. Euthanasia must be performed by a physician.
6. The physician must consult with an independent physician colleague who has experience in this field.
Thus, though active euthanasia is technically unlawful in the Netherlands, it is considered justified (not legally punishable) if the physician follows the guidelines.
In 2002, Netherlands legalised euthanasia. The law codified a 20 years old convention of not prosecuting doctors who have committed euthanasia in very specific cases, under very specific circumstances. It allows a doctor to end the life of a patient suffering unbearable pain from an incurable condition, if the patient so requests. The law requires a long standing doctor patient relationship, patient’s awareness of other available medical options and that the patient must have obtained a second professional opinion.
CANADA
In Canada, patients have the right to refuse life sustaining treatments but they do not have the right to demand for euthanasia or assisted suicide. The Supreme Court of Canada in Rodriguez vs Attorney,1994 General for British Columbia said that in the case of assisted suicide the interest of the state will prevail over individual’s interest.
U.S.A
There is a distinction between passive euthanasia and active euthanasia. While active euthanasia is prohibited but physicians are not held liable if they withhold or withdraw the life sustaining treatment of the patient either on his request or at the request of patient’s authorized representative. Euthanasia has been made totally illegal by the United States Supreme Court in the cases Washington v. Glucksberg and Vacco v. Quill. Only in Oregon, a state in America, physician assisted suicide has been legalized in 1994 under Death and Dignity Act. In April 2005, California State legislative committee approved a bill and has become 2nd state to legalise assisted suicide.
ENGLAND
Lords it is now settled that a person has a right to refuse life sustaining treatment as part of his rights of autonomy and self- determination. The House of Lords also permitted non voluntary euthanasia in case of patients in a persistent vegetative state. Moreover in a recent case, a British High Court has granted a woman, paralyzed from neck, the right to die by having life support system switched off( Dr. S.S Jaswal and S.C Baseen,civil and military law journal,p.g-90).
THE UNITED KINGDOM
Euthanasia is illegal in United Kingdom but on November 5, 2006 Britain Royal College of obstructions and gynaecologists submitted a proposal to the Nuffield Counsel of Bioethics calling for consideration of permitting the euthanasia of disabled new-born.
SWITZERLAND
According to Article 115 of Swiss Penal Code, suicide is not a crime and assisting suicide is a crime if only if the motive is selfish. It does not require the involvement of physician nor is that the patient terminally ill. It only requires that the motive must be unselfish. In Switzerland, euthanasia is illegal but physician assisted suicide has been made legal. However decriminalizing euthanasia was tried in 1997 but it recommended where a non- physician helper would have to be prosecuted whereas the physician would not.
Death is not a right, it is the end of all rights and a fate that none of us can escape. The ultimate right we have as human beings is the right to life, an inalienable right not even the person who possesses it can never take that away. It is similar to the fact that our right to liberty does not give us the freedom to sell ourselves into slavery. In addition, this right to die does not equal a right to ‘die with dignity.’ Dying in a dignified manner relates to how one confronts death, not the manner in which one dies since history recounts many situations of individuals facing degrading deaths in a dignified way. Of course, what this objection really relates to is the supposed lack of dignity of forcing someone to endure suffering rather than allowing them to end their life. However better pain alleviation techniques are a more moral solution to this problem than killing those who are suffering. The question whether Article 21 includes right to die or not first came into consideration in the case State of Maharashtra v. Maruti Shripathi Dubal . It was held in this case by the Bombay High Court that ‘right to life’ also includes ‘right to die’ and Section 309 was struck down. The court clearly said in this case that right to die is not unnatural; it is just uncommon and abnormal. Also the court mentioned about many instances in which a person may want to end his life. This was upheld by the Supreme Court in the case P. Rathinam v. Union of India. However in the case Gian Kaur v. State of Punjab it was held by the five judge bench of the Supreme Court that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The court clearly mentioned in this case that Article 21 only guarantees right to life and personal liberty and in no case can the right to die be included in it. In India, like almost in other countries, euthanasia has no legal aspect. In India there is no difference between active and passive euthanasia and no penal law yet introduced in I.P.C, which specifically deals with euthanasia. The every act of aiding and abetting the commission of suicide are punished under the section 306 of the I.P.C. Distinguishing euthanasia from suicide, Justice Lodha in Naresh Maratra Sakhee vs Union of India, observed that, “suicide by its nature is an act of self-killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia or Mercy killing on the other hand means implies the intervention of other human agency to end the life. Mercy killing is thus not suicide and the provision of section 309 does not cover an attempt at mercy killing. The two concepts are both factually and legally distinct. Euthanasia or Mercy killing is nothing best homicide whatever the circumstances in which it is affected.”
In case of physicians, there is an intention to cause death of patient, hence he can be charged under clause (1) of section 300 of I.P.C but where there is valid consent of the deceased, exception 5of section 300 is attracted and thus the act of the physician is considered as culpable homicide not amounting to murder under Part I of section 304. In case of non-voluntary and involuntary euthanasia, the act of physician can be fall under section 88 and 92 of IPC as there is an intention to causing death of a patient for his benefit. And other relatives who are aware of such intention either of the patient or of the physician can be charged under section 202 of IPC. The Supreme Court explained the position of Indian law on euthanasia in M.S.Dabal vs state of Maharashtra as under:
“Mercy killing is nothing but homicide, whatever the circumstances in which it is affected. Unless it is specifically accepted it cannot be offences. Indian Penal Code further punishes not only abetment of homicide, but also abetment of suicide”.
The followings are the arguments against euthanasia:1. The human life is gift of God and taking life is wrong and immoral human beings cannot be given the right to play the part of God. The one who suffers pain is only due to one’s karma. Thus euthanasia devalues human life.
2. It is totally against the medical ethics, morals and public policy. Medical ethics call for nursing, care giving and healing and not ending the life of the patient. In the present time, medical science is advancing at a great pace. Thus even the most incurable diseases are becoming curable today. Thus instead of encouraging a patient to end his life, the medical practitioners should encourage the patients to lead their painful life with strength which should be moral as well as physical. The decision to ask for euthanasia is not made solely by the patient. Even the relatives of the patient pay an important role in doing that. Hence, it is probable that the patient comes under pressure and takes such a drastic step of ending his life. Of course in such cases the pressure is not physical, it is rather moral and psychological which proves to be much stronger. The patient himself starts to feel that he is a burden on the relatives when they take such a decision for him and finally he also succumbs to it.
3. It is feared that if euthanasia is legalised then other groups of more vulnerable people will become at risk of feeling into taking that option themselves. Groups that represent disabled people are against the legalisation of euthanasia on the ground that such groups of vulnerable people would feel obliged to opt for euthanasia as they may see themselves as a burden to society.
4. It has a slippery slope effect, for example firstly it can be legalised only for terminally ill people but later on laws can be changed and then it may allow for non- voluntary or involuntary.
5. Acceptance of euthanasia as an option could exercise a detrimental effect a societal attitudes and on the doctor patient relationship. The doctor patient relationship is based on mutual trust, it is feared this trust may be lost if euthanasia is legalised.
6. When suicide is not allowed then euthanasia should also not be allowed. A person commits suicide when he goes into a state of depression and has no hope from the life. Similar is the situation when a person asks for euthanasia. But such tendency can be lessened by proper care of such patients and showing hope in them.
7. Patient would not be able to trust either doctors or their relatives as many of them were taking about patient’s painless dignified death and it became a euphemism for assisted murder.
8. Miracles do happen in our society especially when it is a matter of life and death, there are examples of patients coming out of coma after years and we should not forget human life is all about hope.
Followings are the reasons to legalise euthanasia;1. Euthanasia means ending the life a person who is suffering from some terminal illness which is making his life painful as well as miserable or in other words ending a life which is not worth living. But the problem is that how should one decide whether his life is any longer worth living or not. Thus, the term euthanasia is rather too ambiguous. This has been a topic for debate since a long time i.e. whether euthanasia should be allowed or not. At present, the debate is mainly regarding active euthanasia rather than passive euthanasia. The dispute is regarding the conflicts of interests: the interest of the society and that of the individual. Which out of these should prevail over the other? According to the supporters of euthanasia the decision of the patients should be accepted. If on the other hand we weigh the social values with the individual interest then we will clearly see that here the interest of the individual will outweigh the interest of the society. The society aims at interest of the individuals rather it is made with the purpose of assuring a dignified and a peaceful life to all. Now if the individual who is under unbearable pain is not able to decide for himself then it surely will hamper his interest. In that case it will surely be a negation of his dignity and human rights.
2. Euthanasia provides a way to relieve the intolerably extreme pain and suffering of an individual. It relieves the terminally ill people from a lingering death.
3. The essence of human life is to live a dignified life and to force the person to live in an undignified way is against the person’s choice. Thus it expresses the choice of a person which is a fundamental principle.
4. In many developing and under developed countries like India, there is lack of funds. There is shortage of hospital space. So, the energy of doctors and hospital beds can be used for those people whose life can be saved instead of continuing the life of those who want to die. Another important point on which the supporters of euthanasia emphasize is that a lot of medical facilities which amount a lot are being spent on these patients who are in any case going to die. Thus, they argue that rather than spending those on such patients, it will be much better to use such facilities for those who have even fair chances of recovery.
5. Article 21 of the Indian Constitution clearly provides for living with dignity. A person has a right to live a life with at least minimum dignity and if that standard is falling below that minimum level then a person should be given a right to end his life. Supporters of euthanasia also point out to the fact that as passive euthanasia has been allowed, similarly active euthanasia must also be allowed. A patient will wish to end his life only in cases of excessive agony and would prefer to die a painless death rather than living a miserable life with that agony and suffering. Thus, from a moral point of view it will be better to allow the patient die painlessly when in any case he knows that he is going to die because of that terminal illness.
6. Its aim is altruistic and beneficial as it is an act of painlessly putting to death to those persons who are suffering from painful and incurable diseases. So, the motive behind this is to help rather than harm.
7. It not only relives the unbearable pain of a patient but also relieves the relatives of a patient from the mental agony.
8. A point which is often raised against the supporters of euthanasia is that if such right will be granted to the terminally ill patients then there will be chances of abusing it. But the supporters argue that every right involves a risk of being abused but that doesn’t mean that the right itself should be denied to the people. We should rather look at the brighter side of it than thinking of it being abused.
NEW DIMENSION IN INDIAN HISTORY- ARUNA’s CASE
Aruna Shanbaug, who was working as a nurse at KEM Hospital, was assaulted on the night of November 27, 1973 by a ward boy. He sodomised Aruna after strangling her with a dog chain. The attack left Aruna blind, paralysed and speechless and she went into a coma from which she has never come out. She is cared for by KEM hospital nurses and doctors. The woman does not want to live any more. The doctors have told her that there is no chance of any improvement in her state. Her next friend (a legal term used for a person speaking on behalf of someone who is incapacitated) describes Shanbaug: “her bones are brittle. Her skin is like ‘Paper Mache’ stretched over a skeleton. Her wrists are twisted inwards; her fingers are bent and fisted towards her palms, resulting in growing nails tearing into the flesh very often. Her teeth are decayed and giving her immense pain. Food is completely mashed and given to her in semisolid form. She chokes on liquids and is in a persistent vegetative state.” So, she, through her ‘next friend’ Pinki Virani, decided to move the SC with a plea to direct the KEM Hospital not to force feed her. And on 16th December 2009, the Supreme Court of India admitted the woman’s plea to end her life. The Supreme Court bench compromising Chief Justice K G Balakrishnan and Justices A K Ganguly and B S Chauhan agreed to examine the merits of the petition and sought responses from the Union Government, Commissioner of Mumbai Police and Dean of KEM Hospital.
On 24th January 2011, the Supreme Court of India responded to the plea for euthanasia filed by Aruna's friend journalist Pinki Virani, by setting up a medical panel to examine her. The three-member medical committee subsequently set up under the Supreme Court's directive, checked upon Aruna and concluded that she met "most of the criteria of being in a permanent vegetative state". However, it turned down the mercy killing petition on 7th March, 2011. The court, in its landmark judgement, however allowed passive euthanasia in India. While rejecting Pinki Virani's plea for Aruna Shanbaug's euthanasia, the court laid out guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves the withdrawing of treatment or food that would allow the patient to live.
Ms Shanbaug has, however, changed forever India's approach to the contentious issue of euthanasia. The verdict on her case today allows passive euthanasia contingent upon circumstances. So other Indians can now argue in court for the right to withhold medical treatment - take a patient off a ventilator, for example, in the case of an irreversible coma. Today's judgement makes it clear that passive euthanasia will "only be allowed in cases where the person is in persistent vegetative state or terminally ill."
Recently in November 2007, a member of Indian parliament who belongs to the Communist Party of India introduced a bill to legalize euthanasia to the Lok Sabha, the lower house of representatives in the Indian parliament. C.K. Chandrappan, a representative from Trichur, Kerala, introduced a Euthanasia Permission and Regulation Bill that would allow the legal killing of any patient who is bedridden or deemed incurable. The legislation would also permit any person who cannot carry out daily chores without assistance to be euthanized.
"If there is no hope of recovery for a patient, it is only humane to allow him to put an end to his pain and agony in a dignified manner," said Dr. B. K. Rao, chairman of Sir Ganga Ram Hospital in New Delhi. "If it is established that the treatment is proving to be futile, euthanasia is a practical option for lessening the misery of patients."
Euthanasia is totally different from suicide and homicide. Under the Indian penal code, attempt to commit suicide is punishable under section 309 of IPC and also abetment to suicide is punishable under section 306 of IPC. A person commits suicide for various reasons like marital discord, dejection of love, failure in the examination, unemployment etc. but in euthanasia these reasons are not present. Euthanasia means putting a person to painless death in case of incurable diseases or when life became purposeless or hopeless as a result of mental or physical handicap. It is also differs from homicide. In murder, the murderer has the intention to cause harm or cause death in his mind. But in euthanasia although there is an intention to cause death, such intention is in good faith. A doctor apply euthanasia when the patient, suffering from a terminal disease, is in an irremediable conditions or has no chance to recover or survival as he suffering from a painful life or the patient has been in coma for 20/30 years like Aruna Shanbaug.
Therefore it is suggested that penal provision regarding attempts to commit suicide and abetment to suicide should be preserved in the interests of the society as a general rule but euthanasia (voluntary) should be permitted in certain circumstances as an exception to the general rule. Thus Indian Parliament should enact a law regarding euthanasia which enables a doctor to end the painful life of a patient suffering from an incurable disease with the consent of the patient. Parliament should lay down some circumstances under which euthanasia will be lawful as bellow;
A) consent of the patient must be obtained,
B) Failure of all medical treatments or when the patient, suffering from a terminal disease, is in an irremediable conditions or has no chance to recover or survival as he suffering from a painful life or the patient has been in coma for 20/30 years,
C) The economic or financial condition of the patient or his family is very low,
D) Intention of the doctor must not be to cause harm,
E) Proper safeguard must be taken to avoid abuse of it by doctors,
F) Any other circumstances relevant to the particular case
Thus, Euthanasia could be legalized, but the laws would have to be very stringent. Every case will have to be carefully monitored taking into consideration the point of views of the patient, the relatives and the doctors. But whether Indian society is mature enough to face this, as it is a matter of life and death, is yet to be seen.
If we carefully examine the opposition to the legalization of euthanasia, we can conclude that the most important point that the opponents raise is that it will lead to its misuse by the doctors. Thus, it is submitted that when a patient or his relatives can willingly put his life in the hands of the doctor trusting him, then why can’t a doctor be given such discretion to decide what will be in favour of his patient. Another doubt that is often raised is that if the doctors will be given discretion to practice voluntary euthanasia then surely it will gradually lead to asking for involuntary or non-voluntary euthanasia. But it is humbly submitted that a separate legislation should be made allowing only voluntary euthanasia and not involuntary or non-voluntary euthanasia. As has already been pointed out earlier, we also have to keep in mind the limited medical facilities available in India and the number of patients. This question still lies open that who should be provided with those facilities; a terminally ill patient or to the patient who has fair chances of recovery. As the patient himself out of his pain and agony is asking for death, doctor should not increasing that pain of his should allow euthanasia. It has been ruled in the Gian Kaur case that Article 21 does not include right to die by the Supreme Court. But one may try to read it as is evident in the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England. Thus, we can see that as the said right has been included in the ambit ofArticle 21, so this can also be included in Article 21. This question was not raised in the case earlier. Again the point that remains unanswered is regarding the abuse of this right by the doctors. But relevant safeguards can be put on this right and thus its abuse can be avoided. One of the safeguards can be that a proper quasi-judicial authority having a proper knowledge in the medical field can be appointed to look into the request of the patient and the steps taken by the doctor. To make it more full proof some two or three assistant officials including one from the legal field can also be appointed. This will avoid any abuse of this right granted to the terminally ill patients. Here, we have to regard the painful situation in which the patient is and top priority should be lessening his pain. Now when we already know that he is anyways going to die today or tomorrow and he himself is asking for death, there is no point that he should be denied with this right of at least leading a life with minimum dignity and willingly. Otherwise his life will be no better in that situation. Thus, considering the financial and medical facilities also, the question still lies open that what will be better-allowing euthanasia or not allowing euthanasia.
Source: LegalserviceIndia.com
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