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Should Euthanasia be Legalised in India?
by Shreyans Kasliwal*
Cite as : (2003) PL WebJour 16
The word euthanasia is derived from the Greek word “euthanatos” meaning “well death” and originally referred to intentional mercy killing. In the modern context euthanasia is limited to the killing of patients by doctors at the request of the patient in order to free him of excruciating pain or from terminal illness. When medical advances made prolonging of the lives of dying or comatose patients possible, the term euthanasia was also applied to omission to prevent death.
Euthanasia may be classified as active and passive or alternatively as voluntary, non-voluntary and involuntary. Active euthanasia involves painlessly putting individuals to death for merciful reasons, as when a doctor administers a lethal dose of medication to a patient. Passive euthanasia involves not doing something to prevent death, as when doctors refrain from using devices necessary to keep alive a terminally ill patient or a patient in a persistent vegetative state. In voluntary euthanasia, a person asks for death (by either active or passive euthanasia). Non-voluntary euthanasia refers to ending the life of a person who is not mentally competent, such as a comatose patient, to make an informed request for death. In addition there is another category of involuntary euthanasia. This is said to occur when a patient is killed against his express will.
It is important that euthanasia is not confused with assisted suicide. The latter involves a patient’s voluntarily bringing about his or her own death with the assistance of another person, typically a physician. In this case, the act is a suicide (intentional self-inflicted death), because the patient actually causes his or her own death. Thus, while in assisted suicide the doctor makes available to the patient the means by which he can kill himself, in euthanasia the doctor himself (by act or omission) kills the patient. The issue of assisted suicide is closely related to that of euthanasia because it also involves questions of similar nature. Furthermore, some countries have preferred to legalise assisted suicide though they remain averse to permitting euthanasia.
The current legal position on euthanasia and assisted suicide in India
In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. But it is only cases of voluntary euthanasia (where the patient consents to death) that would attract Exception 5 to Section 300. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal. Euthanasia and suicide are different, distinguishing euthanasia from suicide, Lodha J. in Naresh Marotrao Sakhre v. Union of India1, observed:
“Suicide by its very 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 and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected.”2 (emphasis added)
The law in India is also very clear on the aspect of assisted suicide. Abetment of suicide is an offence expressly punishable under Sections 305 and 306 of the IPC.
Moreover, after the decision of a five judge bench of the Supreme Court in Gian Kaur v. State of Punjab3 it is well settled that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The Court held that Article 21 is a provision guaranteeing “protection of life and personal liberty” and by no stretch of the imagination can extinction of life be read into it.
The position in other countries
In general countries attempt to draw a line between passive euthanasia (generally associated with allowing a person to die) and active euthanasia (generally associated with killing a person). While laws commonly permit passive euthanasia, active euthanasia is generally prohibited.
Netherlands
Under the Penal Code of Netherlands, killing a person at his request is punishable by imprisonment for a maximum of 12 years or by a fine and assisting a person to commit suicide is also punishable by imprisonment upto 3 years or fine.
In spite of the clear wordings of the Code, 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 Dutch defence of necessity is of two types. The first is “psychological compulsion” while the second is “emergency”. The latter applies when the accused chooses to break the law in order to promote a higher good. Both these types came to be allowed by the Supreme Court of Netherlands.4
The criteria laid down by the Courts to determine whether the defence of necessity applies in a given case of euthanasia, have been summarised by Mrs Borst-Eilers as follows:
- The request for euthanasia must come only from the patient and must be entirely free and voluntary.
- The patient’s request must be well considered, durable and persistent.
- The patient must be experiencing intolerable (not necessarily physical) suffering, with no prospect of improvement.
- Euthanasia must be the last resort. Other alternatives to alleviate the patient’s situation must be considered and found wanting.
- Euthanasia must be performed by a physician.
- The physician must consult with an independent physician colleague who has experience in this field.5
Thus, though active euthanasia is technically unlawful in the Netherlands, it is considered justified (not legally punishable) if the physician follows the above guidelines.
In the wake of these judicial guidelines a Bill had been introduced in Netherlands’s Parliament# seeking to legalise euthanasia. Recently in April 2001, Netherlands charted out a new chapter in the history of legalising euthanasia when the Upper House of the country passed the Bill by a vote of 46-286. The new law sets forth rules that will make a long-tolerated Dutch practice legal. 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. The law also allows people to leave written requests for euthanasia in the nature of “advance directives”7.
Australia
In 1996, the Northern Territory of Australia became the first jurisdiction to explicitly legalise voluntary active euthanasia when it passed the Rights of the Terminally Ill Act, 1996. Though the validity of the Act was upheld by the Supreme Court of Northern Territory in Wake v. Northern Territory of Australia8 a subsequent federal constitutional challenge to the legislation had succeeded. The Federal Parliament of Australia had subsequently passed the Euthanasia Laws Act, 1997 repealing the Northern Territory legislation.9
England
In England, following a series of decisions of the House of Lords it is now settled that a person has the right to refuse life-sustaining treatment as part of his rights of autonomy and self-determination.10 The House of Lords has also permitted non-voluntary euthanasia in case of patients in a persistent vegetative state.11 Moreover, in a recent decision, a British High Court has granted a woman paralysed from the neck, the right to die by having her life support system switched off12.
United States of America
Laws in the United States maintain the distinction between passive and active euthanasia. While active euthanasia is prohibited, the courts have ruled that physicians should not be legally punished if they withhold or withdraw a life-sustaining treatment at the request of a patient or the patient’s authorised representative. These decisions are based on increasing acceptance of the doctrine that patients possess a right to refuse treatment as part of their right to self-determination.
Every U.S. State has adopted laws that authorise legally competent individuals to make advanced directives, often referred to as living wills. Such documents allowed individuals to control some features of the time and manner of their deaths. In particular, these directives, issued when a person is fit and fully capable of making a rational decision, empower and instruct doctors to withhold life-support systems if the individuals become terminally ill. Furthermore, the federal Patient Self-Determination Act, which became effective in 1991, required federally certified health-care facilities to notify competent adult patients of their right to accept or refuse medical treatment. The facilities must also inform such patients of their rights under the applicable State law to formulate an advanced directive.
As of mid-1999, only one U.S. State, Oregon, had enacted a law allowing physicians to actively assist patients who wish to end their lives. However, Oregon’s law concerns assisted suicide rather than active euthanasia. It authorised physicians to prescribe lethal amounts of medication that patients then administer themselves.
However, movements seeking to legalise assisted suicide and euthanasia in America have been dealt a death blow by the US Supreme Court decisions in Washington v. Glucksberg13 and Vacco v. Quill14. Through these cases, State laws in New York and Washington which had banned physician assisted suicide have been held to be in consonance with the provisions of the Constitution, defeating arguments contending that the “right” to assistance in committing suicide was protected by the “Due Process” and “Equal Protection Clauses”.
Canada
Patients in Canada have rights similar to those in the United States to refuse life-sustaining treatments and formulate advanced directives. However, they do not have the right to demand assisted suicide or active euthanasia. A majority of the Supreme Court of Canada held that a complete ban on assisted suicide was necessary and that the interests of the state in protecting its vulnerable citizens superseded the individual rights of a citizen who sought assisted suicide.15
Arguments for legalising euthanasia
Regarding euthanasia, at the present juncture, the debate largely revolves around active euthanasia and not passive euthanasia.
Supporters of euthanasia argue that society is obligated to acknowledge the rights of patients and to respect the decisions of those who elect euthanasia. It is argued that euthanasia respects the individual’s right to self-determination or his right of privacy. Interference with that right can only be justified if it is to protect essential social values, which is not the case where patients suffering unbearably at the end of their lives request euthanasia when no alternatives exist. Not allowing euthanasia would come down to forcing people to suffer against their will, which would be cruel and a negation of their human rights and dignity.
Every person has a right to live with at least a minimum dignity and when the state of his existence falls below even that minimum level then he must be allowed to end such tortuous existence. In such cases relief from suffering (rather than preserving life) should be the primary objective of health-care providers.
Supporters of active euthanasia contend that since society has acknowledged a patient’s right to passive euthanasia (for example, by legally recognising refusal of life-sustaining treatment), active euthanasia should similarly be permitted. When arguing on behalf of legalising active euthanasia, proponents emphasise circumstances in which a condition has become overwhelmingly burdensome for the patient, pain management for the patient is inadequate, and only death seems capable of bringing relief. Moreover, in light of the increasing pressure on hospital and medical facilities, it is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom the said facilities would be of greater value. Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved, the latter should be preferred as the former will die in any case.
It is not the case of the supporters of euthanasia that this right is not capable of exploitation. Rather they point out that almost any individual freedom involves some risk of abuse and argue that such risks can be kept to a minimum by using proper legal safeguards. Furthermore, merely because the risk of abuse of a right exists is no reason to deny a person the right itself.
Arguments against legalising euthanasia
The controversy over active euthanasia remains intense, in part because of opposition from religious groups and many members of the legal and medical professions. Opponents of euthanasia treat it as a euphemism for murder and maintain that euthanasia is not the right to die but the right to kill.
They emphasise that health-care providers have professional obligations that prohibit killing and maintain that euthanasia is inconsistent with the roles of nursing, caregiving, and healing. Instead with the rapidly advancing medical science it is very much possible that those ill today may be cured tomorrow. Hence, the society has no right to kill them today and thereby deny them the chance of future recovery.
Further, it is not always that the patient wants to die. The relatives of the patient are also allowed to decide whether to let the patient live. In addition, even where the consent is that of the patient it may be one obtained by force. Use of physical force here is highly unlikely. But emotional and psychological pressures could become overpowering for depressed or dependent people. If the choice of euthanasia is considered as good as a decision to receive care, many people will feel guilty for not choosing death. Moreover, financial considerations, added to the concern about “being a burden,” could serve as a powerful force that would lead a person to “choose” euthanasia or assisted suicide.
Moreover, it is argued that when a healthy person is not allowed to commit suicide then why should a diseased person be allowed to do so. It is pointed out that suicide in a person who has been diagnosed with a terminal illness is no different than suicide for someone who is not considered terminally ill. Depression, family conflict, feelings of abandonment, hopelessness, etc. lead to suicide — regardless of one’s physical condition. Studies have shown that if pain and depression are adequately treated in a dying person — as they would be in a suicidal non-dying person — the desire to commit suicide evaporates. Suicide among the terminally ill, like suicide among the population in general, is a tragic event that cuts short the life of the victim and leaves survivors devastated.
In addition, it is also frequently pointed out that the legislation relating to euthanasia is full of vague and ambiguous terms which allow# the provisions to be easily misused. For example, the term “terminally ill” is not subject to a fixed definition. Even within the medical fraternity (let alone the legal community) there is dispute about who is a terminally ill patient and thus the category could cover a very wide range of patients.
Another favourite argument is that of the “slippery slope”. The slippery slope argument, in short, is that permitting voluntary euthanasia would over the years lead to a slide down the slippery slope and eventually we would end up permitting even non-voluntary and involuntary euthanasia. The opponents of euthanasia point out the following two examples to display the working of the slippery slope:
- In England, the House of Lords in Airedale NHS Trust v. Bland11 permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. Subsequently, the Supreme Court of Ireland in Re A Ward of Court16 expanded the persistent vegetative state to include cases where the patient possessed limited cognitive faculties.
- In Netherlands, the Supreme Court in a 1984 ruling had held that euthanasia could be lawful only in cases of physical illness. However, a decade down the line, the Supreme Court in Chabot’s case held that it could even extend to cases of mental illness.17
Opponents also argue that permitting physicians to engage in active euthanasia creates intolerable risks of abuse and misuse of the power over life and death. They acknowledge that particular instances of active euthanasia may sometimes be morally justified. However, they maintain that sanctioning the practice of killing would, on balance, cause more harm than benefit.
Settling the debate
A close perusal of the arguments against euthanasia that have been summarised above tends to indicate that all the talk about sanctity of life notwithstanding, the opposition to euthanasia breeds from the fear of misuse of the right if it is permitted. It is feared that placing the discretion in the hands of the doctor would be placing too much power in his hands and he may misuse such power. This fear stems largely from the fact that the discretionary power is placed in the hands of non-judicial personnel (a doctor in this case). This is so because we do not shirk from placing the same kind of power in the hands of a judge (for example, when we give the judge the power to decide whether to award a death sentence or a sentence of imprisonment for life). But what is surprising is that the fear is of the very person (the doctor) in who’s hands we would otherwise not be afraid of placing our lives. A doctor with a scalpel in his hands is acceptable but not a doctor with a fatal injection. What is even more surprising is that ordinarily the law does not readily accept negligence on the part of a doctor. The courts tread with great caution when examining the decision of a doctor and yet his decision in the cases of euthanasia is not considered reliable.
It is felt that a terminally ill patient who suffers from unbearable pain should be allowed to die. Indeed, spending valuable time, money, and facilities on a person who has neither the desire nor the hope of recovery is nothing but a waste of the same. At this juncture it would not be out of place to mention that the “liberty to die”, if not right strictu sensu, may be read as part of the right to life guaranteed by Article 21 of the Constitution of India. True that the Supreme Court has held that such an interpretation of Article 21 is incorrect18, but it is submitted that one may try to read the “freedom to die” as flowing from the rights of privacy, autonomy and self-determination, which is what has been done by the Courts of United State and England (refer to the Section dealing with position of euthanasia in other countries). Since the said rights in turn have been held to be included within the ambit of Article 21, the “freedom to die” too would logically be covered by Article 21. This argument is put forward as a possible solution since such questions were not put before the Apex Court in Gian Kaur case3.
Here it is sought only to argue for the legalisation of voluntary (both active and passive) euthanasia. This is because though there may be some cases of non-voluntary or involuntary euthanasia where one may sympathise with the patient and in which one may agree that letting the patient die was the best possible option, yet it is believed that it would be very difficult to separate such cases from the other cases of non-voluntary or involuntary euthanasia. Thus, it is believed that the potential of misuse of provisions allowing non-voluntary and involuntary euthanasia is far greater than that of the misuse of provisions seeking to permit voluntary euthanasia.
It is submitted that in the present scheme of criminal law it is not possible to construe the provisions so as to include voluntary euthanasia without including non-voluntary and involuntary euthanasia. Parliament should therefore, by a special legislation legalise voluntary euthanasia while expressly prohibiting non-voluntary and involuntary euthanasia. Legalising euthanasia would not have any effect on the provisions relating to suicide and abetment thereof as euthanasia and suicide are two completely different acts.
Coming back to the argument of the opponents of euthanasia that any legislation legalising voluntary euthanasia would lead to a misuse of the provisions, there could be a scheme by which such misuse could be minimised. It may be true that in Netherlands the provisions justifying voluntary active euthanasia may have been grossly misused19 but such misuse was possible because the procedure for investigating the validity of the death begins only after the death has taken place.
So a fairly practical scheme under which the investigation procedure would begin before the death is suggested and it is only after the investigation is complete that the doctor would be allowed to let the patient die.
A quasi-judicial officer be appointed by the appropriate authority under the proposed statute to supervise all cases of euthanasia within a feasible territory. Such officer must be reasonably well versed with the nuances of medical science. Any doctor who feels that his patient’s request to die should be fulfilled would report such a case to the said supervising officer. The supervisor would then interview the patient to satisfy himself whether the request is free, voluntary and persistent. The supervisor would also then refer the case to a minimum of two other experienced doctors to get their opinion on the case. If both the doctors so referred feel that the patient is beyond recovery, that there is no alternate treatment available and that death would be a more suitable option for him then the supervisor would inform the patient’s relatives about the patient’s request and the doctor’s opinion. Finally, the supervisor would issue a certificate allowing the doctor to let the patient die. Such certificate would also have to bear the signatures of the two doctors to whom the case was referred and of the legal guardian of the patient who would, after a talk with the patient, certify that the consent of the patient was not obtained by force.
It is only once that such a certificate is obtained that the doctor would be allowed to let the patient die.
Though the procedure outlined above may seem cumbersome, it is believed that such safeguards are necessary to minimise the chances of misuse of the right of euthanasia.
The only problematic issue that could arise is regarding the requirement that no other alternative to reduce the pain should be available. Problems could arise when required to decide what is an alternative. Thus would a Rs 5 lakh treatment be an alternative for a person who earns Rs 5000 a year? Similarly, would a treatment available only in Delhi be an alternative for a person living in Port Blair and who cannot afford the passage to Delhi, even if he can afford the treatment? Also, would a doctor be held liable if he is ignorant of any new advancement in medical science? These are problematic issues and would require further extensive discussion. But one should not forget that in a country like India where there is tremendous pressure on the available medical facilities, euthanasia is all the more necessary for the maximum utilisation of the limited facilities.
In the end, we also would do well to remember the following words of Mahatma Gandhi:
“Death is our friend, the truest of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties — a defeated man.”
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