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Euthanasia: a Medico-Legal Conundrum in India

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Euthanasia: a Medico-Legal Conundrum in India Journal of Xi'an University of Architecture & Technology ISSN No : 1006-7930 EUTHANASIA: A MEDICO-LEGAL CONUNDRUM IN INDIA J. Jencybai Carolina Assistant Professor of Law Government Law College Tirunelveli – 627011 Tamilnadu, India “It is better to die than to preserve this life by incurring disgrace. The loss of life causes but a moment's grief, but disgrace brings grief every day of one's life.” - Chanakya Abstract The present paper deals with the medico legal aspects of euthanasia in the light of constitutional and international perspectives of health rights. In consonance with this the United Nations Human Rights Committee has emphasised that laws allowing for euthanasia must provide effective procedural safeguards against abuse if they are to be compatible with the State‘s obligation to protect the right to life. In India, under Article 21 of the Indian Constitution, Right to life means the right to lead a meaningful, complete and dignified life. Right to die is a concept based on the opinion that a human being is entitled to end their own life in a peaceful manner with dignity. Euthanasia is the act of allowing a person to die, who is suffering from an incurable, especially in a persistent vegetative state, by means of withholding extreme medical measures. Euthanasia is also known as mercy killing or physician-assisted suicide. The objective of this research paper is to discuss the subject of euthanasia from the medical and legal outlook on the background of the recent Supreme Court judgment in the modern context of advance medical directive. Present research study has tried to explore the status of euthanasia in India and by providing some recommendations and as further scope of research the paper calls for an urgent intervention by the government to strengthen the laws on euthanasia for a more meaningful discussion of these issues in the future. Keywords: Euthanasia, Right to life, Right to die, Mercy killing, Advance Medical Directive. Introduction Life and death are the two extremes. The term ‘euthanasia’ draws its origin from Greek word ‘euthanatos’ means a peaceful death but in the context of human rights it means mercy killing. Euthanasia can be of various facets as voluntary is the consent of the patient, non-voluntary means consent from guardian, involuntary is against the will of the patient and active euthanasia entails the use of lethal substances or force is the more controversial, passive euthanasia is the withdrawal of the life sustaining treatment, which most of the countries legalizes. Whereas Indian Constitution guarantees right to life in Article 21 which does not means a mere breathe of life but to lead a graceful life with dignity. On a reasonable judicial interpretation of Article 21, it does not forbid restoring to passive euthanasia. In human rights perspective, complete denial of the right to autonomy and self-determination of terminally ill patients to opt their mode of death is a limpid violation of human rights. Volume XI, Issue XII, 2019 Page No: 1802 Journal of Xi'an University of Architecture & Technology ISSN No : 1006-7930 Euthanasia: International Perspectives Certain relevant obligations when discussing voluntary euthanasia are contained in the International Covenant on Civil and Political Rights (ICCPR), 1966. Every human being has the inherent right to life.1 No one shall be subjected without his free consent to medical or scientific experimentation.2 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation.3 Comments from the UN Human Rights Committee (UNHRC) has emphasised that laws allowing for euthanasia must provide effective procedural safeguards against abuse if they are to be compatible with the State‘s obligation to protect the right to life. The European Court of Human Rights (ECHR) has adopted a similar position to the UNHRC has held that a State‘s obligation to protect life does not preclude it from legalising voluntary euthanasia, provided adequate safeguards are put in place and adhered to.4 From global panorama, the Hippocratic Oath and International Code of Medical Ethics5 pose ethical contraction for the doctors to relieve the pain of his patient in one hand and protect and prolong his life on the other. The first is in favour of euthanasia but the second counters it.6 This ‘conflict of duties’ defence was used in a crucial case decided by the Netherlands High Court in the Alkmaar case,7 implied that where a patient was in an unbearable situation that would not improve, or relieved in any other way, a doctor who acted on the patient’s explicit, persistent well-informed request for euthanasia would not be guilty of an offence. In the Cruzan case8, the US Supreme Court has propounded a ‘substituted judgment test’ which necessitates proof by cogent evidence that the incompetent patient, while she was competent, had wished for withdrawal of life support medication, if need so arise.9 In the Airedale case10, the House of Lords had emphasized up on the ‘best interest of the patient’ for withdrawal of the life support medical facilities. It generally involves an open-ended consideration of factors relating to the treatment decision, including the patient’s current condition, degree of pain, loss of dignity, prognosis, and the risks, side effects, and benefits of each treatment.11 The Supreme Court of Canada in Carter v. Canada (Attorney _____________________ 1. Article 6(1) of the ICCPR, 1966. 2. Article 7 of the ICCPR, 1966. 3. Article 17(1) of the ICCPR, 1966. 4. Article 2 of the European Convention on Human Rights, 1950. 5. Lyon, Medical Jurisprudence for India 19 (Delhi Law House, 10th edn., 2003). 6. Subash Chandra Singh, “Euthanasia and Assisted Suicide: Revisiting the Sanctity of Life Principle” 54 JILI 215 (2012). 7. Judgment of Oct. 21, 1986, High Court (Penal Chamber) NJ 1987, No. 607 (Neth.). Volume XI, Issue XII, 2019 Page No: 1803 Journal of Xi'an University of Architecture & Technology ISSN No : 1006-7930 8. Nancy Beth Cruzan v. Director, Missouri Department of Health, (MDH) 497 U.S. 261 (1990). 9. Ibid at para 3. 10. Airedale N.H.S. Trust v. Bland, (1993) 1 All ER 821. 11. Ibid at 85. General),12 held that the prohibition on physician- assisted death in Canada unjustifiably infringed the right to life, liberty and security of the person in Article 7 of the Charter of Rights and Freedoms in the Canadian Constitution. Dilemmas relating to ending life have come to the forefront of interest in many parts of the world in recent decades. In the United States of America, physician-assisted death is legal in the States of Oregon,13 by passing the Death with Dignity Act, 1994, Washington and Montana. In Netherlands, the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 200214 regulates euthanasia. Luxembourg too has legalized euthanasia with the passing of the Law on Euthanasia and Assisted Suicide (Lux.), 2009. The position in Germany is that active assisted suicide is illegal. Indian Constitutional Jurisprudence on Right to Life vis-a-vis Right to Die In India, Legislature attempts to legalize euthanasia began in 1985 when a Private Member Bill known as Varde Bill was brought in the Legislative Council of Maharashtra but the Bill was criticized. Lok Sabha also attempted in 1985 itself. But both the attempts could not fructify. The vexed question whether Article 21 right to life includes right to die or not first came into consideration in Maruti Sripathi Dubal v. State of Maharashtra,15 the Bombay High Court held that right to life also includes right to die and consequently struck down Section 309 of the Indian Penal Code, 1860 (IPC) which states punishment for attempt to commit suicide by a person as unconstitutional. Contrary to the above view, the Andhra Pradesh High Court in Chenna Jagdeeswar v. State of A.P.,16 held that the right to die is not a fundamental right within the meaning of Article 21 and hence Section 309 of IPC is not unconstitutional. Whereas in P. Rathinam v. Union of India,17 a Division Bench of the Supreme Court has upheld the Maruti Sripathi Dubal’s case, and has decriminalized Section 309 of IPC as unconstitutional and held ultra vires of Article 21 of the Constitution. The judgment accepted the view that in a terminally ill patient i.e., in a persistent vegetative state (PVS), mercy killing does not extinguish life, but accelerates conclusion of the process of natural death that has already commenced. The dictum laid down in the P. Rathinam’s case could not be sustained for long as a ________________________ 12. 2015 SCC 5. 13. Jonathan Herring, Medical Law and Ethics 532 (Oxford University Press, New Delhi,4th edn., 2012). 14. Ibid, p.528. Volume XI, Issue XII, 2019 Page No: 1804 Journal of Xi'an University of Architecture & Technology ISSN No : 1006-7930 15. 1986 Mah LJ 913. 16. 1988 Cri LJ 549 (AP). 17. (1994) 3 SCC 394. precedent since the Apex Court in Gian Kaur v. State of Punjab,18 the Constitution Bench has overruled the earlier judgments and has brought Section 309 of IPC back to life. It further held that Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination of life, incompatible and inconsistent with the concept of right to life. However, it affirms that the principle of right to live with dignity also includes right to die with honour, but the Court had not ruled on euthanasia whether active or passive but a corollary was drawn as obiter dictum between euthanasia and suicide.19The difference between suicide and euthanasia was marked in Naresh Marotrao Sakhre v.
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