AEGAEUM JOURNAL ISSN NO: 0776-3808
EUTHANASIA: RIGHT TO DIE WITH DIGNITY: A STUDY Vineet Franklin
Abstract When a person ends up his own life by his own act it’s called “Suicide” but to end life of a person by others though on the request of the deceased is called “Euthanasia” or “Mercy killing”. This research paper seeks to discuss all aspects of euthanasia that is What Euthanasia is? and what does the act constitutes and its need? How it was practices as a custom in ancient society and its needs. The research also elaborates the different types of euthanasia which are present today. The research also seeks to discuss what legal developments are done in the context of euthanasia around the globe and the constitutional provisions in India regarding the euthanasia and also the latest legal developments by the Indian courts regarding this subject. Key Words: Euthanasia, Mercy killing, Suicide, Consent for killing, Vegetative state, Passive Euthanasia, Active Euthanasia, Voluntary Euthanasia, Non-Voluntary Euthanasia, Involuntary Euthanasia. Introduction and Meaning: To take birth on this earth is a great blessing and a great gift by the God. One should always be thankful for the life that one got to walk on the earth as a representative of Human race. The life span of an individual is depicted in several stages that is: the birth, the childhood, the adulthood, the old age and the conclusive stage id death. In the above stages mentioned, the starting and ending points are certain that is every other stage other than this fall between them. As it is a definite truth that one who is born will certainly die someday.1 The life is full of pains and sorrows depending upon one Wit and circumstantial alertness to tackle problems of life. Some individuals end up their life by committing suicide as an outcome of frustration, depression, social pressure or any social trauma but “Euthanasia” / “Mercy Killing” is different. Though both euthanasia and suicide reach to the same conclusion that is the end of one’s life but the procedure and method is far different than each other One who does any
*Student B.A. LL.B, 10th Semester, Law College Dehradun, Uttaranchal University, Dehradun. ** Associate Professor, Law College Dehradun, Uttaranchal University, Dehradun, Uttarakhand, India. 1 Shilpa Jain, Right to Life & Personal Liberty 56 ( Central Book Publishing, New Delhi, 2017)
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action by himself that results in ending up of one’s life called suicide but when an individual’s life is ended up by another individual on his behalf on deceased request and by the consent of law that is called Euthanasia. Any person who by means of any illness or any medical condition enters to a vegetative state that is : person becomes brain dead , unable to move his body , unable to express by means of proper speech and expression and the person’s body rejects to intake the food which is necessary for his/her survival and continues to be in this stage for long time and the body of an individual is alive only because of the life support system and doctors too declares him / her to be in unrecoverable stage then the person by his own will may request any person who is close to him that s legal guardian, husband , wife , parents , adult son , adult daughter , or any next friend which is considered lawful by law to pull the plug of the life support system and to put up an end to one’s life because one is unable to enjoy one right to life in such a state . Basically, the term Euthanasia originated from the Greek term that is “EU” meaning “goodly or well” and “THANATOS” meaning “death” by combining together means “GOOD DEATH”. In other terms to understand what Euthanasia is it can be said that „euthanasia is the act or practice of killing or permitting the death of a hopelessly sick or injured individual in a relatively painless way for the reason of mercy‟. As every individual on this earth have the right to live with dignity but if in any situation if one fails to enjoy his right due to any medical situation or condition which constitutes unbearable pain and puts the person in a unrecoverable or vegetative state for his rest of life then the person shall be made free from his acute sufferings by granting him a painless and a dignified death so that one shall not suffer any more.2 Types of Euthanasia: Euthanasia is generally classified as either "active" or "passive", and as either "voluntary" or "involuntary".
1. Passive Euthanasia: - Term passive Euthanasia means the withdrawal of medical treatment with the deliberate intention to hasten a terminally ill-patient's death.3 Various medical and legal dictionaries say passive euthanasia is the act of hastening the death of a terminally-ill patient by altering 2 Durga Das Basu, Introduction to the Indian Constitution 89 ( Universal Book Publishing, New Delhi 2007) 3 www.bbc.co.uk-Last visited on 12 feb, 2020.
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some forms of support and letting nature take its course. Passive euthanasia can involve turning off respirators, halting medications, discontinuing food and water so the patient dies because of dehydration or starvation. Passive euthanasia can also include giving the patient large doses of morphine to control pain in spite of the likelihood that the painkiller can cause fatal respiratory problems. Perhaps the classic example of passive euthanasia is a "do not resuscitate order". Normally if a patient has a heart attack or similar sudden interruption in life functions, medical staff will attempt to revive them. If they make no such effort but simply stand and watch as the patient dies, this is passive euthanasia. Passive euthanasia is when death is brought about by an omission - i.e. when someone lets the person die. This can be by withdrawing or withholding treatment:
· Withdrawing treatment: for example, switching off a machine that is keeping a person alive, so that they die of their disease.
· Withholding treatment: for example, not carrying out surgery that will extend life for a short time.
2. Active Euthanasia: - Active euthanasia is a crime all over the world except where permitted by legislation. In India active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC abetment to suicide .This includes causing the death of a man through an immediate activity, because of a demand from that individual. In active euthanasia a man straightforwardly and purposely causes the patient's death. Active euthanasia is when death is realized by a demonstration - for instance when a man is executed by being given an overdose of pain killers. Active euthanasia occurs when the medical professionals, or another person, deliberately do something that causes the patient to die. Far more controversial, active euthanasia involves causing the death of a person through a direct action, in response to a request from that person. A well-known example of active euthanasia was the death of a terminally ill Michigan patient on September 17, 1998.4
3. Voluntary Euthanasia: - Voluntary euthanasia is directed with the assent of the patient. Active voluntary euthanasia is legitimate in Belgium, Luxembourg and the Netherlands. Passive voluntary euthanasia is lawful
4 Horald G. Coward, Hindu Ethics: Purity, Abortion and Ethunasia 78 ( Eastern Book Publishing, New York, 2001)
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all through the US per Cruzan v. Executive, Missouri Department of Health.5 Voluntary euthanasia happens at the demand of the individual who passes on. Advocates of voluntary euthanasia regularly battle that if a man -
· is experiencing a terminal sickness;
· is far-fetched to profit by the disclosure of a cure for that sickness amid what stays of her future;
· is, as an immediate aftereffect of the ailment, either suffering intolerable pain, or just has accessible an existence that is unsuitably oppressive (e.g., in light of the fact that the disease must be dealt with in ways that prompt her being unsatisfactorily subject to others or on innovative methods forever bolster);
· has an enduring, voluntary and competent wish to die (or has, prior to losing the competence to do so, expressed a wish to be assisted to die in the event that conditions (a)-(c) are satisfied); and
· Is unfit without help to end her life, then there should be legal and medical provision to enable her to be allowed to die or to be assisted to die. 4. Involuntary Euthanasia: - This term is used to describe the killing of a person who has not explicitly requested aid in dying. This is most often done to patients who are in persistent vegetative state or in coma and will probably never recover consciousness. Legal Development of Euthanasia around the Globe The laws regarding Euthanasia have evolved around the world. Different countries have different laws and policies regarding Euthanasia. Some of such countries are: - 1. Denmark Parliament has assigned ethics panel’s over the years that have advised against legalization each time however it is still not specifically outlawed and a study published in 2003 showed 41% of deaths under medical supervision involved doctors taking "end-of-life" decisions to help ease their patients' suffering before death (about 1% of which were via prescription drugs).
2 . Finland 5497 U.S.261 (1990)
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Active euthanasia is not legal in Finland. Passive euthanasia, however, is legal.
3 . Luxembourg
The country's parliament passed a bill legalizing euthanasia on 20 February 2008 in the first reading with 30 of 59 votes in favor. On 19 March 2009, the bill passed the second reading, making Luxembourg the third European Union country, after the Netherlands and Belgium, to decriminalize euthanasia. Terminally ill patients will have the option of euthanasia after receiving the approval of two doctors and a panel of experts6.
4 . Netherlands In the 1973 "Postma case" a physician was convicted for having facilitated the death of her mother following repeated explicit requests for euthanasia. While upholding the conviction, the court's judgment set out criteria when a doctor would not be required to keep a patient alive contrary to their will. This set of criteria was formalized in the course of a number of court cases during the 1980s. In 2002, the Netherlands passed a law legalizing euthanasia including physician-assisted suicide. This law codifies the twenty-year-old convention of not prosecuting doctors who have committed euthanasia in very specific cases, under very specific circumstances. The Ministry of Public Health, Wellbeing and Sports claims that this practice "allows a person to end their life in dignity after having received every available type of palliative care." The United Nations has reviewed and commented on the Netherlands euthanasia law. In September 2004 the Groningen Protocol was developed, which sets out criteria to be met for carrying out child euthanasia without the physician being prosecuted.7 5. Belgium The Belgian parliament legalized euthanasia on 28 May 2002.A survey published in 2010 reported that those who died from euthanasia (compared with other deaths) were more often younger, male, cancer patients and more often died in their homes. In almost all cases, unbearable physical suffering was reported. Euthanasia for non-terminal patients was rare. There have been about 1,400 cases a year since the law was introduced, and a record 1,807 cases were recorded in 2013 In December 2013, the Belgian Senate voted in favor of extending its euthanasia law to terminally ill children. Conditions imposed on children seeking euthanasia
6 Cook Michael, “Denmark quietly debates euthanasia". 58 IJLS 24 (2014) 7 IBID
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are that "the patient must be conscious of their decision and understand the meaning of euthanasia", "the request must have been approved by the child's parents and medical team", "their illness must be terminal" and "they must be in great pain, with no available treatment to alleviate their distress" .A psychologist must also determine the patient's maturity to make the decision. The amendment emphasizes that the patient's request be voluntary. The first minor to be euthanized under these new regulations occurred in September 2016. In September 2014, the Federal Euthanasia Commission gave convicted rapist and murderer Frank Van Den Bleeken the right to assisted suicide. Van Den Bleeken had served decades in prison for a 1989 crime and no longer wished to live. Over a dozen other inmates filed similar petitions. In January 2015, the Justice Ministry acknowledged that Van Den Bleeken's doctors recommended against euthanasia and that alternative psychological care would be sought for him.8 California In the 1983 case of Barber v. Superior Court, two physicians had honored a family's request to withdraw both respirator and intravenous feeding and hydration tubes from a comatose patient. The physicians were charged with murder, despite the fact that they were doing what the family wanted. The court held that all charges should be dropped because the treatments had all been ineffective and burdensome. Withdrawal of treatment, even if life-ending, is morally and legally permitted. Competent patients or their surrogates can decide to withdraw treatments, usually after the treatments are found ineffective, painful, or burdensome. Legal Development of Euthanasia in India In India, euthanasia already was without a doubt illicit. Since in instances of euthanasia or mercy killing there is a goal with respect to the doctor to slaughter the patient, such cases would plainly fall under clause first of Section 300 of the Indian Penal Code, 1860. In any case, as in such cases there is the substantial assent of the perished Exception 5 to the said Section would be pulled in and the doctor or mercy killer would be punished under Section 304 for culpable homicide not amounting to murder. However, it is just instances of voluntary euthanasia (where the patient consents to death) that would pull in Exception 5 to Section 300. Instances of non-voluntary and involuntary euthanasia would be struck by provision 1 to Section 92 of the IPC and along these lines be rendered unlawful. The law in India is
8 Adams M, "Comparative reflections on the Belgian Euthanasia Act” 11 MLR 76 (2002).
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additionally clear on the part of helped suicide. Ideal to suicide isn't an accessible "appropriate" in India – it is punishable under the India Penal Code, 1860. After the choice of a five-judge bench of the Supreme Court in Gian Kaur v. state of Punjab9 held that it is all around settled that the "right to life" ensured by Article 21 of the Constitution does exclude the "right to die".The need of progress in field of euthanasia was activated by the renowned Aruna Shanbaug Case10. The SC in 2011 had perceived passive euthanasia and had allowed withdrawal of life managing treatment from patients not in a situation to settle on solidified choice. On seventh March, 2011 the Supreme Court, in a landmark judgment, issued rules legalizing passive euthanasia. In the current case of Common Cause (A Regd. Society) v. 11 Union of India, the Supreme Court held that that right to die with dignity is a fundamental right. The Bench also held that passive euthanasia and a living will also is legally valid. The Court has issued detailed rules in this regard. The Court observed that: - “The right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.” The Bench also held that the right to live with dignity also includes the smoothening of the way toward passing on in case of a terminally sick patient or a man in Persistent vegetative state with no expectation of recovery. The Supreme Court allowed passive euthanasia in certain conditions, subject to the approval by the High Court following the due technique. It held that when an application for passive euthanasia is documented the Chief Justice of the High Court ought to forthwith constitute a Bench of at least two Judges who should choose to grant approval or not. Before doing as such, the Bench should look for the sentiment of a board of trustees of three reputed doctors to be nominated by the Bench after counselling such medical authorities/medical practitioners as it may regard fit. Simultaneously with appointing the panel of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, life partner, brothers/sisters and so on of the council to them as soon as it is available. After hearing them, the High Court Bench should give its verdict. The above method ought to
9 1996 (2) SCC 648 10 AIR 1996 SC 946 11 WRIT PETITION (CIVIL) NO. 215 OF 2005 on 9 March, 2018
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be followed all over India until Parliament makes legislation on this subject. Conclusion Out of the contention between the contradicting ideals of preserving all life and enabling individuals to pick non-treatment or even death, a debate has arisen about whether we are talking about the development of new rights or essentially the acknowledgment of old ones that at no other time faced genuine challenge. This contention manifests itself in the contradictory legislative and judicial treatments of the issue. Judicial authorities have been considerably more willing to see the contention over the presence of a "right to die" as one including the acknowledgment of a previous right, while legislatures have been simultaneously pushed to legislate both for and against the early stage of what many views as a modern creation. Accordingly, however the judicial discretion is with the Court, the same is constrained and not absolute. The Court isn't qualified for measure any factor as it loves. It has to act within the framework of the limitations. There have been many upsides and downsides regarding legalization of euthanasia. Euthanasia is one of the greatest debates in this decade. In spite of the fact that the Indian Judiciary has legalized 'Passive Euthanasia', however the legislature is far behind to legislate any law regarding it. As I would see it Judiciary should also legalize Active Euthanasia so individuals who want to terminate their life or somebody's life must exercise without any hindrance made or caused by the Legislature or Judiciary.
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