Active vs. Passive Euthanasia, the Lesser Evil Act G.V. Khyathi1 1Faculty of Management and Commerce, Department of Hospital Administration, M S Ramaiah University of Applied Sciences, Bengaluru 560 054 1 Contact Author e-mail: [email protected] Abstract Euthanasia, also known as mercy killing is one of the most contentious and highly dubious arguments in the contexts of , moral theology, civil rights and liberty. This has been going on for a few decades with incessant speculations. Countries around the world have different perspectives of legalising euthanasia and extensive arguments have been carried out by its supporters and opponents. The essence of the paper highlights the debate on the two aspects of euthanasia, Active and Passive, regarding which of them is less evil. The moral and humanitarian aspects of these two types have been argued in the debate. This paper also talks about the legal standing of and around the world. In India, the case of Aruna Shanbagh acted as a judicial precedent to pass the law of accepting passive euthanasia, and on the other hand highly varied opinions and legal outlooks have been observed all around the world. The paper also throws light on discussions regarding inclusion of as a fundamental right in the already existing right to live. Many opinions arguing for and against this issue in the past cases and their judgements have been discussed. Key Words: Euthanasia, Right to live, Right to die, Active Euthanasia, Passive Euthanasia

1.2 Legal Standing of Euthanasia Around the 1.0 INTRODUCTION World The term 'euthanasia' is in general used to describe the deliberate act of termination of a person's life The Euthanasia laws around the world are clear in who is suffering from an incurable or terminal some nations but unclear even about their condition, so as to end their sufferings, hence existence in others. Just because a country has not coined "mercy killing", which is derived from defined its criminal code on this specific action, it Greek, meaning 'good death'. Aristotle, Socrates, does not mean all assisters will go free. France and Plato all favored euthanasia in ancient times does not have a specific law banning assisted however only under certain situations, which suicide, but a case like that could be prosecuted implies that the idea of euthanasia is not a new under 223-6 of the Penal Code for failure to assist one. a person in danger [2]. In Australia, active voluntary euthanasia, assisted suicide and 1.1 Types of Euthanasia physician-assisted suicide are illegal and prohibited [3].In Netherlands, euthanasia was It is recognized as various types namely, active legalized by the passage of “Termination of Life euthanasia which refers to a deliberate act of on Request and Assisted Suicide (Review intentional administration of lethal drugs to end a Procedures) Act” 2002; Belgium (in 2002 after patient’s life and passive euthanasia which is about 3 years of public discourse that included deliberate withdrawal of life-prolonging medical government commissions) was the second nation treatment resulting in the patient’s death [1]. It to take a stand in this direction. In Switzerland, can be further categorized as, Voluntary assisted suicide can be performed by non- euthanasia- performed at the request of the physicians as well. Both Active Euthanasia and patient; Involuntary euthanasia- performed when Assisted Suicide are legal in Luxembourg since the patient does not request it, but the physician 19th February 2008. The State of Michigan does so with the intent to relieve their suffering banned euthanasia and assisted suicide after Dr. (which can amount to murder); Non voluntary- Kevorkian (infamously known as ‘Doctor Death’) performed when the patient is incapable of recklessly encouraged and assisted in suicides [4]. consenting; Assisted suicide- a person State of Montana is not clear as the bill legalizing intentionally assists a patient on their request, to PAS was passed by the state legislature in 2010, terminate his or her life; Physician Assisted but was recently defeated by the state’s Senate Suicide(PAS)- physician intentionally assists a Judiciary Committee [2]. In the UK it is illegal patient on request, to end his or her life (e.g. by and against the law and in the 1961 Suicide Act, the provision of information and drugs). killing some other intentionally is an illegal offence and legally they have to be in prison for fourteen years. In Canada, Euthanasia is not yet

6 legalized and is culpable homicide under under sec. 309, which says “Whoever attempts to Canada’s Criminal Code. But it is predicted to be commit suicide and does any act toward the legalized by February 5, 2016 (at the latest) [5]. commission of such offence, shall be punished Mexico does not allow active euthanasia, but with simple imprisonment for a term which may since 2008, the terminally ill are allowed to refuse extend to one year (or with fine, or with both)” medication or further medical treatment to extend [10]. This section is based on the principle that life [5]. A number of countries and states around lives of men are not only valuable to them but also the world have permitted euthanasia or assisted to the state which protects them. suicide in some form under specific conditions. 2.1 Cases and Judgments on Inclusion of Right 1.3 Legal Standing in India to Die in Right to Live

Talking about the legal standing in India, The first time this issue of ‘right to die’ came into euthanasia is a crime. According to Penal Code light before the court was in the case of Maruti 1860, active euthanasia is an offence under Shripati Dubal v. State of , which Section 302, punishment for murder or at least brought out the question “whether a person has a under Section 304, punishment for culpable right to die?” The court came to a debatable point homicide not amounting to murder. Supreme “does ‘right to life’ includes ‘right to live’ as well Court is also confers that right to life guaranteed as ‘right to end one’s life’ if one so desires?”. It by Article 21 of the constitution does not include was pointed out that Fundamental Rights have the right to die [6]. A major progress took place in positive as well as negative aspects. For example: this field on 7 March 2011 when a serious light Freedom of Speech and Expression also includes was thrown on this aspect, for the first time in freedom not to speak and to stay silent. If this is India, where in Supreme Court finally sanctioned the case, reasonably “right to live” should also Passive Euthanasia with its landmark judgment in include “right not to live or not to be forced to Aruna Shanbaug case (sexual assault case of a live” [9]. Then there was a two judge bench of the nurse in KEM, who was in a vegetative state) and Supreme Court of India on the case of P. a supplication was made in Supreme Court for Rathinam vs. Union of India, where the compass permitting euthanasia on Aruna Shanbaug by a of life was ranged out. In this case, section 309 friend of hers, , a social activist cum- IPC which penalizes attempt to suicide was held journalist. Clear-cut guidelines were formulated to be unconstitutional and violative of Article 21. that have to be followed whenever such a situation It was held that ‘right to life and liberty’ under arises in India. On 20th April, 2011 Union Law Article 21 also includes ‘right to die’. However, ministry on the basis of this judgment and the debates over the issues didn’t stop. The guidelines wrote a letter to the 19th Law questions were again raised before the Supreme Commission requesting a report on possibility of Court in the case of Gian Kaur v. State of Punjab making legislation on euthanasia. On 11th August [10]. Although the Constitution Bench in Gian 2011, Law Commission submitted their report to Kaur upheld that the ‘right to live with dignity’ Government of India titled ‘Passive Euthanasia- A under Article 21 will be inclusive of ‘right to die Relook’ [7]. In the modified and revised Bill with dignity’, but the decision did not come to a proposed by 19th Law Commission, the conclusion. procedures laid down are in line with the 2.2 Inference directions of the Supreme Court in Aruna Shanbaug case. This Bill has to pass through One of the articles of criminal law, [8] "Whether many stages before it becomes an Act. Right to Life Include Right to Die?" in the legal services mentioned that "The “Right to life” under Art. 21 should not include “right to die” because 2.0 INCLUSION OF RIGHT TO DIE IN this provision might increase the rates of suicides RIGHT TO LIVE in the country and moreover the “Right to life’ is a Right to Life as the fundamental right of every natural right embodied in Art. 21 but suicide is an citizen is enriched under Article 21 of the Indian unnatural termination or extinction of life and, constitution and is generously interpreted to imply therefore incompatible and inconsistent with the something more than sheer survival and animal concept of “right to life”. In conclusion, it should subsistence, thus being denoted in the right way be recognized that right to die should not be and the broadest possible perspective under the universal but should be exercised as an exemption hands of the judiciary. This entails that if Article in the “Rarest of Rare Cases” like for example in 21 bestows on a person the right to live a dignified case of Euthanasia. life, it should bequeath “Right to Die” as well. But the inclusion of Right to die under Article 21 contradicts the stipulation of Indian Penal Code

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3.0 MORAL AND ETHICAL ASPECTS OF Letting a patient die from an incurable disease ACTIVE AND PASSIVE EUTHANASIA may be seen as allowing the disease to be the natural cause of death without moral culpability. Passive euthanasia has become an established part They stated the prior by using the Hippocratic of medical practice and is relatively Oath which states “I will never give a deadly drug uncontroversial. Critics argue that active to anybody who asked for it, nor will I make a euthanasia is not ethical because a doctor directly suggestion to this effect,” as evidence of a participates in the patient’s death. The perspective doctor’s ultimate rule not to administer lethal of many people drives them to make a moral drugs. But there was another response to the use difference between active and passive euthanasia, of the Hippocratic Oath as evidence against with a mindset which says it is acceptable to euthanasia that the next sentence of the withhold treatment and allow a patient to die, and Hippocratic Oath states “I will not give to a it is not moral to kill a patient by a deliberate act. woman an abortive remedy.” and they stated that Few of the medical professionals also support this, if the Hippocratic Oath was followed as above, as it avoids the moral problems. While active then abortions would be illegal for doctors to euthanasia is universally considered murder, perform as well. On conclusion it can be said that passive euthanasia is often considered more although some physicians feel that it is not ethical morally acceptable as there is no interference in to help their patients die, other physicians believe letting the patient die, while active euthanasia fulfilling a patient's wish to end his suffering at involves interfering and providing the means of the end of life is part of the responsibility a death. physician as well. 3.1 Debates on the Issue 4.0 ACTIVE EUTHANASIA – LESS EVIL An article, "Two Views on the Distinction The long-established dissimilarity on the moral between Active and Passive Euthanasia" by Josh grounds between active and passive euthanasia Deckard in 2012 [11] concluded that "If it is right requires a profound analysis. There is a moral for someone to die, it is right to give them the distinction between the two which says, although most humane death possible. It may be moral to passive can be permitted at times, active is always walk away and wash your hands of death before it forbidden, which is the conceded idea so far. This occurs, but practically, you are the agent of death was challenged for several reasons by James regardless. Once you have determined death is Rachel, a contemporary philosopher who gave necessary or inevitable, the moral thing to do is to four arguments [11], which were, firstly he said provide it". The article mentioned about the ‘active euthanasia in many cases is more humane question raised by James Rachels in 1975, "how than passive euthanasia’; secondly, ‘decisions withholding treatment and letting a patient die an which are being made concerning life and death excruciating death over days or weeks is more are on irrelevant grounds’; thirdly, ‘the very moral humane than actively ending a patient’s life”. importance that is being talked about by Rachel’s point was, being allowed to die can be distinguishing between killing and letting die slow and painful and lethal injection is quick and itself is irrelevant, as in either of the ways you are painless, which in fact makes the term letting the patient die’; and finally ‘the most "euthanasia" get a logical meaning. On the other common arguments which are being made in hand Nesbitt argued that if the doctor has good favor of this doctrine (passive) are itself illogical’. intentions, then passive euthanasia is justified, These four effective arguments by James Rachel because killing is always erroneous and clearly implies that there is no real distinction passiveness allows one to hold the morality. between passive and active euthanasia, since both In another research article "Why Euthanasia and are being done to get the same result i.e., the death Physician-Assisted Suicide are Morally of the patient on humanitarian grounds. Permissible" by Kelly Crocer in 2013 [12] has put Authour would further oppose the views of forward a perspective, "The Utilitarian Argument: "passive euthanasia being less evil" and support Less Suffering" which says " In the case of active the fact that active euthanasia is more humane euthanasia, the utilitarian approach would state than passive as a terminally ill patient would be that when a terminally ill patient is kept alive only undergoing a lot of suffering and pain if allowed to die slowly and painfully, suffering is greatly to die slowly and especially in cases where death increased for everyone involved." The article is inevitable. mentioned the other aspect where it was said that passive euthanasia "Corrupts Doctor’s Role as a A significant aspect that needs to be given a Healer", where Opponents of euthanasia argue thought is that, in passive euthanasia though the that there is a moral difference between actively doctor is not performing the act of killing; he still ending a patient’s life and withdrawing or plays a major role in "Killing" the patient, as he is withholding treatment which ends a patient’s life. well conscious that once the treatment is ceased,

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the patient will die. This further reflects on the medico legal perspective, an update” Punjab fact that there is an act of killing "indirectly". The Accad Forensic Med Toxicol publications, very statement quoted by James Rachel, “It is not Available at: exactly correct to say that in passive euthanasia http://medind.nic.in/jbc/t14/i1/jbct14i1p59.pd the doctor does nothing; for he does one thing… f [accessed August 1, 2015] he lets the patient die.”[13], all the more prove the [5] Vipin Sharma (2014) "Should Euthanasia be above point. legalized or not in India?", Available at: http://www.elections.in/blog/should- Another perspective regarding euthanasia is by euthanasia-be-legalised-or-not-in-india/ one of the most frequently cited writers on this [accessed August 1, 2015] subject, Dr. Anthony Shaw, regarding his support [6] Vinod K. Sinha, S. Basu, S. Sarkhel (2012) for morality of letting these infants die. Here his "Euthanasia: An Indian perspective" Indian J focus was on a Down’s syndrome case where he Psychiatry, Available at: raises questions like "Why must the hospital staff http://www.indianjpsychiatry.org/article.asp? stand in the nursery and watch as dehydration and issn=00195545;year=2012;volume=54;issue= infection withers a tiny being over hours and 2;spage=177;epage=183;aulast=Sinha days?, he further says, "if they think that the [accessed August 1, 2015] baby’s life is precious and should be protected, [7] "Passive Euthanasia – A Relook Report", then of course on moral grounds you will oppose No.241 (2012). Law commission of India, both killing them or letting them die and on the Available at: other hand, if they feel death is a permissible http://lawcommissionofindia.nic.in/reports/re choice here, why shouldn't they inject instead of port241.pdf [accessed August 1, 2015] letting the infant “wither”?[14]. All these [8] Manali Singhal (2011) "Whether Right To Life questions raised by him further gave more Include Right To Die", Available at: weightage to active euthanasia being more http://www.legalservicesindia.com/article/user humanitarian. articles.php?aut_id=431[accessed August 2, 5.0 CONCLUSION 2015] [9] Naveen Kumar Gautam (2014) To come to a conclusion about which is a lesser "Decriminalization of Attempt to Commit evil act between, “Killing the patient, to relieve Suicide", Available at: him from his pain” and “letting the patient die, http://www.lawctopus.com/academike/decrimi undergoing pain”, the former seems to justify the nalization-attempt-commit-suicide/ [accessed term “euthanasia”, on humanitarian grounds and August 2, 2015] partly on moral as well, seeing that both are being [10] Advocate Mohan (2014) "Right to die with performed for the same result in a situation where dignity – Apex court referred the case to the death is inevitable. If Euthanasia is acknowledged constitution bench", Available at: by a nation then both the forms should be equally http://issuu.com/indialegal/docs/india_legal_1 accepted or both should not be; they stand or fall 5_april_2014_single_pa [accessed August 2, together. If the contemplation is that passive 2015] euthanasia is all right, then it is conclusive that [11] Josh Deckard Scott Sinclair (2012) "Two active euthanasia should be the same as well. Views on the Distinction between Active and 6.0 REFERENCES Passive Euthanasia", Available at: http://umsl.edu/~jd4z7/academic- [1] Nargus Ebrahimi (2012) "The ethics of papers/euthanasia.html [accessed August 2, euthanasia", Australia Medical Student 2015] Journal, 3(1) Available at: [12] Kelly Crocker (2013) "Why Euthanasia and http://www.amsj.org/archives/2066 [accessed Physician-Assisted Suicide are Morally July 29, 2015] Permissible". Honors Ethical Issues and Life [2] Derek Humphry (2005) "Assisted Suicide Choices (PHI2630). Paper 10 Laws Around the World", Available at: [13] Josh Peete (2013) [James Rachels, Primary http://www.assistedsuicide.org/suicide_laws.ht Source: The Right Thing To Do: Readings in ml [accessed July 29, 2015] Moral Philosophy]. "Is Euthanasia Morally [3] J. Pereira (2011) "Legalizing euthanasia or Permissible?” Available at: assisted suicide: the illusion of safeguards and http://www.truthawakens.com/euthanasia.asp controls", Available at: [accessed August 4, 2015] http://www.researchgate.net/publication/51063 [14] A. Shaw (1972) "doctor do we have a 201_Legalizing_euthanasia_or_assisted_suicid choice", The New York times magazine, e_The_illusion_of_safeguards_and_controls January 30 1972, p. 54. [accessed July 30, 2015] [4] Thejaswi HT, Kumar A, Gupta SK (2014) "Present status of euthanasia in India from

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