Biswas S & Mundle M : Passive -Whither Indian judicial system?

Special Article

Year: 2014│Volume:2│Issue-I

Passive Euthanasia/ Physician Assisted -Whither Indian Judicial System?

Dr Soumi Biswas1, Prof Malay Mundle2

12nd yr PGT, Community Medicine, Medical College, Kolkata 2Professor & Head, Department of Community Medicine, Medical College, Kolkata

Corresponding Author:

Dr Malay Mundle, Professor & Head, Department of Community Medicine, Medical College, Kolkata Mobile: 9903334810, email: [email protected]

Background:

Passive euthanasia has now been made legal treated at KEM since the incident and was in India.1 On 7 March 2011 the Supreme kept alive by feeding tube. On behalf of Court of India legalised passive euthanasia Aruna, her friend Pinki Virani, a social by means of the withdrawal of life support activist, filed a petition in the Supreme to patients in a permanent vegetative state. Court arguing that the "continued existence The decision was made as part of the verdict of Aruna is in violation of her right to live in in a case involving Aruna Shanbaug, who dignity". The Supreme Court made its has been in a vegetative state for 37 years at decision on 7 March 2011. King Edward Memorial Hospital. Aruna had been a nurse working at the KEM Hospital The court rejected the plea to discontinue in Mumbai on 27 November 1973 when she Aruna's life support but issued a set of broad was strangled and sodomized by Sohanlal guidelines legalising passive euthanasia in Walmiki, a sweeper. During the attack she India. This decision was based on the fact was strangled with a chain, and the the hospital staff who treat and take care of deprivation of oxygen had left her in a her did not support euthanizing her.2 vegetative state ever since. She had been

Address for correspondence: The Editor/ Managing Editor, Journal of Comprehensive Health Dept of Community medicine NRS Medical College, 138, AJC Bose Road, Kolkata-700014

Journal of Comprehensive Health, January 2014| Volume 2 | Issue 1 Page No 11

Biswas S & Mundle M : Passive euthanasia-Whither Indian judicial system?

The high court rejected active euthanasia by in Marseilles and by Socrates in Athens. means of lethal injection. In the absence of a Euthanasia, in the sense of the deliberate law regulating , the court hastening of a person's , was supported stated that its decision becomes the law of by Socrates, Plato and Seneca the Elder in the land until the Indian parliament enacts a the ancient world, although Hippocrates suitable law.2,3 appears to have spoken against the practice, writing "I will not prescribe a deadly drug to Active euthanasia, including the please someone, nor give advice that may administration of lethal compounds for the cause his death" 8,9,10 Euthanasia was purpose of ending life, is still illegal in strongly opposed in the Judeo-Christian India, and in most countries.4 What is tradition- against the laws of God and Euthanasia? Euthanasia (from Greek: eu; Nature. Pope Benedict, XVI, 265th Pope of "well" or "good", thanatos; "death") refers to the Apostolic Roman , the practice of intentionally ending a life in stated in his July 2004 article "Worthiness to order to relieve pain and suffering. 5 Receive Holy Communion: General Principles," that "The Church teaches that Like other terms borrowed from history, or euthanasia is a grave sin...’’11 "euthanasia" has had different meanings Suicide and euthanasia were more depending on usage. The first apparent acceptable under Protestantism and during usage of the term "euthanasia" belongs to the Age of Enlightenment, and Thomas the historian Suetonius who described how More wrote of euthanasia in Utopia.9 A 24 the Emperor Augustus, "dying quickly and July 1939 killing of a severely disabled without suffering in the arms of his wife, in Nazi Germany was described in a Livia, experienced the 'euthanasia' he had BBC "Genocide Under the Nazis Timeline" wished for”6 as the first "state-sponsored euthanasia". Parties that consented to the killing included The word "euthanasia" was first used in a Hitler's office, the parents, and the Reich medical context by Francis Bacon in the Committee for the Scientific Registration of 17th century, to refer to an easy, painless, Serious and Congenitally Based happy death, during which it was a Illnesses.The Telegraph noted that the "physician's responsibility to alleviate the killing of the disabled infant—whose name 'physical sufferings' of the body”.7 was Gerhard Kretschmar, born blind, with Bacon referred to an "outward missing limbs, subject to convulsions, and euthanasia"—the term "outward" he used to reportedly "an idiot"— provided "the distinguish from a spiritual concept—the rationale for a secret Nazi decree that led to euthanasia "which regards the preparation of 'mercy killings' of almost 300,000 mentally the soul."The British House of Lords Select and physically handicapped people". While Committee on defines Kretchmar's killing received parental euthanasia as "a deliberate intervention consent, most of the 5,000 to 8,000 children undertaken with the express intention of killed afterwards were forcibly taken from ending a life, to relieve intractable their parents. The "euthanasia campaign" of suffering". In the , euthanasia is mass gathered momentum on 14 understood as "termination of life by a January 1940 when the "handicapped" were doctor at the request of a patient".5 killed with gas vans and killing centres, Euthanasia was practised in Ancient Greece eventually leading to the of 70,000 and Rome: for example, hemlock was adult Germans.5 Euthanasia can be classified employed as a means of hastening death on as: the island of Kea, a technique also employed

Journal of Comprehensive Health, January 2014| Volume 2 | Issue 1 Page No 12

Biswas S & Mundle M : Passive euthanasia-Whither Indian judicial system?

1. - which is illegal worldwide but Euthanasia conducted with the decriminalised under certain specific consent of the patient is termed circumstances in the Netherlands voluntary euthanasia. Active under the Groningen Protocol. voluntary euthanasia is legal in , Luxembourg and the 3. - Netherlands. When the patient brings Euthanasia conducted against the will of about his or her own death with the the patient is termed involuntary assistance of a physician, the term euthanasia. Passive euthanasia entails is often used instead. the withholding of common treatments, Assisted suicide is legal in such as antibiotics, necessary for the Switzerland and the U.S. states of continuance of life. Active euthanasia , and Montana. entails the use of lethal substances or 2. Non-voluntary euthanasia - forces, such as administering a lethal Euthanasia conducted where the injection, to kill and is the most consent of the patient is unavailable controversial means. In the Aruna is termed non-voluntary euthanasia. Shaunbaug case the apex court laid Examples include , down the following guidelines: parties, the High Court can give its verdict.12,13 1.A decision has to be taken to discontinue life support either by the parents or the spouse or other close The debate over Passive Euthanasia has relatives, or in the absence of any of some takers as well as those opposing it them, such a decision can be taken even wholeheartedly. Even India's Minister of by a person or a body of persons acting Law and Justice, Veerappa Moily, called as a next friend. It can also be taken by for serious political debate over the the doctors attending the patient. issue.6The American Civil Liberties However, the decision should be taken Union stated in its 1996 amicus brief in bona fide in the best interest of the Vacco v. Quill states that:" The right of a patient. competent, terminally ill person to avoid excruciating pain and embrace a timely 2. Even if a decision is taken by the near and bears the sanction of relatives or doctors or next friend to history and is implicit in the concept of withdraw life support, such a decision ordered liberty. The exercise of this right requires approval from the High Court is as central to personal autonomy and concerned. bodily integrity as rights safeguarded by this Court's decisions relating to 3. When such an application is filled the marriage, family relationships, Chief Justice of the High Court should procreation, contraception, child rearing forthwith constitute a Bench of at least and the refusal or termination of life- 14 two Judges who should decide to grant saving medical treatment. approval or not. A committee of three reputed doctors to be nominated by the Bench, who will give report regarding Margaret P. Battin, PhD, distinguished the condition of the patient. Before Professor of Philosophy and Adjunct giving the verdict a notice regarding the Professor of Internal Medicine at the report should be given to the close University of Utah, and Timothy E. relatives and the State. After hearing the Quill, MD, Professor of Medicine,

Journal of Comprehensive Health, January 2014| Volume 2 | Issue 1 Page No 13

Biswas S & Mundle M : Passive euthanasia-Whither Indian judicial system?

Psychiatry, and Medical Humanities at Patients near the end of life must the University of Rochester, stated "We continue to receive emotional support, firmly believe that physician-assisted comfort care, adequate pain control, death should be one- -not the only one, respect for patient autonomy, and good but one--of the last-resort options communication.16 available to a patient facing a hard death. We agree that these options should Even Campbell is opposed to the include high dose pain medication if legalization of voluntary euthanasia for needed, cessation of life-sustaining terminally ill patients as administered by therapy, voluntary cessation of eating physicians. While everybody I respects and drinking, and terminal sedation. We and advocates for patients to have also believe, however, that physician- control and , it is assisted dying, whether it is called contrary to the vocation of medicine to physician-assisted death or physician aid intentionally hasten or cause death. In all in dying or physician-assisted suicide, cases (medical or non- medical), taking should be among the options available to human life should be a last resort, and paients at the end of life15 until our society has given appropriate attention to pain control, hospice care, and advance directive, we will not have However, the American Medical met the criteria of last resort with respect Association (AMA) stated:"It is to legalized euthanasia.17 understandable, though tragic, that some patients in extreme duress--such as those Daniel Callahan, PhD, Director of suffering from a terminal, painful, International Programs at the Hastings debilitating illness--may come to decide Center, stated : "This path to peaceful that death is preferable to life. However, dying rests on the illusion that a society permitting physicians to engage in can safely put in the hands of physicians euthanasia would ultimately cause more the power directly and deliberately to harm than good. Euthanasia is take life, euthanasia, or to assist patients fundamentally incompatible with the in taking their own life. It threatens to physician's role as healer, would be add still another sad chapter to an difficult or impossible to control, and already sorry human history of giving would pose serious societal risks.’’ 16 one person the liberty to take the life of another. It perpetuates and pushes to an extreme the very ideology of control-- This is an obvious echo of the the goal of mastering life and death--that Hippocratic sentiment. The involvement created the problems of modern of physicians in euthanasia heightens the medicine in the first place. Instead of significance of its ethical prohibition. changing the medicine that generates the The physician who performs euthanasia problem of an intolerable death (which, assumes unique responsibility for the act in almost all cases, good palliative of ending the patient's life. Euthanasia medicine could do), allowing physicians could also readily be extended to to kill or provide the means to take one's incompetent patients and other own life simply treats the symptoms, all vulnerable populations. Instead of the while reinforcing, and driving us engaging in euthanasia, physicians must more deeply into, an ideology of aggressively respond to the needs of control."18 Besides, the Church exhorts patients at the end of life. Patients civil authorities to seek peace, not war, should not be abandoned once it is and to exercise discretion and mercy in determined that cure is impossible. imposing punishment on criminals, it

Journal of Comprehensive Health, January 2014| Volume 2 | Issue 1 Page No 14

Biswas S & Mundle M : Passive euthanasia-Whither Indian judicial system?

may still be permissible to take up arms Hemang Koppikar, an ophthalmologist to repel an aggressor or to have recourse who has championed the pro-life cause to . There may be a for decades, said: "While everyone is legitimate diversity of opinion even crying themselves hoarse arguing for or among Catholics about waging war and against euthanasia, one needs to think of applying the death penalty, but not a feasible alternative for chronically or however with regard to abortion and terminally ill patients who are afflicted euthanasia.11 What do the other by such dilemmas."Incidentally, he said, religious sections feel about passive the ancient Indian practices of Euthanasia? The Islamic Medical "Santhara" by Jains and "Prayopavesa" Association endorses the stand that there by Hindus allowed "non-violent, self- is no place for euthanasia in medical desired termination of life" when there management, under whatever name or was no longer a will to live. "But this form (e.g., mercy killing, suicide, happened when the person abandoned all assisted suicide, the , the duty attachments (tyaag) with equanimity and to die, etc.). Nor does it believe in the concentrated only on God. This is the concept of a willful and free consent in 'Art of Dying'. Euthanasia should not be this area. The mere existence of confused with Santhara. No one can be euthanasia as a legal and legitimate given Santhara as it is voluntary," option is already pressure enough on the Koppikar said.20 In some countries there patient, who would correctly or is a divisive public controversy over the incorrectly, read in the eyes of his/her moral, ethical, and legal issues of family the silent appeal to go.19 euthanasia. Those who are against euthanasia may argue for the sanctity of life, while proponents of euthanasia Though many Christians and Jains think rights emphasize alleviating suffering, that passive euthanasia is acceptable bodily integrity, self-determination, and under some circumstances, Jains and personal autonomy. A survey in the Hindus have the traditional rituals of more than 10,000 Santhara and Prayopavesa respectively, physicians came to the result that wherein one can end one's life by approximately 16% of physicians would starvation, when one feels that their life ever consider halting life-sustaining is complete. Some members of India's therapy because the family demands it, medical establishment were skeptical even if they believed that it was about euthanasia due to the country's premature. Approximately 55% would weak rule of law and the large gap not, and for the remaining 29%, it would between the rich and the poor, which depend on circumstances.21 might lead to the exploitation of the elderly by their families. Unlike the Centre, the medical fraternity is divided In the United Kingdom, the pro-assisted on euthanasia. While many dying group Dignity in Dying cite neurosurgeons and onco-surgeons who conflicting research on attitudes by deal with the worst-outcome cases argue doctors to assisted dying: with a 2009 against delaying the inevitable, others Palliative Medicine- published survey point out to and the showing 64% support (to 34% oppose) possibility that medical research could for assisted dying in cases where a one day provide a cure. "It is kinder to patient has an incurable and painful not delay the inevitable in terminally-ill disease, while 49% of doctors in a study patients," said a doctor who supports the published in BMC Medical Ethics pro-euthanasia movement. But, Dr oppose changing the law on assisted

Journal of Comprehensive Health, January 2014| Volume 2 | Issue 1 Page No 15

Biswas S & Mundle M : Passive euthanasia-Whither Indian judicial system?

dying to 39% in favour.22 Legalizing should die or not. If legalized, voluntary voluntary active euthanasia can be very active euthanasia is likely to be misused dangerous for society if a party with by those not suffering from any terminal vested interests intends to misuse it. A disease but are psychologically terminally ill person is not in the best depressed and don't want to live.23 state of mind to take a decision if he/she

References:

1. "India joins select nations in legalising 10. Gesundheit, Benjamin; Steinberg, "passive euthanasia"". The Hindu. 7 Avraham; Glick, Shimon; Or, Reuven; March 2011. Jotkovitz, Alan. "Euthanasia: An Overview and the Jewish Perspective". 2. "Supreme Court disallows friend's plea Cancer Investigation 2006,24 (6): 622. for mercy killing of vegetative Aruna". The Hindu. 7 March 2011. 11. 11.www.vatican.va:Pope Benedict XVI, July 2004: Worthiness to receive 3. "Aruna Shanbaug case: SC allows Holy Communion:General principles. passive euthanasia in path- breaking judgment". The Times of India. 7 12. http://www.thehindu.com/news/nationa March 2011. l/article1516644.ece. J.Vemkatesan. Supreme Court disallows friend’s plea 4. "India's Supreme Court lays out for mercy killing of vegetative Aruna. euthanasia guidelines". LA Times. 8 The Hindu. 7 March 2011. March 2011. 13. http://articles.timesofindia.indiatimes.c 5. http://en.wikipedia.org/wiki/Euthanasia om/2011-03-07/India/ . 28665650_1_passive-euthanasia-life- support-path-breaking."Aruna 6. Philippe Letellier, Euthanasia: Ethical Shanbaug case: SC allows passive and human aspects,chapter: History euthanasia in path-breaking judgment". and definition of a Word,By Council of The Times of India. 7 March 2011. Europe page-13. 14. American Civil liberties Union in 7. Francis Bacon: the major works By Vacco vs Quill case Francis Bacon, Brian Vickers p. 630. 15. Battin MP, Quill TE, Physician- 8. Mystakidou, Kyriaki; Parpa, Efi; assisted Dying- The case for Palliative Tsilika, Eleni; Katsouda, Emanuela; Care and Patient Choice,2004 Vlahos, Lambros. "The Evolution of Euthanasia and Its Perceptions in 16. American Medical Association, Greek Culture and ‘Decisions Near the End of Life’ June Civilization".Perspectives in Biology 1996,available at www.ama-assn.org. and Medicine 2005,48 (1): 97–8. 17. Campbell CS, Prof of Ethics, Science 9. Stolberg, Michael. "Active Euthanasia & Environment, Dept of Philosophy, in Pre-ModernSociety, 1500–1800: Oregon State University, May 16, 2007 Learned Debates and Popular in email to ProCon.org. Practices". Social History of Medicine 2007,20 (2): 206–07.

Journal of Comprehensive Health, January 2014| Volume 2 | Issue 1 Page No 16

Biswas S & Mundle M : Passive euthanasia-Whither Indian judicial system?

18. Callahan D, The case against Ethics Survey Results: Doctors suicide:For the Right to End-of-Life Struggle With Tougher-Than-Ever care,2004 Dilemmas: Other Ethical Issues.2010, 11 November 19. Islamic Medical Association, USA,Euthanasia and Physician- 22. http://www.dignityindying.org.uk/reso Assisted Suicide, May 13, 1996, urces/research/opinion. Dignity in available at www.-usa.com Dying, Opinion on assisted dying

20. http://articles.timesofindia.indiatimes.c 23. http://articles.timesofindia.indiatimes.c om/2011-03-04/mumbai/28659068_1_ om/2011-09- euthanasia -santhara-Indian- 30/bangalore/30229928_1_ euthanasia- culture.Docs divided over euthanasia, 4 aruna-shanbaug-terminally-ill- march 2011. person.Young minds debate euthanasia.2011, September 30. 21. http://www.medscape.com/viewarticle/ 731485_2. Leslie KaneExclusive

Journal of Comprehensive Health, January 2014| Volume 2 | Issue 1 Page No 17