“LIVING AT MERCY, DYING AT WILL; EUTHANASIA: THE ROAD TO LEGALITY”

Dissertation submitted in part fulfillment for the requirement of the

Degree of

LL.M

Submitted by Supervised by SHYAM SUNDER ADHLAKHA MR. NEERAJ TIWARI

NATIONAL LAW UNIVERSITY

DELHI (INDIA)

2016

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DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “Living at Mercy, Dying at Will;

Euthanasia: The Road to Legality” submitted at National Law University, Delhi is the outcome of my own work carried out under the supervision of Mr. Neeraj Tiwari,

Assistant Professor, National Law University, Delhi.

I further declare that to the best of my knowledge, the dissertation does not contain any part of work, which has not been submitted for the award of any degree either in this

University or in any other institution without proper citation.

Shyam Sunder Adhlakha

Roll No. 23 LLM 15

National Law University, Delhi

New Delhi

May 30, 2016

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CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M dissertation entitled “Living at

Mercy, Dying at Will; Euthanasia: The Road to Legality” submitted by Shyam

Sunder Adhlakha at National Law University, Delhi is a bona fide record of his original work carried out under my supervision. To the best of my knowledge and belief, the dissertation: (i) embodied the work of candidate himself; (ii) has been duly completed; and (iii) is up to the standard, both in respect of content and language, for being referred to the examiner.

Mr. Neeraj Tiwari

Assistant Professor,

National Law University, Delhi

New Delhi

May 30, 2016

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ACKNOWLEDGEMENT

I wish to express my deepest gratitude and regards to my respected teacher, Mr. Neeraj

Tiwari, who despite his busy schedule was always available for my help. He always has been an inspiration and it was his efforts and constant guidance only which have made this work possible. His valuable inputs and motivation at the times of distress kept me going.

I would like to thank my parents who have always trusted me and provided me with whatever I asked for. It is due to their endless love and blessings only that I could pursue my goals and reached this place.

Last but not the least; I would like to thank my friends at NLUD who made this journey memorable for me. Akhilendra Pratap Singh, Puranjay Vedi and Drishti Parnami deserve a special mention. Thank you guys, you will always be there in my memories and prayers.

Shyam Sunder Adhlakha

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LIST OF CASES

1. R v. Cox, (1992) 12 BMLR 38

2. Airedale N.H.S. Trust v. Bland, (1993) A.C. 789 House of Lords.

3. R v. Adams, (1957) CRIM LR 365

4. Wons v. Public Health Trust, 541 So. 2d 96 (Fla. 1989)

5. Cruzan v. Harmon, 760 S W 2d 408 411 (Mo. 1988)

6. Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 1990

7. Compassion in Dying v. State of Washington, 79 F. 3d 790 (9th Cir. 1996)

8. Washington v. Glucksberg, 117 S. Ct. 2258 (1997)

9. Vacco v. Quill, 117 S .Ct. 2293

10. Baxter v. Montana, MT DA 09-0051, 2009 MT 449

11. Re C, All England Law Reports 1989; 2: 782

12. Re J (a minor: wardship: medical treatment). All England Law Reports 1990; 3:

93

13. Pretty v. The United Kingdom 2002-III Eur. Ct. H.R. 155

14. Haas v. Switzerland, [2011] ECHR 2422, (2011) 53 ECHR 33, 31322

15. Lambert and Others v. France ECHR 185 (2015) 05.06.2015

16. Nicklison and Lamb v. The United Kingdom, [2015] ECHR 783 2478/15;

1787/15

17. Maruti Sripal Dubal v. State of Maharashtra, 1987 (1) Bom CR 499

18. P. Rathinam v. Union of India, 1994 SCC (3) 394

19. Gian Kaur v. State of Punjab, 1996 SCC (2) 643

20. Naresh Matarao Sakhre v. Union of India, 1995 Cri L.J. 96 Bom.

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21. C.A. Thomas Master Etc. v. Union of India and Ors., 2000 Cri L.J. 3729

22. Aruna Ramachandra Shanbaug v. Union of India & Ors (2011) 4 SCC 454.

23. Nikhil Soni v. Union of India & Others, Civil Writ Petition No.7414/2006

24. Common Cause v. Union of India, Writ Petition(civil) no. 215 of 2005

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LIST OF ABBREVIATIONS

AIR All India Reporter

Art Article

CR Criminal Review

Crim. L.R. Criminal Law Review

ECHR European Convention on Human Rights

EU European Union

ICCPR International Covenant on Civil and Political Rights

IPC Indian Penal Code

L.J Law Journal

No. Number

OUP Oxford University Press

PVS Permanent Vegetative State

SCC Supreme Court Cases

U.K. United Kingdom

U.S.A. United States of America

UDHR United Nations Declaration on Human Rights

UN United Nations

V. Versus

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TABLE OF CONTENTS

TITLE PAGE

NO.

DECLARATION BY THE CANDIDATE ii

SUPERVISOR’S CERTIFICATE iii

ACKNOWLEDGEMENTS iv

LIST OF CASES v

LIST OF ACRONYMS AND ABREVIATIONS Vii

CHAPTER 1 1-6

INTRODUCTION

1.1 BACKGROUND 1

1.2 OBJECTIVES 4

1.3 RESEARCH QUESTIONS 5

1.4 RESEARCH METHODOLOGY 5

1.5 CHAPTERIZATION 5

CHAPTER 2 7-22

UNDERSTANDING EUTHANASIA

2.1MEANING OF EUTHANASIA 7

2.2 HISTORICAL BACKGROUND 7

2.3 TYPES OF EUTHANASIA 11

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2.3.1 ORDINARY AND EXTRAORDINARY EUTHANASIA 11

2.3.2 DIRECT AND INDIRECT EUTHANASIA 12

2.3.3 VOLNTARY AND NON-VOLUNTARY EUTHANASIA 13

2.3.4. ACTIVE AND PASSIVE EUTHANASIA 13

2.4 INTENTION IN EUTHANASIA 15

2.5 ARGUMENTS IN FAVOUR OF AND AGAINST EUTHANASIA 18

2.6 EARLY ATTEMPTS TO LEGALIZE EUTHANASIA 21

CHAPTER 3 23-47

RELIGION, MORALITY AND EUTHANASIA

3.1 EUTHANASIA AND RELIGION 23

3..1.1 CHRISTIANITY 24

3.1.2 ISLAM 26

3.1.3 JUDAISM 28

3.1.4 HINDUISM 29

3.1.5 BUDDHISM 31

3.1.6 JAINISM 33

3.2 EUTHANASIA AND MORALITY 35

3.2.1 EUTHANASIA AS MORAL MURDER 38

3.2.2 EUTHNASIA ANS SANCTITY OF LIFE 41

3.2.3 EUTHANASIA AND THE SLIPPERY SLOPE 45

CHAPTER 4 48-63

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INTERNATIONAL RESPONSE TO EUTHANASIA

4.1 NETHERLANDS 48

4.2 GREECE 50

4.3 BELGIUM 52

4.4 SWITZERLAND 53

4.5 UNITED STATES OF AMERICA 54

4.6 UNITED KINGDOM 56

4.7 GERMANY 58

4.8 INTERNATIONAL ORGANIZATIONS AND CONVENTIONS 60

4.8.1 EUTHANAISA IN THE UNITED NATIONS 60

4.8.2 EUTHANASIA IN ECHR 61

CHAPTER 5 64-75

LEGAL STATUS IN INDIA

5.1 THE CONSTITUTION OF INDIA 64

5.2 INDIAN PENAL CODE 65

5.3 RIGHT TO LIFE, RIGHT TO DEATH AND EUTHANASIA: THE 67

JUDICIAL RESPONSE

5.4 PROPOSED DRAFT BILL 72

5.5 RELIGIOUS PRACTICES AND RITUALS 74

CHAPTER 6 76-79

CONCLUSION AND SUGGETIONS

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6.1 CONCLUSION 76

6.2 RECOMMENDATIONS 78

BIBLIOGRAPHY 80

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CHAPTER 1

INTRODUCTION

1.1 BACKGROUND

Life is the most precious gift granted to humans by God and to enjoy the same is the biggest pleasure that they can have. Every individual tries to maximize the enjoyment of his life and make it count by doing something worth. Considering the divine element involved with life, every human is not only to cherish it, but also to respect it. It is not only the person concerned, but also the state which has to respect it. It is to fulfill this requirement only that most of the states of the world ensure a ‘right to life’ to their citizens and provide with protection of law against any encroachment on this right. States try to assure that life is enjoyed and every person is enabled to utilize his life by doing whatever he considers worth within the spheres of the law. They protect the life of people from any outside attack or intervention. But there might arise a situation when the attack on this right is not from the outside but from inside. The situation being talked about here is when the person himself wants to end up his life.

Any attack on this right to life is not taken lightly by the state and provisions are made to punish all such attempts. For example, almost all the jurisdiction have made murder a crime, homicide which falls short of murder due to some technical reasons is also culpable. It shows that any outside attack is just not tolerated at all. But the position is not clear in the other situation i.e. when the attack is from within. Self destructing acts like suicide and euthanasia can be included in this category. While the stand of law on the outside attack is unanimous, there are difference in opinion as to the inside attacks. There are countries where attempt to suicide is not a crime and is seen as an expression of one’s choice and liberty while on the other hand there are countries which consider it to be outside the scope of liberty and as an intrusion into the state’s monopoly of taking lives.

There is another form of inside attack on the right to life; euthanasia. Euthanasia or mercy killing is a very late entrant in the legislative debate. Since long it has attracted the attention of jurists and scholars but it could not pierce the legislative boundaries until very lately. It was in 2002 that

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the world saw its first euthanasia legislation which legalized active euthanasia and the same has been at target of pro-life camp. There have been allegations that such legislations are an act on the humanity and the sanctity of life. This legislation which brings an unnatural end to life is an intervention with the divine plan as they allow the humans to decide about their death, a matter which is otherwise supposed to be dealt by God. The opponents base their arguments on various premises like morality, ethics, religious ideologies and fear of abuse of the power.

Euthanasia has attracted the attention of not only the legal scholars, but also as been on the focus of various religious authorities also. Almost all the religions have their own separate ideologies which treat life and the importance attached to it in a peculiar way. Some religions are very orthodox and treat God only as the authority to decide as to the matters of life and provide no scope for the individual discretion to end his life earlier than the natural span. At the same time there are some religions, mainly the one originated in the Eastern parts of the world which though associate death with God but they see death not as a spiritual moment where humans are closest to God and they see it as a time were the pain endured by the person gives him a chance to wash away all his sins of the present life and get rid of the cycle of rebirth and attain salvation. There are religions which preach that if a person has fulfilled all his spiritual desires then he can end his life in a way prescribed by the religious beliefs so that instead of waiting for his body to decay, he can die when he is still conscious and able enough to understand the deeper meaning of life and death by feeling each and every breathe. Practices like prayopavesa, santhara in the eastern religions includes giving up of food and nutrition for months so that one can embrace death in a gradual manner and with a conscious state of mind. It is believed that such acts lead to detachment from worldly desires and the human soul is completely dedicated to God.

Considering the fact that the India society is a religious society and followers of almost all the religions are there, it becomes important to understand the religious stands on euthanasia. Although there is a secularization of law in India religious beliefs play a vital role in the daily lives of the people and the same and considered while drafting laws also. Any practice which is totally inconsistent with the religious beliefs cannot be imposed upon the people, so keeping this thing in mind this work will attempt to understand euthanasia as per the religious ideologies.

Euthanasia has a moral angle also. If seen from the outside, any act of euthanasia is an act of homicide and it is only upon considering the other related elements like the motive, intentions

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only that it can be differentiated form homicide. Morals are one of the basic elements of human nature and are considered as one of the most influential factors in deciding a person’s course of action. Most of the legislations do not consider the morality factor while making any act culpable and those acts which are morally a crime, but not a crime in legal sense are never culpable. Morality is an inner virtue that a person has to deal himself with. Legislations generally use a negative approach towards morality i.e. culpability is attached to the legal element and not the moral element, but the acts which are morally not permissible are never permitted legally also. So, in this background it is essential to check the moral viability of euthanasia, whether it is morally permissible or not because as per the set pattern of law making, if euthanasia is not morally permissible then it cannot be allowed legally also.

At the same time the proponents of euthanasia claim that the horizons of human rights and personal liberty should be expanded and the individual should be vested with the power to decide not only as to the way he wants to live, but also as to the way he wants to die. They claim that there is no use of living a life which has lost the element of worth and pleasure and the only experience that it can offer is and sufferings. Humans are special creatures and they have been endowed with intelligence and power of decision making by God and they should be allowed to use the same in their best interest.

With the difference of opinion widening every passing moment, various nations are now legalizing euthanasia in their jurisdictions. There had been attempts dating back to the 1940s in U.K and the U.S.A to legalize passive euthanasia but the same was futile. The first success successful attempt to legalize euthanasia as in Netherlands where the legislation allowed even active euthanasia. Since then many countries have passed legislations mostly permitting only the passive euthanasia. During this time the courts have also recognized the Common Law right to choose for withdrawal of treatment if the same does not contribute to the betterment of health and merely increases the life span adding n to the pain and sufferings. There have been attempts to pass international conventions at platforms like United Nations and the European Union. The paper will try to trace these developments at the international level and to see what the response of the people in different jurisdictions is and how these laws are working. An attempt will be made to understand how the problems faced by these nations in application of such laws can be

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of help to India to draft its law and what are the shortcomings that can be worked upon to make an effective law.

Euthanasia in India was never an independent issue and there was no demand for legislation until lately. The main issue that concerned the Indian judiciary was that of whether suicide can be allowed by interpreting right to life to include the right to die in it. The courts initially were not concerned about euthanasia and whatever opinion was there was in form of obiter dicta with no binding judgment. The initial judgments in this debate like P. Rathinam and Gian Kaur only had passing references to this issue and nothing conclusive was ever said. It was then in the judgment of Aruna Shanbaug that court for the first time took this issue and allowed passive euthanasia in India with a declaration that legislation needs to be passed to the same effect. But this judgment was short lived as soon in a writ petition filed to make provisions for living wills, the court overruled the Aruna judgment saying it to be bad in law as it misinterpreted the Gian Kaur judgment. The court again asked parliament to legislate on the matter, responding to which there has been a draft bill for allowing passive euthanasia.

.As the bill has been proposed and is open for general comment of the people, the matter becomes imminent to be discussed and have an insight into the matter and unfold what pros and cons it carries. Keeping this background in mind, this work will attempt understand the concept of euthanasia, looking at it under various lights like religion, morality, ethics etc.

1.2 OBJECTIVES:

1. To understand the concept of euthanasia and have a deep insight into it. 2. To ascertain its permissibility as per various religious ideologies, morality and ethics. 3. To know the international response to euthanasia and how other nations and international organizations treat it. 4. To understand the present legal framework and the judicial development till now in India concerning the right to life vis-a vis the right to die.

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1.3 RESEARCH QUESTIONS:

1. What is euthanasia, its various forms and what are the arguments in favour of and against it? 2. Whether it can be allowed on the basis of various religious ideologies, morality and ethics? 3. Whether the international community has welcomed it and the legislation passed in various nations are working smoothly? 4. Whether the present legal framework allows euthanasia and whether the judicial response till now shows a sign that it can be soon legalized in India also?

1.4 RESEARCH METHODOLOGY:

Internet and materials available in the library of National Law University, Delhi relating to Euthanasia have been the main source of procuring the research material. Main reliance is on the secondary sources of data like books, scholarly articles and primary sources such as case laws, statutes and drafted bills are referred. The research has been conducted by using the “Doctrinal Method” and the nature of research is mainly descriptive wherein various settled religious and moral philosophies and legal framework of various nations have been discussed to look at the legality of euthanasia.

1.5 CHAPTERIZATION:

The work has been divided into four chapter and the contents of chapter are:

Chapter 1 is the introduction part where the need to conduct the research has been provided. Research objectives, research questions and research methodology has been described in this chapter. In Chapter 2, definition of euthanasia is discussed and then various form of euthanasia are explained. The stand of society and civilizations on euthanasia has been discussed, starting from the ancient times, passing through the Christian era and then finally the modern time example of Nazi holocaust as a form of involuntary euthanasia has been

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explained. In chapter 3, the permissibility of euthanasia has been seen in light of the major religions of the world. The moral issues concerning euthanasia, the principle of sanctity of life and the wedge argument have been explained to ascertain whether these principles allow legalizing euthanasia or not. Chapter 4 is an attempt to look at the international response to euthanasia. The legislative and judicial stand of various countries has been looked at. Also an attempt has been made to see the developments in international organizations like the United Nations and the European Court of Human Rights. The Indian stand on euthanasia, the present legal framework and the judicial development have been summarized in the Chapter 5 and also the latest draft bill for legalizing passive euthanasia has been analyzed. Finally, chapter 6 contains the conclusion and the recommendations based on the research conducted.

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CHAPTER 2

UNDERSTANDING EUTHANASIA

2.1 MEANING OF EUTHANASIA:

Oxford dictionary defines euthanasia as the painless killing of a person suffering from an incurable and painful disease or in an irreversible coma.1 The Merriam-Webster dictionary has defined it as a practice of killing someone who is very sick or injured in order to prevent any more suffering.2 Health has been defined by the World Health Organization as not mere absence diseases and illness, but a state of complete mental, physical and social well being.3 And with respect to the present debate, terminal illness can be defined as one which has no cure and ultimately will conclude in death. So it can be inferred from the definitions that euthanasia is an act which is initiated or requested by a person who is in such a state that chances of him suffering while being alive are so more that he would prefer to die, or a person who would consider suicide as ending his pain, normally would think of euthanasia.

2.2 HISTORICAL BACKGROUND:

Euthanasia may be considered as old as the civilization itself and its traces can be found in the Greek and Roman traditions. In the ancient Greek, euthanasia was equated with ‘happy death’4 and was considered as a mode of easy and painless death by consuming hemlock.5 The first ever recorded use of the word ‘euthanasia’ was by the Roman historian Suetonius in his De Vita Caesarum-Divus Augustus to describe the death of Augustus Caeser, labeling his death to be ‘a euthanasia’, his death was not hastened by any other person.6 Suicide was not sanctioned by the

1Oxford Dictionary, oxforddictionaries.com/definition/English/euthanasia (last visited on May 05,2016 , 11:46 A.M) 2 Merriam-Webster dictionary, http://www.merriam-webster.com/dictionary/euthanasia( last visited on May 05, 2016 , 11:51 P.M) 3 Preamble, World Health Organization, http://www.who.int/peh-emf/publications/Preamble1.pdf (last visited May 4, 2016 , 6:06 P.M) 4 Eu: happy, Thantos: Death 5 Robert Orfalli, Death With Dignity: The Case for Legalizing Physician Assisted Dying and Euthanasia 5 (2011) 6 A General History of Euthanasia, http://www.life.org.nz/euthanasia/abouteuthanasia/history-euthanasia1/ (last visited May 10, 2016, 3:41 P.M.)

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Athenian law even to release oneself from pain and sufferings, yet suicide by means of consuming poison provided by physicians was a common occurrence.7 In ancient Rome and Greece many people preferred an easy and painless death over the endless agony and sufferings of a natural death resulting out of the disease and the practice of euthanasia was very common.8 Aged people used to gather annually at the island of Cos for banquet and quit the world in unison by consuming a lethal poison.9 This was backed by the utilitarian grounds, which says that the worth of any act is to be judged on the utility it gives and the additions it makes to the pleasures.

Plato and Aristotle even advocated the disposal of defective children and Aristotle even said that there must be a law to kill the deformed children, who if live longer will only suffer due to their mental or physical conditions.10 Plato recommended abandoning sick people to death. In his opinion, people having a badly built body or having a perverted heart of irremediable nature shall be left to die.11 Seneca was in favor of a limited form of euthanasia and said that if there are two types of deaths, one being accompanied by torture and the other being easy and simple, then the latter shall be chosen.12 The greatest supporters of euthanasia in the ancient world were the Stoics of Rome. They believed in freedom and embraced it in its widest form, professing that freedom means to never surrender the deliberate will to passion or compulsion. By this they did not only accept suicide as a mode of death but even glorified it, claiming it to be the ultimate expression of one’s will in choosing the manner of this death. The same philosophy could be used to justify euthanasia under Stoicism.13 The ancient Celts believed that if a person died of old age or diseases, then he would go to hell and committing suicide before the person is spoilt, he would go to heaven. Thus suicide was seen as a mode of achieving good death. Euthanasia could be justified on the same reasoning in that society.14 Indian and Sardinian societies practiced a peculiar form of euthanasia where death was imposed in the elderly people against

7 ATTITUDES TOWARDS EUTHANASIA IN ANCIENT TIMES AND TODAY. A SUMMARY OF PAPERS AND DISCUSSION AT THE THIRD EUTHANASIA CONFERENCE OF THE EUTHANASIA EDUCATIONAL COUNCIL, December 5, 1970. 8 Tania Sebastian, Legalization of Euthanasia in India with Specific Reference to the Terminally Ill: Problems and Perspectives, 2 J. INDIAN L. &SOC’Y 341 2010-2011. 9 Mehling V. Alice, Changing Attitudes Towards Euthanasia, 3 LUSTITA 22 1975 10 Euthanasia, 1 NORMAN ST. JOHN-STEVAS, LIFE DEATH AND THE LAW: CHRISTIAN MORALS IN ENGLAND AND THE UNITED STATES 262. 11 Platon, Complete Works p.111 12 Ibid. 13 Euthanasia: A Constitutionally protected Death, 37 N.Y.L. SCH. L. REV. 439 1992. 14 Ibid.

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their will.15 Elderly Eskimos exposed themselves to the bitter cold and the Hindus drowned the elderly into the Ganges.

Public depositories in Massilia made available death poisons for the people who could justify their motives of death before the senate.16 It was common in Sparta to examine newly born male child for the signs of deformities, which if found, led to the child’s death. It was practiced to save the society from unnecessary burden and saving the child from the burden of existence.17. Majority of the Greek and Roman philosophies considered man to be the master of his life and focused on the quality of life.

But there was an exception to this in the form of the Pythagorean believes, who said that man should not leave his body without the divine consent irrespective of the circumstances he is into. Hippocratic Oath was inspired by this Pythagorean philosophy only.18 The early Christians were also influenced by the Pythagoreans. In 5th century, Saint Augustine said that sufferings should be endured and he considered avoidance of the sufferings as cowardice. Thomas Aquinas also opposed suicide and stated that God has gifted life to humans and he only has the right to take it away. John Donne wrote Biothanatos in the early 17th century, wherein he opposed the assertion of St. Thomas Aquina that suicide or euthanasia violated the laws of nature, community and God, and his claims had no scriptural backing. He argued that some people have a natural desire to die and suicide would be justified if the intention of the act was not self promoting.19 Later, with the rise of Christianity and the idea that life was a trust from God, the Hippocratic Oath gathered a huge support from the physicians against euthanasia.20

The renaissance period proclaimed the man’s sovereignty over death and life. Sir Thomas More, often quoted as the father of euthanasia, was the first prominent Christian to recommend euthanasia. He wrote in his book Utopia that the Utopian priests should encourage euthanasia when the patient suffers from some terminal illness, but for doing the same the consent of the

15 Ibid. 16 Supra Note 9. 17 Supra Note 6. 18 Supra Note 9. 19 Papanikitas N. Andrews, Is it Historically Possible for a Consensus to be Reached on the Subject of Euthanasia, Voluntary or otherwise?, CATH. MED. QUAT’RLY, J. CATH. MED. ASSN. (UK) available at http://www.cmq.org.uk/CMQ/2000/consensus_on_euthanasia.htm 20 Ezekiel J. Emanuel, The History of Euthanasia Debates in the United States and Britain, 121 ANALYSIS OF INTERN’L MED. 793, 800 (1994)

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patient was must.21 The scientific discoveries of the same period enabled the physicians to artificially prolong the life and the dilemma of modern medicine could keep patients alive while making him suffer was recognized for the first time. Francis Bacon, the English philosopher, for the first time discussed the idea of prolongation of human life as the new medical task, being the third one of his discussed ideas. He said that the physicians ought to acquire better skills to enable the dying people to pass more easily and quietly out of life. He was basically not advocating the mercy killing, but was asking for better palliative care.22

The proponents of euthanasia got an upper hand in this debate in the end of 19th century with the invention of anesthesia and idea of using morphine and other anesthetic drugs to be used for peacefully killing people came in vogue.23 The medical profession finally took over the theological monopoly in the euthanasia debate. The most important contribution was made by Carl F.H. Marx in his paper ‘De Euthanasia Medica Prolusio’. He said that it is a man’s lot to die and death happens either as a sudden accident or gradually in stages, physical incapacity follows the mental one in both. He stressed on the palliative care and his form of euthanasia had no homicidal intentions, what he sought was minimizing the pain with best care and attention. His model had three methods:

 Using medical expertise to alleviate the symptoms.  Removing all the sources of pain and suffering.  Comforting the patient and providing him with a cheerful environment.

In 1870, Samuel Williams put forward his views that it is the duty of physician to administer chloroform or any other drug which will take away the senses of the patient and during that period of unconsciousness the patient should be killed in the most painless way.24

The practice of euthanasia at largest scale was seen in the Hitler’s Germany, where in under his T-4 programme, around 2,50,000-3,00,000 people were executed under the euphemism of euthanasia. Inspired by the social Darwinism and eugenics there was selective killing of unfit and unproductive infants and later adults to make the Aryan race better and fitter with only the

21 Supra Note 6. 22 Supra Note 6. 23 Supra Note 4. 24 Supra Note 19.

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fittest surviving and rest being executed. Social Darwinism was based on Charles Darwin’s theory of evolution applied to human society and propounding that only the Fittest and the most powerful should survive and all the weak elements should be removed to prevent the spread of infection in the society. Eugenics divided the human society in a hierarchy on the basis of mental and physical strength, handicapped and the disabled being at the lowest level.25 This period saw a change in the Hippocratic Oath in Germany which was replaced with Gesundheit, which put a duty on doctors to keep the interest of the Reich in top most priority.26 The killing was claimed to be motivated by the utilitarian theory i.e. only the people who were fit enough to contribute towards the development of the nation should be allowed to live and contribute and the unworthy people’s lives should be brought to an end. Though this killing appeared on the face of it to be what it was claimed, but in reality it was a horrific strategy to eliminate the so called impure blood from the pure Aryan race.27 This mass murder under the euphemism of euthanasia raised a concern in the international community regarding the abuse of this concept and showed the world the uglier side of euthanasia that how this originally humanitarian based practice can be used for serving the political purposes by the way of selective mass murder.

2.3 TYPES OF EUTHANASIA:

Euthanasia can be categorized on various grounds. It is a very broad term with various connotations and different aspects involved in it on basis of intention, conduct of the doctor/proxy, or the requirement of efforts required from the person who helps in euthanasia.

2.3.1 ORDINARY AND EXTRAORDINARY EUTHANASIA:

Euthanasia can be classified on the basis of efforts required to keep the patient alive, whether they are ordinary or extraordinary. Ordinary efforts are those which are in the common course of exercise and they provide a reasonable hope of recovery without putting the patient under any excessive burden. Burden here may be seen in terms of any inconvenience like pain, suffering,

25 Supra Note 19. 26 Supra Note 6. 27 Alexander Leo, Medical Science under Dictatorship, N. ENGLAND J. MED, JULY 1949.

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monetary or emotional burden. Reasonable hope and excessive are to be understood in terms of the medical and technological advancement, for e.g. any medicine which has been newly invented and has no alternative in the market at one time may become reasonably affordable at a later point of time. Same ways treatment of any disease may be very complicated, costly and painful initially, but the same may become cheap, easily available and less painful with time. on the other hand extraordinary situations are those which are not in the normal course of action and require some extra or special efforts. Sometimes there may be even some heroic efforts required to sustain a life. Such situations also fall under extraordinary. The difference between ordinary and extraordinary is factually relative and is to be taken in terms of the specific patient. Each case is to be seen in its own peculiar facts and there can be no generalization or all the cases cannot be seen in an objective manner to be classified under either of the heads.28

Depending on the case, it is normally presumed that under ordinary circumstances, the treatment should be continued and the decision should be taken in favour of continuing life, but in the extraordinary circumstances, it can be presumed that there is more inclination in favour of euthanasia or the taking of life, to save the extra efforts of all the interested parties.

2.3.2 DIRECT AND INDIRECT EUTHANASIA

In direct euthanasia, there is an active and direct involvement of third person in the act of dying or killing whereas in the indirect euthanasia, the third person (mainly doctors) does not himself does any act but facilitates the process.29 Indirect euthanasia is also known as Physician Assisted Suicide or Passive Euthanasia as herein the physician gives prescription of some lethal dose or he may make arrangements of the same and make it available to the patient who may later consume it and die. Physician Assisted Suicide is a more acceptable form as it ensures the voluntariness in the act, the physician merely makes available the resources and the patient himself administers them, taking away any chance of coerced or forced application. While in the

28 James Rachel, Active and Passive Euthanasia, N. ENGLAND J. MED, JULY, Vol. 292, Jan 9, 1975, p. 78-80. 29 Matthew P. Perwin, Assisted Suicide and Religion: Conflicting Conceptions of the Sanctity of Human Life, 84 GEO. L. J. 589 1995-96

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direct euthanasia, the physician rather than the patient administers the lethal dose and ends up taking the life which may leaves behind the chances of abuse of power.30

2.3.3 VOLUNTARY AND NON-VOLUNTARY EUTHANASIA

Voluntary Euthanasia it is when the person who is being killed has requested for the same in his full senses and on the basis of his sound decision taken when the mental faculties are fully active and working, in a condition to distinguish between right and wrong and to take an informed decision as to what is in his best interest. There may be two kinds of situations, first where the person requesting for euthanasia is still in his senses and is able to communicate his decision and the second one being where the person is in such a physical or mental state that he is not able to communicate. The earlier situation is the least problematic but there arise few questions with regard to the latter. In the situations falling in the latter category, resort can be taken of the living wills, where the person was visionary enough to sense his condition in the coming time and had prepared a will declaring his unequivocal intention of being killed if such a situation comes where he might be unable to convey his wish and decision. The person must be a competent adult for his decision to be effective.

Non-voluntary Euthanasia is a situation where the person to be killed is not in a situation to take an informed decision and convey the same. A competent adult may also fall under this category when he is not in such a mental or physical condition where he can be said to make a sound informed decision, and if able to make so, is not able to convey it due to various reasons like being in a state of irreversible coma. Other people like children or mentally unfit people who are considered not to be competent enough to make a decision in their best interest fall under this category. In such a situation the action is taken not on the direct wish of the patient himself, but on the basis of decision taken by the proxy or the surrogate as appointed by the court, generally the family, guardian or friends who are given the responsibility to decide in place of the patient. Basic requirement for this type of euthanasia is lack of decisional capacity.

30 Derek Humphrey & Ann Wickett, The Right to Die: Understanding Euthanasia 295(1990)

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2.3.4 ACTIVE AND PASSIVE EUTHANASIA:

Active Euthanasia:

Under active euthanasia, the death results from the active involvement of a person. He opts to do some act which in the end results in the death of the patient. It requires a deliberate act to end the life. Normally the act herein means administering some lethal substance into the body of the patient which leads to the death. The law in most of the nations considers it to be murder as there is an act from an outside agent which takes away the life. In R v. Cox31, an old lady suffering from incurable arthritis asked Doctor Cox to end her life, who in response to her request administered potassium chloride resulting in her death. The doctor was charged for attempted murder and not murder because it could not be proved that the potassium chloride only took away her life as the corpse had been disposed without any autopsy not clearly showing the reasons of the death. The court reasoned that the intention of the doctor was clearly to end the life of the patient and his motive of helping the woman was immaterial. Moreover there was a lack of evidences to prove that the condition of the lady was such that she would have anyway died of the disease. This case is an example of active euthanasia.

Passive Euthanasia:

Passive euthanasia is the ending of the life omitting to act. It has been summed up by Arthur Clough as “Thou shalt not kill but need not strive officiously to keep alive”.32 Passive euthanasia means ‘letting die’ by an act like removing the life support system or by an omission like stopping further treatment. The classical example of passive euthanasia is a “do not resuscitate order”, wherein if there is any sudden interruption in the essential bodily functions, the doctor will not attempt to revive those functions and let the patient die. It means doing nothing to prevent the death and due to the inaction of the doctors, the death of the patient becomes inevitable. Passive euthanasia has this withholding versus withdrawing debate. Withholding here means withholding the treatment i.e. refusing to start the treatment in the very beginning, knowing that it would be futile and of no use and merely increasing the pain of the patient. On the other hand withdrawing treatment means stopping the treatment or refusing the same after a

31 (1992) 12 BMLR 38 32 See http://www.bbc.co.uk/ethics/euthanasia/overview/activepassive_1.shtml

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point of time. It may cover various actions like stopping to give life sustaining drugs or removing life support system, ventilator machine from a patient in the permanent vegetative state. There have been arguments on the moral and ethical grounds of which one of the two options is more permissible. But considering them in a broader view, they both are the same and there is no such material difference between them so as to declare one as better than other.

In the famous U.K case of Airedale N.H.S. Trust v. Bland33, a 19 years old boy was in permanent vegetative state and in the opinion of the doctors there was no hope of recovery. On the basis of the medical reports a request was made to remove the life support system of the boy which would result in the end of his life. On this the majority of the Lords in the House of Lords accepted that the removing of artificial life support system is to bring about the boy’s death, yet they allowed the same. The reasoning was based in the point that the act of homicide requires an act and not an omission. Here the removing the life support system is merely an omission and not an act. Lord Goff said that in the present case there is no active killing of the person, but the doctors are merely letting him die because of his pre-existing medical conditions. He further said that there is a clear distinction between the active killing of a patient by administering some lethal thing into his body and on the other hand not providing or continuing to provide him with a treatment which may prolong his life. In his opinion, the earlier one is an act and falls under the ambit of active euthanasia which is not lawful, irrespective of the fact that it is backed by some humanitarian motivations. But for the latter he said, it is a mere omission and is completely lawful to do the same. In this case, the narrow definition of euthanasia was followed and passive euthanasia was no included in it. But with changing times and circumstances, the definition has got broader and this category of death by omission has fallen under the ambit of newly included passive euthanasia.

2.4 INTENTION IN EUTHANASIA:

Criminal law considers mens rea as an essential requirement for deciding culpability of any act. Mens Rea is concerned with mental status of the defendant and has three levels: intention, recklessness and negligence. Intention requires the highest amount of liability and any person

33 (1993) A.C. 789 (House of Lords.)

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who does any act intentionally is more culpable than the one who does it recklessly or negligently.34The intention behind an action is the most important factor, as it decides both the morality and the culpability of that action for e.g. if there is an accident where the driver of a motor vehicle is driving recklessly and drives over a person, then he is guilty of manslaughter, but if the same person drives over somebody intentionally, then the charge is of murder. So intention undoubtedly plays a very important role. To evaluate the morality of an action, intention again plays a decisive role. There are two moral insights into every action, one is the importance of intentions and the other one is the avoidance of bad means in accomplishing an end and they both can be explained by the ‘principle of double effect’35. This principle is the correlation of intention and means in ascertaining the morality of the act. It says that an action I made out of three things: intentions, motives and the means. Under this principle, if there are good or bad consequences of an act, then to justify it morally it may be done under one of the following circumstances:

1. The act is either good or indifferent towards the end that the doer directly intends. 2. The good or the evil effects are the immediate consequence of the act i.e. the good effect is not obtained by the means of the evil effect. 3. The evil effect, even if could be foreseen, is merely tolerated and not sought. Only good effects are sought. 4. The good effect if not more than the evil effect, should be at least equal to the evil effect. An act must be forsaken it the evil effect is more than the good effect.

It is clear that an act is not euthanasia if there is no intention to cause death. Same is the requirement in the case of homicide. Intention only makes the crime of murder a serious crime. The result in both the acts i.e. murder and euthanasia is the same resulting in the death of the person. But the principle of double effect comes in focusing not merely on the action, but on intentions, motives and means to distinguish between the same and justify the latter. Many claim that there is no ‘action’ in passive euthanasia and there is no intention to take away life, so passive euthanasia is no euthanasia at all. But this is not the correct position. Passive euthanasia if seen in the light of the principle of double effect comes under the broad

34 See, http://e-lawresources.co.uk/Mens-rea-intention.php (last visited April 12th 2016, 3:18 P.M) 35 J.P Moreland, What is Euthanasia, CHRIST. RES. J. , http://www.equip.org/article/what-is-euthanasia/ (last visited May 6th 2016, 6: 15 P.M)

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definition of euthanasia. This principle sets an exception to the rule laid in Cox’s36 case. Basing his ruling on the same principle, Devlin J. in R v. Adams37 said that the primary purpose of doctors and medication is the restoration of health and if the same cannot be achieved, then the doctors may use the other available options to relieve the pain, even if they ultimately result in the shortening of the life.

There also arises question as to the moral permissibility of the two forms of euthanasia: active and passive. Which one is more permissible and moral? Generally passive euthanasia is accepted as a more permissible in the moral sense as it does not include the active or deliberate effort to end a life. But the other side says that the active euthanasia is a more humane act and the distinction of these two on the basis of killing and letting die does not hold any strong ground.

The House of Delegates of the American Medical Association on 4th December 1973 said that the active killing of the patient by the doctors is against the medical ethics and the decision whether to cease the extraordinary efforts to sustain the life even in the case of imminent possibility of death rests with the patient or the family and the doctors are bound by the medical ethics to go in favor of continuing the life, no matter how worse the condition of the patient is.

But there is a need to reconsider the conventional idea that opposes the active euthanasia. Suppose there is a situation where the patient suffers from an incurable disease which will definitely result in his death. In such circumstances, the patient and the family ask the doctor to withhold the treatment and he does the same. Now, it is also possible that after withholding the treatment the patient may take longer time to die which will result in a longer period of suffering and pain. If the doctor opts for active euthanasia then patient will have a fast, painless death which in the present case is anytime better than the passive euthanasia. By just letting the patient die and making him suffer more defeats the whole purpose behind the withholding of treatment, which is giving a better death motivated by compassion.

This situation of moral dilemma of choosing between active and passive euthanasia can be better understood by this illustration. Suppose there is one Richard who has a six years old cousin jack, whose death will result in Richard inheriting all the property. Now Richard plans to

36 Supra Note 31. 37 (1957) Crim. L.R. 365.

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drown Jack and Jack drowns and dies. In this case, he has ‘killed’ his cousin. In the other situation, Richard made arrangements to drown Jack in the bath, but entering the bathroom, Jack slips and falls on his face and dies by bleeding, which Richard stands and watches with delight. In this case, Richard has ‘let Jack die’ and not exactly ‘killed’ him. Legally, there is a difference between the both and Richard has got a solid defense in the latter case which does not make him culpable and he stands free. But if we consider these two cases in a moral sense, then there is not much difference. In both the cases, the intentions were the same and were motivated by personal gains. Richard is as guilty in letting die as he is in the case of killing. Same is the case when it comes to euthanasia and doctors. Doctors are not motivated by personal gains to end a life; rather they take such decisions for humane and compassionate reasons. So there is no such difference if a doctor administers some lethal dose to a patient to kill him for humane reasons and if for the same reason, he just withholds the treatment or the life support system to let him die. So if motivated by humanistic and compassionate reasons, doctor stands at the same footing in both the cases of killing and letting die and it does not make any moral difference.38

2.5 ARGUMENTS IN FAVOUR OF AND AGAINST EUTHANASIA:

The foremost reason of euthanasia debate catching heat is the advancement of medical technology and the newly attained possibility of to maintain the functioning of the vital organs of the body. The concern of the medical ethics has shifted from sanctity of life to the quality of life. Due to the changing societal setup, more and more people are dying in the medical institutions than at home. Access to medication and social welfare policies covering the cost of hospitals has made people to rush to hospitals where they are under the authority of the medical staff and they have the option to keep a person breathing, just lying in the bed feeling nothing but the pain.39

The proponents of euthanasia put forward various arguments on different basis to justify euthanasia. Some of them, as referred by Amelia Mihaela are:

 Humanitarian: right to die alive, not to suffer unnecessarily. The right is not only to live but to be alive, the latter one being the broader one including both biological and

38 Supra Note 29 39 Supra Note 9

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biographical aspects where if sufferings come and dim the shine of joy of life, the person shall be allowed to end his sufferings motivated by compassion.40  Medical: if the main purpose of medication, the restoration of health is defeated and is not possible to save life then it must be used to alleviate the pain by ending the life.  Legal: humans have a right to live with dignity and they have their self autonomy and a right of taking decisions in their best interest.  Socio-economic: the cost and benefit analysis of providing the medical services.41

Some other factors that lead a patient to ask for euthanasia, as suggested by Admiral V. are42:

 Physical factors like loss of strength, fatigue, weakness in the body and numerous side effects that may show up in the body as the result of heavy medication they have to take.  Psychological factors like anxiety, guilt, concern for relatives, willingness to die.  Some people may think themselves as a burden on the relatives and ant to end their lives so that the relatives can be relieved from the financial and emotional burden of keeping the patient alive.  The patient may feel emotionally tired and may decide to give up against the disease which has taken away his strength and the desire to live  They want to escape the cruelty in form of painful treatment.  They want to use their liberty in the fullest form by becoming the aster of their will and deciding as to the mode and time of their death.  Achieving a dignified death by adhering to the previous two values.

The Euthanasia Society of America proposed the New York legislature to legalize euthanasia on the following grounds43:

1. Humans have an inalienable right to live which includes the right to die also.

40 SEGAL, FRICH , PHYSICIANS. BUCHAREST p. 601, (Medical Publishing House, 1993) 41 Amelia Mihaela, Euthanasia, 4 CONTEMP. READINGS L. & SOC. JUST. 474 2012 42 Admiral V., Euthanasia in Netherlands: Justifiable Euthanasia, 3 ISSUES L. AND MED. 361 1987-88 43 The society intended to change the position of law to match the changing trend of society towards religions, ethics and morality and make the legal position amenable to the social environment, see Charlton A. Earl, Jurisprudence of Euthanasia, 33 MARQ. L. REV. 133 1949-1950

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2. The only humane response to the people suffering irremediable pain and sufferings is to kill them. 3. Many doctors unofficially practice mercy killing, so they must be protected from the legal complications.

But this request was rejected and counter arguments were given to justify the rejection. The first one is on the basis of human rights. The declaration of Independence assumed that all the Human Rights are derived from God, so if a man decides to take a life even his own then he is transgressing into the authority of God. Common law presumes that the state has no right over human life other than the deterrent and punishment for crime. A human can take other human’s life only for self defense to save his own life. Secondly, the Humanitarian motive also fail to justify the taking of human lives by state it is against the natural laws which puts the life on the mercy of the state and few people who may abuse their power for their benefits an deciding who shall live and who shall be killed. Thirdly the fact that some doctors already practice the illegal and immoral act is not a justified ground for legalizing the practice.44

Another argument that is posed against legalizing euthanasia is that of state interest involved in the lives of its citizens. This concept has following four dimensions45:

1. Preservation of life 2. Protecting the innocent parties 3. Preventing suicides 4. Maintaining the ethical integrity of the medical profession.

Euthanasia has been opposed on the following grounds also46:

 There is always a difficulty in ascertaining the voluntariness in the decision of the patient, depending on the medical condition of the patient, it is really difficult to know whether his demand was voluntary or not.

44 Ibid. 45 Supra Note 13. 46 Morris A. Arval, Voluntary Euthanasia, WASHINGTON L. REV., VOL. 45, NO.2, 1970

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 There is always a risk of medical error, the doctor might have done an incorrect medical diagnosis, treating for a disease which is not at all present in the first place and considering it to be incurable, then deciding to end the patient’s life under the same believe.  In the age of technology, there are new inventions everyday in the field of medicines. So there is always a possibility that some new medication may be available in the near future which will provide cure for the presently incurable deadly disease.  The claim that modern medicines can reduce the pain weakens the arguments in favour of euthanasia as the patients can be kept alive without any pain or suffering.  The slippery slope argument i.e. the dilemma of the doctors. Doctors are humans only and there may come a point in when they may ignore the medical ethics and take away the life of patient unnecessarily, motivated by various reasons like self interest etc.

2.6 EARLY ATTEMPTS TO LEGALIZE EUTHANASIA:

Many nations today have legislations that regulate the physician assisted suicide in one way or another but this journey was full of struggles and the pro euthanasia groups faced many difficulties and failed many times in removing the age old taboo associated with euthanasia.

The most prominent effort to legalize euthanasia was in 1906 with the introduction of the Ohio Bill, which was rejected by a vote of 78 to 22.47 In 1938, a bill was introduced in the Nebraska state assembly which was not passed and at the same time, similar bill was defeated in the New York state also. In U.K, The Voluntary Euthanasia Legalization Society was formed under the presidency of Lord Moynihan in 1936, which in the same year introduced a bill to legalize euthanasia in the House of Lords, but it was defeated.48 Another unsuccessful attempt was made in 1950 again where only four members spoke in favour of euthanasia.49 A joint petition was filed by the English and American doctors and clergymen to the United Nations to amend the

47 Supra Note 41. 48 House of Lords Debates (5th s.) 103:465-506 (1936). 49 House of Lords Debates (5th s.) 169:551-76 (1950).

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declaration of human rights and include the right of voluntary euthanasia for the people suffering from incurable diseases.50

So we can say that the journey of euthanasia legislations has not been a cake walk and took innumerable efforts off various interested parties to enter into the legislative arena.

This chapter has made an attempt to understand euthanasia as a concept, its various forms and what has been the attitude of society and the medical professions towards it in the changing time and eras. Starting from the ancient societies and scholars, the journey of euthanasia has been explained in a chronological manner. In the next chapter, attempt will be made to inquire into the acceptability of euthanasia in light of religion, morality and other related jurisprudential concepts.

50 Supra Note 41.

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CHAPTER 3

RELIGION, MORALITY AND EUTHANSIA

3.1 EUTHANASIA AND RELIGION:

Religion is a way of life, affecting the day to day practices of the followers. Almost all the activities of person are in one way or the other motivated by the religious beliefs he has. All the religions have various ceremonies and rituals attached to numerous incidents of the life occurring at different ages. From birth to marriage to death, religion has its own philosophy and ideology to treat these events in a particular way.

All the religions offer their own meanings and elucidation for death. Religion makes it easier for one to understand death and also the strength to accept it as an undeniable truth. It seeks to provide peace and comfort to the people who are near their end and tries to portray it as an event where the person is closest to God and gives it a spiritual flavor. Religion attempts to understand the deeper meaning of death, something beyond the normal human conception and the popular notion of the biological death.

Most of the religions believe in the sanctity of life, they have their own Gods who are considered as the giver of life and the master of fate. According to religious beliefs, God only has the power and authority over the life. Every life is the gift of the God and one should live it in all the circumstances, any disrespect to this gift will be an insult to the God. It is on this premise that most of the religions are against suicide and euthanasia. Religion assigns a special value and dignity to all the lives and every life in special in itself, there need not be any comparison between two lives. Every single life needs to be cherished for its own sake and its relative value when compared to others cannot be a justified ground for end a life.

Some of the common grounds that the religion gives to oppose euthanasia are:

 God has forbidden euthanasia and God being supreme, his commands should be followed.

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 Human life has a sacred value and it is much more than the body and the biological processes taking place in it.  God has made human as his own image and it gives special value to each and every life and it needs to be cherished for the same reason.

Religions are mostly in favour of life and they preach that when a person becomes vulnerable, then he should be given extra attention and care rather than ending his life at a premature level.

But all the religions do not preach the same thing. There are some examples of eastern religions which follow the principle of attaining freedom from the mortal life and the vicious circle of rebirth, thus they have a scope for euthanasia and suicide. But at the same time they also believe in the principle of not harming any living being in any form, which is totally against euthanasia or any other form of killing.1

Following section will put some light on the ideologies of various religions, the way they treat death and what is the scope of euthanasia as per their system of beliefs.

3.1.1 CHRISTIANITY:

Christianity is majorly against euthanasia and suicide. The religious book of Christians, the Bible nowhere uses the term euthanasia but has many verses that indicate the supremacy of God over life, having sacred values and not permitting euthanasia. Bible condemns murder2, and it includes euthanasia in the definition of murder only. If some country passes a legislation to legalize euthanasia, then as per the law, the person may become free of any criminal charge, but he would be guilty as per the bible, as bible says that God is to be obeyed and not the men.3

As per the Christian beliefs, man is made as the image of the God4 and has a distinct relevance as each person is sharing his life with God. The term made in God’s image is not to be interpreted literally but in a metaphorical way that God has endowed the capacity in humans to judge what is good and do the same. If one opts for euthanasia, then he denies the worth of the life and the

1 Religion and Euthanasia, http://www.bbc.co.uk/ethics/euthanasia/religion/religion.shtml (last visited on May 17, 2016 at 4:49 P.M) 2 Exodus 20:13. 3 Acts 5:29. 4 Genesis 1:26.

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argument of quality of life in favor of euthanasia is not compatible with the Christian religious beliefs. Christianity preaches that God is the supreme power, he is sovereign and he has gifted us this life5 and also decided the length of the life.6 So any attempt to give away this life or shortening the length as decided by God is interference with the divine plan and must be avoided. But there are some beliefs which are inconsistent with the general pro life philosophy of Christianity and allow some scope for euthanasia. These beliefs are respect for individual life, which means if a person is to be respected then his decisions also need to be respected and if any person decide to discontinue with some burdensome and futile treatment then he should be allowed to do so and must be given a chance to die with dignity.7

The Declaration on Euthanasia issued by the Sacred Congregation for the Doctrine of the Faith in 1980 was the first official statement from any Christian religious authority regarding euthanasia. Therein they condemned euthanasia declaring it to be refusal of God’s plan and love. It was clearly said that pain in the last moments of life has a special place in the religion which is equivalent to the sharing of the passion of Christ. The pain that one suffers at the time of death brings him closer to Christ as at that moment he realizes the troubles that Christ had suffered for humankind and by suffering them humans also become a part of that divine process.8 In the same document, euthanasia was equated to murder and it was said that any merciful intention or motive behind the act does not change its character and the acts remains murder only.

The Roman Catholic view is almost the similar. The Church considers euthanasia to be morally wrong as it is a violation of the law of God and in form of deliberate killing, it is equivalent to murder.9 It believes that the inherent value of life is to be respected in itself and is independent of the pain or sufferings it brings. The pleasure or pains that a life brings, do not alter the intrinsic value it has got and do not reduce its sacredness.10 However sharing the Christian beliefs, church

5 Job 33:4. 6 Job 14:5.

7Euthanasia and Assisted Dying: Christian view, available at http://www.bbc.co.uk/religion/religions/christianity/christianethics/euthanasia_1.shtml (last visited May 17, 2016 6:33 P.M.) 8Declaration on Euthanasia, Sacred Congregation for the Doctrine of Faith, (May 5, 1980) http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19800505_euthanasia_en.ht ml (last visited May 17, 2016 6:43 P.M.) 9 Pope John Paul II, Evangelium Vitae, 1995. 10 National Conference of Catholic Bishops (U.S.A.), 1991

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also allows refusing the medical treatment to unnecessarily extend the life, but it has made clear that suicide is not permissible; the assisted suicide is also banned. It believes that true compassion lies in sharing the sufferings of others and not in killing the person who is unable to bear the pain.11St. Augustine had interpreted the sixth commandment “THOU SHALT NOT KILL” in a manner broad enough to include suicide and euthanasia in it and church banned suicide way back in 533A.D. declaring that any person who committed suicide would not be allowed a Christian burial.

So in general, Christianity is against euthanasia, but a liberal interpretation shows that there is still some scope for legalizing it. But the attitude of churches has consistently been the traditional one and they have opposed euthanasia at all the possible platforms. But the interesting thing to notice is that the western countries, mainly the Europeans one which have led the way in bringing the euthanasia legislations are having a major share of Christian population.

3.1.2 ISLAM:

Sanctity of life being the second objective of the religion, euthanasia is against the Islamic religious beliefs.12 The Shari’ah law gives five protections to Muslims, which are:

1. Practicing religion 2. Upliftment of mind and personality 3. The right to life 4. Right to property 5. Right to have children

Any act in violation of these above right sis forbidden under Islam, but the victim has a right to pardon the wrongdoer. Islam has two types of laws; Right of God (haq Allah) and Right of man (haq-al-abd), the former being the public right and the later one being the private right. The violation o any private right gives the victim an option to forgive the wrongdoer, the right of

11 Supra Note 9. 12 Adeniyi B. Omipidan, Euthanasia as a Contemporary Issue in the Jurisprudence of Rights: The Position of Islamic Laws, 4 YONSEI L.J. 85 2013

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God, if violated, prescribe the maximum possible punishment.13 The right to life of a person is a mixture o birth these rights, so if any person kills another intentionally then he must also die, on the basis of law of equality (qisas).14

Human life is considered a scared under Islam15 and there are only some justified grounds have been given on which a life may be taken. But euthanasia and suicide are not included in that list of justified grounds.16 Muslims believe that Allah has already decided the length of their lives, and no person can either delay his death or extend it by his own will, as it is the Allah’s will to decide when one should die.17 Death is a spiritual exercise in Islam and there is a need to take Allah’s permission before leaving this world.18

Euthanasia and suicide have been expressly forbidden in the Qur’an. There is a verse saying that no one should destroy the self and Allah will bestow his mercy upon them.19

There is a Hadis also which narrate how the prophet told his disciples that a person who cut his hand and didn’t stop bleeding to hasten his death was forbidden by Allah to enter Jannah.20 Abu Hurairah reported that prophet told that there are seven sins for a Muslim to commit and killing another human without any just cause was one of them.21

Islam and euthanasia are considered as incompatible as the former believes in the sanctity of life, while the latter believes in the quality of life.22 It has been argued that not only the killing of the self by the patient is forbidden; it is equally sinful for the physician to do so or assisting his patients in doing suicide.23

13 MOHAMMED H. KAMALI, SHARI'AH LAW: AN INTRODUCTION 17. 14 BEIRUIT, A. AL-JAZIRI'S DISCUSSION OF FORGIVENESS IN KITAB AL-FIQH 'ALAAL-MAZAHIB AL-ARBA AH 258-59 (1986); 15 Qur’an 17:33 16 AL-MUSLIM, SAHIH AL-MUSLIM 107-108; 8 AL-BUKHARI, SAHIH AL BUKHARI 148. 17 Supra Note 15 at 16:61 18 Supra Note 15 3:145 19 Supra Note 15 4:29 20 Sahih Bukhari 4.56.669 21 Ibid at 840. 22 Supra Note 12. 23 Euthanasia and Physician-Assisted Suicide, THE ISLAMIC MEDICAL ASSOSSIATION 1996

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So, Islam is strictly against the practice of euthanasia, this could be seen as one of the reasons why the countries following the Islam law have never passed any euthanasia legislation nor there has been any debate in these countries over this issue.

3.1.3 JUDAISM

The Jews regard human life as sacred and gives it utmost moral value. Judaism forbids any act that shortens the human life. It believes in cherishing each and every breathe and thank the God, one has to struggle till the end of his life.24 To kill someone for the purpose of saving him from pain is not a valid reason to justify euthanasia and each individual life has a sacred value as God has created humans as his own image.

Sharing the Christian beliefs, Judaism also regards active euthanasia as murder and the consent of the deceased does not make any difference. Each and every second of human life is given equal importance and shortening of life by even a second is forbidden.25

But there have been instances were religious authorities have allowed the shortening of life if the same is done with an intention of just relieving the patient from pain and not with the intention of killing him. Rabbi Moshe Feinstein and Rabbi Shlomo Zalman Auerbach have said that if the treatment of a person is not relieving him from pain and is merely extending his life, then such treatment could be withdrawn and a dose to reduce pain may be administer even if it results in the end of life, provided the intention is not to kill.26

The incident of death of Rabbi Chanina Ben is regarded as the most famous illustration of euthanasia in the Talmud. The Rabbi was wrapped in a burning Torah and was covered with wet wool so that he dies late and under extreme pain. The followers of Rabbi requested the Romans to remove the wet wool so that he could die fast, to which Rabbi replied that he must be allowed

24 Dr. Rachamim Melamed-Cohen, Jews week, March, 2002. 25 LORD JAKOBOVITS, former U.K. Chief Rabbi. 26Judaism, Euthanasia and Suicide, http://www.bbc.co.uk/religion/religions/judaism/jewishethics/euthanasia.shtml (last visited on May 17,2016 at 8:36P.M)

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to die in the manner he has been planned to, and his God shall be allowed to take his life in his own manner. 27

The biblical sources are same as the Christian sources, giving authoritarian views on euthanasia.

So, we can say that Judaism also falls in line with Christianity and Islam and does not allow euthanasia. It can be cited as the reason why there has never been any demand of euthanasia in the only Jew majority country of the world, Israel.

Now, we shall have a look on the religions originated in the eastern part of the world and try to understand what their stand is on euthanasia. Unlike the western religious writings, there have not been sufficient writings on eastern religions. Even the available scholarly writings seem to be influenced by the western approach.

3.1.4HINDUISM

Hinduism is based on the solid foundation of Dharma and has all the ethical values to answer all the issues faced by the world today.28 In India, the medical system developed concurrent to the development of the sanatana dharma in the pre historic times and at the same time it addressed the issue of dying also.29 Hinduism is based on the principle of karma, reincarnation and liberation and preaches the message of attaining a good life guided by these principles.30 The human body has two components, the physical and the non-physical, latter is called Atma, upon death the physical part is left in this world and the Atma goes to the other world where it is judged upon the basis of karma of the previous birth and is reincarnated in another form or liberated from the cycle of rebirths. The main aim of Hinduism is to attain freedom from this

27 Rosner Fred, Euthanasia: Jewish Biblical and Rabbinic Sources, http://www.myjewishlearning.com/article/euthanasia-jewish-biblical-and-rabbinic-sources/# (last visited May17, 2016 8:42 P.M) 28 SATGURU SIVAYA SUBRAMUNIYASWAMI, DANCING WITH SIVA: HINDUISM'S CONTEMPORARY CATECHISM 710 (1993) 29 Ibid 30 JEANNINE AUBOYER, DAILY LIFE IN ANCIENT INDIA 5-6 (Simon Watson Taylor trans., 1965).

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cycle of rebirth, which is given only to those souls which have done good karmas, so Hinduism has given utmost importance to karma.31

In the ancient times, the life span as short due to various reasons like epidemics, wars etc., so the scriptures suggested one to pray for a longer life, considering it to be a boon.32 Dying young is not considered good in this religion and committing suicide is seen in a very bad light as every human is bound by some karmic duties, and by eliminating his life early he escapes the duties, which resulting in increased tortures and spiritual sufferings.33

Hindu scriptures however permitted self-willed death in form of prayopavesa which was allowed only when the person faced problem in performing routine body refinement, where the pleasures of life had disappeared and death appeared to be imminent. The action was to be performed under the regulation of the community. This practice can be differentiated form the sudden suicide and is justified on the basis of its gradual nature whereby the dying person can perform his due karmic duties, settle his incomplete works and work out on differences with other people and the relatives also got an opportunity to meet the person for the last time.34 So we can say that the Hinduism has a scope for living wills to be made and executed in cases of emergency where the patient is not able to communicate his wishes.

The medical practices of the ancient India are laid down in Ayurvdeda, which associates a spiritual value with the human life and also suggests that all the treatments should be given up when the disease is incurable and the death is imminent.35

The karma principle suggest that the doctor should not accept a patient’s request for euthanasia as it will depart the soul from body at an unnatural time and alongside will bring bad karma for the doctor who by killing someone will breach the principle of ahimsa.36 Hinduism puts a special emphasis on the alertness of mind at the time of death because thoughts at that moment are really

31 SWAMI BHASKARANANDA, THE ESSENTIALS OF HINDUISM: A COMPREHENSIVE OVERVIEW OF THE WORLD'S OLDEST RELIGION 3-4 (1994). 32 Ibid. 33 James J. McCartney, the right to die: perspectives from the catholic and jewish traditions, in to die or not to die? cross-disciplinary, cultural and legal-perspectives on the right to choose death 13, 20-21 34 Supra Note 28. 35 Supra Note 31 36 Mannan M. Haripriya, Death as Defied by Hinduism, 15 ST. LOUIS U. OUB. L. REV. 423 1995-1996.

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important for the spiritual journey of reincarnation. This belief put the palliative care in question if it reduces the mental alertness.

There is an alternate view on euthanasia which says that if the patient asks for death then he is stepping one level ahead in the spiritual journey as death itself is a major spiritual event and at the same time the doctor who is releasing the patient from the pain and suffering is practicing a form of ahimsa and is doing a good deed, thus bringing a good karmic score to his account..37

So going through the Hindu ideology, it can be said that there is no clear view on the religious validity of euthanasia and the scriptures can be interpreted in either way to support or oppose it. But one thing is clear that unlike the eastern religions, Hinduism is not that much adamant about the preservation of life in all conditions and does not out rightly prohibit euthanasia. There is some scope for euthanasia in this religion.

3.1.5BUDDHISM

The morality of all the actions in Buddhism in determined on the basis of chetna or intention and it is essential to know the intentions behind any act to assess whether the person is guilty or not.38 The Buddhist philosophy puts more emphasis on duties than rights and sees the karmic duties to be really important which, if left unfulfilled at the time of death, will not let a person attain the ultimate goal of life, nirvana.39

Buddhism believes in two propositions:

 Suicide does not lead to any spiritual progress or to nirvana and if any person hastens his death or gets his death hastened by others, then he might escape the pain of this life, but he will be born in the next life in the same state of pain which he had tried to escape in the previous life.40

37 Nimbalakar Namita, Euthanasia: The Hindu Perspective, National Seminar on BIO ETHICS- 24th and 25th Jan. 2007. 38 Keown Damien, Suicide, Assisted Suicide and Euthanasia: A Buddhist Perspective, 13 J. L. & REL. 385 1996- 1999. 39Ibid. 40 L. de La Vall6e Poussin, Suicide (Buddhist) in James Hastings, ed, XII The Encyclopedia of Religion and Ethics 24 (Clark, 1922).

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 No monk or arhat should kill himself, but there is an exception to this rule found in a passage in Nakayas where Buddha himself approved of the suicide of the monks provided they have mastered the self and can do anything to their lives as they desire.41 Buddha even praised the suicide of monks Vakkali and Channa, saying that if the motivation is not hatred, anger or fear, then there is no harm in taking one’s own life.42

Buddhism puts a great emphasis on ahimsa, which is to be interpreted in a broader way to include not only the principle of non-harm, but also the principle of sanctity of life and inviolability of life. This means that no person is to harm others or put an end to other’s life.43

Another important principle that Buddhism follows is of Compassion, which is to be educated and informed and not merely on the basis of whims and emotions. An act of compassion is said to be done by wisdom when it is done by empathy and not by mere sympathy. So if any person motivated by such compassion puts an early end to other’s life the he can be exempted from the karmic morality.44

Another factor that holds importance is the state of mind. Any sick person is said to be in a bad state of mind due to the physical pain and any decision of euthanasia taken in such state would not be a prudent one. It is recommended to practice meditation or to administer some pain killer to bring the patient into a normal mental state and then decide about euthanasia. Secondly, if any person helps other to perform euthanasia, the he brings a bad state of mind for himself by doing so. There needs to be a balance of both these person’s state of mind to decide whether euthanasia should be performed or not.45

So we can conclude that the Buddhist stand on active euthanasia is quite clear that it is prohibited as it is for non-voluntary euthanasia. But for the rest of the forms, there is no clear opinion and it stands on the middle ground where the understanding and interpretation of the religion can make the ball go to the either court.

41 Suicide (Buddhism and Confucianism in Mircea Eliade, editor in chief, XIV The Encyclopedia of Religion 129 (Macmillan, 1987). 42 Carl B. Becker, Breaking the Circle: Death and the Afterlife in Buddhism 136 (S II U Press, 1993). 43 Supra Note 38 44 Buddhism and Euthanasia, http://buddhismguide.org/buddhism-and-euthanasia/ (last visited on May 18, 2016 at 4:27 P.M) 45 Buddhism: Euthanasia and Suicide, http://www.bbc.co.uk/religion/religions/buddhism/buddhistethics/euthanasiasuicide.shtml last visited May18, 2016 4:31 P.M.)

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3.1.6 JAINISM

Jains believe that destruction of body of any living being, consciously or otherwise is morally wrong. They are against any form of suffering still they believe that any form of life in any circumstance is better than no life at all. On this basis they are against euthanasia and they also suggest that if any doctor performs euthanasia on his patient, then it brings bad karma for him.46

There is no much detail available about the validity of suicide under this religion, but the Jain practice of santhara has been a topic of debate where it has been claimed that this practice is equivalent to suicide. But the Jains have been adamant on their view that santhara is not suicide. They claim it to be a religious practice wherein the person who undertakes it is in a conscious state of mind and decides to gradually give away his life in the spiritual path.

Santhara can be differentiated from suicide in a number of ways. Santhara is a voluntary, well informed decision taken in a conscious state of mind, performed after taking the permission from a spiritual guru in the presence of the community and follows a typical set of practices during the period of fasting, whereas suicide is a impulsive decision taken in the spur of the moment an there is an instant end of the life.47

Santhara is a well recognized practice and the people undertaking it are revered in the community, their death is celebrated as a community event and he is looked at with respect. But there is another angle to look at this issue. Imagine a person starts fasting and later he wants to revoke his pledge, then he may not be able to do so because of the societal pressure and the probable shame it may bring along, so it is also possible that a decision which was initially voluntary may later turn into a forcible, involuntary mandate imposed on the person which he has to undergo just to fulfill the social obligations by giving away his life.48

There are clear guidelines as to how and when santahara should be performed and following are the conditions under which it is allowed:

46 See: http://alkcochrane-ethics.weebly.com/jain-view.html (last visited May 18, 2016, 6:24 P.M) 47 Pragya S. Samani, Samlaekhana In Jainism is not Suicide, http://www.herenow4u.net/index.php?id=86105 (last visited May 18,2016, 6:33 P.M) 48 Euthanasia in Jainism, http://www.bbc.co.uk/religion/religions/jainism/customs/fasting_1.shtml last visited on May18,2016 at 6:37 P.M)

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 When the person is suffering from an incurable disease and the death is imminent.  The person has reached an old age.  If the condition of the person is that of hardships and sufferings.  Some natural calamity has made the availability of alms impossible.  The monk finds no secured place in a furious forest.  If the human senses have gone or the person is bedridden due to the weakness of body or some handicap.49

So it can be said that Jain view on euthanasia is not a clear one. On the face of it the principle of ahimsa and liberation from rebirth may show that there is no scope for euthanasia, but at the same time, adherence to practices like santhara may give an impression that Jainism may be liberal towards the practice of euthanasia also.

After looking at the beliefs and ideologies of various religions we can say that the stand of every religion with respect to euthanasia is different. They have similar preaching but have different rationale for justifying the same. We can notice that there is a difference of understanding of this topic between the prominent western and eastern religions. Christianity being the most prominent religion of the west has no scope at all for euthanasia. On the other hand, the eastern religions like Hinduism adopt a liberal approach and their interpretation can make us conclude that they may allow a scope for permitting euthanasia. Islam being one of the religions originated in the East follow a more orthodox approach towards sanctity of life and is in line with Christianity and Judaism on this issue. The reason can be attributed to the fact that these three religions have common roots and are common in beliefs in sense that they have recognized common prophets and revere their teachings and messages. A paradox worth noticing is that most of the nations which have legalized euthanasia (Netherlands, Germany, and Belgium etc.) have Christianity as their majority religion. This can be explained by the fact that there has been secularization of law and the role of religion has been reduced to the personal spheres only and not in the administration of justice. The religious beliefs have been now replaced by the common and popular will of the people, i.e. there has arisen a situation where these two are in conflict, then the latter prevails and the legalization of euthanasia is an apt example to explain the same.

49 Ishovāsyopanisad - verse 3

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3.2 EUTHANASIA AND MORALITY

Another important aspect on which euthanasia should be judged is that of morality. While the morality of suicide is still in doubt, many people think that euthanasia or the mercy killing is morally permissible or even obligatory when performed with the person’s consent and is the only option left to relieve him of the pain.50 According to this view, a man holds an inherent right to be released from the pain and the doctor is entitled to have moral and legal immunity for the act.

Sir Thomas More, a Catholic scholar was among the first to express views on euthanasia. He wrote on hi Utopia that when a person has outlived his life and nothing left but to bear pain, then he should be relieved from the pain as there is no advantage in nourishing such a life full of miseries.

Francis Bacon wrote in his Atlantis that the duty of a doctor is not only to restore health, but also to mitigate pain, which sometimes may come from an easy exit to death.

Reverend Charles Moore opined that euthanasia can be condemned as a form of suicide only on the basis of religious morality, who later was supported by Hasting Rashald, who approaching the issue as a Christian moralist wrote that there is no benefit in prolonging a life which has lost all the values and it seems unjustified to force one to live on the basis of this moral discipline only.51 So, if this point is accepted, then it would mean that prohibition imposed by criminal law on euthanasia should be removed as it is condemned only as per the religious beliefs and all those who do not share these religious believes, should not be imposed with such restrictions and prohibitions. Another point that can be raised in favour of euthanasia on basis of religious opposition is that the Catholic Church initially did not allow the use of anesthesia in the medical treatment, but has now allowed the same, so euthanasia should also be reconsidered in the same lights. Similarly if in religious morality, killing of enemies in wars and punitive execution of

50 The Morality of Voluntary Euthanasia, 1 GLANVILLLE WILLIAMS THE SANCTITY OF LIFE AND THE LAW 311 1957 51 The Theory of Good and Evil, (Oxford, 1907), 1, 209.

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criminals is not considered as murder, then killing of a patient by his consent and his own sweet will should not be considered as murder as releasing a soul from tortures is not enduring injury on it, but is definitely conferring benefits over it.

The absolute religious restriction on euthanasia and suicide can be said to be based on the reasoning that every human life is worth living and obligatory to be lived, irrespective of whatever be the quality of the life is. This logic gives emphasis to mere existence no matter if it has really contained the elements of life or not. But practically speaking, any life cannot be said to be a life worth living and it has no ethical values in contending so. The only life that is worth living is a good life which is fruitful where the person does not merely exists, but enjoys the life and bears the fruits of a worthy life.

To judge the morality of an act, two things needs to be considered, first on being the motivation of the actor and second one being the certainty of the outcomes. In cases of euthanasia, the motivation is the humanitarian compassion, relieving a person off the pain he is suffering and the actor being a trained medical practitioner, the outcome is quite certain and the results are almost similar to the desired ones.52

The crucial issues while deciding the morality of death may be following53:

a) Autonomy It means that a person is the master of his own life and has all the right to decide as to when and how to die provided his decision is not plainly irrational. It provides the patient with a right to decide as to whether he wants to continue his life or not or he wants to continue with the treatment which is sustaining his lie. There is no issue with respect to the capable persons who are able to communicate their decision to the doctors and for incapable patients, this point supports the making of living wills by the person to decide in advance how he needs to be treated in an unfortunate future event. But if euthanasia is allowed n this basis, there are chances of abuse as doctors may unnecessarily hasten the death of patients who have made a living will and the patients

52 Key Paul, Euthanasia: Law and Morality, 6 AUCKLAND U. L. REV. 224 1988-1991. 53 Dworkin Ronald, Life’s Dominion, p. 194 (First Vintage Books Ed., 1994)

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who are still capable may be put under undue pressure to take decision of ending their lives even if they do not really want it to happen. b) Best interest The patient is the one who is in the best position to ascertain what is best for him and what he wants. For this reason he should be allowed to decide in his best interest and opt for euthanasia. But this point may be opposed on the ground that sometimes the patient himself I not in the best position to judge what is good for him and what is bad. In the crucial medical conditions, one is not in a fit medical state to make an unbiased and unemotional informed decision and there are chances that in wale of temporary emotions he may take any irreversible permanent decision ending up his life. c) Sanctity. Human life has an intrinsic value and it is the property of God, any damage to the God’s property is his insult and the same should be avoided.

Another aspect to ascertain morality is the resultant cruelty of the act. Cruelty for all civilized men is immoral and is to be avoided. Euthanasia can be seen in the lights of cruelty also. If a man is kept alive forcefully, against his will and denying his entire request to be released from the painful life in a dignified manner and making him witness his self deterioration is nothing but magnifying the cruelty which makes him lose the dignity, is one of the most immoral acts to be done.54 Another aspect of this cruelty would be forcing the spouse, children and relative of the dying person to witness his decay and his conversion from a robust parent and spouse into a wretched and mortified creature, annulled of all human poise.55 Such scenes give a psychological trauma to the surviving relatives which may leave a permanent impairment on their minds, so in this way, it does not amount as cruelty to only the dying person but also to the people who are left behind to suffer the pain of helplessness for rest of their lives. This cruelty is not restricted only to the physical and mental rea only, but also in the financial aspect. The costly medical treatments to prolong otherwise unworthy life may leave the family in huge financial debts which may in the coming time hamper the education o the children and may create troubles in the normal day to day expenditure of the surviving family members. In this light, we can say that

54 Morris A. Arval, Voluntary euthanasia, 45 WASH. L. REV. 239 1970 55 Parks, Effects of Bereveavement on Physical and Mental Health- A Study of the Medical Records of Widows, 2 BPH. MED. J. 274 (1964).

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not allowing euthanasia is simply denying compassion. Making people to endure unnecessary pain and sufferings is brutal, inhuman and immoral.

Lord Devlin said in response to the Wolfenden Report in England which recommended decriminalization of prostitution and homosexual intercourse, that it can be identified with a common post-war liberal society argument suggesting that morals are a private matter and the law should not enforce religious morals; if a statute is framed to create victimless crimes then the act needs to be decriminalized.56 He further said that if a state has refused to enforce Christian beliefs then it has lost the right to enforce Christian morals also and it must find some independent backing to give authority to the criminal law.57 It has been argued that the concept of victimless crime is based on the utilitarian consideration of the cost of putting in police resources to enforce moral laws. If there is a good moral reasoning for criminalizing an act, then the extraordinary costing fro employing the police force for the same can be justified.58 Those who seek to exclude morals from law, have a narrow understanding of the morals which identify morals with religious creed. Public support to any law in itself is a kind of positive morality. Thus excluding religious moral injunctions from law is simply a change in the moral dimensions and does not at all means to amoralise the law. These reasoning become relevant to euthanasia as when we talk of voluntary euthanasia, it can also be called a victim less crime. For non-voluntary euthanasia, it can be said that future non-existence is no less harmful than the past non-existence, so it can also be categorized as a victimless crime.

3.2.1 EUTHANASIA AS MORAL MURDER

The element of morality is inherent in the criminal law, even for the crime of murder. Not only the general prohibition of murder, but the exceptions of just war, punitive measures and self defense also show the inclusion of Christian morals in the criminal law. Mason CJ has expressed his opinion that moral culpability is the core element of offence of murder.59 In this light, the

56 P. Devlin "Morals and the Criminal Law" in R. Dworkin (ed.) The Philosophy of Law, Oxford, OUP, 1977 p. 67, 69 57 Ibid 58 D. Richards "Constitutional Privacy, the Right to Die and the Meaning of Life" (1981) 222 WILLIAM & MARY L. R. 327 at 329.

59 Royall v R, (1991) 100 ALR 669 at 678.

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law reforms in context to euthanasia can be discussed. Coke’s authoritative remark Actus non facit reum, nisi mens sit rea holds true for the criminal laws.60 Blackstone has defined mens rea as a defect of will61, and has provided for three types of defects:

 The defect in understanding which made the choice impossible.  The defect in understanding the relevant facts at the proper time due to ignorance or by sheer chance.  The effect arising due to coercion leading in a particular set of actions.

Hart observed that the Christian moral theory which held a person responsible for those acts only which he committed voluntarily by free consent, is present in the criminal law in form of requirement of moral element in the murder.62 Blackstone suggested that mens rea has become a defense put up by the accused, but initially it was one which the judge sought in him to held him culpable.63 With time, the conception of subjective and objective test of culpability also came in picture. The objective truth is now the basis for all culpability and a truth which lacks any subjective element can only be said to be an objective truth. The theory of Norman law, Sedato Animo also changed its conception and came to be understood as killing a person, stripping him of all human dignity and denying him a Christian burial. This concept developed some exceptions which included various acts like killing of a child by parents while chastisising him, killing a lunatic, a burglar and many other cases. According to this, the act of killing was not murder, but the following elements constituted murder: Intentionally acting in a manner to disrespect the honor of the deceased. Planning to kill and making arrangements for execution of the plan.

So, mens rea not only focused upon the way in which the person died, but looked at the broader picture and took notice of all the factors which played a role in the formation of intention and motive. Such broad outlook makes mens rea amenable to both the Christian morals and the contemporary understanding of law, identifying with the guilty mind and the act.

60 J. STEPHENS, A HISTORY OF THE CRIMINAL LAW OF ENGLAND, LONDON, MACMILLAN, 1883 P. 94. 61 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 14TH ED., LONDON, STRAHAN, 1803 AT 20. 62 H. HART, PUNISHMENT AND RESPONSIBILITY, OXFORD, CLARENDON PRESS, 1967 AT 186. 63 Supra Note 61.

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The secularization of law and the dominance of modern jurisprudence have changed the way in which we understand mens rea now. The oblique intention test proposed by Bentham, which is the test of normal by stander looking at the act, is the new standard of locating the malice.64 The same test is used for locating the element murder in the mercy killings which rely on the principle of double effect and create a dilemma for the doctor in the palliative care regime. As per this test, culpability is equated with knowledge, where one has reasonable apprehension of the possible outcomes, and then he is culpable for such consequences. The present test for malice requires that is the accused s of sound mind and any person with a sound mind could have foreseen the consequences, then he is said to have acted with malice. Thus, the present requirement does not require the classical requirement of stripping the deceased with honor.

The starting point for any social law reform is that the people are not happy and content with the present system and they need some change as the present practice may put in question the humanity, justice and the efficiency of the legal system. Social practices are of two types: primary and secondary. Primary are those which are to be seen from a broader angle and are not confined to conventional legal categorization, they are seen in terms of legal system of belief, and people follow them for their own sake. Secondary ones on the other hand are those where the people in the society do not have any influence on the act of others and any movement away from such practices is an attempt to put things on the right track.65 The opposition to euthanasia in society is not due to the mere fact of antagonism to killing, but the real fear is that if such right of self determination is granted to the people then the state might lose the monopoly it enjoys so far over the killing in form of punitive deaths.66 So, a medical practitioner having ample knowledge and foresee ability of the consequences of the desired act, can be said to have an intention and acting under malice, making him culpable under the law. To allow euthanasia and saving the doctors from the legal culpability, there is a need change the test of intention.67

64 A. Kenny, The Ivory Tower, Oxford, Blackwell, 1985 at 75. 65 Canadian Law Reform Commission, Euthanasia, Aiding Suicide and Cessation of Treatment p. 16 (1983) 16. §215, Canadian Criminal Code 66 Ibid. 67 Supra Note 64.

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3.2.2 EUTHANASIA AND THE SANCTITY OF LIFE

Sanctity of life principle is the strongest argument against euthanasia. This principle holds that human life has an absolute value and it cannot be destroyed by the human action. This principle finds its roots in the religious beliefs of supremacy of God and humans being mere caretakers of the bodies gifted by God.

There are two types of rights that a human being has over his life, they are: derivative and detached right. The derivative right is based in the presumption that every human being has the right to be alive or a right of not to be killed and euthanasia or any attempt to shorten the human life is an attack on the derivative right of that person, corresponding to which the state has a derivative duty to save that person’s life. The second right, the detached one is based in the presumption that every human has an inherent, instinctive right of being alive. This right is called ‘detached’ because it is not dependent on any presumption of humans having rights. Human life is to be preserved just for the inherent value it holds. The state has a detached value corresponding t this right to protect every human life.68Sanctity of life suggests that every premature end of life is intrinsically bad in itself even if it not bad for any particular person. Scholars have argued that a thing can be sacred only when it is beneficial to someone or it serves some purpose, but there is another angle at looking at things, something is sacred not because of the purpose it serves, but just for the fact of its being and life in itself is one such thing which should be cherished and held sacred just for its being. Its worth and sacredness is independent of any advantage it bears to the person living it.

The next issue that arises is whether the human life is intrinsically, subjectively or instrumentally valuable. Instrumentally valuable means that it serves some purpose for others i.e. other people have an advantage of a person living his life. Subjective importance is how much worth person assigns to his own life, how much happiness he derives from it and how much he wants to continue his life. Intrinsic importance is when any dishonor to that things means dishonor to any such thing which ought to be honored. Human life possesses all these three kinds of importance, but is the subjective importance n basis of which the state is bound to protect the human life.69

68 Supra Note 53 at 11-12. 69 Supra Note 53 at 69-70

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Sometimes it is argued that God created human life as his own image and destruction of single life in many circumstances may amount to the destruction of the whole mankind.

Sanctity of life principle gives utmost value to life and suggests that it must be preserved at any cost. It has two important elements to support the life:

a) Vitalism

It says that every possible effort should be made to preserve the human life and also to prolong it with all the means because human life is an unqualified value in itself.70 Theology supports this point as the Judeo-Christian belief of supremacy of God over life and considering life as a gift from God, God only having authority of taking away life as he only is the giver and no human can be the complete master of his own life or of any other human being give us this message only.71 This value opposes euthanasia on the fact that as no person has right to give away his life, consent of a patient in dying does not reduce the turpitude of an act and it remains murder

Intuition and experience also support the vitality theory. Our sheer experience of being alive and the fear of death common to the human race, show that life is to be revered. But this argument is not universal and sometimes has a situational application also. There are situations when saving or prolonging the life of a person would do more harm than good to the person.

b) Quality of life:

The second component of sanctity of life is the quality it holds and the fact that it is better than death. Death can be taken in two senses: social and biological on the basis of proposition of corpus sine persona, where corpus refers to the body, the merely bodily existence and persona means the element of life which identifies the personality and gives meaning to the bodily existence. The issue here is that life should not be treated as mere bodily existence and should be considered more than the simple continuation of vital bodily functions like respiration, necessary

70 Supra Note 65

71 Ramsay, in Rachels (ed), Moral Problems: A Collection of Philosophical Essays (1971) 11-12.

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to live but rather it requires a self consciousness and engagement of the same with the worldly affairs.72

The quality of life can be judges on two parameters experiential interest and the critical interests. Experiential interests are those which are derived from experiencing various things in life. Everything in life gives some sort of pain or pleasure in life and adds to the experiences one has. If the pleasure is more than the pain, then it can be said that the quality of life is good. On the other hand critical interests are those which genuinely affect one’s life i.e. their presence makes the life genuinely better and their absence genuinely makes it worse. If the things which make life better outnumber the things which make it worse, then it can be termed as a good life worth living.73

Sanctity of life principle gives heavy weightage to equality of all the lives. It say that each and every life irrespective of the circumstances and the condition in which it is being led, without comparison to the other lives is unique and special in itself and should be given importance on its own basis. Just the fact that one life is better than the other or a person is in better conditions than the other does not create any difference. The importance of life is inherent in itself and no external or outside factor can reduce or diminish its value.

There is a humanist view of this principle of sanctity of life, which means that this principle give importance to the human life also and not to the lives of other creatures. Humans are considered superior to other creatures because they are free and autonomous. They have a sense of judgment and can base their decisions on rationality. So human life is not mere pulse and breathes, but many more than that.74 If the capacity of free decision making is taken away from the humans, they would become automatons and such mechanical life could hardly be called sacred. This theory suggests that the value of human life lies not in the fact that it is a gift from God, but that humans are master of their own will, rational and prudent, having a sense of judgment to decide for themselves in their best interest. They have the capacity to design their destinies by using logic, reason and conscience. This theory does not deny the existence of God, rather it believes that out of all God has chosen only humans and bestowed them with this power of thinking and

72 J.Rachels, The End of Lie, Melbourne, OUP, 1986 at 52-57; P.Singer Practical Ethics, 2nd ed., Cambridge, CUP, 1993 at 85-87, 182, 192-193. 73 Supra Note 53 at 201. 74 HELGA KUHSE, THE SANCTITY OF LIFE DOCTRINE IN MEDICINE: A CRITIQUE 5-11 (1987).

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decision making, so humans are special.75 So, the basic belief of this theory is that God gave us life but it has derived its sanctity from the decision making power that the humans use themselves by exercising their own free will.

Under the humanitarian conception, it is permissible for a human being to end his life by way of suicide or shortening it by refusing to take treatment. They are the masters of their lives and have an inherent right to decide as to the way they want to live and die as it is not merely an animal existence which is called life but much beyond that.76 But the pre requirement of choosing to die here is that the decision must be an informed one and making out while the mental faculties are still working. The decision should be of the self and not one imposed by others. This ground gives way to prepare the living wills whereby the person whose choice of death is in question has made a reasoned decision while he could decide and communicates the same through in the form of that document when the fateful time arrives. Love and compassion are two most basic tenets of this theory which support euthanasia or the physician assisted suicide77 this can be said to be the reason why maximum jurisdictions do not prosecute the doctor if the death of the patient is the result of his own request, due to the right of self determination of the patient.78

But, basing the euthanasia debate on the basis of Vitalism and quality of life is not entirely satisfactory. It is not practically possible to show that the life is the most elemental experience and it can be validly argued that to oppose euthanasia, these two factors are not complete in themselves and do not give any concrete ground. Human life is to be considered in a very broader way and it is not merely that a person has got a life then he has to live at any cost in any condition. That would be torture. Various aspects like utility, pleasure willingness to live etc. should be taken into account while deciding that a person should continue to live or put an end to his life.

75 Raanan Gillon, Suicide and Voluntary Euthanasia, in EUTHANASIA AND THE RIGHT TO DEATH 173, 173-74 (A.B. Downing ed., 1969) 76 Algernon D. Black, Our Quest for Faith: Is Humanism Enough?, In The Humanist Alternative, 77 Previn M. Mattews, Assisted Suicide and Religion: Conflicting Conceptions of the Sanctity of the Human Life, 84 GEO. L.J. 589 1995-1996. 78 WILLIAMS, THE SANCTITY OF LIFE AND THE CRIMINAL LAW (1958) at 158.

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3.2.3 EUTHANASIA AND THE SLIPPERY SLOPE

The slippery slope or the wedge argument says that a course of action if followed generally would injure the humanity, and then the same should not be followed even in an individual case.79 This argument is used by the traditional people to oppose any law reform because it is the most obvious point they have to be raised in any situation. This argument works on the hypothesis that if an act A is allowed then B would certainly follow, where B in itself is morally unjustified and just to avoid the arising of situation B, A is to be not allowed by question its morality.80

The wedge argument has two versions: logical and empirical. The logical version states that there is no abstract difference between A and B and therefore the acceptance of A will certainly lead to the acceptance of B. it is on this ground, it is feared that if we today allow the voluntary euthanasia, then in the coming times the involuntary euthanasia will also be followed and it would become impossible to discriminate between the two and decide what I justified and what is unjustified. But the humanists say that this argument against euthanasia is not maintain able as the line of distinction between the two forms is easily recognized and the distinction between two is very wide and clear.81

The second one is the empirical or the psychological version. It suggests that if we follow A, then it would lead to a change in the mental attitude and psychology in such a way that we will be more amenable to accept B also and a time will come when B will ultimately follow and accepted just because of the acceptance of A. opponents of euthanasia claim that if today we allow some form of justified killing by the non state authorities, then a time may come that even non justified killing would also be allowed and it would disturb the balance of the civilized society. But the humanists who support euthanasia counter this claim by saying that the passing of euthanasia law would be an altogether different area, with no disturbance caused to the law of murder. Assisting a patient in dying who has expressly asked for it is totally different from the involuntary killing of a patient and by no means acceptance of the former can change the

79 SULLIVAN, CATHOLIC TEACHING ON THE MORALITY OF EUTHANASIA (1949) 54 80 Wibren Van Der Burg, The Slippery Slope Argument, ETHICS, VOL. 102, NO.1 (OCT. 1991) 42-65 81 A Humanist Discussion of Euthanasia, http://www.humanismforschools.org.uk/pdfs/Euthanasia%20(final).pdf (last visited May17, 2016 1:41 P.M)

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attitudes of the people in such a way to allow the latter, which is totally different and unjustified form of euthanasia.82

So the main fear that the opponents have is that allowing a smaller thing today would ultimately result in the acceptance of the bigger thing in the coming time. considering the smaller thing to be a part of the mere process they suggest that it should be curbed in the initial stages only so that it not allowed to continue so that the whole process is brought to an end and there is no change in the established social and legal order. But it is essential to notice that the wave of change in any social practice arise only when the people who constitute the society are not happy with the present system and they want it to be changed so as to meet the requirement of th changing times and needs. These social movements of change are generally initiated by the lawyers as they know the loopholes and the areas which can be attacked to bring in the desired changes.

As far as euthanasia is concerned, there are fears that if we allow a milder form, i.e. the assisted suicide with the help of physician then a situation may arise that tomorrow the assisted suicide without the help of any qualified person would also be permitted or if today the voluntary euthanasia is allowed, then the acceptance of involuntary euthanasia will follow, creating a situation where the human life would become a mere joke and the life off the patient would be at the doctors whim and mercy, he being the sole master of deciding whether one should live or not and thus taking away the authority from the God or state and keeping it in his own hands.

But this argument does not hold at any strong base. It is not necessary that B will essentially follow A. there is no surety that if the first step of the process is taken then the whole process will be inevitably completed. It is only upon the society how much it allows the process to take place. Initially there were oppositions to practices like abortion and DNA testing, grounding the arguments on the same basis, but today when these practices have been legally permitted, we see that they are not at all dangerous as they were feared initially. As far as the issue of misuse of the power by the doctors is concerned, then it is to be noted that the legislation will take care of all the safeguards to be followed in cases of euthanasia and it would not be a free play where anybody could do whatever he desires. There will be checks on the working of the various stake

82 Ibid.

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holders. Doctors not only will be bound by the guidelines of the legislation, but also by the medical ethics which they follow essentially in the performance of their duties. In my opinion, opposing euthanasia on the basis of this slippery slope argument, fearing some hypothetical situation does not seem to be a logical one.

This chapter made an attempt to look at euthanasia in the light so religion and morality, discussing various issue within, like the sanctity of life and the slippery slope argument. After considering all the pros and cons and getting a insight from various angles, it appears that though various philosophies give arguments in both favour and the opposition of euthanasia, there is scope of alternate interpretation of these principles in wake of the changing social scenarios and the changing values of these concepts themselves with the changing times.

The next chapter will deal with the status of euthanasia across various nations and the response of the international community at the organizational level. Legislations permitting euthanasia in various nations will be looked t along with the judicial response they have faced in their respective jurisdiction.

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CHAPTER 4

INTERNATIONAL RESPONSE TO EUTHANASIA

Euthanasia is such an issue which is not confined to any particular country, but has been a matter of debate all around the world. Not only India, but various other nations have also faced the legal dilemma of passing legislation with respect to euthanasia. Out of them many countries have already allowed euthanasia in one way or another. Some have legalized the active euthanasia; while others have allowed the passive one and some have legalized the assisted suicide. There are examples of nations who have such national laws which already provide a scope for euthanasia without passing any special legislation to that effect. Not only at national level, this topic has gained attention of the international community at the organizational level as well. The United Nations and the European Union also have time and now dealt with this issue. The following section will put some light on the position of law in various nations along with the judicial response.

4.1 NETHERLANDS

In Netherlands the law allows active voluntary euthanasia and it is understood as the deliberate termination of life of a person by another, on the request of the former.1

The Dutch Penal Code makes euthanasia a crime, but does not regard it as murder.2

The euthanasia controversy sparked in Netherlands in 1973 Postma Case, where a doctor on demand of her mother gave her some lethal dose which resulted in her death. The doctor was suspended for 1 month and was kept on probation for 12 months. Although the doctor was

1 Dillman RJM, Legemaate J. Euthanasia in The Netherlands; the state of the debate. 8cI:EUR J HEALTH LAW 1994; 1:81-7 2 The Dutch Penal Code, Article 293, it clearly states that killing a person is considered as crime but termination of life on request and assistance in suicide are to be taken as exceptions.

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punished, the court showed some signs of leniency towards euthanasia.3 The Dutch Society for Voluntary Euthanasia was also formed in the same year.

The next major case was the Alkmaar Case in 1984, where the Supreme Court for the first time acquitted the doctor in a case of active euthanasia. The doctor herein administered the patient with a lethal dose taking away his life. The court based its decision on two points, first one that there has to be an observance of principle of autonomy of patient in deciding as to whether they want to continue to live or end their lives and the Dutch society has tendency to follow this principle which is manifest in the Article 293 of the penal code which clearly says that if a person kills other in the explicit demand of the former then that is not murder and secondly it accepted the exception of necessity as laid down in the Article 40 of the penal code. Court said that if the doctor has carefully balanced the conflicting interests and duties as per the professional ethics and there is a clear absence of material illegality then a doctor should not be held liable for active euthanasia on the explicit demand of the patient.4

In 1984, The Royal Dutch Medical Association (KNMG) laid down detailed guidelines for the medical practitioners to practice euthanasia. The declaration clearly said that the guidelines were not for ethical purposes, but a practical guide. At the same time it also said that euthanasia should be kept as the last resort, to be practiced after all the available options had been exhausted and there was nothing left to be done medically.5 The guidelines if followed would immune the doctors from any legal action against them. These guidelines are:

 The request for euthanasia should be voluntary and free from any external pressure. The doctor should talk personally with the patient to verify the voluntary element.  The request should be well considered and not in wake of emotions. The patient should consider all the adjoining circumstances like the economic conditions, hoped of his recovery and the chances of medical advancement that could save his life.  The request must be persistent over a period of time and not a single request would suffice.

3 Sheldon, Tony, Andries Postma, BMJ : BRITISH MEDICAL JOURNAL 334.7588(2007), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1796690/ (last visited May 11, 2016, 4:16 A.M) 4 Scholten Hans-Joseph, Justification of Active Euthanasia, 5 MED& L. 169 1986 5 Lagerwey Walter, Guidelines for Euthanasia, 3 ISSUES L. & MED. 429 1987-1988

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 The pain and suffering should be unbearable and unacceptable, beyond the normal tolerance of the patient.  The doctor must consult the request with at least one more doctor and only after taking.

The courts accepted these guidelines as the standard of conduct for the doctors and adjudicated on the basis of same.

The required legislative change came 2002 in the form of Termination of Life on Request and Assisted Suicide (Review Procedures) Act, which legalized the active euthanasia in Netherlands, making it the first nation in the world to do so. The act included all the guidelines laid down by the medical society in 1984 and along with those, added some extra checks in form of procedural guidelines like reporting every case to the municipal officer in confirmation with the Cremation Act and waiting for the permission of the regional euthanasia committee for issuing the death certificate and closing the case.

This act has integrated the concept of patient autonomy in the medical care and has kept the decision making as a community matter with the societal conceptions being given a due consideration in the private life and decision making of the people.6

4.2 GREECE

Considering the fact that the word euthanasia is derived from the Greek language itself and Greece is the birthplace of Hippocratic ideology, it becomes imminent to look at the position of law with respect to euthanasia in the country in present times.

There is no specific law dealing with topic in Greece and even the Penal code does not mention the word, it is only used to legalize the painless death of severely ill animals.7 The Greek Penal Code under Article 299 covers the cases of involuntary euthanasia.8 The voluntary euthanasia can be covered under Article 300 which says that anyone who kills another on the express and

6 Pridfeon J. Lucy, Euthanasia Legislation in the European Union: Is a Universal Law Possible?, HANSE LR 2006 7 Mavaroforou Anna, Michalodimitrakis Emmanuel, Euthanasia in Greece, Hippocrates’ Birthplace, 8 EUR. J. HEALTH L. 157 2001 8 The Greek Penal Code, 1950, Art. 299

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persistent request of latter shall be punishable. There are provisions for milder punishment in cases of voluntary euthanasia if the following conditions are fulfilled9:

1. The victim has made explicit and persistent demand either in written, verbal or in gestures. 2. The patient must be legally competent, conscious and able to understand the nature of the act. 3. The nature of pain is unbearable and the disease is incurable. 4. The perpetrator must have expressed his mercy for the patient.

Psychological diseases might also fall under the ‘diseases’ under the article 300 and the same have been accepted by the Court of Appeals in Aegina in 1986.10 There is a requirement of certification by two independent psychiatrists of the fact of persistent request of the mentally ill patient and the judges and jury should assure that the doctor has clearly balanced the conflicting duty with the interests of the patient in light of the unbearable pain and suffering he is going through.11

The main reason that euthanasia has not been legalized in Greece can be attributed to the fact that almost 98% of the people there belong to the Orthodox Church12, which considers death as a mystery which is indefinable and not as a scientific notion identified with the biological conditions as a cessation of the functioning of the brain.13this traditional Christian attitude ha s a major impact on the Greek legal system and due to this they treat death as a sacred moment when humans are closest to God and consider it unethical to hasten death or prolong life. The Greeks were among the first nations to provide for patients rights in form of legislations. They still follow the traditional theory of medical authority but there is a change in attitude with time and the focus is shifting on individuals with less reliance on the medical practitioners to choose and decide in the best interest of the patients, and the patients being given autonomy in decision

9 Id., Article 300. 10 Court of Appeal of Aegina 6/1986, Pinika Chronica XVI 1986, p.242 11 Supra Note 7. 12 Ibid. 13 Hatzinikolaou, Father Nikolaos, 'Prolonging Life or Hindering Death? An Orthodox Perspective on Death, Dying and Euthanasia.’ [2003] 9 (2/3) CHRIST. BIOETH. 187, 189.

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making. But this is not vast enough to include euthanasia as an option for the patients to be covered under their autonomy and choose to end their lives.14

The Greek society needs more secularization to accept euthanasia as a valid legal practice and much needs to be done in the legislative and the societal arena before legalizing euthanasia.

4.3 BELGIUM

Belgium introduced an Act in 2002 to legalize active euthanasia. The act says that a doctor commits no offence if he performs euthanasia under the following conditions15:

 The patient has attained the age of majority and is legally competent and makes the request in the state of consciousness.  The request is free from any external pressure, persistent, well considered and voluntary.  The patient is suffering from some incurable disease and unbearable pain, physically or mentally.

The doctor before conducting the act must talk to the patient or his relatives personally discussing in detail his medical condition and ensuring that there are no chances of recovery and no alternative medical option o left to alleviate the pain, after that he is required to discuss the case with at least one more physician and the nursing staff who has been taking care of the patient.16

Belgian law is considered to be one of the most lenient laws with respect to euthanasia. The parliament broadened the scope of law to include even the minors under its ambit, and now after the 2014 amendment even minors can ask for a lethal dose to be administered to them to end their lives, with the precondition that the parents should agree to the decision of the minor.17

14 Merakou, Koula, ‘Development of Patients’ Rights Legislation’, [1999] 6 (1) EUR. J. HEALTH LAW 71, 73, 74. 15 The Belgian Act on Euthanasia, 2002, Section 2, For the purpose of this Act, euthanasia is defined as intentionally terminating life by someone other than the person concerned, at the latter’s request. 16 Id., § 3 17 See http://www.patientsrightscouncil.org/site/belgium/ (last visited May11, 2016, 7:32 P.M )

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4.4 SWITZERLAND

Swiss law does not allow euthanasia in its active form and has made the same punishable under Article 114 of the Swiss Penal Code. This article says that if a person commits murder of another on the request of the latter then the same is punishable, but less severely than murder when done without the request of the victim.18 There was a proposal in the Swiss parliament to decriminalize euthanasia in 1997 but the same was rejected.19

But the Swiss law has a peculiar position with respect to the milder form of euthanasia; assisted suicide. Both suicide and assisted suicide are legal in Switzerland. When a person is terminally ill or wants to end his life, then he need not suffer the pain and can take resort of suicide to end his life. For those who are in such a condition that they cannot move their body can take the help of some other person who can assist him in committing suicide, which is legally permissible. The only condition for immunity in cases of assisted suicide is that the person assisting the patient should not be motivated by any selfish motive and does the help just for altruistic reasons i.e. to help the patient end his sufferings.20 Another special feature of Swiss law is that it does not require the person assisting the suicide to be a qualified doctor. Any person, even a layman can assist any willing person in doing suicide and he will escape all the criminal liabilities if his intentions are good and not selfish. There have been arguments from the medical societies that involvement of physicians in assisted suicides is against the ethics f the profession and they should not be allowed to practice the same. There even has been a bill in the parliament asking for the same, but it was defeated in the parliament and the doctors can participate in the assisted suicides.21

18 Swiss Penal Code, 1942, Article 114 Homicide at the request of the victim. Any person who for commendable motives, and in particular out of compassion for the victim, causes the death of a person at that person's own genuine and insistent request is liable to a custodial sentence not exceeding three years or to a monetary penalty

19 Hurst A. Samia, Assisted Suicide and Euthanasia in Switzerland: Allowing a Role for Non-Physician, BMJ FEB 1, 326(7383): 271-273 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1125125/ (last visited May 12,2016 6:12 P.M) 20 Swiss Penal Code 1942, Article 115, Inciting and assisting suicide. Any person who for selfish motives incites or assists another to commit or attempt to commit suicide is, if that other person thereafter commits or attempts to commit suicide, liable to a custodial sentence not exceeding five years or to a monetary penalty

21 Supra Note 19.

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There was a referendum also in the Canton of Zurich in 2011 asking to ban the practice of assisted suicide but the same as defeated as almost 85% of the 278000 votes cast were in favour of continuing the practice of assisted suicide.22

4.5 UNITED STATES OF AMERICA

Active euthanasia is illegal in all the states in the U.S.A., even suicide and assisted suicide is also not permissible by the law. The only form of euthanasia that is legally allowed is the passive one, whereby the patient who is undergoing some treatment can refuse to continue the same and thus can hasten their death by leaving themselves to their fates and waiting for their natural deaths. It is under the Common law tradition that forced medication is regarded as battery and U.S. following the same has kept its legal position the same.23 The court decisions have also maintained the same position; following is the glimpse into the judicial decisions which show the stand of U.S. judiciary towards this issue.

In Wons v. Public Health Trust24, the Supreme Court of Florida said that if the patient under her right to privacy and religious freedom refuses to undergo blood transfusion then the same shall be allowed and it is legally permissible to refuse any medical treatment if the two fundamental rights are being violated.

In Cruzan v. Harmon25, the Supreme Court of Missouri refused the withdrawal of artificial feeding pipes from the patient’s body saying that it is in the interest of the state to save the life and the interest is in the life and not the equality of the life. The court said that there was no evidence that the patient would have wanted to remove the feeding pipe and the parents have failed to fulfill the conditions laid down by the living will law of the Missouri state. Thus, the court refused the parent’s request to kill their daughter by the way of passive euthanasia. This case then went into appeal to the U.S Supreme Court where the earlier decision was reaffirmed.26 But there were two important dissenting opinions where Justice Bernnan said that the

22 See: http://www.telegraph.co.uk/news/worldnews/europe/switzerland/8515258/Zurich-votes-to-keep-suicide- tourism-alive.html (last visited May11, 2016, 9:42 A.M) 23 Scott L. Roland, United States Legal Aspects of Euthanasia, http://www.eutanasia.ws/hemeroteca/t270.pdf 24 541 So. 2d 96 (Fla. 1989) 25 760 S W 2d 408 411 (Mo. 1988) 26 Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 1990

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constitutional right of the patient to be free of the unwanted treatment was bigger and the state’s right to preserve the life didn’t outweigh the patient’s right. Justice Stevens said that the state has only an abstract interest in the life of the patient and it is a constitutionally protected right of the patient to choose in her best interest which can be respected by allowing the parents to decide what is best for her. Later the parents again went to trial court with new evidence where the state withdrew from the proceeding and later Nancy was allowed to die by removing the feeding pipe.

This case though did not allow passive euthanasia directly but left scope for the same to be allowed in the coming times.

 Compassion in Dying v. State of Washington27 was the first case addressing the constitutional validity of a legislation prohibiting physician assisted suicide. The court said that there is a constitutionally protected interest vested in a person to choose the time and manner of his death and it is to be balanced against the state’s interest of preservation of life. In the present case, after balancing both the interests, court said that the competent adults have a right to refuse from taking life saving treatment and thus can hasten their death; this is not at all against the fourteenth amendment. In Washington v. Glucksberg28, U.S. Supreme Court said that here is no constitutional protected right to assisted suicide in the due process clause of the constitution but the patients at the same time can take resort of other available medical options like taking pain killer medicines and asking the doctor to remove the life support system. In Vacco v. Quill29 the Supreme Court said that the New York Legislation prohibiting the assisted suicide didn’t violate the equal protection clause and it had various reasons to distinguish between the refusal of treatment and assisted suicide, which are: a. Preserving life and preventing intentional killing b. Prevention of suicide c. Keeping the role doctor as a healer. d. Providing the protection to vulnerable patients from discrimination, psychological and economical pressure to end their lives. e. Avoidance of a possible slippery slope stage of euthanasia.

27 79 F. 3d 790 (9th Cir. 1996) 28 117 S. Ct. 2258 (1997) 29 117 S .Ct. 2293

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The court said that the difference is valid and the classification is rational and logical. The court also said that the assisted suicide is not provided in by the legislature and it is beyond the scope of the judiciary to introduce the same. For legally allowing assisted suicide, it is necessary that legislation should be brought to the same effect.

As far as legislations are concerned, Oregon was the first State in U.S.A to introduce an act which legalized the physician assisted suicide by the name of Oregon Death with Dignity Act, 1997. The act prescribes certain conditions to be fulfilled to practice assisted suicide, they are30:

 The patient must be a resident of the Oregon state.  He must be at least eighteen years old and must be legally competent to take decisions.  He must be terminally ill with not more than six months left to live.  He must make one written and two oral requests to take the medication which needs to be signed by two witnesses in the presence of the victim.  The decision of the patient must be an informed one after de consultation with the doctor regarding various aspects of the procedure.

After Oregon, Washington became the second state to introduce such legislation by the name of Washington Death with Dignity Act, having similar guidelines and safeguard provisions to be followed.

Then Montana followed the suit, where not the legislature but the State judiciary legalized the physician assisted suicide in the case of Baxter v. Montana31, stating that there was nothing in the Montana Supreme Court precedents or the Montana statute that indicated that the physician assisted suicide was against the public policy.

4.6 UNITED KINGDOM

Euthanasia is not legally permitted in U.K and the active euthanasia is equivalent to homicide. So if a doctor administers some lethal dose to the patient then he would be charged for murder because he had the mens rea and the motive is totally irrelevant in judging the case. But there

30 Oregon Death with Dignity Act, 1997. 31 MT DA 09-0051, 2009 MT 449.

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are some situations under which the severity of the law can be reduced and the charge of murder can be converted into that of manslaughter. But that plea of killing someone to relieve him from pain or distress is more likely to be available to the relatives and not the doctors or the nursing staff.32 The trend in the judiciary is that the doctors are rarely prosecuted for the acts of euthanasia, but there are instance where the doctors have been reminded of the legal obligation to be followed while practicing their profession. The most famous cases are of Dr. John B. Adams and Dr. Leonard Arthur.33 Most prominent is the case of Dr. Cox34 where the doctor was charged of attempted murder for administering a lethal dose to the patient resulting in his death. The doctor was convicted and was punished; giving a clear message that sympathy and compassion or any other good motive would not reduce the rigors of the law.

In the case of Re C35, the court allowed the hospital staff to refrain from setting up the artificial feeding arrangements and giving anti-biotic to extend life of the otherwise dying patient. Court said that the action sought was proper and it must be assured that the patient is provided with a painless and comfortable environment to die a natural death in peace. In Re J36, court said that there is no hard and fast rule as to mandatory resuscitation of patient in all the cases and in some cases they can be allowed to die. The court reassured that it was not authorizing euthanasia and cleared that any sanction to terminate life would be unlawful and it is concerned only with the situations in which arrangements could be made for not prolonging the life.

In Airedale National Health Services Trust v. Bland37 court opined that artificial feeding and life sustaining treatment is like any other medical services and is not any special duty, they shall be treated in the same way as other services are dealt and the patient has full right to refuse from using such services and end his life.

After the passing of the Suicide Act, 1961, suicide has been made legal and is no more punishable. But section 2(1) of the Act says that abatement of suicide is still a crime, so if any person takes the assistance of doctor to do suicide then the doctor would be liable for the crime of abatement of suicide. So, physician assisted suicide is also not permissible in the U.K.

32 Smith Alexander, Euthanasia: The Law in the United Kingdom, BR. MED. BULL. 1996 Apr; 52(2):33-40 33 Ibid. 34 (1992) 12 BMLR 38 35 Re C (a minor) (wardship: medical treatment). All England Law Reports 1989; 2: 782 36 Re J (a minor: wardship: medical treatment). All England Law Reports 1990; 3: 930 37 All England Law Reports 1993; 1: 821

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Two unsuccessful attempts were made in 1936 and 1950 to introduce a bill for legalizing euthanasia in U.K but both the attempts failed.38 The House of Lords blocked a bill for assisted dying in 2006.39 The latest attempt to change the law relating to assisted dying failed on 15th July, 2015 when the seven judges penal of the European Council for Human Rights unanimously dismissed the plea to amend the Suicide Act, 1961 to allow the physician assisted suicide in the country. The judges have shown judicial restraint and opined that it is in the domain of Parliament to change the law. 40

So euthanasia in active form and assisted suicide are both punishable in the U.K. the only form which is permissible are passive euthanasia by way of refusing to take treatment or by withdrawing from treatment. Until any law is passed to decriminalize euthanasia, U.K. can be said to have the strictest laws in this relation.

4.7 GERMANY

Germany during the Nazi rule showed the ugly side of euthanasia to the world and the fact that how destructive this practice can be, if misused. Now, active euthanasia is no allowed in Germany. The German Penal Code under section 213 governs the situation of taking life of a person on his request. Both suicide and assisted suicide are not criminalized in Germany. It means that if any person; doctor or relative assists a person in dying, then he is not guilty of any crime, provided that the assistance is passive. Actively assisted suicide is punishable as has been held by the highest civil court on June 25, 2010.41

In a latest development, the German parliament passed a law which has criminalized organized assisted killing for commercial purposes.42

38 House of Lords Debates (5th s.) 103:465-506 (1936)., House of Lords Debates (5th s.) 169:551-76 (1950). 39 Assisted Dying Legislation in U.K, http://www.bbc.co.uk/ethics/euthanasia/overview/asstdyingbill_1.shtml 40 Move to Overturn UK Assisted Suicide Law Fails, http://www.theguardian.com/society/2015/jul/16/assisted- suicide-voluntary-euthanasia-european-court-human-rights (last visited on May 11,2016, 3.12 A.M) 41 (German Court Legalizes Euthanasia with Patient Consent, BBC NEWS (June 25, 2010), http://news.bbc.co.uk/2/hi/world/europe/10414647.stm (last visited May19, 2016, 4.17 P.M) 42 http://www.drze.de/in-focus/euthanasia/legal-regulations, German Parliament vote to ban Commercial Assisted Suicides, https://www.rt.com/news/321113-german-parliament-commercial-euthanasia/ (last visited May 18,2016, 7.11 P.M.)

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So we can say that Germany has taken lessons from its earlier experiences and has ensured that there is no abuse of any legal provision against the innocent for any political or monetary gain.

SLIPPERY SLOPE:

The slippery slope argument suggests that if any law is passed with a particular purpose then it may bring the opposite results also. For example in cases of euthanasia there may arise a situation that the doctors may abuse the power and take decisions to end the life without taking due caution and not following the guidelines. Data shows that the slippery slope has arisen in the nations which have legalized euthanasia in their jurisdiction.

In Netherlands, 645 people requested for euthanasia in 2012. Out of them 162(25.1%) were granted approval. 300(46.5%) were rejected and the rest did not receive any answer. Out of the people whose requests were granted, 6.8% were categorized as tired of living, 49.1% said that they were alone and 53.7% asked for it due to old age.43 All three above mentioned reasons are not grave enough to justify euthanasia, and are only meager excuses to end life which not at all are serious enough to ask for death before time.

In Belgium, around 100 people have asked for euthanasia during 2007- 2011, out of which 48 have been given permission. But the studies have shown that the standard required to qualify for euthanasia are not clearly set. It has been revealed by studies that the concept of unbearable sufferings has not been defined clearly and there are no guidelines for euthanasia on basis of mental suffering, which is leading to the abuse of the provision.44

Similarly people use Switzerland as a destination to visit to end their lives just because of the laws which permit assisted suicide without the help of any doctor. In 2008 123 people went to Switzerland for this purpose which increased to 172 in 2012 and the people opting for mental

43 Lerner Barron, Euthanasia in Netherlands and Belgium: On a Slippery Slope?, http://drbarronlerner.com/2015/08/15/euthanasia-in-belgium-and-the-netherlands-on-a-slippery-slope/ (last visited on May12, 2016 7:21 A.M) 44 Schadenberg Alex, Expansion of Euthanasia in Netherlands and Belgium Should be a Warning to Britain, http://www.lifenews.com/2015/09/04/expansion-of-euthanasia-in-netherlands-and-belgium-should-be-a-warning-to- britain/ ( last visited May 12, 2016, 7:36 A.M)

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diseases has increased from 2.7% in 2008 to 3.4% in 2012.45 This concept has came to be known as suicide tourism, wherein people from countries which do not allow euthanasia and they want to end their lives because of their heath issues, visit the countries which have lenient laws with respect to euthanasia, Switzerland being one of them.

4.8 INTERNATIONAL ORGANIZATIONS AND CONVENTIONS

4.8.1 EUTHANASIA IN THE UNITED NATIONS

Article 3 of the United Nations Declaration on Human Rights, 1948 says that every person has a right to life. Article 6 of the International Covenant on Civil and Political Rights gives every person an inherent right to life. There is no provision for euthanasia in any of the U.N. document. Article 10 of Convention on the Rights of Persons with Disabilities says that the states must reaffirm the inherent right of life to the people with disabilities and ensure that they enjoy life with no discrimination. There have been attempts to include euthanasia in the human rights guaranteed by the U.N. first such attempt was in 1950 when a joint petition was filed by the clergymen of U.K and U.S.A. to include a right for the patients suffering from incurable diseases to get their life shortened by way of medication.46 But till now there has been no such concrete move to include it in the U.N declaration. In fact the U.N has shown concern for the euthanasia laws adopted by nations like Netherlands and Belgium the U.N review committee on the Dutch euthanasia law said that this law is quiet ambiguous and is prone to misuse. Calling it as a lethal law, it was said that its abuse is manifest in increasing number of unreasoned and unreported cases of euthanasia and it is an attack on the right to life guaranteed to the people by the U.N declarations.

But lately, the U.N. has shown a leniency in their attitude and there have been voices to include euthanasia as an exception to the inherent right to life. In 2011, there was a proposal in the U.N to introduce a clause which will permit euthanasia for the elderly people. Considering the

45 Sarchet Penny, Tourism to Switzerland for Assisted Suicide is Growing, often for Nonfatal Diseases, https://www.washingtonpost.com/national/health-science/tourism-to-switzerland-for-assisted-suicide-is-growing- often-for-nonfatal-diseases/2014/09/22/3b9de644-2a14-11e4-958c-268a320a60ce_story.html (last visited on May 12, 2016 at 7:45 A.M) 46 Charlton A. Earl, Jurisprudence of Euthanasia, 33 MARQ. L. REV. 133 1949-1950

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problem of old age, it was debated that elderly people who have live their lives and have nothing left to achieve in their lives and who are abandoned by their children in old age homes to die, they should be allowed to die in a dignified way.47 Then there was a proposal in 2015 to amend the Article 6 of the ICCPR to allow euthanasia

as an exception to the right to life.48

As the recent trends have shown, the changing attitude of the member nations towards euthanasia may lead to inclusion of euthanasia in the U.N declaration also in the coming times.

4.8.2 EUTHANAISA IN THE EUROPEAN CONVENTION OF HUMAN RIGHTS (ECHR)

The European Court of Human Rights is an institute of the Council of Europe, with 46 members it was formed in 1950 and it hears the matters which involve issues of the violation of human rights as guaranteed by the ECHR.49 It is supreme to the national laws and can negate the same, but the only problem is that the nature of judgments is such that they are difficult to enforce even after having a proper jurisdiction. Under Article 2, ECHR provides a right to life which says that the right to life shall be protected by law and no one should be intentionally deprived of life other than in few exceptional cases, which does not include euthanasia.50

There are several judgments of the court which put light on the issue of euthanasia in relation to the ECHR. The first such case was of Pretty v. The United Kingdom51 where the applicant asked the authorities to allow her husband to assist her in suicide. Couth said that not allowing the same was not a violation of the right to life as same cannot be interpreted to include the right to die.

47 Nolan John, Un Committee Voices Grave Concern At Dutch Euthanasia Law , http://www.nrlc.org/archive/news/2001/NRL08/jen.html (last visited May 22, 8:42 P.M.) 48 Baklinski Pete, UN Considers Reinterpreting “Right to Life’ to Allow Exceptions for Abortion and Euthanasia, available at: https://www.lifesitenews.com/news/un-considers-reinterpreting-right-to-life-to-allow-exceptions-for- abortion (last visited May 22, 8:42 P.M.) 48 http://www.echr.coe.int/ECHR/EN/Header/The+Court/The+Court/History+of+the+Court/. (last visited May21,2016 6:18 P.M) 49 Ibid. 50 European Convention on Human Rights, Article 2, http://www.echr.coe.int/Documents/Convention_ENG.pdf (last visited May21,2016 6:28 P.M) 51 2002-III Eur. Ct. H.R. 155,

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In Haas v. Switzerland52, the issue was whether a sick person could consume some lethal substance to end the otherwise derogatory life without any prescription. The court said that Swiss laws already have provisions for making arrangements for dying in a dignified manner and not allowing taking drugs without prescription is not in violation of the right to respect for private life under article 8.

In Lambert and Others v. France53, the applicant made a petition to ask permission for removing the feeding pipe so that the death could be hastened. The court ruled that allowing the removal of life sustaining treatment is an inherent part of the right of life under article 2 and it is compatible with the domestic legislation also, so it allowed the petition and the applicant was allowed to die.

In the latest case of Nicklison and Lamb v. The United Kingdom54, the court cleared two issues, the first one being that the assisted suicide is not legal and not allowing to do assisted suicide is not in the violation of article 8 of the convention, the second issue was of voluntary euthanasia, which court said that is not permissible and is in contravention of the article 2 of the convention.

So we can say that the European Union court has given mixed response to the issue and has played the role of guardian very well in protecting the right of life and personal liberty and interpreting it in a way to serve the ends of protection of rights guaranteed by the convention.

So we can say that merely passing a law is not enough, there needs to be a proper check on the execution o the law. Euthanasia laws being so prone to abuse, require a special standard of checks and follow ups so that it can be ensured that there is no misuse of the legal provisions and not even a single life is taken for a reason which is not grave enough to justify the taking of one’s life.

This chapter has made an attempt to look at the response of the international community and various nations towards euthanasia. How different countries have reacted differently to the demand of changing times and accordingly made changes in their laws or introduced new legislations to allow the active euthanasia or passive suicide. This chapter also dealt with the challenges that these nations are facing after passing of such laws and what are the chances of

52 [2011] ECHR 2422, (2011) 53 EHRR 33, 31322/07 53 ECHR 185 (2015) 05.06.2015 54 [2015] ECHR 783 2478/15; 1787/15

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misuse so that India can look at their experiences and can predict what could be the predictable situations that may arise in India also if it oases any law with relation to euthanasia or assisted suicide.

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CHAPTER 5

LEGAL STATUS IN INDIA

India has no specific legislation for euthanasia. There is no mention of this term in the Indian constitution or the penal code. Initially there was no separate discussion about euthanasia and its debate evolved along with the issue of legality of suicide and culpability of the attempted suicide or the right to die debate in the courts. As discussed earlier, the majority religion of India, Hinduism has some scope for suicide but the penal code criminalizes the same. This question has been a centre of attraction for the Indian judiciary and has been raised time and again before it and alongside, the euthanasia debate also joined the course and started finding incidental references in the court decisions. It was finally in the case of Aruna Shanbaug that euthanasia has emerged as the central issue in any court case. It was the landmark case in which the passive euthanasia was permitted by the Supreme Court and since then this issue has attracted the attention of the people at large, the Judiciary and the law makers simultaneously. This chapter unfolds the legal framework and judicial response to the issue of euthanasia in India.

5.1 THE CONSTITUTION OF INDIA

Indian constitution under article 211 ensures a right of life to all the persons and says that no person shall be deprived of life of personal liberty other than by way of the established procedure of law. Article 14 guarantees equality and equal protection of law to all the people.2 It says that all the people are to be seen in equal lights by the state and have to be ensured equal protection by the law in sense that there need not be any discrimination against any person other than on the basis which have been legally permitted in the following articles of the constitution, in form of the affirmative action or reservation for the deprived section of the society. There is no mention of the word euthanasia in the constitution, but there has been a long controversy whether the right guaranteed under article 21 is broad enough to include the right to die and the same has

1 The Constitution of India, 1950 , Art.21, Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law 2 Id, Art. 14, Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

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been addressed by the judiciary on a number of occasions. The position is still unsettled and the debate is still on which we will discuss in the following sections.

5.2 THE INDIAN PENAL CODE, 1860

This code is based on the British laws and it made suicide culpable in India. The code nowhere uses the term euthanasia but surely has included the concept under the section covering murder and culpable homicide not amounting to murder.

Section 3003of the IPC provides the definition of murder and it clearly says that if a person intentionally causes death o another person then he would be punishable under the section 3024, if he has done the act intentionally and without the consent of the person or even with consent if the person is insane or below the age of 18 years.

But there is some concession in cases where the act is done with the consent of the deceased and the same is covered under the exception 5 to the section 300 which says that culpable homicide is not murder where the person whose death is caused is above 18 years of age and he himself, with his consent suffers the risk of the act that resulted in his death. The act in such case will not be murder but culpable homicide not amounting to murder and would be charged under section 3045 and not under the section 302. So it means that if the patient asks for administration of some

3 3 The Indian Penal Code, Act no.45 of 1860 , §. 300(1860) Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— (Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid

4 Id.,§302, Punishment for murder.—Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine 5 Id.,§304, Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death

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lethal object and the doctor does so on his demand, then the doctor will not be culpable for murder and will get a milder punishment under section 304.

IPC provides under the chapter of general exceptions some circumstances where the act o the accused can be condoned if he has acted under good faith and for the benefit of the victim. There also, the defense is available only when the act does not result in death or grievous hurt and is available only when the resultant act is less than the two above stated situations. In cases of death or grievous hurt, even the consent of the victim does not make any difference and if the act is done without consent, then the accused would waive the defense of section 926 and if he acts after obtaining consent, then the defense of consent under section 877 would not be available.

Attempted suicide is a crime in India and any person who survives any attempt of committing suicide will be punished under section 3098. Mercy killing is not covered under section 309 as it is clearly a case of homicide under the Indian laws9. As attempted suicide is punishable, abetment of suicide is also a crime and the abettor is punishable with a term which may extend to years of imprisonment.10 The legality of section 306 is dependent upon the legality of section 309. There have been various instances where section 309 has been brought up before the court and its legality has been questioned. The following section will discuss the journey of this provision in the courts.

6 Id.,§ 92, 92. Act done in good faith for benefit of a person without consent.—Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit 7 Id.,§97, Right of private defense of the body and of property.—Every person has a right, subject to the restrictions contained in section 99, to defend—(First) — His own body, and the body of any other person, against any offence affecting the human body;(Secondly) —The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass

8 Id.,§309, 309. Attempt to commit suicide.—Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year 1[or with fine, or with both] 9 RATANLAL, DHIRAJLAL, THE INDIAN PENAL CODE, ED. 32( LEXIS NEXIS ) 2010 10 Id.,§306, 306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine

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5.3 RIGHT TO LIFE, RIGHT TO DEATH AND EUTHANASIA: THE JUDICIAL RESPONSE

Initially the Indian courts didn’t see any case for euthanasia. The only cases that were brought before them were regarding the interpretation of right to life provided under Article 21 of the constitution that whether it included the right to die also and what was the legal position of section 309 of IPC in light of the interpretation of article 21. It was only during that debate only that euthanasia found some incidental references by the judges and they addressed the issue just for the sake of clarity where it was never the central issue in question.

One of the earliest cases on this issue was Maruti Sripal Dubal v. State of Maharashtra11, where the issue was whether the Article 21 included the right to die also and if yes then what is the position of legality of section 390 of IPC. Sawant J. in his judgment said that:

 Article 21 carries not only a positive right to live, but the negative one of to die also.  People commit suicide because they are fed up of their lives and have no more desire to live. Though the natural human desire is that to live only, it is not unnatural to have desires to die, rather they are only uncommon and exceptional.  Citing various religious practices like Johar, Sati, Samadhi, and Prayopavesa etc. he said that suicide in various forms has been a part of the Indian culture and should be allowed.

Broadening the contours of article 21 he decreed that it definitely includes the right to die also and on the same reasoning, struck down the section 309 of IPC declaring it to be in violation of article 21.

At the same time, fearing the misinterpretation of his judgment, he cleared his views on euthanasia also. Differentiating between suicide and mercy killing, it was said that former is an act of self-destruction whereas the latter requires the involvement of another person to end life. These both concepts are thus different in factual and legal sense, which implies that mercy killing in all the situations is homicide and not suicide, its attempt also being attempted homicide and not attempted suicide, not to be charged under sec 309.

11 1987 (1) Bom CR 499

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The issue reached before the Supreme Court for the first time and was decided in the case of P. Rathinam v. Union of India12, where the decision of the Bombay High Court in the abovementioned case was upheld. It was decided that right to life does not an animal existence, it means to live with dignity as per the culture and traditions of the person and he being in a fir physical and psychological state. There might arise a situation where a person thinks that he does not want to live anymore because of various reasons like bad health, pain sufferings or he thinks that he has achieved all the things in life with nothing else left worth to live for, or there may be a high desire of communion with the God and he decide to end up his life. The right to live cannot be meant to be a right to live a forced life and is broad enough to include under it the right to die. On this reasoning, section 309 was declared as ultra vires the article 21 of the constitution.

Addressing the issue of euthanasia, the court said that suicide and euthanasia are different things as the former is self destruction while the latter requires at least two persons. The court relating the two concepts on the basis of the consent of the patient drew an analogy between them and said that decision of withdrawal of treatment or passive euthanasia is not equivalent to suicide, but an exercise of his constitutional and common law right to discontinue unwanted medical treatment. The court said that striking down section 309 may give the proponents of euthanasia a solid ground to argue that a legislation permitting passive euthanasia should be introduced, but such fears should not hamper the court from taking such decisions to define the fundamental right guaranteed by the constitution.

The Supreme Court on the next occasion in the case of Gian Kaur v. State of Punjab13 reversed the position and held that article 21 does not include the right to die. The court gave following observations:

 Right to life means a right to life with dignity.  Such dignity is to be maintained till the point of death.  Right to life can be interpreted to mean a right to die with dignity.  It cannot be interpreted to mean a right to die an unnatural death where the person dies an unnatural death and there is a deliberate curtailment of the natural life span.

12 1994 SCC (3) 394 13 1996 SCC (2) 648

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 Right to life is a natural right which guarantees protection of law, death also is a natural process, but allowing unnatural death by no means can be said to be consistent with the positive right conferred by the constitution.  Other fundamental rights viz. article 19 provide for positive rights like freedom of speech and have been meant to include the negative rights of keeping silent also. This inference cannot be used to interpret article 21 in the same way as the gravity of death is much higher and this decision once taken is permanent and cannot be reversed.  The principle of sanctity of life is really important for the proponents of euthanasia but it cannot be used for interpreting the right to life to include right to die also.

The next case was of Naresh Matarao Sakhre v. Union of India14 where Lodha J. maintained the position set by the Gian Kaur case and differentiated between suicide and mercy killing on the basis of involvement of another person, deciding that mercy killing is always homicide, no matter the circumstances under which it is done.

The validity of section 306 and 309 of IPC was again upheld in the case of C.A. Thomas Master Etc. v. Union of India and Ors.15, where the court said that euthanasia is not permissible and on the same reasoning dismissed the request of the petitioner of practicing mercy-killing.

The next landmark case in this series was of Aruna Ramachandra Shanbaug v. Union of India & Ors.16 Here a petition was filed for seeking permission to withdraw the life sustaining treatment from a patient who was in permanent vegetative state for 37 years. The issues framed in this case by the court were

 Is withdrawing life sustaining treatment from a patient in permanent vegetative state permissible?  Should the previous wishes of patient to discontinue such treatment in case of permanent vegetative state be respected?

14 1995 Cri L.J. 96 Bom. 15 2000 Cri L.J. 3729 16 (2011) 4 SCC 454.

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 In absence of such previous wish, should family or friends be allowed to exercise to exercise such option on behalf of the patient?

The court while answering these issues emphasized on two important principles of patient autonomy and beneficence. Court defined autonomy as the recognition of the right of self determination wherein the competent patient as a right to make decisions with respect to the manner of his treatment, and in case the patient is incompetent hi surrogates have right tot do the same on his behalf. Beneficence was described as taking the decision in the best interest of the patient not influenced by any personal conviction or thinking. Court admitted that these two principles are to be cherished and followed.

The court said that there is a difference between active euthanasia and withdrawing treatment. While the former requires a positive act, the latter is merely an omission and as per the right to die with dignity under article 21 in the Gian Kaur case, it is legally allowed. There should be no question as to the legality of passive euthanasia as no one can be punished for not saving a person’s life.

Citing the Airedale case17 it was held that sanctity of life principle is not an absolute one and no one can be forcibly fed without his consent and in medical cases I a patient knows that he will never recover and the treatment will only prolong the suffering, then he has a common law right to ask for withdrawal of such treatment, which should be respected by the doctor. The principle of sanctity of life is to be balanced with the principles f self determination and best interest.

Court said that for this purpose, a patient is said to be dead not when he is completely dead, but when he is brain dead which is a situation where the entire brain including the brain stem cease to work irreversibly and differentiated the same from permanent vegetative state wherein the physical functions are stopped but the brain stems continue to work and the mechanical act of mere breathing would keep him alive. It is in the situation of permanent vegetative state that the question of consent arises because the patient is not able to communicate his wishes. The situation worsens where there is no living will; there the surrogates of the patient can take decision on his behalf. The court also authorized itself to decide in case of absence of surrogates and invoked the principle of parens patriae to endow itself with such powers.

17 (1993) ALL E.R. 82(H.L.)

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The court also said that the time has come for the parliament to delete the section 309 of the IPC as it has now become obsolete. A person who attempts suicide is already under depression or some other sort of suffering and if such person after surviving the attempt is punished by the law, then it would mean that he has been vexed twice which is not good. On this point, court overruled the Gian Kaur judgment.

With respect to euthanasia, the court decided that passive euthanasia should be legalized in India and also laid down certain guidelines which needed to be followed till the time parliament comes up with an effective legislation to the same effect, following are the guidelines provided by the court in cases where the patient is in a permanent vegetative state and is unable to convey his consent:

 Parents, spouse, children or next friend has to take decision in such situation.  Approval of high court is necessary to effectuate the above said decision.  Two judges bench should hear and decide on the issue when approached.  The High Court bench has to take suggestion o a three doctor committee made by it constituting a physician, psychologist and a neurologist.  The hospital, family and the state are to be informed about the constitution of committee.

After this case, the 241st Law Commission Report of India titled ‘Passive Euthanasia-A Relook’18 also suggested that passive euthanasia should be legalized in India. Pending the acceptance of this report, the euthanasia debate reached the next milestone in the courts.

The short lived legality of passive euthanasia came to an end on February 25th, 2015 when the Apex court while hearing a writ petition19 on the issue of permitting the living wills in India for the patients in permanent vegetative state to decide as to the question of continuance of medical treatment in those circumstances. The court said that the decision in Aruna case is not good as it misinterpreted the Gian Kaur judgment in sense of upholding the Airedale case. The Aruna judgment was declared to be inconsistent within itself as there the judges said that there needs to be a legislation for legalizing euthanasia and at the same time they laid down guidelines to be

18 241st Report of Law Commission of India, http://lawcommissionofindia.nic.in/reports/report241.pdf, (visited on May22, 2016 9:22 P.M.) 19 Common Cause v. Union of India, Writ Petition(civil) no. 215 of 2005

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followed for the execution of euthanasia. A constitutional bench was constituted to hear this petition further and is still pending before the same.

In another interesting case, the Rajasthan High Court in Nikhil Soni v. Union of India & Others20 upheld the Gian Kaur position and said that until the legislature removes section 309 from the IPC will remain in force and is a constitutionally valid provision. The court in this case equating the Jain religious practice of Santhara with suicide banned the same and said that any person practicing the same would be liable under section 309 of IPC and any person facilitating it would be liable under section 306.

5.4 PROPOED DRAFT BILL

In a latest development, the Indian parliament has proposed draft legislation with the name The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill21 for allowing passive euthanasia on May 9, 2016 and is open for public opinion till June 19, 2016. A bill with the same name was introduced in 2006 by the 196th Law Commission Report of India but was not approved. But after the Aruna judgment which allowed passive euthanasia, the 241st Law Commission Report again proposed a bill for passive euthanasia and it I on the recommendations of the same report that the present bill has been introduced by the parliament.

Salient features of The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016 are as follows:

 The preamble of the bill says that its aim is to immune the patients and medical staff from any criminal liability that may arise in case of withdrawing life support system.  Section 2(a) defines a living will as any directive given in advance by the patient to withdraw medical treatment in future.  Best interest has been meant to consider the social, moral, emotional and other interests of any incompetent person or a competent person unable to make an informed decision.

20 Civil Writ Petition no.7414/2006. 21 The Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical Practitioners) Bill, available at http://www.mohfw.nic.in/showfile.php?lid=3863 (last visited May 20, 2016 at 2:36 A.M.)

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 Incompetent person has been meant as a person who is less than 16 years of Age or is of unsound mind or is otherwise unable to take an informed decision about hi medical treatment or is unable to communicate the same.  Medical practitioner is to be taken as same under section 2(h) of the Indian Medical Council Act, 1956.  Medical treatment is to be taken as any medical service, surgurical or mechanical which is essential to continue the vital functions of life.  Patient is to be meant as a person who is suffering from any terminal illness.  Terminal illness has been defined as one which has resulted in permanent vegetative state and has left no meaning in the life to be lived for or it has made death imminent.  Section 3 gives the power to a competent person to take decision with respect to withdrawal of his medical treatment or to decide whether he wants any treatment to be started or not.  Section 4 requires the forming of a medical board comprised of medical expert from various areas of medical science.  Section 6 provides immunity from all criminal charges to the patient who decides to withdraw medical treatment and section 8 does the same for medical practitioners.  Section 9 makes it mandatory to take the permission of the concerned High Court before executing any decision of withdrawing the medical treatment and the High Court has to dispose the matter within one month.  Section 11 declares that the living wills are void and no directive given by the patient in advance is binding on the doctors.

The proposed bill is the same which was drafted by the 241st Law Commission Report,

5.5 RELIGIOUS PRACTICES AND RITUALS

Indian society is an essentially religious society and followers of almost all the religions live in India. The Eastern religions like Hinduism, Jainism, and Buddhism have a large following in India. 79.80% (96.92 crores) of Indian population is Hindu, 0.37% ( 44.52 Lakhs) follows

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Jainism and 0.70% (84.43 Lakhs) are Buddhist.22 As discussed in earlier chapter, these religions involve some practices of self destruction which can be equated to suicide and euthanasia. Practices like prayopavesa and santhara have been compared to suicide. With religions allowing such practices and law prohibiting them, there has sometimes arisen a situation of conflict between the two. It is relevant for our study to consider the legality of these practices and evaluate the scope of legality of euthanasia with respect to the same.

Indian constitution under article 25 provides for freedom of religion23and says that the freedom includes only those practices which are essential to the religious ideologies and beliefs. But this article is the weakest of all the fundamental rights provided under the constitution as it has been made subject to all other articles under part III of the constitution. if we look at the legality of religious practices which are considered as suicide or euthanasia then first of all we would have to see whether religious practice in essence is suicide or euthanasia or not. If the practice can be established to not to be suicide or euthanasia then the second question that arises is whether the practice is essential to religion or not.

Such a question arose before the Indian courts in the case of Nikhil Soni24 where it was argued that the Jain practice of santhara is suicide. The court said in its decision that the practice in essence is actually suicide and moreover this practice is not essential to the religion, hence is not protected by the article 25 of the constitution.

So, the lawmakers will have to keep in mind this religious aspect also because religious sentiments should be respected by the law and no legal hindrance should be produced in the path of religion. If any religious practice, which is essential to religion, but in essence is suicide then

22 All India Religion Census Data 2011, available at http://www.census2011.co.in/religion.php 23 23 Supra Note 1, Article 25, Freedom of conscience and free profession, practice and propagation of religion(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly

24 Supra Note 19.

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there will have to be a balance of interest between the two and it needs to be ensured in such situation that law plays its part in the legal arena only without transgressing into the religious field.

So, after analyzing the Indian judicial and legislative position we can say that the right to die is not a part of right to life in India. The Indian judiciary has taken contrary stands but at the end the picture is quiet clear that to allow euthanasia there is a need for the legislative interference and judiciary on its own cannot expand the horizons of article 21 wide enough to legalize euthanasia. The latest attempt by parliament to legalize euthanasia is commendable as by doing so we have shown a progressive sign by matching the practices of the developed western nations, but the fate of euthanasia legislation is still in doubt as it is only a proposed bill and has not still been accepted and enacted by the parliament.

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CHAPTER 6

CONCLUSION AND RECOMMENDATIONS

6.1 CONCLUSION For difficult issues like euthanasia, it is never easy to jump to any sound conclusion without considering all the factors that affect the decision making. This research work has made an attempt to cover all the major aspects of euthanasia and various elements like religion, ethics and morality to know the concept in depth and decide whether it can be legalized in India or not.

Morally it appears on the face that euthanasia is not permissible, which can be equated with murder and cannot be allowed. But when looked at in detail, it appears that there is some scope of legality. If seen from the patient’s point of view and the compassionate angle, euthanasia looks like a valid practice which may help people in avoiding unnecessary hardships by bringing a painless end to their lives. The humanist approach to euthanasia suggests that it is in the best interest of humanity to let people experience a painless end as per their wish rather than hopelessly suffering the burden of life without any pleasure and enjoyment.

After considering the religious aspect also, we can conclude that though almost all the religion preach the sovereignty of God in the field of death and he only has the authority to decide the way and time of exit of people, there are some religions, especially the eastern ones which have a huge following in India, which have a scope of allowing euthanasia as per their beliefs and ideologies. The majority religion of India, Hinduism has some practices which are similar to euthanasia and have been followed since ages, and then on the basis of same, it can be legalized in the present times also by bringing legislation.

The international trend also shows that the attitude towards euthanasia is changing. Many countries are introducing legislations to legalize euthanasia and people are using the provisions of the same to end their lives. International organizations also have started to approach this issue with a different angle now and have shown a lenient attitude towards it. It can be a signal that there may soon be signed an international treaty to include the euthanasia in the Human Rights.

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Indian legislative stand as of now is not euthanasia friendly, but the judicial response has been a bit in favour of it. The courts have now and then tried to include the ‘right to die’ in the ‘right to life’. The scope of the law should be expanded to fit to the changing social demands; a broader interpretation should be given to the Constitutional provision of right to life. There is a need to respect the religious beliefs also and give them the legislative recognition by making euthanasia laws which will enable the followers of religions to perform such acts which are allegedly equivalent to euthanasia. The proposed draft is a commendable step taken by the parliament to join the wave of change in the international legislative arena.

In the researcher’s opinion it is the need of the hour to make legislation to legalize euthanasia in India also, but before doing that we have to look into many things. While looking at the foreign legislation, we must appreciate the fact that majority of the nations which have legalized euthanasia, had already decriminalized the attempt to suicide which is not the situation here, so a simultaneous reconsideration into the legality of culpability of attempt to suicide is also required. Secondly, the socio-economic condition of these nations is much different than India; they are all developed nations with huge economic resources with the help of which the state is able to provide good medical and palliative care free of cost or at very reasonable prices. But in India, considering the size of the population it is not that easy for the government to take care of all the patients as the economic resources also are not that much. Thirdly, the societies in these countries are much more liberal than the Indian society; countries like Netherlands have been the front runner in expanding the horizons of personal liberty by allowing same sex marriages and their open attitude towards drugs. The societal setup is an important consideration, Indian society perceives things in a more traditional way and is not that open to such quick changes. Fourthly, we must also notice that death and old age in India are seen in a different light than in these countries. Indians believe in practice of looking after old aged patient and the aged also prefer to die at homes staying with their family, rather than at medical service centers. Lastly, most of the nations which have legalized euthanasia have followers of one or two religions only; India on the other hand has a multi religious society having followers of all the religions and out of them some religions are not at all amenable to euthanasia, at the same time others include practices which are similar to euthanasia. So before taking any legal step, it is necessary to settle the conflict of ideologies so that all the religious followers are satisfied. These all considerations are very important to make a law which can be really effective.

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The researcher would like to conclude that the proposed bill is a well formulated bill and covers all the important aspect of the issue. The parliament should after receiving the popular public opinion proceed with the acceptance of the same and formulate them into legislation.

6.2 RECOMMENDATIONS

After conducting the research, the following recommendations are proposed by the researcher:

1. There is a need to make people familiar with the concept of euthanasia. The popular negative notion associated with euthanasia that it is deliberate killing and is equal to murder needs to be changed. People are afraid that legalizing euthanasia would give endless power and discretion to take lives which in reality is not the situation. Various measures like awareness campaigns, seminars and advertisements need to be adopted to make people understand what euthanasia really is and how it is meant to operated. 2. There should be ethical training of the doctors and the Hippocratic Oath should be amended to allow the doctors to conduct euthanasia and removing the barriers of professional ethics. At the same time it should be ensured that doctor should not abuse the power and not unnecessarily hasten the patient’s death motivated by the personal benefits or the pressure from the relatives. 3. It is always possible that laws can be misused but this fear should not become a hindrance in passing of euthanasia law. What is to be seen is the overall utility of the law and its need in the society. Steps should be taken to assure that the law is not used in the ways not desired. One of the biggest concerns while passing euthanasia law is that relative in an attempt to inherit to the property early, may abuse the law and take decisions which are not in the best interest of the patient. A committee should be formulated to look into each and every case to assure that these factors do not motivate the decision. 4. Government should make provisions for better health care at more affordable prices so that no patient is under financial pressure during his illness and he does not decide to be euthanized just to save his family from financial burden. 5. The proposed draft for euthanasia should be converted into legislation and implemented.

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