Author: Md Shah Minhajuddin, pursuing B.A.LLB (H) from St. Xavier's University, Kolkata
The concept of euthanasia came to light when Italian disc jockey Fabiano Antoniani lost his life after an assisted suicide procedure in Switzerland[i]. In 2018 in Common Cause vs. Union of India and others, Supreme Court legalised passive euthanasia which flares up the euthanasia debate[ii]. Euthanasia is often under debate because it cuts across the complex and dynamic aspects of civilised society and is often confused with suicide. The concept of suicide and euthanasia is quite different but the purpose is the same that is self-destruction.
The word euthanasia appears to have come into usage in the early 17th century by Francis Bacon and was used in the sense of ‘easy, painless and happy death’. The term is derived from the Greek ‘Euthanatos’, with ‘EU meaning well, and ‘Thanatos meaning death. According to Black’s Law Dictionary (8th edition), euthanasia means the act or practise of killing or bringing about the death of a person who suffers from an incurable disease or condition, esp. a painful one, for reasons of mercy. Encyclopedia of ‘Crime and Justice’, explains euthanasia as an act of death that will provide relief from a distressing or intolerable condition of living[iii]. In the modern context, euthanasia is limited to the killing of patients by doctors at the request of the patient to free him of excruciating pain or from a terminal illness. Thus the basic intention behind euthanasia is to ensure a less painful death to a person who is, in any case, going to die after a long period of suffering.
Forms of Euthanasia
Euthanasia can be classified in five(5) ways. Each form brings a different set of pros and cons.
Active Euthanasia -Act of Commission by the doctor
Example - When a person is killed by being given an overdose of painkillers.
Passive Euthanasia - Act of Omission by Withdrawing or Withholding of treatment
Example of withdrawing treatment - Switching off a machine that is keeping people alive, so that they die of their disease.
Example of withholding treatment -Not carrying out surgery that will extend life for a short time.
Voluntary Euthanasia -With the consent of the patient whose life is being terminated
Involuntary euthanasia - Non-voluntary euthanasia occurs when the person is unconscious or incapable of deciding between life and death. Hence decision is generally taken by someone else on their behalf. It amounts to murder
Indirect euthanasia -Providing treatment (usually to reduce pain) that has the side effect of speeding the patient's death.
Assisted suicide - Cases where the person who is going to die needs help to kill themselves and asks for it.
Example -Getting drugs for the person and putting those drugs within their reach.[iv]
The concept of euthanasia is under debate for a long period of more than 3000 years in respect of medical, legal, philosophical and theological literature. Its origin can be traced back to the Hellenistic Era. In ancient Greece and Rome assisting others to die or putting them to death was considered lawful in certain situations. For example, infanticide was a common practice in Sparta and it was managed and organised by State. Voluntary euthanasia has seemed a custom in various ancient society.
Many ancient texts including the Bible, the Koran and the Rig-Veda mention self-destruction or suicide. A lot of instances of religious suicides is evident in The Mahabharata and the Ramayana. Suicide was generally seen as a last resort of alternative to extreme or prolonged suffering by the ancient Egyptians and Roman but as society progressed and Christianity spread suicide began to be seen as a sin since one couldn’t repent for sin after committing suicide it was implied that he would go to hell as a result. The first objection of euthanasia was proposed by Hippocratic Oath which says “I will not administer poison to anyone when asked to do so, nor against such a course.” Islam also clearly criticized the concept of euthanasia. Koran clearly states that God is the only one who creates and the only one who takes it away.
The first recommendation of euthanasia come into the 16th century by Thomas Morus where he says, “ when there is no cure and a patient suffers too much, the patient should be convinced to die. The patient should realise that his illness is incurable, he is a burden to others and his suffering causes pity for people around him .”Afterwards, his idea was backed by English philosopher Francis Bacon and French surgeon Ambroise Pare.
The first legal source of euthanasia was seen in Prussia in the XVIIIth century. It was passed on 1st June 1794 and a person who killed a patient with an incurable terminal intention but was punished as a guilty man. Afterwards, academics such as Reil, Marx and Ruhlfs explained euthanasia as birth soul and demanded independent investigation for this subject.[v]
Gandhiji’s view on passive euthanasia
In 1928 a calf in Gandhiji’s ashram was suffering from severe pain despite every possible treatment condition the calf didn’t enhance so Gandhiji after consulting with a doctor decided to put an end to the calf’s life via lethal injection.
Gandhiji also advocated the concept of voluntary euthanasia, non-voluntary euthanasia, involuntary euthanasia, as well as passive euthanasia, active euthanasia, physician-assisted euthanasia and the rejection or ‘termination of treatment’ without mentioning the term euthanasia
The judgment says Gandhi was of the view that to put “an end to the suffering of a patient who is in an unconscious state” would not amount to “himsa (violence)” Hence Gandhiji supported passive euthanasia.[vi]
Legal Aspect Of Euthanasia In India
Section 309 of the IPC criminalises attempted suicide and suicide assistance. In Maruti ShriPati Dubal v. State of Maharashtra and P. Rathinam v. Union of India & Anr Supreme Court said Section 309 was unconstitutional. On 1st May 1992, in Maruti ShriPati Dubal v. State of Maharashtra, Supreme Court held that section 309 was a violation of Article 14 and 21 of Constitution of India and on 26 April 1994 in P. Rathinam case, the Supreme Court held that the “right to die” is a right enshrined under Article 21 of the Constitution. Both the decisions of the Supreme Court were overruled by a five-judge bench of the Supreme Court in Gian Kaur v. State of Punjab. In Gian Kaur v. State of Punjab is well settled that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die .”[vii]
In 2005 PIL was filed by NGO Common Cause to a robust system of certification for passive euthanasia and legal recognition for living will in India. In 2018 Supreme Court gave a landmark judgement legalise passive euthanasia and living will. It also stated that the “right to die with dignity” is a right enshrined under Article 21 of the Constitution[viii]. Aruna Shanbaug case was also an important case regarding euthanasia before Common Cause vs Union of India.
Aruna Shanbaug case
In 1973 Aruna Shanbaug, a nurse, was sexually assaulted by a worker at the KEM hospital in Mumbai. She was strangled with chains and deprivation of oxygen left her in a vegetative state. She was treated at KEM following the incident and was kept alive by a feeding tube for 48 years until in 2015 she lost her breath due to pneumonia.
In 2009, Pinki Virani filed a petition in the Supreme Court Of India on behalf of Aruna Shanbaug. She argued that the continued existence of Aruna violates her right to live in dignity.
On 7th March 2011, Supreme Court issued a set of guideline to legalise passive euthanasia in India. Guidelines are :
1) the decision to withdraw treatment, nutrition, or water—establish that the decision to discontinue life support must be taken by parents, spouse, or other close relatives, or in the absence of them, by a "next friend".
2) The decision also requires court approval.
In this case, a close friend was referring to the nurses of KEM hospital, not Pinki because nurses of KEM hospital was taking care of her for more than 40 years and they decided not to euthanize her hence Supreme Court decided to reject her plea to allow her to die.[ix]
Status Of Euthanasia In Different Countries
The laws of euthanasia and the practice of euthanasia has gained importance throughout the world.
In Canada, patients have the right to refuse life-sustaining treatments but they do not have the right to demand euthanasia or assisted suicide. In Canada, physician-assisted suicide is illegal as per section 241(b) of the Criminal Code of Canada.
In 1991 Sue Rodriguez was diagnosed with Lou Gehrig's disease and in 1992 she demanded legislature to decriminalise assisted suicide but Supreme Court denied it and said that “in the case of assisted suicide the interest of the state will prevail over individual’s interest”.In 1994 she committed suicide with the help of an anonymous doctor.[x]
On 17 June 2016, Bill C -14 was passed in Canada’s parliament to legalise euthanasia to end the suffering of an ill terminal patient
In April 2002, Netherlands became the first European country to legalize euthanasia and assisted suicide. Euthanasia in the Netherlands is regulated by the "Termination of Life on Request and Assisted Suicide (Review Procedures) Act", 2002 but Court permitted euthanasia since 1984[xi]
The Belgian Parliament legislation ‘Belgium Act on Euthanasia’ was made euthanasia legal in May 2002 which is quite similar to that passed in the Netherlands.[xii]
Article 115 of the Swiss Penal Code state that suicide is not a crime and assisting suicide is a crime only if the motive is selfish.
In England, the House of Lords in Airedale NHS Trust v. Blandpermitted nonvoluntary euthanasia in case of patients in a persistent vegetative state[xiii]
Only three states of the USA (Oregon, Washington and Montana) have legalised passive euthanasia.[xiv]
In every seed of good, there is always a piece of bad and the Euthanasia is not an exception. The world is full of choices when it comes to death. There are a lot of options too but humans are not good about talking about all the options like people who want to die peacefully.
The argument against suicide was first debated by philosopher Socrates, he said a man, “who is one of the god's possessions, should not kill himself 'until the godsends some compulsion upon him, as he sends compulsion on us at present” As time progresses a lot of social changes taken place like divorce and contraception is available in contemporary society. We all know that human life is sacrosanct and to exterminate one’s life is inappropriate but under certain medical circumstances that somebody should have the right to take their own life. In June 2015 Belgium ruled that a healthy 24-year-old woman suffering from depression qualifies for euthanasia. In California, a woman with painful lung cancer has sued the state to allow her to commit suicide. Some countries have a law criminalising suicide others have laws allowing euthanasia .so people have the right to die well.
Death with dignity is becoming a global movement and more important a global conversation. In the jurisdictions that permit this humane option to have strict limits on who can access it and it tries to ensure that individuals are protected against any coercion. Most jurisdiction that permitted passive euthanasia requires two or more doctors to examine, review and ensure that individual is fully informed and acting voluntarily. It’s time to give people the choice that they want and they deserve
The point of view can be concluded from the movie “Anand” that Babumoshai….. Zindagi lambi nahi badi honi chahiye…..
[i] Peter walker; ‘Paralysed Italian DJ takes own life in Swiss clinic after fruitless euthanasia campaign in his native country’, Independent(the United Kingdom, 1st March 2017, 13.01),<https://www.independent.co.uk/news/world/europe/paralysed-italian-dj-fabiano-antoniani-euthaniasia-switzerland-clinic-forch-take-own-life-camapigning-assisted-suicide-a7605151.html>, last accessed on 18 September 2020
[ii]<https://nhrc.nic.in/press-release/important-judgment-supreme-court-india-1#:~:text=215%20of%202005%20%2D%20Common%20Cause,execute%20an%20advance%20medical%20directive.&text=The%20judgment%20has%20paved%20the,under%20a%20%22living%20will%22.>,last accessed on 18 September 2020
[iii] Brody, Baruch. (1998). Life and Death Decision Making, New York; Oxford University press
[iv]‘Ethic Guides’, BBC (UK)<http://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml>, last accessed on 18 September 2020
[v] Aysegil Demirhan Erdemir, “A short history of euthanasia laws, and place in Turkish law”<https://www.eubios.info/EJ112/EJ112F.htm>last accessed on 18 September 2020
[vi] Ananthakrishnan G,” Euthanasia: Supreme Court order draws on Gandhi’s view “The Indian Express(New Delhi, 11 March 2018, 5:55:15 am )<https://indianexpress.com/article/india/euthanasia-supreme-court-order-draws-on-gandhis-views-5093556/>last accessed on 18 September 2020
[vii]“Landmark Judgement-SC Allows Passive Euthanasia and Living Will, Issues Guidelines”, Vakilnol.com(India,9 March 2018<https://www.vakilno1.com/legal-news/sc-allows-passive-euthanasia-living-will.html>last accessed on 18 September 2020
[viii] Common Cause (A Regd. Society) vs Union Of India, (2018)writ petition (civil) no.. 215 OF 2005
[ix] Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454
[x]‘Euthanasia is illegal in many countries’, Deccanherald(New Delhi,7 March 2011,18:33 IST),<https://www.deccanherald.com/content/143907/euthanasia-illegal-many-countries.htmlhttps://www.deccanherald.com/content/143907/euthanasia-illegal-many-countries.html>, last accessed on 19th September 2020
[xi]‘Euthanasiain Netherlands’, Alliance Vita(24 November 2017),<https://www.alliancevita.org/en/2017/11/euthanasia-in-the-netherlands/#:~:text=Euthanasia%20has%20been%20legal%20in,euthanasia%20has%20more%20than%20tripled.> last accessed on 19th September 2020
[xii] ‘Euthanasia is illegal in many countries’, Deccanherald(New Delhi,7 March 2011,18:33 IST),<https://www.deccanherald.com/content/143907/euthanasia-illegal-many-countries.htmlhttps://www.deccanherald.com/content/143907/euthanasia-illegal-many-countries.html>, last accessed on 19th September 2020
[xiii]Law teacher‘Airdale NHS Trust vs Bland’,(the UK, 18th June 2019).<https://www.lawteacher.net/cases/airedale-nhs-trust-v-bland.php>=Euthanasia%20has%20been%20legal%20in,euthanasia%20has%20more%20than%20tripled.> last accessed on 19th September 2020
[xiv]Vinod Srivastava, ‘ Euthanasia: a regional perspective ‘, NCBI( US, July 2014)<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4158780/>, last accessed on 19th September 2020