Author: Rahul Charan, II Year of B.A.,LL.B from Gujarat National Law University.
Co-author: Mudrika Agrawal, II Year of B.Com.,LL.B from Gujarat National Law University.
Abstract
There are many countries where active euthanasia is legalized such as Netherlands, Belgium, Canada etc. while there are countries where only passive euthanasia is legalized such as India, and there are countries where euthanasia is completely illegal such as in Russia and Kenya. Euthanasia is widely debated and controversial topic.
A contentious topic has emerged: the euthanasia or "mercy killing" of terminally sick persons. Physician-assisted suicide (PAS) proponents believe that a person's autonomy inevitably gives him the right to select a painless death. The opponents believe that a doctor's involvement in someone's death contradicts a fundamental principle of the medical industry. Despite being illegal in our nation, PAS has a number of supporters in the form of non-profit groups like the "death with dignity" foundation. The recent honourable Supreme Court ruling in the Aruna Shaunbag case has given this some momentum. How long it will take for this delicate subject to ruffle the Indian legislative is still up in the air. This essay has covered the history of euthanasia law in India as well as its current position. We also talked about the legal situation of euthanasia in several nations, with an emphasis on Canadian legislation specifically.
Introduction
The phrase means "blissful death" since it is derived from the Greek words "EU," which means "euphoric" or "great," and "Thanatos," which means "death." The precise definition of euthanasia is "an intentional action conducted with the clear goal of ending a life, to relieve persistent suffering," according to the House of Lords Select Committee on Medical Ethics.
The "painless encouragement of a rapid death" is how euthanasia is now defined. This method, it is said, falls short of providing a comprehensive definition of euthanasia since it leaves open the possibility of doing a variety of actions that would satisfy the definition's criteria yet not be considered euthanasia. These specifically include instances in which someone murders another person without suffering, but only for selfish gain; or rapid, painless deaths that are not purposeful.
What is euthanasia?
The deliberate taking of a life, usually to end suffering, is known as euthanasia. On occasion, doctors will perform euthanasia at the request of terminally sick patients who are in excruciating pain. It's a complex process that calls for striking a balance among numerous factors. Local laws, a person's health—both physical and mental—as well as their personal beliefs and preferences—all have an effect.
There are several types of euthanasia. The choice is made depending on a variety of factors, including a person's attitude and level of consciousness.
Assisted suicide vs. euthanasia
Another word for assisted suicide is physician-assisted suicide (PAS). PAS stands for purposeful patient assistance in ending their life. This person most likely has persistent, excruciating pain. They could have also been informed that they had a terminal illness. Their doctor will select the most effective, painless technique.
Patients are regularly given drugs by doctors that they can use to end their life Reliable Source. For this, a lethal number of opioids, for example, may be given. In the end, it is up to the person whether or not to take the medication.
Through euthanasia, a doctor is allowed to terminate a patient's life without pain. For instance, a deadly pharmaceutical injection might be used.
Active vs. passive
Most people imagine a doctor killing someone in front of them when they think about euthanasia. Active euthanasia is what is meant by this. Giving a person a deadly dosage of a sedative on purpose is seen as active euthanasia.
Passive euthanasia can be defined as the withholding or restriction of life-sustaining treatments with the intention of speeding up a person's demise. Additionally, a doctor could advise taking painkillers in increasingly greater doses. The doses might ultimately become hazardous. As a result, it might be challenging to discern between passive euthanasia and palliative care. Making patients as comfortable as possible as they approach death is the aim of palliative care.
For instance, a physician who specialises in palliative care may permit a patient who is nearing death to cease using a drug that has unfavourable side effects. When treating severe pain, they may in other circumstances let a patient to take a painkiller at a significantly larger dose. Good palliative care frequently includes this as routine practise. Many do not think it to be euthanasia.
Voluntary vs. nonvoluntary
Voluntary euthanasia is when a person decides to ask for assistance in terminating their life voluntarily. The individual must express complete comprehension and affirm their unwavering permission.
Nonvoluntary euthanasia involves a third party making the choice to end a person's life. A close relative usually makes the decision. This is frequently carried out when a person is completely asleep or permanently disabled. It often involves passive euthanasia, such as turning off a person's life support if they show no signs of brain activity.
Indian status
There has been a lot of discussion over this subject in India. The first mention of euthanasia was made in the “Law Commission of India's Report No. 42” in 1971, which for the first time advocated the removal of Section 309 of the Indian Penal Code, 1860. Further, the Bombay High Court ruled in “State of Maharashtra v. Maruti Sripati Dubal” that the right to diel was included in the right to life. Additionally, it made a distinction between euthanasia and suicide, stating that the former refers to an act carried out by a third party while the latter included an act carried out by the individual themselves. The Court affirmed that
“Mercy-killing thus is not suicide and an attempt at mercy-killing is not covered by the provisions of section 309. The two concepts are both factually and legally distinct Euthanasia or mercy killing is nothing but homicide, whatever the circumstances in which it is affected. Unless it is specifically excepted it cannot but be an offence.”
In this instance, the court made it quite obvious that the right to die is not against nature; it's just unusual and deviant. In contrast, the court ruled in “Chenna Jagdeshwar v. State of AP” that the right to die is not protected by article 21. The court in “P. Rathinam v. Union of India” adopted the rationale in Maruty Dubal case and declared that article 21 contained the right not to lead a coerced life that is harmful, unfavourable, or despised by someone.
However, the Supreme Court's five-judge panel, ruled in the case of “Gian Kaur v. State of Punjab” that the "right to life" protected by Article 21 of the Constitution did not include the "right to die." In this instance, the court made it quite apparent that Article 21 can never contain the right to die and solely guarantees the rights to life and personal liberty. The court stated that
“Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life be read to be included in protection of life. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the right to die as a part of the fundamental right guaranteed therein. Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life.”
Additionally, they made a distinction between euthanasia and suicide and argued that the former involves taking the life of someone who is already terminally sick or in a PVS. They said that euthanasia does not result in an unnatural termination because the course of dying has already begun; it only speeds up this natural death process. They maintained that a patient whose "life is ebbing out" may have the right to a dignified death as part of their right to a dignified existence.
“The right to life including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the right to die with dignity at the end of life is not to be confused or equated with the right to die an unnatural death curtailing the natural span of life.”
So, in Gian Kaur, the court accepted the right to a dignified dying, particularly for individuals with incurable illnesses, but it did not specifically rule on euthanasia, whether it be active or passive. Just the legitimacy of anti-suicide laws was their main concern.
About ten years later, in 2006, the Law Commission of India released its 196th Report on terminally ill patients, which advocated for the legalisation of "passive euthanasia" under very strict and restricted conditions. The Report made it clear that physician-assisted suicide and euthanasia would both remain illegal, and it solely addressed how to safeguard terminally ill individuals who are in a chronic vegetative condition with no possibility of recovery. In such a situation, the patient can voluntarily request—subject to certain safeguards—the termination of the support system, hastening his death. This request can be made verbally or in writing. The doctors caring for such a patient have a duty to fully disclose to him his condition and prospects for the future, and they also have a duty to maintain him on life support against his choice. According to the Report, this request is given as a binding instruction from the terminally ill patient to the doctor, and the doctor who complies with such patient instructions is protected from liability under Section 306 IPC. Additionally, in circumstances when the patient is incompetent, the nearest friend must obtain a necessary High Court clearance before putting the patient's life support into force.
The Supreme Court took into account the entire discussion in the famous case of “Aruna Ramchandra Shanbaug v. Union of India”, where despite the fact that the aforementioned Report was rejected, passive euthanasia was still made legal under the rules laid out there in without the any legislation. However, active euthanasia is completely prohibited from being legalised under the current laws until and unless Parliament passes a specific law in this respect. The court determined that it would not be illegal to passively hasten death by refusing medical support in situations where the patient's natural death had already begun or the patient was in a permanent vegetative state. In this case, the court considered whether there was a requirement to prolong the patient's life when they were suffering from a fatal illness rather than their right to die. It established the following controls and safeguards that must be followed to prevent the misuse of this assistance, especially prohibiting participation by third parties in decision-making.
The patient's legal guardians, partner, or other close relative or friend must be the one making the decision to stop using any treatments that extend the patient's life.
The High Court's approval is required since relatives may consent to receiving inheritance advantages.
after consulting a panel of three medical professionals, two judges of the high court will make the decision.
Regarding active forms of euthanasia, the Court concluded that they are unquestionably crimes punishable under Section 302 or at least 304 IPC when carried out by anyone, and Section 306 when carried out by a medical professional as physician assisted suicide (PAS). According to the Court, unless the legislature passes a statute making it lawful, active forms of euthanasia must stay illegal. Therefore, in the case at hand, the Court rejected its constitutionality because it would amount to "constitutional cannibalism," "judicial murder," and the fear of being abused by dishonest people to inherit property, among other things.
In “Common Cause v. Union of India”, the appellant society filed a writ petition asking that Article 21's protection of the "right to live with dignity" be expanded to include the "right to die with dignity" as a fundamental right. The Constitutional Court undertook a difficult task in this case by establishing the right to die with dignity as a basic freedom and an essential element of the right to live a life of dignity as guaranteed by Article 21. It established a comprehensive system to safeguard the dignity of those who are terminally sick and those who are in PVS with little chance of recovery, and in this context, it legislated advance medical directives (AMD), appointed health attorneys, and established regulations to enforce passive euthanasia. As long as no legislation is passed on the subject, this will be the law on euthanasia. Several contradictions in the Aruna Shanbaug case were also examined by this court. In the Common Cause case, the constitutional court expanded the scope of euthanasia permitted in the Aruna case by incorporating the idea of a living will, which allows people to specify in writing the kind of medical care they should receive in the event that they become incapacitated and incurably ill.
Canadian law and comparison with India
A new federal law establishing a legal framework for medical help in dying in Canada went into effect on June 17, 2016. If the qualifying requirements are satisfied and the procedural protections are fulfilled, medical help in dying is permitted under this law. The following are the eligibility requirements:
(1) Only those who meet all of the following requirements may receive medical assistance in dying:
“(a) they must be at least 18 years old and capable of making decisions about their health;
(b) they must have a severe and terminal illness;
(c) they must have made a voluntarily request for such assistance and, in particular, they must not have done so in response to outside pressure; and
(d) they must have given informed consent to such assistance.”
(2) Only if a person meets all of the following requirements does that person have a grievous and irremediable medical condition:
“(a) they have a serious and incurable illness, disease, or disability;
(b) they are in an advanced stage of irreversible decline in capability;
(c) that illness, disease, or disability or that state of decline results in them experiencing physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider reasonable;
(d) Without necessarily having been given a prognosis on the precise amount of time they have left, their natural death has become reasonably foreseeable in light of all of their medical circumstances.”
The key procedural safeguards are as follows
(3) Before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must
“(a) be of the opinion that the person meets all of the criteria set out in subsection ;
(b) ensure that the person’s request for medical assistance in dying was made in writing and signed and dated by the person or by another person under subsection (4); signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition;
(c) be persuaded that the person signed and dated the request, or that another person did so in accordance with paragraph (4), in the presence of two impartial witnesses who later subsequently signed and dated the request.
(d) make sure the individual is aware that they have the right to withdraw their request at any moment and in any way;
(e) make ensuring that a different doctor or nurse practitioner has given a written assessment verifying that the individual satisfies the requirements stated in paragraph (1);
(f) be confident in their independence and the independence of the other medical professional or nurse practitioner mentioned in the preceding paragraph;
(g) ensure that there are at least 10 clear days between the day the request was signed by or on behalf of the person and the day medical assistance in dying is provided, or if they and the other doctor or nurse practitioner mentioned in paragraph (e) are both of the opinion that the person's death or the loss of their capacity to provide informed consent is imminent, any shorter period that the first doctor or nurse practitioner mentioned in paragraph (e) is of the opinion that the person's death, or the loss of their capacity to provide informed
(h) provide the individual the option to cancel their request for medical help in dying just before administering it, and make sure they have given their explicit agreement to accept it;
(i) If the individual has trouble communicating, take all necessary steps to provide them a dependable way to grasp the facts given to them and express their choice.”
The Ministers of Health and Justice are required by law to conduct impartial assessments of requests made by adults who are still minors, requests made before a person loses their capacity, and requests made by individuals whose sole underlying medical condition is mental illness. The evaluations must start by December 18, 2016, according to the Ministers. The Ministers must lay the final reports of the reviews before both Houses of Parliament not later than two years from the commencement of the reviews.
It would create a two-track system for determining eligibility. One is for individuals who are terminally sick, while the other is for those who are not. Both tracks of patients must show that their pain is "intolerable." Under the proposed law, those who just have mental ailments would not be eligible.
India, in contrast, has no laws governing euthanasia. The Supreme Court permitted passive euthanasia in Aruna Ramchandra Shanbaug v. Union of India, however the constraints in that decision are rather stringent, and we need further legal clarity. The Court came to the inevitable conclusion that active forms of euthanasia are crimes punishable under Section 302 or at least Section 304 of the Indian Penal Code when perpetrated by anybody, and Section 306 when performed by a medical professional as physician assisted suicide (PAS). India could pass legislation that would define the nation's attitude on euthanasia and be somewhat modelled after Canadian law.
Limitation of Canadian law According to experts, there are various legal restrictions that might result in abuse of the law. For instance, a two-track system for establishing a person's eligibility would be created. There are two tracks: one for those who are terminally ill and one for those who are not. Patients in both tracks must demonstrate that their suffering is "intolerable." People who just have mental illnesses would not be eligible under the proposed legislation.
A veteran with traumatic brain injury and post-traumatic stress disorder recently claimed that he felt compelled to explore assisted suicide after a Veterans Affairs Canada official repeatedly brought up the subject, even though the veteran had not previously indicated any intention to end his life. The veteran told Global News that despite his rejection of euthanasia as a choice, the federal official persisted in suggesting it.
Hospital staff members are nevertheless permitted by Canadian law to attempt to persuade patients that assisted suicide is a viable option for them. Patients must be able to offer "informed consent" and must get all the information they require, including details about their health, potential therapies, and methods to lessen suffering. However, it does not call for a third party to determine whether the patient is really giving informed permission or whether they feel coerced into accepting a suicide death.
Conclusion
In Francis Coralie Mullin v. The Administrator, the Supreme Court made a significant advancement when it argued that Article 21 means more than just "animal existence." It entails acting with respect for others' dignity.
Euthanasia is difficult to accept in India because our philosophy of life does not support the tradition of escapism, which states that life is a struggle and that it should be fought with the courage and spirit of a war. Death is not seen as frightening in Indian culture, but rather as an inevitable event that should be faced courageously. A fresh attitude toward mortality may be what the congested world of today needs.
Prof. Upendra Baxi claims that respect for a person is based on the value of liberty and the ability to make decisions, and that a decent social system is one in which dignity is upheld by enabling settings to exercise free will and informed decision-making. Despite the fact that neither the constitution nor any laws provide a definition for the word "dignity," we may nevertheless demonstrate how essential it is to Article 21 by examining the court's interpretations. Giving someone less respect towards the end of their life would deprive them of a worthwhile existence. Individuals' autonomy and right to decide for themselves whatever medical procedure to undergo would be considered a meaningful sustenance. Respect for an individual, especially their right to choose how they must conduct their lives, is equivalent to their right to self-autonomy or self-governance. It is the right against non-interference by others that grants a capable individual who is of legal age the freedom to make decisions for his being and body without interference or control from others. Individuals have the right to self-governance and autonomy, which includes the choice of whether and to what extent they are willing to submit themselves to medical treatments, choosing between alternative procedures, or in this case, choosing to have no procedure at all, as long as their understanding is consistent with their own personal principles and desires. But whether the right to die, as part of article 21, is unrestricted or subject to reasonable limitations, is a crucial question that hasn't been answered. The conditions surrounding the definition of "dignity" must be clearly stated, especially when this right entails the decision to end one's life. Without a clear mention of the reasonable restrictions affecting this freedom, the constitutional court's good intentions in upholding this decision may be ineffectual.
"If there is no chance of a patient recovering, it is only humanitarian to enable him to put an end to his anguish and suffering in a dignified manner," said Dr. B. K. Rao, head of Sir Ganga Ram Hospital in New Delhi. "If it is established that the treatment is proving to be futile, euthanasia is a practical option for lessening the misery of patients."
Realizing that all life ends require us to draw the line between what must always be done to protect life and what is morally wrong with using exceptional measures to prolong the inevitable process of dying. It will be challenging to identify the precise moment when "life" is no longer being maintained but rather being prolonged. The right to die with dignity must be greater than the right to live with dignity.
REFERENCES
1987 (1) BomCR 499, (1986) 88 BOMLR 589
Chenna Jagadeshwar v State of Andhra Pradesh 1988 Cr LJ 549 67
P. Rathinam v. Union of India, (1994) 3 SCC 394
Gian Kaur v. State of Punjab, (1996) 2 SCC 648
Canada H, “Government of Canada” (Canada.caJuly 26, 2022) < https://www.canada.ca/en/health-canada/services/medical-assistance-dying.html> accessed August 13, 2022
Holland K, “What Is Euthanasia? Types, Legal Status, Facts, Controversy, and” (HealthlineJune 1, 2019) < https://www.healthline.com/health/what-is-euthanasia> accessed August 11, 2022
Kashyap S, “Article 21 and Euthanasia” (The Daily GuardianJanuary 13, 2022) < https://thedailyguardian.com/article-21-and-euthanasia/> accessed August 10, 2022