Euthanasia And The Indian Legal Framework : A Critical Analysis

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Death is not the greatest of evils,

It is worse to want to die

And not be able to.

                                                                              -Sophocles [1]

MEANING, CONCEPT AND GLOBAL POSITION OF EUTHANASIA

School of thoughts: Protagonist vs. Antagonists

An ethicist Michael Manning, defines voluntary euthanasia as “intentionally administering medications to cause the patient’s death at the patient’s request and with full, informed consent”.[2]He defines involuntary euthanasia as “intentionally administering medication to cause the patient’s death without the patient’s request and full, informed consent”.[3] Besides these two kinds of euthanasia, there is another possible situation, i.e. when the patient is incapable of expressing his or her will like in the case of children or patients in coma or vegetative state. In these types of cases, their position is not known and their euthanasia is called as non-voluntary euthanasia because the decision is made on behalf of the patient with the presumption that euthanasia is in the best interest of the patient.[4]Also there is a considerable difference among the terms orthothanasia, euthanasia and dysthanasia. The term ‘orthothanasia’ means correct death (ortho: right, thanatos: death). This means not prolonging artificially the death process beyond what would be the natural process. Disthanasia is opposite of orthothanasia, as it aims to extend life at any cost, even if the patient suffers. Since this practice extends patient’s agony without any expectation of healing or improvement in their quality of life, it is looked down upon. Euthanasia falls in between these two terms.[5] It is also important to note here that there is a difference between euthanasia and suicide. Suicide, as mentioned in oxford dictionary, means an act of killing yourself deliberately.[6]

There is a discussion among the medical and moral philosophy literature on whether or not or not the non-voluntary or involuntary killing of persons is considered putting to death, regardless of consent. Some say that consent is not thought-about to be one in every of their criteria but others see consent as essential. According to them killing of a person without the person’s consent (non-voluntary or involuntary) is not euthanasia. It is murder and hence euthanasia can be voluntary only.

There is no kill unless the death is deliberately caused by what was done or not done. Thus, some medical actions typically levelled as ‘Passive Euthanasia’ aren’t any kind of kill, since intention to require life is lacking. These acts embrace not commencing treatment that may not offer a profit to the patient, retreating treatment that has been shown to be ineffective, too onerous or is unwanted, also the giving of high doses of pain-killers that will endanger life, after they are shown to be necessary. All those area unit a part of sensible practice, supported by law, after they area unit properly dole out. Antagonists believes that death is not a right however associate finish of all rights and a fate that none people will escape the final word right we’ve got as citizenry is that the right to life, an inalienable right not even the one that possesses it will never take that away. The care here is extremely abundant almost like the actual fact that our right to liberty doesn’t provide North American country the liberty to sell ourselves into slavery. Dying in a very dignified manner relates to however one confronts death, not the style within which one dies since history recounts several things of people facing degrading deaths in a very dignified way. Whereas on the opposite side, the purpose of read of protagonists is that the correct to ‘die with dignity’ maybe a ethical right and typically it’s humane to die than to measure.

KEY ISSUES INVOLVED IN EUTHANASIA

No man is an island. Therefore, no person makes the decision to end life in isolation. There is a need of consideration of the effect of personal decisions on others now living and future generations.[7]

Another major issue is related to the medical research because the whole system is threatened when the focus shifts from curing the individual to killing the individual.[8] The World Health Organization has recommended that the governments should not consider assisted suicide and euthanasia until they demonstrate the availability and practice of palliative care for their citizens. The anti-euthanasia lobby is of the view that if it is allowed then it will compromise and undermine the relationship between a doctor and the patients. They are also of the view that many elderly people may feel great pressure to request euthanasia because of the feeling that they are burden on their family and society.[9] On the other hand, the pro-euthanasia lobby talks about the ‘autonomy’ and ‘choice’ of an individual. But the truth is that if euthanasia is legalized then there are chances that the ‘autonomy’ and ‘choice’ of an individual, advocated by these pro-euthanasia lobbies, are likely to be compromised.

Moreover, legalizing euthanasia – like capital punishment – has the power to brutalise society. There may be chances that involuntary euthanasia can be shown as voluntary euthanasia. On the other hand, it is also argued that merely because the concept of euthanasia might be expanded beyond the scope, originally intended, cannot be a ground for justifying the discontinuation of further inquiry and debate or a blanket prohibition of the practice. It will not be a wise decision to prohibit euthanasia based on purely emotive arguments which hint at the potential for future abuse. Despite this fact there is an uncontrollable expansion of this practice. So, there is a need to strike a balance between the two views. Even those who strongly oppose the idea of legalizing euthanasia are of that view that this practice can be safely and legitimately allowed, provided it is subject to sound guidelines and regulations.

The other major religious issue that is involved in the debate on euthanasia is the principle autonomy. The pro-euthanasia lobby says that “autonomy or self-determination is the right of a person to control his or her body and life decision.”[10] The proponents of this view believe that autonomy includes the freedom to choose the final exist. They claim that to prohibit voluntary euthanasia is the same as not to respect the freedom of those patients who wish physician’s assistance in their dying moment.[11] Euthanasia is justified on the basis of personal autonomy of an individual who is suffering from unbearable pain and for whom medication has no more effect to relieve the suffering.On the other hand, the opponents of euthanasia base their opinion on the Christian perspective of freedom and right which implies: “Everyone does have the right to life, but this right is not an absolute right because as life is given by god as a gift, there is no absolute autonomy: we are stewards of life”.[12] They are of the view that since life is a gift from god, everyone has the obligation to live his/her life in accordance with god’s plan.

The High Court of Rajasthan in the recent case of Nikhil Soni v. Union of India & Ors.[13] held, “We do not find that in any of the scriptures, preachings, articles or the practices followed by the Jain ascetics, the Santhara or Sallekhana has been treated as an essential religious practice, nor is necessarily required for the pursuit of immortality or moksha. There is no such preaching in the religious scriptures of the Jain religion or in the texts written by the revered Jain Munis that the Santhara or Sallekhana is the only method, without which the moksha is not attainable. There is no material whatsoever to show that this practice was accepted by most of the ascetics or persons following the Jain religion in attaining the nirvana or moksha. It is not an essential part of the philosophy and approach of the Jain religion, nor has been practiced frequently to give up the body for salvation of soul. It is one thing to say that the Santhara or Sallekhana is not suicide as it is a voluntary act of giving up of one’s body for salvation and is not violent in any manner, but it is another thing to say that it is permissible religious practice protected by Articles 25 and 26 of the Constitution of India.”

The effect of the writ petition was that the Rajasthan High Court held that Santhara or Sallekhana is an offence under section 306 and 309 of The Indian Penal Code, 1860 and directed the state to stop and abolish its practice in Jain religion, in any form. However, the Supreme Court stayed the above order of Rajasthan High Court.[14] The appeal claimed that it was improper and unwise to link a sacred practice of the Jain religion, based on the principle of ’ahimsa’ (non-violence), with suicide.

Ethical and Moral Issues:

It is feared that with rise in the health care costs, and aging population, if assisted suicide or euthanasia is legalized, then the time will not be far where voluntary euthanasia will give way to involuntary or coerced euthanasia. It is argued by many health care professionals and bioethicists that ‘Futile Care Theory’ should be adopted. By this theory we measure the value of human life according to the financial cost involved in keeping that individual alive.With growing need of organs transplantation and a shortage of organ donors, some doctors and bioethicists are considering the possibility of re-defining death and/or providing exceptions to dead donor rule.[15] If this is permitted, then it will allow the harvesting of organs from people in persistent vegetative state or irreversible coma, as these organs are not performing any function in their bodies. One bioethicist even went further to suggest that the bodies of dead persons should be declared as public property, so that they can be used to tackle the shortage of transplant organs. The opponents believe that if euthanasia is legalized then people who are in coma, persistent vegetative state, with mental illness are likely to be at some risk. Whereas, the bioethicists believe that people such as these place a burden on limited resources and should be eliminated for the greater good of society. There are instances where the patients suffering from terminal illness are in pain and experience a poor quality of life. In these types of conditions, they would prefer to end their life rather than continue until their body finally gives up. Some people may wish to die because they are suffering from clinical depression.[16] This is an example where the patient requesting aid in dying is “of sound mind”.

Since all the ethical issues are revolving around the concept of suffering or elimination of suffering, therefore the proponents argue that suffering and pain are inescapable and the most horrible thing that can be experienced by a living being. Thus, it would be a cruel and foolish act not to use sure and easy methods available at hand to stop the suffering and pain, when they reach a high degree of intensity.[17] Wherever it is possible, efforts should be made that a patient is saved from unnecessary suffering. Euthanasia is one of the ways to mitigate the unnecessary suffering. Therefore, the pro – euthanasia lobby concludes that euthanasia is ethical too.[18] All the pains and sufferings of the terminally ill patients cannot be managed by the intake of medicines. Hence, the proponents of voluntary euthanasia and assisted- suicide, argue that they both are moral and should be offered to any patient who requests for either of them. They argue it from the standpoint of consent: they say that there is no harm or injustice done, neither to physician nor to the patient since the choice is made by the patient himself/herself.[19]

In Hinduism, suicide is spiritually unacceptable. Generally, an act of committing suicide is considered as violation of the code of ahimsa (non-violence) and therefore, it is considered as sinful as committing murder. However, Hinduism accepts a man’s right to end one’s life through the non-violent practice of fasting to death, termed as Prayopavesa. But, this practice of Prayopavesa is strictly confined to old age yogis who have no desires, ambitions and responsibilities left in his life.Whereas the opponents argue that suffering is not an ethical reason to favour euthanasia. They argue that the suffering and pain can be taken care of without any recourse to euthanasia. For them, the value of human dignity is higher as compared to the value of pleasure and pain. They contend that every individual has certain value and dignity that cannot be exchanged with mere avoidance of pain. It is because of failure to recognize the inner value and dignity of oneself, a person seeks to take his/her life or self – destruction.[20] They favour the Doctrine of Double Effect[21]. The effect of this test is that it is presumed that the doctor is not aiming directly at killing the patient – the bad result of patient’s death is a side-effect of the good result of reducing the patient’s pain.

Legal and Constitutional Issues:

Firstly, Whether ‘Right to Life’ under Article 21 of The Constitution of India includes ‘Right to Die’? Coming to this issue in hand, all we can say is that the sanctity of life has been placed on the highest pedestal. The Indian Judiciary has given the widest possible interpretation to the ‘Right to Life’ conferred under Article 21 of the Constitution[22]. This Right to Life is inherent in every individual and cannot be alienated from him/her. In Smt. Gian Kaur v. State of Punjab[23] , a five-judge constitutional bench of the Supreme Court held that the “right to life” is inconsistent with the “the right to die”, as is “death’ with ‘life’. The court also observed that right to life, which includes right to live with human dignity, would also mean the existence of such a right up to the natural end of life. This right may also include “death with dignity”, but such existence of right cannot be extended or confused with unnatural extinction of life. With this reasoning, the court in this case overruledP.Rathinam’s case[24] and upheld the constitutional validity of section 309 of The Indian Penal Code, 1860[25], which makes “attempt to suicide” an offence. In P.Rathinam’s case, a division bench of the Supreme Court affirmed the view taken by it inMaruti Shripati Dubal v. State of Maharashtra[26] that the “right to life” provided by article 21 may include in its purview the right not to live a forced life, but surprisingly it discarded the plea for legalizing euthanasia. It was held that euthanasia involves an intervention by a third person, which would indirectly amount to a person aiding or abetting the killing of another, which would invite the application of section 306 of The Indian Penal Code.[27] Further in the case of Naresh Marotrao Sakhre v. Union of India[28], Lodha J., held, “euthanasia or mercy killing isbut homicide whatever the circumstances in which it is affected.” From the discussion of above case laws an inference that can be drawn is that unnatural termination of life, either by an attempt to suicide or by abetment to suicide/assisted suicide or by euthanasia, is illegal. The fact that even an attempt to suicide is punishable shows the extent of credibility that the legislature accorded to the sanctity of life and the right to life as a whole.Abatement to suicide is a highly immoral act and it should be punished without any exception. In this matter, I completely support the judgments pronounced by the Supreme Court. Butmy opinion differs with that of the Supreme Court when it comes to criminalizing an attempt to suicide i.e. section 309 of the I.P.C. The person who has taken such a step can be said to have suffered from something grave and unbearable. Instead of being so harsh on such person, he/she should be handled with sympathy. Instead of throwing him behind the bars, he should be subject to proper counselling so that he is mentally cured of his depression. In such cases rehabilitation will prove more effective as compared to punishment.

It is also important to note here that the most important argument against legalization of euthanasia is the repercussions that could take place after it is legalized. Here the argument is not whether euthanasia should be brought into force; rather the matter is related to an issue in a way the laws can be expanded once something is declared legal. In India, where abuse of law is the rule and where the greedy relatives are waiting for the patient’s death, the abovementioned argument holds great significance.

Taking some examples from the international scenario, the House of Lords, in England, in the case of Airedale NHS Trust v. Bland[29] permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. Following this, the Supreme Court of Ireland in Re a Ward of Court[30] expanded the persistent vegetative state to include cases where the patients possessed limited cognitive faculties. The Supreme Court of Netherlands in 1984 held that only in cases of physical illness, euthanasia can be allowed. However, a decade down the line, the same Supreme Court in Chabot’s case[31] held that it could even extend to the cases of mental illness.Secondly, Whether the doctors are liable for abetment to commit suicide under section 306 of The Indian Penal Code, 1860, in cases of physician assisted suicide of competent patients?Now coming to this issue in hand, let us consider a hypothetical statement that section 306 I.P.C. applies in the cases of physician assisted suicides. Once the competent patients decide not to take any medicine for his/her illness, the doctors have to obey his/her instructions and have no other choice. If the doctors administer medicine contrary to the wishes of a patient, then it may amount to battery against the patient. Thus, the omission to administer medicine to the patient is based on patient’s direction and the doctor’s inaction in such a case is not an offence. In fact, there cannot be abetment of suicide under sec 306 of I.P.C, when there is no attempt to suicide or suicide under sec 309, I.P.C. The position is same even under sec 107 of I.P.C, which talks about ‘abetment’ in general. An ‘abetment’ can be done by any positive act or illegal omission. If a doctor omits to provide medical treatment as per the instructions of a competent patient, he/she is not guilty of abetment under sec 107, I.P.C., because under sec. 107, I.P.C the omission must be ‘illegal’.In Airedale case[32] and Cruzan case[33], the question of doctor’s omission in supplying medical treatment was considered elaborately and it was held that where there is no duty, under common law, to give or continue the medical treatment, the omission of the doctor does not amount to offence. Hence, the doctor cannot be held guilty for ‘abetment of suicide’ in cases of physician assisted suicide of a competent patient under sec 306, I.P.C., even if we read sec 306, I.P.C with sec 107, I.P.C, which is talking about ‘abetment’ in general.

Thirdly, where a patient, who is competent, refuses medical treatment and the doctor obeys the instructions of such patient by withholding or withdrawing treatment, then whether the doctor can be said to have committed an offence under section 299 of The Indian Penal Code, 1860? The question of ‘culpable homicide’ also arises in the cases of incompetent patients or the competent patients who have not taken an informed decision, and where the doctor withholds or withdraws the treatment, in the best interest of patients.[34] Even though the doctors cannot be held guilty of ‘abetment of suicide’, still it is necessary to consider whether the action of doctor in refusing medical treatment, though with consent of the competent patient, amounts to ‘culpable homicide not amounting to murder, under section 299 of I.P.C. The doctor cannot be held guilt under the first two parts of section 299, I.P.C because he cannot be said to have any intention to cause, death or such bodily injury as is likely to cause death. But where he knows that withdrawal of life support system will cause death, can he heldguilty under section 299, I.P.C. The doctor will be held guilty if the knowledge mentioned above was that the act of withdrawal would cause death. However, the act of the physician will not be an offence if the act falls under any of the exceptions provided under chapter – IV of The Indian Penal Code, 1860. Sections 76, 79, 81 and 88 of I.P.C provide protection to the doctors in these circumstances.Section 76, I.P.C[35] comes into picture where the doctor withholds or withdraws treatment in the case of refusal to medical treatment by a competent patient. Such refusal, is binding on the doctor, after he/she is being satisfied that the patient is competent and has taken an informed decision. The act of a doctor in withholding or withdrawing medical treatment on refusal of competent patients, who have taken informed decision, is justified by law.

Even in the cases of the competent patients who have not taken informed decision and in the cases of incompetent patients, the doctor can be said to be justified, if he/she has withdrawn the treatment in the best treatment of the patient. Therefore, in all the three cases the act of doctor will fall under the exception provided under section 79, I.P.C first part. Even if the doctor has mistaken in his/her decision of withdrawing the medical treatment, still he/she is protected by the latter part of section 79, I.P.C[36]  provided the decision was made in good faith.Section 81, I.P.C[37] can also be applied in the cases of competent as well as incompetent patients but its scope is narrower as compared to section 76 and 79 of I.P.C. Further this section has certain limitations as it covers cases of ‘necessity’ and only speaks of ‘harm to person or property’, whereas here we are dealing with ‘death’ and not only some ‘harm’ caused to a person. Despite all this, it may be contended not only in cases of passive euthanasia but also in cases of active euthanasia, since it permits causing harm with an intention to avoid greater harm. Section 88, I.P.C[38] applies only in the cases of competent patients who give consent to the doctor but the consent should be for the ‘benefit’ of patient. The proponents of euthanasia argue that death relieves pain or suffering and is therefore beneficial for the terminally ill patient.

Fourthly, whether a patient who refuses to take treatment is guilty for ‘attempt to commit suicide’ under section 309 of The Indian Penal Code, 1860?Suicide means a deliberate termination of one’s own life but it is different from a case where a patient allows the nature to take its own course. Such an attitude of a person allowing the nature to take its own course has been upheld by the superior courts of many jurisdictions and it is held that such an act does not amount to an attempt to commit suicide. Hence, there is no offence under section 309, I.P.C in such a case. In the leading of Airedale[39], the House of Lords has categorically held that such an act does not amount to suicide.

Fifthly, whether a doctor can be held liable under section 304 A of The Indian Penal Code, 1860, where he/she withdraws or withholds the life support system in case of a terminally ill patient?The Supreme Court in the case of Jacob Mathew v. State of Punjab[40] held that for making doctors liable under Section 304 A ‘gross negligence’ on their part needs to be proved. Thus, a doctor, who has withdrawn life support system, obeying the instructions of a competent patient, cannot be held guilty of gross negligence. The doctor is merely going by the wish of the patient to allow the nature to take its own course and therefore, section 304 A is not applicable.[41]

Lastly, whether active euthanasia amounts to murder under section 302 or at least under section 304 of The Indian Penal Code, 1860?Till now all the issues were either related to passive voluntary euthanasia or physician assisted suicide and the position relating to them has been cleared by the above discussion. But, the issue here is about active euthanasia i.e. whether it amounts to murder? Since, in these cases there is a clear ‘intention’ on part of the doctor to kill the patient like by a dosage of lethal injection etc., it would amount to murder and will be punishable under sec 302, I.P.C. However, if there is a valid consent of the deceased, who was above 18 years of age, then exception 5 to section 300[42] will apply and the accuse will be punishable for culpable homicide not amounting to murder, under section 304, I.P.C. The Supreme Court in the Aruna Ramchandra Shanbaug v. Union of India & Ors.[43] held that active euthanasia is illegal in India and is punishable under section 302 or at least section 304, I.P.C. The court also held that physician assisted suicide is a crime under section 306, I.P.C. The court also observed the difference between euthanasia and physician assisted suicide. The difference between the two lies in the fact as to who administers the lethal medication. In euthanasia, a physician or a third party administers it, whereas, in physician assisted suicide, it is the patient himself who does it on the advice of the physician.In many countries, physician assisted suicide is legal whereas the physician administered death is illegal. The court also discussed the difference between ‘active, and ‘passive’ euthanasia. In the former something is done to end the patient’s life, whereas in the latter something is not done which would have preserved the patient’s life. As per the court, in ‘passive euthanasia’, the doctors are not actively killing anyone; they are simply not saving him. Therefore, the court in this case allowed ‘passive’ euthanasia, subject to certain guidelines.

MEASURES TAKEN TOWARDS LEGALIZING EUTHANASIA

Role played by Law Commission of India:

  • 1 96thReport on Medical Treatment to Terminally Ill Patient (Protection of Patients and Medical Practitioners)[44]

It is one of the most important subjects ever undertaken by the law commission of India for a detailed study. In the 435 pages report, the law commission has dealt with various case laws of different countries dealing with suicide, euthanasia, assisted suicide, abetment of suicide, and stopping life support treatment. The law commission of India by this report has framed a draft of proposed bill namely, “Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006”. The Bill dealt with terminally ill patients (including patients in persistent vegetative state) who desire to die a natural death without taking any recourse to the modern life supporting treatments like artificial ventilation and artificial supply of food.

  • 241stReport on Passive Euthanasia[45]:

The report has dealt with passive euthanasia and living will of an individual. The report also discussed the medical ethics and duty of a doctor. The question whether any legislation is required on passive euthanasia or not was also discussed in detail. While dealing with this question, the law commission has discussed various issues that are involved in legalization of passive euthanasia. Therefore, in the end the law commission had suggested some changes in the draft bill of “Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006”, which was proposed by the commission in its 196th report.

 

Role played by the Supreme Court of India:

The case of Aruna Ramachandra Shanbaugv. Union of India & Ors.[46], is the first case in which the Supreme Court had death with the issue of ‘Euthanasia’ in detail. In this case, the Supreme Court while permitting passive euthanasia went further to lay down some safeguards and guidelines that are to be followed in case of a terminally ill patient who is not in a position to give his/her consent because of some physical or mental predicaments like irreversible coma or unsound mind. It was also held that a relative of such person cannot take a decision on his/her behalf to withhold or withdraw the life supporting systems and it has to be done only by taking permission from the High Court. The High Court in giving permission will take the opinion of three medical experts. The court also laid down the procedure that has to be followed by the High Court while granting the permission mentioned above.[47]

However, the three judge bench of Supreme Court on February 25, 2014, while hearing a petition filed by NGO Common Cause[48] said that the opinion given by the court in Aruna’s case was based on wrong interpretation of the constitution bench’s opinion given in Gian Kaur v. State of Punjab[49]. The court also observed that the opinion was internally inconsistent because the court in Aruna’s case held that euthanasia can only be legalized by an act of the legislature and at the same time the court went to lay down certain guidelines on euthanasia. Therefore, the court referred this issue to a larger constitutional bench for resolution.

Role played by the Legislature:

Presently, there is a bill, considering passive euthanasia, named The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016. The purpose of the bill is to provide for the protection of the patients and medical practitioners from liability in the context of withholding or withdrawing medical treatment including life-support systems from patients who are terminally ill.Some of the key features of the Bill are as follows:

  • Clause 3 of the Bill says that every competent patient, including a minor above the age of 16 years, who is terminally ill, has the right to take a decision and express the desire to the medical practitioner attending him/her for withholding or withdrawing medical treatment to herself/himself and to allow nature to take its own course or for starting or continuing medical treatment to herself/himself.
  • However, proviso of sub clause (2) of clause 3 says that in case of a minor, above 16 years of age, the consent should also be given by the major spouse and parents.
  • Such a decision is binding on the medical practitioner provided the doctor feels that the terminally ill patient is competent and is making an informed choice.[50]
  • Clause 5 of the Bill requires that themedical practitioner shall maintain a record of the personal details, nature of illness, the decision of the patient and his opinion whetherwithdrawal or withholding of treatment would be in the patient’s best interest.
  • Clauses 7 and 8 confer immunity to the said medical practitioner and patient from any criminal or civil liability.
  • Clause 9 says that in case of an incompetent patient or a competent patient who has not taken an informed decision, the case has to be filed in that area’s High Court by the parents, acquaintance or medical practitioner of the patient. In such cases, a judgment should be issued by the High Court within a month.
  • Clause 11 renders Advance Medical Directive or a living will (which means a directive given by a person that he/she shall or shall not be given medical treatment in future when he/she becomes terminally ill) as void. Also they will not be binding on any medical practitioner.
  • Clause 12 provides that The Medical Council of India may prepare and issue guidelines from time to time, to guide the medical practitioners in the matter of withholding or withdrawing medical treatment to capable or incapable patients suffering from terminal illnesses.

However, there are certain shortcomings of the Bill discussed above. Some of the issues associated with the Bill are as follows:

  • Clause 9: Clause 9 says that in case of an incompetent patient or a competent patient who has not taken an informed decision, the case has to be filed in that area’s High Court by the patient’s relative, friend or the medical practitioner for withholding or withdrawing the medical treatment. This is dangerous because the Bill defines ‘informed decision’ in subjective terms which depend upon the individual’s understanding of the nature of his/her illness and the forms and consequences of treatment. As long as an individual is competent to make decisions, it shall not be left to anyone else to judge the merit of his/her understanding and especially when it relates to life of that particular individual. This clause has the potential of misuse and runs against the fundamental rights of an individual.
  • Irrational Distinction: The Bill creates an irrational distinction between the patients who were competent at the time at which a decision about refusing or withdrawing life-sustaining treatment has to be made, and those who are incompetent at such time, even though they might have expressed their decision earlier in form of an advance directive. Clause 3 of the bill says that the decision of the former category of patients is binding on their medical practitioners. The time at which the decision to refuse or request the withdrawal of treatment was made cannot be a reasonable rationale for distinguishing between these categories of patients, so long as those decisions were taken freely, fully informed and not altered fundamentally since.
  • Choice of High Court: The choice of High Court as a forum to obtain permission for the withdrawal of treatment from incompetent patients imposes an unrealistic burden on medical practitioners as well as relatives. It does not take into account the fact that the High Courts are unlikely to deliver swift judgment in such cases.
  • Drafting errors: Other issue is related to drafting errors. For instance, the definition of “terminal illness” under sub-clause (m) of clause 2 appears to suggest that a mental condition is capable of causing death. Therefore, this definition is factually incorrect because it is medically impossible for a mental condition to cause death of a person.
  • The Bill expressly excludes active euthanasia from its reach. Thus, in the light of above shortcomings a revised Bill would be a significant step towards allowing suffering individuals a measure of human dignity.

 

CONCLUSION

There are countries where euthanasia is legal in all aspects. The mechanism has seen a long span of time tackling obstacles and setting new norms. It is not the situation that the practice is full proof and without loopholes in those nations. During that period, the nations and their citizens have gone through a radical change in the medical field as well as human perspective. It has developed the mindset of the whole community towards forming the opinion about choosing death over life. This understanding has flowed through generations now, which is pretty much revolutionary.What India needs is the maturity to handle this issue and understanding its pros and cons thoroughly. It is a mammoth task. The requirement of having legislation on euthanasia depends on the intensity of number of patients with terminal illness and the gravity of such situations. It is not commonly accepted in India. What a situation would demand in future and what would be its repercussions are matter of unknown reality. Indian population has not developed the healthy potential required for legalizing active euthanasia.

Recently the judgment of our Supreme Court in Aruna Ramchandra Shanbaug v. Union of India[51]legalized the passive euthanasia and observed that passive euthanasia is permissible under the supervision of law in exceptional circumstances but active euthanasia is not permitted under the law. In view of the discussion above, I believe that voluntary euthanasia should be allowed in India and that the legislature should step in and make a special law dealing with all the aspects of euthanasia discussed above.

BIBLIOGRAPHY

PRIMARY SOURCES:

Statutes:

  • The Constitution of India, 1949.
  • The Indian Penal Code, 1860.

 

Bills:

  • Draft Bill, “The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016.”

Reports:

  • 196th Law Commission Report on Medical Treatment to Terminally Ill Patient (Protection of Patients and Medical Practitioners).
  • 241st Law Commission Report on Passive Euthanasia.

SECONDARY SOURCES:

Books:

  • Dick Westley, When It’s Right To Die: Conflicting Voices, Difficult Choices (Twenty Third Publications, 1st, 1994).
  • Fausto B Gomez, O.P., A Pilgrim’s Notes: Ethics. Social Ethics. Bioethics(Manila: UST Publishing House, 2005).
  • Megan-Jane Johnstone, Bioethics: A Nursing Perspective (Elsevier Health Sciences, New South Wales, 5th, 2008).
  • Michael Manning, Euthanasia and Physician-Assisted Suicide: Killing or Caring?(New York: Michael Paulist Press, 1998).
  • Thomasma and Kushner (eds.), Birth to Death: Science and Bioethics (Cambridge University Press, 1996).

Websites:

  • From ‘right to die’ to ‘right to choose the way you die’ – the shifting euthanasia debate. Available at: http://theconversation.com/from-right-to-die-to-right-to-choose-the-way-you-die-the-shifting-euthanasia-debate-50449 (last visited on September 23, 2018).
  • Euthanasia: where angels fear to tread…. Available at: http://www.thehindu.com/opinion/open-page/Euthanasia-where-angels-fear-to-tread%E2%80%A6/article14944652.ece (last visited on September 23, 2017).

 

[1]Sophocles “All one wants is a dignified death” available at http://www.cprindia.org/sites/default/files/articles/SSRN-id2061061.pdf (last visited on 26th Sept. 2018).

[2]Supra note 4 at 3.

[3]Ibid.

[4]Supra note 9 at 265.

[5] José RoqueJunges ,CleberCremonese ,”Legal and ethical reflections on end of life: a discussion on orthothanasia”, available at: http://revistabioetica.cfm.org.br/index.php/revista_bioetica/article/viewFile/564/572 (last visited on November 16, 2017).

[6] Oxford Advanced Learner’s Dictionary of Current English (Oxford University Press, 6th edn., 2000).

[7]Dr Peter Saunders, “Twelve Reasons… Why Euthanasia should not be legalised”, available at: http://www.cmf.org.uk/advocacy/end-of-life/euthanasia/twelve-reasons-euthanasia-1997/ (last visited on November 17, 2017).u

[8]Ibid.

[9]Ibid.

[10]Supra note 4 at 26.

[11]Ibid.

[12] Ashley, O.P., and Kevin D. O’Rourke, O.P., Ethics of Health Care 189 (Georgetown University Press, 3rd edn., 2002). Also CCC (Catechism of the Catholic Church), no. 2280, says: “we are stewards, not owners, of the life God has entrusted to us. It is not ours to dispose of”.

[13]D.B.Civil Writ Petition No.7414/2006.

[14]Akhil Bharat Varshiya Digamber Jain Parishad v. Union of India And Ors, C.A. No.-7089/2015 XV.

[15]The dead donor rule (DDR) is a deontic constraint that categorically prohibits causing death by organ removal. This informal rule has guided the practice of organ transplantation since its inception. Brain death, the irreversible cessation of all brain function, is considered equivalent to death.

[16]A mental health disorder characterised by persistently depressed mood or loss of interest in activities, causing significant impairment in daily life.

[17]Megan-Jane Johnstone, Bioethics: A Nursing Perspective 334 (Elsevier Health Sciences, New South Wales, 5th edn., 2008).

[18]Id at 335.

[19] Thomasma and Kushner (eds.), Birth to Death: Science and Bioethics  247 (Cambridge University Press, 1996).

[20] Cummiskey, “The Right to Die and the Right to Healthcare”, in Michael Boylan (ed.), Public Health Policy and Ethics 191 (Springer, Dordrecht, 2005).

[21] The principle is used to justify the case where a doctor gives drugs to a patient to relieve distressing symptoms even though he knows doing this may shorten the patient’s life, available at: http://www.bbc.co.uk/ethics/euthanasia/overview/doubleeffect.shtml (last visited on November 18, 2017).

[22]The Constitution of India, art. 21. “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[23]AIR 1996 SC 946.

[24]P. Ratinam Nagbhushan Patnaik v. Union of India, AIR 1994 SC 1844.

[25] The Indian Penal Code, 1860 (Act 45 of 1860), s. 309.  “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 or with fine, or with both.”

[26]1987 Cr. LJ 743.

[27] The Indian Penal Code, 1860 (Act 45 of 1860), s. 306. “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.”

[28]1996 (1) BomCR 92.

[29]1993 1 All ER 821.

[30]1996 2 IR 79.

[31]State v. Chabot, 682 A.2d 1377, 1379.

[32]Airedale National Health Service Trust v. Bland, 1993(1) All ER 821.

[33]Cruzan v. Director, MDH,497 U.S. 261(1990).

[34]Ibid.

[35] The Indian Penal Code, 1860 (Act 45 of 1860), s. 76. “Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.”

[36] The Indian Penal Code, 1860 (Act 45 of 1860), s. 79. “Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.”

[37] The Indian Penal Code, 1860 (Act 45 of 1860), s. 81. “Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

Explanation.—It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.”

[38] The Indian Penal Code, 1860 (Act 45 of 1860), s. 88. “Nothing, which is not intented to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.”

[39]Supra note 46.

[40]2005 (6) SCC 1.

[41]Ibid.

[42] The Indian Penal Code, 1860 (Act 45 of 1860), s. 300 exception 5. “…Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent…”.

[43](2011) 4 SCC 454.

[44]Law Commission of India, 196th Report on Medical Treatment to Terminally Ill Patient (Protection of Patients and Medical Practitioners) (March, 2006), available at: http://lawcommissionofindia.nic.in/reports/rep196.pdf(last visited on November 20, 2017).

[45]Law Commission of India, 241st Report on Passive euthanasia (August, 2012), available at http://lawcommissionofindia.nic.in/reports/report241.pdf (last visited on November 20, 2017).

[46] (2011) 4 SCC 454.

[47]Id. at para 134 p. 522.

[48]Common Cause (A Regd. Society) v. Union of India, (2014) 5 SCC 338.

[49]1996 SCC (2) 648.

[50]The Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016, c. 3(2).

[51]Supra note 60.

Ritika Sharma

Ph.D. Law Department, University of Jammu