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Nikhil Agrawal - Law Student

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I. Introduction
If "brain death" and death were identical and equivalent, there would not be a need for the term "brain death." Everyone knows that the body, the remains that are viewed at a funeral home, is dead. Compare that body to the patient in an intensive care unit who has been declared "brain dead" but who is receiving ventilatory support. The heart is beating, the blood pressure and temperature are being recorded, the colour is normal; if the knee is tapped the knee jumps, and many internal organs and systems are functioning. In the past, the physician took the time needed to determine death because he did not wish to treat
the living as dead. Today, however, death is often declared for reasons not related to the patient's welfare such as organ transplantation, cost containment and propagation of the euthanasia movement.

Certainly one of society's traditional attitudes, expressed morally, legally, philosophically, and religiously is that human life merits
special protection. In fact, some claim that human life is an absolute value. For them the taking of human life then becomes a wrong even in the case of voluntary euthanasia. And for some this perceived moral wrong should be prohibited by the full force of the law. The clash here is between protection of human life and the right to decisional autonomy, and as well raises the question of the extent to which the criminal law should be used to enforce particular moral positions.

II. Euthanasia
The implication of the term euthanasia is itself cloaked in ambiguity. The term is derived from the Greek word euthanatos meaning good death. In its earlier form, it was used as an omnibus term to signify a painless death. In its modern context, the term is used as a deliberate euphemism to reduce the guilt of an act  an act which is a division of murder by injecting the term mercy

Euthanasia is defined as an intentional killing by an act/omission of person whose life is felt is not to be worth living. The definition of euthanasia is simple but the concept of euthanasia proposed by adherents of the euthanasia movement is complex and has profound consequences for all.

Euthanasia may be classified as active or passive or alternatively as voluntary, non-voluntary and involuntary. Active euthanasia involves painlessly putting individuals to death for merciful reasons, as when a doctor administers a lethal dose of medication to a patient. Passive euthanasia involves not doing something to prevent death, as when doctors refrain from using devices necessary to keep alive a terminally ill patient or a patient in a persistent vegetative state. In voluntary euthanasia, a person asks for death (by either active or passive euthanasia). Non-voluntary euthanasia refers to ending the life of a person who is not mentally competent, such as a comatose patient, to make an informed request for death. Apart from these there is involuntary euthanasia where a person is killed against his express will.

In India there is no specific law concerning euthanasia, though it is much desirable. The need of the same arises when a person is terminally ill and not capable of cure. The sufferings of an ill person need not be prolonged by forcefully keeping him alive with all the pains and sufferings. That is definitely a violation of Article 21 of the Constitution of India which provides a right to dignified life

However, the problem that arises here is that the term terminally ill has no precise definition. For instance, Jack Kervorkian, a famous proponent of euthanasia, defined terminal illness as any disease that curtails life even for a day. Some laws define terminal as one from which death will occur in a relatively short time or within a span of six months. The focal point is that all these definitions show ambiguity and medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual.

Arguments in favor of legalization of euthanasia are typically premised on the assumption that requests for euthanasia are a "rational" decision, given the circumstances of terminal illness, pain, increased disability, and fears of becoming (or continuing to be) a burden to family and friends. Given the possibility that these symptoms and circumstances may not be relieved, even with aggressive palliative care and social services, the decision to hasten one's death may seem rational.

However, it is emphasized that this issue hovers around an invaluable asset called life. Just as a mistaken diagnosis is possible, so is a mistaken prognosis. It must be remembered that death is final and a chance of error too great to approve the practice of euthanasia.

Research has shown that ninety percent of the pain can be alleviated by proper pain control methods. Appropriate care can make a huge difference. This goes to show that medicine and technological breakthroughs have a fitting reply to almost every problem and the extent of medical commitment is irrefutable.

In contradiction, if the life of every terminal patient is dubbed as meaningless life, impetus to research, which is the answer to
therapeutic medicine, would be foiled. If legalized, doctors would be forced to perform such acts against their consent that would amount to a violation of the Hippocratic Oath which states: "I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone. To please no one will I prescribe a deadly drug, nor give advice that may cause his death." Thus, the possibility that a physician may directly hasten the death of a patient - one whom the physician has been presumably treating in an effort to extend and improve life - contradicts the central tenet of the medical profession.

The fact remains that the practice of euthanasia has been ostracized since time immemorial and Oregon, Belgium and The Netherlands are the only jurisdictions in the world where laws specifically permit euthanasia or assisted suicide.

It is pertinent to note the repercussions that could take place once something as controversial is legalized. The matter is not an issue of force but an issue of the ways law can be expanded once something is declared legal. In India, where abuse of the law is the rule rather than the exception and where devious relatives clamor to lap up an heirloom, the above-mentioned argument holds weight.

To elucidate, in England, the House of Lords in Airedale NHS Trust v. Bland permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. Subsequently, the Supreme Court of Ireland in Re A Ward of Court expanded the persistent vegetative state to include cases where the patient possessed limited cognitive faculties.

III. Is It Time?
The demise of the 25 year old Andhra youth, K. Venkatesh, who wanted to be given euthanasia so that he could donate his organs, has once again sparked the debate on the legalization of euthanasia. Venkatesh sought the right to die not to escape suffering from the degenerative muscular dystrophy, but to be able to donate his vital organs as doctors had warned that these could not be used once they become infected. But the Andhra Pradesh High Court rejected his mother's plea.

Experts denouncing the legalization of euthanasia say it should not be allowed in a country where already the old and destitute are considered a burden and there's no social system to support them. People might exploit this law to fulfil their selfish interests.
Says Dr. Bishnu Prasad Panigrahi, an anesthesiologist, Max Heart and Vascular Institute, The entire world is debating for a long time but the countries have not made mercy killing legitimate because life and death are the two fine acts of God and mere mortals have no right to interfere. Laws are open to misuse and malpractice, which gives a bad name to medicine.

According to the Chief Executive of Voluntary Health Association of India (VHAI), Alok Mukhopadhaya, euthanasia should be legalized but with strict parameters to avoid its misuse which is very likely in a country with a large number of illiterate populace and rampant unethical medical practice.

Henk Jochemsen says, Acceptance of euthanasia for people who are tired of life will further social pressure, to those who feel themselves to be a burden to others, to ask for euthanasia.

"Banning intentional killing protects each of us impartially, embodying the belief that all are equal, whether they are young of old, fit or sick, able or disabled," said Prof. Peter Millard of the British organization, ALERT (Against Legalized Euthanasia - Research and Teaching).

The precious words of Thomas Jefferson strike a chord: The care of human life and happiness and not their destruction is the first and only legitimate object of good governance.

IV. Suicide
Suicide [Lat., = self-killing], the deliberate taking of one's own life. Suicide may be compulsory, prescribed by custom or enjoined by the authorities, usually as an alternative to death at the hands of others, or it may be committed for personal motives.

The problem has been approached from two different angles: the sociological, which stresses social pressures and the importance of social integration, and the psychoanalytic, which centres on the driving force of guilt and anxiety and the inverting of aggressive impulses.

Various social forces like the economy, religion and socio-economic status are responsible for suicides. The causes of suicide are many and varying in as much as they owe their origin to sentiments of exasperation, fury, frustration and revolution; some are the results of feeling of burden, torture and sadness. Some are caused by loss of employment, reversal of fortune, misery due to illness, family trouble and thwarted love.

Self-killing is expressly condemned by Judaism, Christianity, and Islam, and attempts are punishable by law in certain countries. Suicide was a felony in 11th century England because the self-murderer was considered to have broken the bond of fealty, and the suicide's property was forfeited to the king. In 1961, Great Britain abolished criminal penalties for attempting to commit suicide. However, a right-to-die movement has supported the principle of doctor-assisted suicide in certain cases.

In juxtaposition, the words Right to Die evoke an exactly opposite sentiment. How can it be a right if you are using it to give up your rights. The above right has been used as a guise or a camouflage to include various concepts that are opposed to preservation of life. Euthanasia, Physician Assisted Suicide (PAS), Suicide, though conceptually different, are species of the same genre.

In India, the sanctity of life has been placed on the highest pedestal. The right to life under Article 21 of the Indian Constitution has received the widest possible interpretation under the able hands of judiciary. This right is inalienable and is inherent in us. It cannot and is not conferred upon us.

The Indian Constitution says that the right to die is not a fundamental right under Article 21. Whether the right to die is included
in Article 21 of Constitution came for consideration for the first time before the Bombay High Court in The State of Maharashtra v. M.S.Dubal . The Court held that the right to life includes the right to die. Consequently, the Court struck down Section 309 of IPC, which provides punishment for the attempt to commit suicide as unconstitutional. The judges felt that the desire to die is not unnatural, but merely abnormal and uncommon.

The Supreme Court in P.Rathinam v. Union of India upheld the Bombay High Court's decision. However, in Gian Kaur v. State of Punjab , a five judge constitution bench of the Court overruled P. Rathinam's case and held that right to life under Article 21 of the Indian Constitution does not include the right to die or the right to be killed.

The Court held that the Right to Life is a natural right, embodied in Article 21. However, suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of Right to Life. It was held that this concept was unrelated to the Principle of Sanctity of Life or the Right to Live with Dignity.

The Court made it clear that the right to life including the right to live with human dignity, would include the existence of such a right till 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. This may include the right of a dying man to die with dignity when his life is ebbing out. However, the right to die with dignity at the end of life is not be confused with the right to die an unnatural death, curtailing the natural span of life. The Court reiterated that the arguments to support the views of permitting the termination of life in such cases (e.g. a dying man, who is terminally ill and is totally dependant on life support systems), by accelerating the process of natural death, when it was certain and imminent, was not available to interpret Article 21 to include the right to curtail the natural span of life.

Euthanasia and suicide are different. Distinguishing euthanasia from suicide, Lodha J. in Naresh Marotrao Sakhre v. Union of India , observed:
Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one's own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing, on the other hand, means and implies the intervention of other human agency to end the life. 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 effected.

Moreover, it is argued that when a healthy person is not allowed to commit suicide then why should a diseased person be allowed to do so. It is pointed out that suicide in a person who is diagnosed with terminal illness is no different than suicide for someone who is not considered terminally ill.

V. Theology
1. The Hindu View
Hinduism is less interested than western philosophers in abstract ideas of right or wrong. Rather it focuses on the consequences of our actions. Most Hindus would say that a doctor should not accept a patient's request for euthanasia since this will cause the soul and body to be separated at an unnatural time. The result will damage the karma of both doctor and patient.

Other Hindus believe that euthanasia cannot be allowed because it breaches the teaching of ahimsa (doing no harm). However, some Hindus say that by helping to end a painful life a person is performing a good deed and so fulfilling their moral obligations.

There are two Hindu views on euthanasia:
# By helping to end a painful life a person is performing a good deed and so fulfilling their moral obligations
# By helping to end a life, even one filled with suffering, a person is disturbing the timing of the cycle of death and rebirth. This is a bad thing to do, and those involved in the euthanasia will take on the remaining karma of the patient.

The same argument suggests that keeping a person artificially alive on a life-support machines would also be a bad thing to do. However, the use of a life-support machine as part of a temporary attempt at healing would not be a bad thing. The ideal death is a conscious death, and this means that palliative treatments will be a problem if they reduce mental alertness.

2. The Muslim View
Muslims are against euthanasia. They believe that all human life is sacred because it is given by Allah, and that Allah chooses how long each person will live. Human beings should not interfere in this.

a) Life is sacred
# Euthanasia and suicide are not included among the reasons allowed for killing in Islam
# Do not take life, which Allah made sacred, other than in the course of justice." (Qur'an 17.33)
# If anyone kills a person - unless it be for murder or spreading mischief in the land- it would be as if he killed the whole
people." (Qur'an 5.32)

b) Allah decides how long each of us will live
# When their time comes they cannot delay it for a single hour nor can they bring it forward by a single hour." (Qur'an 16.61)
#And no person can ever die except by Allah's leave and at an appointed term." (Qur'an 3.145)

c) Suicide and euthanasia are explicitly forbidden
#"Destroy not yourselves. Surely Allah is ever merciful to you." (Qur'an 4.29)

The Prophet (pbuh) said: "Amongst the nations before you there was a man who got a wound and growing impatient (with its pain), he took a knife and cut his hand with it and the blood did not stop till he died. Allah said, 'My Slave hurried to bring death upon himself so I have forbidden him (to enter) Paradise.'" (Sahih Bukhari 4.56.669)

3. The Christian View
Christians are mostly against euthanasia. The arguments are usually based on the argument that life is a gift from God and that human beings are made in God's image. Birth and death are part of the life processes which God has created, so we should respect them. Therefore no human being has the authority to take the life of any innocent person, even if that person wants to die.

To propose euthanasia for an individual is to judge that the current life of that individual is not worthwhile. Such a judgment is
incompatible with recognizing the worth and dignity of the person to be killed. Nor should anyone ask for euthanasia for themselves because no one has the right to value anyone, even themselves, as worthless. Patients in a persistent vegetative state, although seriously damaged, remain living human beings, and so their intrinsic value remains the same as anyone else's. So it would be wrong to treat their lives as worthless and to conclude that they 'would be better off dead'. Christians believe that the intrinsic dignity and value of human lives means that the value of each human life is identical. They don't think that human dignity and value are measured by mobility, intelligence, or any achievements in life.

4. The Sikh View
Sikhs derive their ethics largely from the teachings of their scripture, Guru Granth Sahib, and the Sikh Code of Conduct (the Rehat Maryada). The Sikh Gurus rejected suicide (and by extension, euthanasia) as an interference in God's plan. Suffering, they said, was part of the operation of karma, and human beings should not only accept it without complaint but act so as to make the best of the situation that karma has given them. This suggests that the Sikh reaction to situations where people think about euthanasia would be to provide such good care that euthanasia became an unattractive option.

VI. Conclusion
The above inferences lead to one irresistible conclusion i.e. any form that involves unnatural termination of life, whether an attempt to suicide, assisted suicide or euthanasia, is illegal. The fact that, in India, even an attempt to suicide is punishable goes to show the extent of creditability accorded to the sanctity of life and the right to life as a whole. This apart, the decriminalization of euthanasia is unworkable in the Indian perspective, even on humanitarian grounds, as it involves a third person. All in all.  No life that breathes with human breath has ever truly longed for death.

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Select Bibliography
1. Brody, Baruch, Life and Death Decision Making, New York: Oxford University Press, 1988.
2. Byrn, Robert M.,Compulsory Lifesaving Treatment for the Competent Adult Fordham Law Review, Volume 44, Oct 1,1975.
3. Chapman, Carleton, Physicians, Law, & Ethics, New York: New York University Press, 1984.
4. James H. Brown, Paul Henteleff, Samia Barakat and Cheryl J. Rowe, "Is It Normal for Terminally Ill Patients to Desire Death.. American Journal of Psychiatry, Vol. I. 143, No. 2 (February 1986).
5. Jay Johansen, Euthanasia: A Case of Individual Liberty
6. Patrick Goodenough, 'Legalization of Euthanasia Will Harm Most Vulnerable?, CNS London Bureau Chief, April 11, 2001.
7. Robert D. Lane and Richard Dunstan, Euthanasia: the debate continues, August 1995, published by the Institute of Practical
Philosophy at Malaspina University-College.
8. Robert M. Walker, Ethical Issues in End-of-Life Care, from Cancer Control: Journal of the Moffitt Cancer Center.

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The  author can be reached at :
agrawalnikhil@legalserviceindia.com

 

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