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Euthanasia: Right to Life vs. Right to Die

Life and death are inseparable. Every moment our bodies undergo change… life is not disconnected from death. Dying is a part of the process of living. - Justice D.Y Chandrachud

The word Euthanasia means a good death. Today there is growing debate over the contention, whether people possessing similar rights such as the 'right to life' and also 'right to die'. There is a divided opinion over this issue, as some argue that life is to be continued in every manner possible - be it in a natural or artificial one. The rest believe that it being a matter of individual liberty, all of us are entitled to live and end our lives as and when we deem fit.

According to these people, suicide like euthanasia should be morally permissible. Due regard must be given to every cases of euthanasia before a person's right to live and die a pain free life is denied. Whereas, it is equally necessary that the state takes interest in the preservation and protection of life, otherwise human life shall have no value.

History:
According to the historian N.D.A Kemp, the origin of the contemporary debate on euthanasia started in 1870. Euthanasia is known to have been debated and practiced long before that date. Euthanasia was practiced in Ancient Greece and Rome: for example, hemlock was employed as a means of hastening death on the island of Kea, a technique also employed in Marseilles.

Euthanasia, in the sense of deliberate hastening of person's death, was supported by Socrates, Plato and Seneca the Elder in the ancient world, although Hippocrates appears to have spoken against the practice, writing I'll not prescribe a deadly drug to please someone, nor give advice that may cause his death (noting there is some debate in the literature about whether or not this was intended to encompass euthanasia).

Early modern period
The term Euthanasia in the earlier sense of supporting someone as they died was used for the first time by Francis Bacon (1561-1626). In his work, Euthanasia medica, he chooses this ancient Greek work and, in doing so, distinguished between Euthanasia interior, the preparation of the soul of death, and euthanasia exterior, which was intended to make the end of life easier and painless, in exceptional circumstances by shortening life.

That the ancient meaning of an easy death came to the fore again in the early modern period can be seen from its definition in the 18th century Zedlers Universal lexicon: Euthanasia: a very gentle and quiet death, which happens without painful convulsions.

Forms of euthanasia

Euthanasia comes in several different forms each of which bring a different set of rights and wrongs.

  1. Active and Passive euthanasia

    In active euthanasia a person directly and deliberately causes the patient's death. In passive euthanasia they don't directly take the patient's life, they just allow them to die.
    This is morally unsatisfactory distinction, since even though a person doesn't 'actively kill' the patient.

    Active euthanasia is when death is brought about by an act - for example when a person is killed by being given an overdose of pain-killers.

    Passive euthanasia is when death is brought about by an omission - i.e. when someone lets the person die.

    This can be by withdrawing or withholding treatment:
    • Withdrawing treatment:
      for example, switching off a machine that is keeping a person alive, so that they die of their disease.
       
    • Withholding treatment:
      for example, nit carrying out surgery that will extend life for a short time. 
      Traditionally, passive euthanasia is thought of as less bad than active euthanasia. But some people think active euthanasia is morally better.

     

  2. Voluntary and involuntary euthanasia

    Voluntary euthanasia occurs at the request of the person who dies.

    Non-voluntary euthanasia occurs when the person is unconscious or otherwise unable (for example, a very young baby or a person of extremely low intelligence) to make a meaningful choice between living and dying and an appropriate person takes the decision on their behalf.

    Non-voluntary euthanasia also includes cases where the person is a child who is mentally and emotionally able to take the decision, but is not regarded in the law as old enough to take such a decision, so someone else must take it on their behalf in the eyes of the law.

    Involuntary euthanasia occurs when the person who dies chooses life and is killed anyway this is usually called murder, but it is possible to imagine cases where the killing would count as being for the benefit of the person who dies.
     
  3. Indirect euthanasia

    This means providing treatment (Usually to reduce pain) that has side effect of speeding the patient's death.

    Since the primary intention is not to kill, this is seen by some people (but not all) as morally acceptable.

    A justification along these lines is formally called the 'doctrine of double effect'.


Euthanasia in India

Passive euthanasia is legal in India, on 7 March 2011 the Supreme Court of India legalized passive euthanasia by means of the withdrawal of life support to patients in a permanent vegetative state. The decision was made as part of the verdict in a case involving Aruna Shanbaug, who had been in a President Vegetative State (PVS) until her death in 2015.

In March 2011, the Supreme Court of India, passed a historic judgment-law permitting Passive Euthanasia in the Country. This judgment was passed in wake of 'Pinki Virani' plea to the highest court in December 2009 under the Constitutional provision of Next Friend. It's a landmark law which places the power of choice in the hands of the individual, over government, medical or religious control which sees all suffering as Destiny.

The Supreme Court specified two irreversible conditions to permit Passive Euthanasia Law in its 2011 law:

  1. The brain-dead for whom the ventilator can be switched off
  2. Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliative be added, according to laid-down international specifications.

The same judgment-law also asked for the scrapping of 309, the code which penalizes those who survive suicide-attempts. In December 2014, government of India declared its intention to do so.

However, on 25 February 2014, a three-judge bench of Supreme Court of India had termed the judgment in the Aruna Shanbaug case to be inconsistent in itself and has referred the issue of euthanasia to its five-judge Constitutional bench. And on December 23, 2014, Government of India endorsed and re-validated the Passive Euthanasia Judgment-law in a press release, after stating in the Rajya Sabha as follows:
that The Hon'ble Supreme Court of India in its judgment dated 7.3.2011, while dismissing the plea for mercy killing in a particular case, laid down comprehensive guidelines to process cases relating to passive euthanasia.

Thereafter, the matter of mercy killing was examined in consultation with the Ministry of Law and Justice and it has been decided that since the Hon'ble Supreme Court has already laid down the guidelines, these should be followed and treated as law in such cases. 

A big change is came as in year 2015 when Supreme Court of India has held that right to die with dignity is a fundamental right. The Bench also held that passive euthanasia and a living will also legally valid. The Court has issued detailed guidelines in this regard. The right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.

The Bench also held that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in Persistent vegetative state with no hope of recovery.

A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements.

What is a living will?

A living will is a written document by way of which a patient can give his explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent. Passive euthanasia, meanwhile, is a condition where there is withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally-ill patient.

Case:
The very first case before the court on the issue of right to die was P. Rathinam v. Union of India, AIR 1994 SC 1844, wherein the court stated that right to life includes right to die, broadening the scope of article 21. Also, section 309 that criminalizes suicide was held as a violation of article 21. This case created hue and cry amongst the government which was against the idea of decriminalizing suicide.

Aruna Shanbaug Case:

Marte hai aarzoo mein marne ki, Maut aati hai par aati nhi – Markandey Katju

Aruna Shanbaug was a nurse working at the King Edward Memorial Hospital, Parel, Mumbai. On 27 November 1973 when she was strangled and sodomized by Sohanlal Walmiki, a sweeper. During the attack she was strangled with a chain, and the deprivation of oxygen has left in a vegetative state ever since. She has been treated at KEM since the incident and is kept alive by feeding tube.

On behalf of Aruna, her friend Pinki Virani, a social activist, filed a petition in the Supreme Court arguing that the continued existence of Aruna is in violation of her right to live in dignity. The Supreme Court made its decision on 7 March 2011. The court rejected the plea to discontinue Aruna's life support but issued a set of board guidelines legalizing Passive Euthanasia in India. The Supreme Court's decision to reject the discontinuation of Aruna's life support was based on the fact that the hospital staff who treat and take care of her did not support euthanizing her. She died from pneumonia on 18 May 2015, after being in a coma for 42 years.

A five Judge Bench of Supreme Court in Gian Kaur v. State of Punjab, held both euthanasia and assisted suicide not lawful in India and overruled the two Judge Bench decision in P. Rathinam v. Union of India. The Court held that the right to life under Article 21 of the Constitution does not include the right to die. But later in Aruna Ramchandra Shanbaug v. Union of India & Ors. on 7 March, 2011 the Supreme Court held that passive euthanasia can be allowed under exceptional circumstances under the strict monitoring of the Court.

The difference between active and passive euthanasia is that in active euthanasia something is done to end the patient's life while in passive euthanasia, something is not done that would have preserved the patient's life. The difference between 'active' and passive' euthanasia is that in active euthanasia something is done to end the patient's life while in passive euthanasia, something is not done that would have preserved the patient's life.

A five-judge bench, headed by Justice J. S. Verma, in Gian Kaur v. State of Punjab (1996) 2 SCC 648 in 1994 had held that both assisted suicide and euthanasia were unlawful. The bench stated that the right to life did not include the right to die, hence overruling the two-judge bench decision in P. Rathinam vs. Union of India which struck down section 309 of Indian Penal Code (attempt to suicide) as unconstitutional.

In the Gian Kaur case, the apex court held that Article 21 speaks of life with dignity, and only aspects of life which make it more dignified could be read into this Article, thereby pointing out that the right to die was inconsistent with it.

In 2011, the top court had recognized passive euthanasia in Aruna Shanbaug's case by which it had permitted withdrawal of life-sustaining treatment from patients not in a position to make an informed decision. The Centre had opposed recognition of 'living will' and said the consent for removal of artificial support system given by a patient may not be an informed one and without being aware of medical advancements. It had cited examples of various countries in disallowing creation of living will by patients.

Since March 2018, passive euthanasia is legal in India under strict guidelines. Patients must consent through a living will, and must be either terminally ill or in a vegetative state.

Arguments against euthanasia

  1. Eliminating the invalid:

    Euthanasia oppsers argue that if we embrace 'the right to death with dignity', people with incurable and debilitating illness will be disposed from our civilized society. The practice of palliative care counters this view, as palliative care would provide relief from distressing symptoms and pains, and support to the patient as well as the care giver. Palliative care is an active, compassionate and creative care for the dying.
     
  2. Constitution of India:

    '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'. It is the duty of state to protect life and the physician's duty to provide care and not to harm patient. If euthanasia is legalized, then there is a grave apprehension that the State may refuse to invest in health (working toward right to life). Legalized euthanasia has led to a severe decline in the quality of care for terminally-ill patients. Hence, in a welfare state there should not be any role of euthanasia in any form.
     
  3. Symptoms of mental illness:

    Attempts to suicide or complited suicide are commonly seen in patients suffering from depression, schizophrenia and substance users. It is also documented in patients suffering from obsessive compulsive disorder. Hence, it is essential to access the mental status of the individual seeking for euthanasia. In classical teaching, attempt to suicide is a psychiatry. Hence, attempted suicide is considered as a sign of mental illness. Malafied intention: In the era of declining morality and justice, there is a possibility of misusing euthanasia by family members or relatives for inheriting the property of the patient.

    The Supreme Court has also raised this issue in the recent judgement. 'Mercy Killing' in the hands of the noble medical professionals. Hence, to keep control over the medical professionals, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 discusses briefly in chapter 6, Section 6.7 and it is in accordance with the provisions of the Transplantation of Human Organ Act, 1994. There is an urgent need to protect patients from unnecessary lawsuit. Law commission had submitted a report (no-196) to the government on this issue.
     
  4. Emphasis on care:

    Earlier majority of them died before they reached the hospital but now it is converse. Now sciences had advanced to the extent, life of bringing back the dead one. This phenomenon has raised a complex situation. Earlier diseases such as cancer, Aids, diabetes, hypertension and mental illness are debated in terms best 'CARE', since cure is distant. The principle is to add life to years rather than years to life with a good quality palliative care.

    The intention is to provide care when cure is not possible by low cost methods. The expectation of society is, 'cure' from the health professionals, but the role of medical professionals become frustrated and the fellow citizen take extreme measures such as suicide, euthanasia or substance use. In such situations, palliative and rehabilitative care comes to the rescue of the patient and the family.

    At times, doctors do suggest to the family members to have the patient discharged from the hospital wait for death to come, if the family or patient so desires. Various reasons are quoted for such decisions, such as poverty, non-availability of bed, futile intervention, resources can be utilised for other patients where cure is possible and unfortunately majority of our patient's family do accordingly. Many of the terminally ill patients prefer to die at home, with or without any proper terminal health care.

    The societal perception needs to be altered and also the medical professionals need to focus on care rather in addition to just cure. The motive for many euthanasia requests is unawareness of alternatives. Patients hear that a lot can be done through palliative care, that the symptoms can be controlled, now and in future, many do not want euthanasia anymore. 
     
  5. Commercialisation of health care:

    Passive euthanasia occurs in a majority of the hospitals across the county, where poor patients and their family members refuse or withdraw treatment because of commercial health sector will serve death sentence to many disabled and elderly citizens of India for meagreamount of money. This has been highlighted in the Supreme Court Judgement. Research has revealed that many terminally ill patients requesting euthanasia, have major depression, and that the desire for death was reported by 3 of the 191 advanced cancer patients, and these had severe depression.

    They need palliative and rehabilitative care. They want to be looked after by enthusiastic, compassionate and humanistic team of health professionals and the complete expenses need to be borne by the State so that Right to life becomes a reality and succeeds before 'Right to death with dignity'. Palliative care actually provides death with dignity and a death considered good by the patient and the care givers.
     
  6. Right to die:

    Many patients in a persistent vegetative state or else in chronic illness, do not want to be a burden on their family members. Euthanasia can be considered as a way to upheld the 'Right to life' by honouring 'Right to die' with dignity. Encouraging the organ transplantation: Euthanasia in terminally ill patients provides an opportunity to advocate for organ donation. This in turn will help many patients with organ failure waiting for transplantation.

    Not only euthanasia gives Right to die for the terminally ill, but also 'Right to life' by providing 'food, safe drinking water and health care'. On the contrary, the state does not own the responsibility of promoting, protecting and fulfilling the socio-economic rights such as right to food, right to water, right to education and right to health care, which are basic essential ingredients of right to life.

    Till date, most of the States has not done anything to support the terminally ill people by providing for hospice care. If the state takes the responsibility of providing reasonable degree of health care, then majority of the euthanasia supports will definitely reconsider their argument. We do endorse the Supreme Court judgement that our contemporary society and public health system is not matured enough to handle this sensitive issue, hence it needs to be withheld.

    However, this issue needs to be re-examined again after few years depending upon the evolution of the society with regard to providing health care to be disabled and public health sector with regard to providing health care to poor people. The Supreme Court judgement to withhold decision on this sensitive issue is a first step towards a new era of health care in terminally ill patients. The Judgement laid down is to preserve harmony within a society, when faced with a complex medical, social and legal dilemma.


There is a need to enact a legislation to protect terminally ill patients and also medical practitioners caring for them as per the recommendation of Law Commission Report-196 there is also an urgent need to invest in our health care system, so that poor people suffering from ill health can access free health care. Investment in health care is not a charity; 'Right to Health' is bestowed under 'Right to Life' of our constitution.

Conclusion:
In a concluding note, I would like to say that the right to have one's life terminated at will is subject to social, ethical, and legal strictures. The question that should euthanasia be legalized is not an objective question. It is a subjective one which depends more upon the cases and circumstances.

If the process of natural death has started, you can only help in that process on natural death. The person should be in a Permanent Vegetative State, or in coma, or living with a dead brain. The consent to discontinue life support of the patient should be must. If the patient is not in a state to give his consent, then in that case a decision has t be taken either by the parents or spouse or other close relatives or in the absence of any of them, such a decision can be taken even by a person who is his next friend.

It can also be taken by the doctors attending the patient. However, the decision has to be taken bona fide in the best interest of the patient. If a person who has neither any relative nor any close friend and he is not in a state to give his consent, then in that case the court would direct the expert doctors to submit a medical deport of that person and court would look over it.

References:

  1. Khanna Hans Raj, Making of India 's Constitution (Eastern Book Co. 1981)
  2. Ratan Lal and Dheeraj Lal, The Indian Penal Code as a Amended by criminal law (amendment) Act, 2013 (Lexis Nexis, 34th edition, 2013)
  3. Dr. J.N Pandey, The Indian Constitution (Central Law Agency, 51st edition)
  4. Basu, Durga das (1984), Introduction to the constitution of India (10th ed. South Asia Books. ISBN 0-8364-1097-1).
  5. https://www.ssconline.com/article/right/to/life/art177.htm
  6. http://supremecourtofindia.nic.in/speeches/speeches_2009/judicial_activism

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