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Euthanasia: A Human Rights Perspective

Euthanasia comes from the Greek words, EU meaning good and ‘THANATOS' meaning ‘death'.[1] Bringing these together, euthanasia means the good death. Euthanasia also called mercy killing, act or practice of painlessly putting to death persons suffering from painful and incurable ailments or physical disorder allowing them to die by withholding treatment or by withdrawing artificial life- support measures.

The word euthanasia was first used in a medical context by Francis Bacon in the 17th century, to refer to an easy, painless, happy death, during which it was a physician’s responsibility to alleviate the physical sufferings of the body.

Religious Views On Euthanasia

  • Islam

    Islamic religious views 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. However, IMANA (Islamic medical association of America) says that turning off life support for deemed to be in a persistent vegetative state is permissible. This is because they consider all mechanical life support procedures as temporary measures.
     
  • Christianity

    They are mostly against it. The arguments are usually based on beliefs that life is given by God, and that human beings are made in God’s image. Some churches also emphasize the importance of not interfering with the natural process of death. Life is a gift of God Christianity requires us to respect every human being.
     
  • Hinduism

    In ancient India, under Hindu religion there are illustrations where to renounce the body (kaya) for eternal gains and benefits in the search of God is supported by monks. The making demand for death is advocated in such a situation where a sick person is facing intolerable pain. Right to make a claim for death emanates from the right to choose one's own way. Everyone is enriched with the right to self-determination and is free to choose his way of living.

    Similarly, it is advocated that everyone should have the right to end one's life when life would become so panicked then it is easier to die in comparison to live alive. As such death will give him relief from incurable disease and painful life. Euthanasia was practiced since ages. With official permission, residents of Athens could obtain a dose of poison which would allow them to choose death over suffering. The controversy over euthanasia differs from country to country and culture to culture.

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).

Karma:

Hindus believe in the reincarnation of the soul (or atman) through many lives - not necessarily all human. The ultimate aim of life is to achieve moksha, liberation from the cycle of death and rebirth. A soul's next life is decided by karma, as the consequence of its own good or bad actions in previous lives. You could regard a soul's karma as somehow representing the net worth of its good and bad actions. A soul cannot achieve moksha without good karma.

The doctrine of karma means that a Hindu tries to get their life in a good state before they die, making sure that there is no unfinished business, or unhappiness’s. They try to enter the state of a sannyasin - one who has renounced the world.

The ideal death is a conscious death, and this means that palliative treatments will be a problem if they reduce mental alertness. The state of mind that leads a person to choose euthanasia may affect the process of reincarnation, since one's final thoughts are relevant to the process.

Dharma:

Hindus live their lives according to their dharma - their moral duties and responsibilities. The dharma requires a Hindu to take care of the older members of their community.

Types Of Euthanasia

There are four main types of Euthanasia:

  1. Active euthanasia
  2. Passive euthanasia
  3. Voluntary euthanasia
  4. Non-Voluntary euthanasia
  5. Involuntary euthanasia

  1. Active Euthanasia:
    Active euthanasia is also known as mercy killing. It involves the intentionally ending the life of the person either with the consent of the patient or without the consent of the patient during incurable circumstances where the possibility of taking consent of the patient is nil or almost nil. Active euthanasia is given to the patients who are incurable, and in severe painful conditions at their deathbed. The aim of active euthanasia is to eliminate the agony and pain through means of death with the help of some drug.
    It is a crime under Section -302 or 304 of IPC in India
     
  2. Passive Euthanasia:
    Passive euthanasia is the intentional killing of the patient who is in incurable condition as well as in severe pain by withdrawing or withholding life-supporting means. Here ordinary and Extraordinary means of life comes into picture. Ordinary means of life means food, nutrition, hydration to a person which are one’s basic rights on the contrary extraordinary means are the additional life support provided to the patient to keep them alive such as medicines, drugs, and ventilatory support.
     
  3. Voluntary Euthanasia:
    Voluntary euthanasia is the mercy killing of the patient who is in in incurable condition and in severe pain by willingness or autonomous cooperation of the patient. Voluntary euthanasia is the mercy killing of a patient in a terminally ill and incurable condition expresses a serious request to be killed while still conscious.
     
  4. Non-Voluntary Euthanasia:
    When a person is unable to understand the decision between life and death, then euthanasia would not be voluntary, since it has no ability to grasp the decision. The concerned person takes the decision of mercy killing of the patients who re in severe pain and incurable terminally ill on behalf of the patient.
     
  5. Involuntary Euthanasia:
    Involuntary euthanasia occurs when a person is able to give consent to their death but does not do so because either they are not asked or because they are asked but still want to live. If they get killed anyway.

Concept Of Living Will

The concept of living will is associated with passive euthanasia. A Living Will is a legal document which allows an individual to express their wishes to doctors in Case they become incapacitated. In this, one can outline whether or not they want their life to be artificially prolonged in the event of devastating illness or injury.

However, Govt. didn’t support it and said that living wills could be misused and might be a threat to public health policy. J. Dipak Mishra said that a living will relieve the relatives of taking the painful decision of advising doctors to withdraw life support from the patient.

The Medical Treatment of Terminally ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006 recognized the concept of living will but doesn’t make it binding on medical practitioners and says that it can’t be executed by any patients since it would be considered void.

Right To Life And Right To Die

In Maruti Shripti Dubal v. State of Maharashtra, [1] the Bombay High Court ruled that section 309 is unconstitutional as it violates Article 21. The court observed that when the freedom to remain silent exists concurrently with the freedom of speech and expression, there also exist a right to die concurrently with the right to life; the desire to die is not unnatural and so there exists a right to die.

In 1987, the decision of Andhra Pradesh High Court in Chenna Jagadeeswar v. State of Andhra Pradesh [2] contradicted the aforesaid decision. The constitutional validity of Section 309 was challenged on the ground of violating Articles 14 and 21. It was held that the said section was not unconstitutional as it did not violate any of these articles.

Abrogating this decision, the division bench of the Supreme Court while disposing of P Rathnam v. Union of India [3] held Section-309 as unconstitutional and void for it violates Article-21. The court also observed that the provision is cruel and inhuman as it once again punishes a person who had already suffered agony and as a result of which that person attempted suicide.

This proposition was overruled in Smt.Gian Kaur v. State of Punjab[4]. The Supreme Court held that right to life is a natural right while suicide is an unnatural extinction of life and therefore the latter is inconsistent with the former. Aspects which are in accord with and will add on to life with dignity can be read into Article-21 and not those which extinguishes it. The court thus upheld the constitutional validity of Section 309.

However, as an exception to this, the Apex Court in Aruna Ramchandra Shanbaug v. Union of India & Ors[5] upheld the validity of Passive Euthanasia, assisted suicide, whereby the life support of a terminally ill patient is removed or halted. So, as far as India is considered, right to life does not include the right to die but provides for “right to die with dignity” which is facilitated by Passive Euthanasia only in certain circumstances permitted with the leave of the Supreme Court.

Section-309

India has retained and preserved many laws enacted during the British Raj even after independence in 1947. Section 309 is one such which was retained despite the fact that the British parliament itself decriminalized attempted suicide in 1961 through the Suicide Act. The Law Commission of India undertook to revise IPC along with other central acts and as a result of which it recommended repealing of Section 309.

The Law Commission in its 210th report recommended that “Section 309 needs to be effaced from the statute book because the provision is inhuman, irrespective of whether it is constitutional or unconstitutional…… the offence of attempt to commit suicide under Section 309 needs to be omitted from the Indian Penal Code.”[6] It said, “Section 309 of the Indian Penal Code provides double punishment for a person who has already got fed up with his own life and desires to end it.”[7]

At last, by the Mental Health Care Act 2017, which commenced in 2018, the scope of section 309 was limited without repealing it from IPC. The relevant provision reads as, “Notwithstanding anything contained in Section 309 of the Indian Penal Code any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.”[8]

India has now decriminalized the attempt to commit suicide and views the issue as one requiring treatment rather than punishment. The enactment of the act was not a cakewalk for the legislators as there was opposition to it.

Legal Perspective Of Euthanasia In India

Case-1
Aruna Shanbaug’s Case[9]
The Incident in 1973
Aruna was a staff Nurse working in King Edward Memorial Hospital (KEM), Parel, Mumbai. On the night of 27th November 1973, she was assaulted by a sweeper in the doctor’s facility who wrapped a canine chain around her neck and yanked her back with it. He attempted to assault her however finding that she was discharged, he sodomized her.

To immobilize her amid this demonstration he curved the chain around her neck. The following day on 28th November 1973 at 7.45 AM, a cleaner discovered her lying on the floor with blood all over in an oblivious condition. It is asserted that because of strangulation by the pooch chain the supply of oxygen to the cerebrum halted and the mind got harmed. This brought on unsalvageable harm to her mind and pushed her into a Permanent Vegetative State.

Her nearby relatives and her life partner relinquished her following a couple of years. From that point forward, it is the staff of the KEM healing facility that has been taking excellent consideration of their associate. They have been family to her throughout the previous 40 years and treat her as one among them. The way that she didn’t build up a solitary bed-sore however she is on the bed for quite a while is a declaration to their administration.

The Writ Petition in Supreme Court
In 2009, one Ms. Pinki Virani of Mumbai documented a writ request in the Supreme Court asserting to be Aruna’s next companion. (In the lawful speech, a next companion is a man who speaks to someone else who is under inability and not able to choose for himself/herself and who has no legitimate gatekeeper).

In her request, she said that Aruna can’t be said to be a living individual and it is just by virtue of pounded sustenance which is put into her mouth that there is a veneer of life that is absolute without any human component. She additionally said that there is no probability of any change in her condition and her body lies on the bed in the KEM Hospital like a dead creature, and this has been the position throughout the previous 36 years. She implored that the KEM healing facility powers be coordinated to quit bolstering Aruna and let her pass on gently.

It is additionally to be noticed that the court acknowledged this request under Article 32 of the Indian Constitution.

Supreme Court Decisions
The Hon’ble Division Bench of the Supreme Court of India, consisting of Justice Markandey Katju and Justice Gyan Sudha Mishra, delivered this historic judgment on 7 March 2011. The Court argued that Aruna was not brain dead on the basis of the doctor’s report and the concept of brain death under the Transplantation of Human Organs Act, 1994.

On 9th March, the Supreme Court ruled that individuals had the right to die in dignity, enabling passive euthanasia with guidance. The need to amend the laws on euthanasia was prompted by the famous Case of Aruna Shanbaug. In 2011, the Supreme Court recognized that passive euthanasia in Aruna Shanbaug, which enabled the removal of life-sustaining care from patients who were not in a position to do so.

Case-2
Common cause v. Union of India, 2018 [10]
(Right to die with dignity as a part of his/her Right to life and personal liberty under Article -21)

A Constitution Bench decided that the right to life with dignity under Article 21 includes a right to die with dignity.

On 8th March, 2018 the Supreme Court delivered two concurring opinions:
Majority opinion authored by CJI Dipak Mishra on behalf of himself and Justice AM Khanwilkar, Concurring opinion authored by Justice DY Chandrachud.
In 2002, Common Cause, a registered society had written to the Ministries of Law & Justice, Health & Family Welfare, and Company Affairs, also addressing the State Governments, on the issue of the right to die with dignity.

In 2005, Common Cause approached the Supreme Court under Article 32, praying for the declaration that the right to die with dignity is a fundamental right under Article 21. It also prayed the Court to issue directions to the Union Government to allow terminally ill patients to execute 'living wills' for appropriate action in the event that they are admitted to hospitals. As an alternative, Common Cause sought guidelines from the Court on this issue, and the appointment of an expert committee comprising lawyers, doctors, and social scientists to determine the aspect of executing living wills.

Common Cause argued that terminally ill persons or those suffering from chronic diseases must not be subjected to cruel treatments. Denying them the right to die in a dignified manner extends their suffering. It prayed the Court to secure the right to die with dignity by allowing such persons to make an informed choice through a living will.

On 25th February 2014, a three Judge Bench of the Supreme Court comprising the then Chief Justice P. Sathasiavn, Justice Ranjan Gogoi and Justice Shiva Kirti Singh had referred the matter to a larger bench, to settle the issue in light of inconsistent opinions in Aruna Ramchandra Shanbaug vs Union of India & Ors. (2011) and Gian Kaur vs State of Punjab (1996).
On 9th March 2018, a five Judge Bench comprising Chief Justice Dipak Mishra and Justices A K Sikri, A. M. Khanvilkar, D Y Chandrachud and Ashok Bhushan held that the right to die with dignity is a fundamental right. An individual's right to execute advance medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.

Arguments

Arguments Against Legalizing Euthanasia

  1. Eliminating the invalid:
    Euthanasia opposers argue that if we embrace ‘the right to death with dignity’, people with incurable and debilitating illnesses will be disposed from our civilised society.
    The practice of palliative care counters this view, as palliative care would provide relief from distressing symptoms and pain, 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 the State to protect life and the physician's duty to provide care and not to harm patients.

    If euthanasia is legalized, then there is a grave apprehension that the State may refuse to invest in health (working towards Right to life).

    Legalized euthanasia has led to a severe decline in the quality of care for terminally-ill patients in Holland. Hence, in a welfare state there should not be any role of euthanasia in any form.
     
  3. Symptom of mental illness:
    Attempts to suicide or completed 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 assess the mental status of the individual seeking for euthanasia. In classical teaching, attempt to suicide is a psychiatric emergency and it is considered as a desperate call for help or assistance. Several guidelines have been formulated for management of suicidal patients in psychiatry. Hence, attempted suicide is considered as a sign of mental illness.
     
  4. Malafide 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’ should not lead to ‘killing mercy’ 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 euthanasia 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 and also medical practitioners caring the terminally ill patients from unnecessary lawsuit. Law commission had submitted a report (no-196) to the government on this issue.[12]
     
  5. 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 can be prolonged but not to that extent of bringing back the dead one. This phenomenon has raised a complex situation. Earlier diseases outcome was discussed in terms of CURE but in the contemporary world of 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 is to provide ‘care’. Hence, euthanasia for no cure illness does not have a logical argument. Whenever, there is no cure, the society and 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 utilized 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 appropriate 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 from their doctors that ‘nothing can be done anymore’. However, when patients hear that a lot can be done through palliative care, that the symptoms can be controlled, now and in the future, many do not want euthanasia anymore.
     
  6. Commercialization of health care:
    Passive euthanasia occurs in majority of the hospitals across the country, where poor patients and their family members refuse or withdraw treatment because of the huge cost involved in keeping them alive. If euthanasia is legalized, then commercial health sector will serve death sentence to many disabled and elderly citizens of India for meagre amount 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 in terminal patients is correlated with the depression.[13]

In Indian setting also, strong 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.

Arguments In Favour Of Legalizing Euthanasia

  1. Caregiver’s burden:
    ‘Right-to-die’ supporters argue that people who have an incurable, degenerative, disabling or debilitating condition should be allowed to die in dignity. This argument is further defended for those, who have chronic debilitating illness even though it is not terminal such as severe mental illness. Majority of such petitions are filed by the sufferers or family members or their caretakers.

    The caregiver's burden is huge and cuts across various domains such as financial, emotional, time, physical, mental and social. Hence, it is uncommon to hear requests from the family members of the person with psychiatric illness to give some poison either to patient or else to them. Coupled with the States inefficiency, apathy and no investment on health is mockery of the Right to life
     
  2. Refusing care:
    Right to refuse medical treatment is well recognized in law, including medical treatment that sustains or prolongs life. For example, a patient suffering from blood cancer can refuse treatment or deny feeds through nasogastric tube. Recognition of right to refuse treatment gives a way for passive euthanasia. Many do argue that allowing medical termination of pregnancy before 16 weeks is also a form of active involuntary euthanasia. This issue of mercy killing of deformed babies has already been in discussion in Holland 20.
     
  3. 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 honoring ‘Right to die’ with dignity.
     
  4. 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’ for the organ needy patients.

Constitution of India reads under Article-21 right to life is in positive direction of protecting life. Hence, there is an urgent need to fulfil this obligation of ‘Right to life by providing food, safe drinking water and health care.

Conclusion
The courts in India, have taken a long stretch of time, from the Cases of Gian Kaur, Aruna Shanbaug, to the Case of Common cause (a regd. Society), in recognizing and legalizing the euthanasia, and have legalized passive euthanasia. It is the duty of the family to see the social and psychological conditions of the frustrated person. Our state India being a social welfare state is interested with the duty to take suitable steps.

The real alternative to euthanasia is to provide loving, competent care for the dying. A new concept for the dying arose in England, where institutions called Hospices specialize in compassionate, skilled care of the dying. This concept has spread throughout the Western world. Once a patient feels welcome and not a burden to others, once his pain is controlled and other symptoms have been at least reduced to manageable proportions, then the cry for euthanasia disappears. Proper care is the alternative to it as soon as there is adequate instruction of medical students in a teaching hospital.

End-Notes:
  1. Hunt T. Ethical issues. In Penson J, Fisher R (eds). Palliative Care for People with Cancer. London: Arnold, 1995: 11–22.[1] 1987 (1) BomCR 499, (1986) 88 BOMLR 589
  2. 1987 (1) BomCR 499, (1986) 88 BOMLR 589
  3. AIR 1988 Cr.L.J. 549
  4. 1994 AIR 1844, 1994 SCC (3) 394
  5. 1996 AIR 946, 1996 SCC (2) 648
  6. (2011) 4 SCC 454
  7. 210th Law Commission Report, Humanization and Decriminalization of Attempt to Suicide, 39 (2008), available at http://lawcommissionofindia.nic.in/reports/report210.pdf, last seen on 07/10/2019
  8. Ibid, p.38
  9. S. 115, Mental Health Care Act, 2017
  10. MANU/SC/0176/2011
  11. MANU/SC/0232/2018
  12. Law Commission report no.196 on medical treatment to terminally ill patients. [accessed on August 19, 2011]. Available from: http://lawcommissionofindia.nie.in/reports/rep196.pdf
  13. Chochinov HM, Wilson KG, Enns M. Desire for death in the terminally ill. Am J Psychiatry. 1995;152:1185–91

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