The article is written by Ansruta Debnath, a law student at National Law University Odisha. This is an article on active euthanasia and the issues that generally follow with respect to it.
It has been published by Rachit Garg.
Active euthanasia : a brief overview
Euthanasia is the practice of ending a patient’s life in order to alleviate their suffering. The patient in question is usually terminally sick or in excruciating pain and suffering. ‘Euthanasia’ is derived from the Greek words “eu” (good) and “thanatos” (death). The notion is that, rather than subjecting someone to a slow, painful, or inhumane death, euthanasia would allow the patient to have a ‘considerably better death’. Euthanasia can occur either in an active or a passive manner. In essence, passive euthanasia is when life support is deliberately withdrawn or withheld and the patient is allowed to die.
On the other hand, active euthanasia (also called aggressive euthanasia) involves the active killing of a terminally ill patient by injecting lethal substances into their system. This form of euthanasia is also called ‘aggressive euthanasia’. This is a controversial practice where several issues emerge.
Types of active euthanasia
It is important to note that active euthanasia can be voluntary or nonvoluntary. Through voluntary euthanasia, a person consents to be killed actively or allows for life support to be withdrawn. But, when the patient is unconscious and is unable to give consent, then the situation becomes more complicated. In those situations, euthanasia may be non-voluntary and consent may be given by the family of the patient or some medical representative of the patient. Here, the wishes of the patient may be unknown and the representatives take the decision keeping the best interest of the patient in mind.
The term ‘non-voluntary’ is being used to distinguish it from involuntary euthanasia where people are killed against their will and without any form of consent. Involuntary euthanasia is usually considered to be murder and is illegal everywhere. A famous example of involuntary euthanasia is the ‘T4 Euthanasia Program’ of Nazi Germany where mentally ill and elderly people were killed.
Issues with active euthanasia
An examination of international human rights law applicable to active voluntary euthanasia does not yield any clear cut mandate. Instead, it displays a balancing of rights, the proper balance of which may be subject to differing viewpoints.
As a corollary, the right to live does not entail the right to choose to die. However, it does not oblige a state to ensure that a person’s life is protected when this is contrary to that person’s stated preferences. The State’s commitment to safeguarding life must be balanced against the right to personal autonomy, which is enshrined in the right to privacy, in the case of a request for voluntary euthanasia.
Laws banning access to voluntary euthanasia may infringe on the right to respect for private life given by Article 17 of the International Covenant on Civil and Political Rights (ICCPR), and must therefore be justified as a justifiable restriction of that right.
It is vital to remember that subjecting someone to medical treatment against their will or without their agreement may be a violation of their physical integrity and a violation of their rights under Article 17 of the ICCPR. In addition, the Disability Convention states that people with disabilities have the same right to life, health, physical integrity, and personal autonomy as people without disabilities.
If a country decides to legalise active voluntary euthanasia, the International Covenant on Civil and Political Rights (ICCPR) demands that the legislation include rigorous and effective protections against abuse. Such legislation may need to include an adequately worded ‘conscientious objection’ clause in order to be compatible with the right to freedom of mind, conscience, and belief.
According to the findings, there is no single identifiable right that necessitates the legalisation of voluntary euthanasia, nor is there any single identifiable right that forbids it, as long as strict safeguards are in place. From a human rights standpoint, it appears that the option exists to support the legalisation of voluntary euthanasia procedures if enough safeguards are put in place to prevent “arbitrary” (including discriminatory) deprivations of life.
Arguments for legalising active euthanasia
Right to choose
The fundamental reason for which euthanasia should be legalised is for giving effect to the right of a person to choose how they want to live their life. This involves the right to self-determination. Self-determination is valuable because it permits people to live in accordance with their own conception of a good life, at least within the bounds of justice and consistent with others doing so as well. In the exercise of self-determination, people take responsibility for their life and for the kinds of persons they become. A central aspect of human dignity is a person’s capacity to direct their own life.
Transparency and legitimacy
What cannot be denied is that active euthanasia can occur illegally. Thus, it is always better to legalise it and bring in structural frameworks which can effectively reduce its misuse. The practice can then occur in the safest manner possible and a statute would also give much-needed predictability for patients and clinicians who aid them. Further, critical safeguards will be put in place making the process more patient-friendly.
It is always better to channel resources into patients who actually have a chance of recovery. Using them on those people who will not recover has no use and is simply wasteful.
Arguments against legalising active euthanasia
Role of doctor
The belief that such actions undercut the “role of the doctor” as a “healer,” as defined by the Hippocratic Oath, is one of the arguments against legalising active voluntary euthanasia. This is a debatable point of view. Another perspective is that the doctor-patient connection is better defined as a provider/customer relationship, in which the patient as a consumer ‘may ask for whatever he or she wants,’ and the doctor ‘ can choose whatever he or she wants to deliver.’ Under this perspective, a doctor may be justified in acting in a way that could be construed as active voluntary euthanasia.
Palliative care industry
A major argument against active euthanasia is how legalising it would undermine the palliative care industry and reduce investments in them. Further, it would also lead to the gradual rejection of the need for palliative care, something that has enormous value, not only for the patients but also for their families.
The slippery slope argument, which claims that legalising active voluntary euthanasia would lead to widespread involuntary euthanasia and the end of lives no longer regarded socially useful, is the most frequently stated objection to its legalisation. This, however, is an entirely unsupported claim. The slippery slope argument is frequently stated without respect for the risks of abuse or other issues that come with keeping the current rule in place.
Several faiths consider euthanasia to be a kind of murder and hence morally reprehensible. Suicide is also considered “illegal” by several religions. There is a moral argument that euthanasia will erode society’s respect for life’s sanctity.
Euthanasia is only voluntary if the patient is mentally competent, has a clear awareness of the alternatives and implications, and is able to communicate that understanding as well as their desire to end their own life. It is difficult to determine or define competence.
Patients may feel compelled to assent because they believe they are a drain on resources. They may believe that their family is under too much financial, emotional, and mental stress. Even if the state covers the expenses of treatment, there’s a chance that hospital staff will have an economic motive to induce euthanasia consent.
Doctor’s perspective on active euthanasia
In a 2010 study of more than 10,000 physicians in the United States, 16.3 per cent said they would consider stopping life-sustaining therapy if the family asked it, even if they thought it was premature. Around 54.5 per cent said no, while the remaining 29.2 per cent said: “it depends.” In addition, 45.8% of physicians thought that physician-assisted suicide should be permitted in some circumstances; 40.7 per cent disagreed, and the remaining 13.5 per cent were undecided.
In the United Kingdom, the assisted dying campaign group ‘Dignity in Dying’ cites research showing that 54% of general practitioners support or are neutral on assisted dying legislation. Similarly, according to a 2017 study published in the British Medical Journal, 55 per cent of doctors feel that assisted dying should be legalised in the UK under certain conditions.
The risk of being asked to engage in euthanasia in a circumstance when they believe it is wrong is a source of concern among healthcare workers. In a 1996 study of 852 nurses working in adult intensive care units, 141 (17 per cent) reported that they had received requests from patients or family members to perform euthanasia or assist in suicide; 129 (16 per cent of those for whom data were available) reported that they had engaged in such practices, and an additional 35 (4 per cent) reported that they had hastened a patient’s death by only pretending to provide life-sustaining treatment ordered by a physician.
Position of active euthanasia in India
Active voluntary euthanasia is valid and legal in certain countries like Belgium, Colombia, Luxembourg, Canada etc. India does not allow active euthanasia but in 2018, through a landmark judgement, the Supreme Court of India legalized passive euthanasia.
The right that comes into question with respect to euthanasia is the right to die. In Aruna Ramachandra Shanbaug v. the Union of India (2011), the Supreme Court held that the right to die was not included within Article 21 of the Indian Constitution which talks about the right to life. This was previously in Smt. Gian Kaur v. the State of Punjub (1996) wherein a Constitution Bench held that euthanasia and assisted suicide were both illegal in India.
In the Aruna Shaunbaug case, it was stated that active euthanasia was illegal all over the world unless specifically legalised. The same applied in India such that active euthanasia was illegal and a crime under Section 302 of the Indian Penal Code, 1860. The Shaunbaug case also went on to explain active euthanasia as a process in which specific steps are taken to cause a patient’s death, like sodium pentothal, which causes the person to have a deep sleep in a few seconds, and then the person instantaneously dies in this deep sleep without any pain.
In Common Cause (A Regd. Society) vs. Union of India and Anr. (2018), the Court extensively considered Indian and international precedent and held that the right to die with dignity was a fundamental right under Article 21.
In 2018, an elderly Mumbai couple wrote a letter to the President of India, requesting permission for active euthanasia because they were dissatisfied with their life. This instance highlights a very different aspect of legalizing the right to die.
Position of active euthanasia : a global view
As mentioned before, there are certain countries that allow for active euthanasia. Euthanasia is legal in Belgium, Canada, Colombia, Luxembourg, the Netherlands, New Zealand, Spain, and a number of Australian jurisdictions. Between 1996 and 1997, active euthanasia was permitted in the Northern Territory, but it was repealed by a federal statute. Peruvian court-approved euthanasia for one person, Ana Estrada Ugarte, in 2021.
Belgium is said to have the most liberal euthanasia law in the world. Since its legalization in 2002, it allows for the same not only for terminally-ill patients but also for children with psychiatric conditions. Many experts feel it allows patients with chronic and intolerable suffering a practical and humanitarian way to die peacefully. Active euthanasia also has popular, public support in Belgium.
Canada allows active euthanasia for adults suffering from ‘grievous and irremediable conditions’ whose death is ‘reasonably foreseeable’.
In Colombia, terminally ill people can request voluntary active euthanasia, with the first such death occurring in 2015. The request for assisted dying must be approved by an independent committee.
Active euthanasia is legal in Luxembourg for adults who are suffering from ‘constant, intolerable suffering and no prospect of improvement’.
The Netherlands was the first country to legalise euthanasia and assisted suicide in April 2002.
It imposed a stringent set of requirements, including that the patient is in excruciating pain, that their ailment is incurable, and that the demand is made in “full consciousness” by the patient.
Children as early as 12 years old can seek assisted dying, but those under the age of 16 must-have parental authorization.
Following the implementation of the End of Life Choice Act, 2019 on November 7, 2021, voluntary euthanasia is lawful in New Zealand.
Spain is the most recent country to legalize active euthanasia for serious, incurable or debilitating diseases when it passed the law in 2021. They also became the fourth country in the European Union to take this step.
Active euthanasia seems to be the most humane course of action for terminally ill patients. When it is voluntary, the argument for legalising active euthanasia becomes much more valid and stronger. Simply put, there is no point in prolonging a person’s pain and suffering. The main reason why governments are unwilling to legalize it is to prevent its misuse. But the fact is that misuse of the same happens anyway. So it will only be beneficial if proper frameworks are put in place. It will make the entire system more efficient and patient-friendly.
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