This article is written by Abanti Bose, studying at Amity University Kolkata, India. The article discusses everything about assisted suicide, the history of euthanasia, the right to commit suicide, the position of suicide in India, passive euthanasia in India, the legality of assisted suicide in various countries and current developments regarding laws surrounding assisted suicide.
This article has been published by Sneha Mahawar.
Euthanasia and assisted suicide are procedures that refer to deliberate action being taken with the intention of ending a life, in order to relieve persistent suffering. Euthanasia and assisted suicide have remained a fierce debatable issue through generations. The legality of euthanasia and assisted suicide vary from country to country. While some countries have legalized euthanasia and assisted suicide, in other countries it is still an offence to attempt suicide, no matter how grave the circumstance is. Some countries like India, on the other hand only permit passive euthanasia, to free the patient from any terminal incurable disease.
Understanding euthanasia and assisted suicide
In order to understand the legality of assisted suicide we first need to know the meaning of euthanasia and physician assisted suicide.
It is the procedure when a doctor is allowed by the law of the state to end the person’s life through painless means as long as the patient and the family agree. Euthanasia is the practice of a deliberate attempt to end one’s life in order to relieve suffering. The legality of euthanasia varies from country to country. Euthanasia can also be termed as voluntary, non-voluntary and involuntary euthanasia.
Voluntary euthanasia: When euthanasia is conducted with the consent of the individual it is known as voluntary euthanasia. It is legal in many states like Belgium, Luxembourg, Switzerland, etc.
Non-voluntary euthanasia: When a person is unable to consent due to their current condition and the decision is taken by another person on their behalf it is known as non-voluntary euthanasia.
Involuntary euthanasia: When it is performed on the person who would have given consent but does not either because he was not asked or he was unable to give consent.
Apart from this, euthanasia is also classified as active euthanasia and passive euthanasia.
Active euthanasia: This involves killing a terminally ill patient by injecting a lethal dose of a drug i.e., killing the patient by active means.
Passive euthanasia: Passive euthanasia on the other hand is the process of removal of life support like turning off ventilators, discontinuing medications, and terminating food and water so the patient dies.
In this case, the doctor assists the patient to commit suicide if they request it. After it has been determined that the condition of the person qualifies under the physician-assisted suicide laws of the state, then the physician’s assistance is usually limited to writing a prescription for a lethal dose of drugs. Some countries have legalized physician assisted suicide under specific circumstances such as Austria, Belgium, Canada, Germany, Luxembourg, New Zealand, etc. In some states the requirements to carry out assisted suicide are:
- The person must suffer from a terminal disease,
- The person must be of sound mind,
- The person has repeatedly expressed their desire to die, and
- The person should take the lethal dose by their own hand.
History of euthanasia throughout the world
In ancient Greece and Rome attitude toward euthanasia was tolerant, in fact, Pagan physicians used to perform voluntary and involuntary mercy killings. The physicians understood the prolonged agony among their patients and assisted them to commit suicide by giving them poison.
In the 15th Century with the spread of Christianity, it was viewed that human life is a trust from God, and hence, it forbade the practice of euthanasia as well as assisted suicide. It was believed that committing suicide violates God’s authority over life, which is God’s gift towards humanity. This belief among people was magnified from the Middle Ages through the Renaissance.
Even in the 17th Century, common law tradition has disapproved or punished the practice of euthanasia and assisted suicide. Despite the decriminalization of euthanasia in many states of the USA in the late 18th Century, the majority population still rejected the practice of euthanasia and assisted suicide.
The Field Penal Code which was adopted in the Dakota territory in 1877 served as a model for several other western states’ statutes which helped in the codification of assisted suicide prohibition.
In the early 20th Century the euthanasia debate entered the political forums once again and a bill to legalize euthanasia was defeated in the Ohio legislature by a vote of 79 to 23. Furthermore, in 1936, a Bill to legalize euthanasia was defeated in the British House of Lords.
In 1938, Charles Francis Potter founded the National Society for the Legalization of Euthanasia (NSLE).
In 1972 for the first time, the US Senate held the first national hearings on death with dignity entitled “Death with Dignity: An Inquiry into Related Public Issues.” And later in 1977, eight states in the US such as California, New Mexico, Arkansas, Nevada, Idaho, Oregon, North Carolina, and Texas have signed the right to die bills into law.
Later several societies were formed all over the world to promote euthanasia and assisted suicide. The World Federation of Right to Die Societies (WFRDS) was founded in 1980. The member of this federation was the countries concerned about euthanasia and the right of the individual to die. Later in the year, the Hemlock Society was formed advocating for euthanasia and assisted suicide.
The right to commit suicide
The right to commit suicide is a concept based on people’s right to end their lives and to opt for voluntary euthanasia. An individual may opt for this right under grave circumstances such as terminal illness, incurable disease, or just losing the will to live. However, whether a person should be granted this right and if this right is granted then under what circumstances this right will be granted is often subjected to debate.
We can see in many universal declarations of human rights about the ‘right to life’ of individuals but the right to die is not mentioned in international or regional declarations. Even in the US where suicide has been decriminalized in most states, the attempt to commit suicide is regarded as an offence in most of them.
In the United Kingdom for a long time suicide was considered an offence to God and the Crown. The Suicide Act of 1961 penalized the individuals assisting with the commission of suicide. The Act further prevents any other Acts encouraging or assisting in the commission of suicide.
Other countries like France, Pakistan, Bangladesh, etc. consider suicide an offence to this date. All forms of suicide will be punishable no matter the circumstances and even assisting in the commission of suicide is punishable by law.
Current position of suicide in India
The Indian Constitution plays a crucial role in protecting the rights of individuals. In the case Maruti Shripti Dubal v. State of Maharashtra (1986), when the petitioner suffering from prolonged mental health disorders tried to commit suicide, an offence was registered against him under Section 309 of the Indian Penal Code. The constitutionality of this Section was challenged by the petitioner. The Bombay High Court ruled that Section 309 is unconstitutional and violates Article 21. The Court further stated that when a right to remain silent exists with the right to freedom of speech and expression enshrined under Article 19, thus, the right to die should also exist concurrent to the right to life. The desire to end one’s life is not unnatural and therefore one should not be penalised because of this. The Supreme Court of India in the case P Rathinam v. Union of India (1994), also held that Section 309 violates the fundamental rights laid down in the Constitution of India, as it is cruel and inhuman and penalises a person who has already suffered enough to arrive at this decision.
This decision was however overruled in the case Gian Kaur v. State of Punjab (1996). The five-judge Constitution Bench held that the ‘right to life’ is inherently inconsistent with the ‘Right to die’ as is ‘death’ with ‘life’. Article 21 of the Constitution mentions the ‘right to life’ of an individual which includes the right to life with dignity thus, including a dignified death process and so includes the right of a dying man to die with dignity. The Court further added that the right to life is a natural right but the commission of suicide is an unnatural act therefore, the Apex Court upheld the constitutional validity of the Section.
In Aruna Ramchandra Shanbaug v. Union of India & Ors. (2011), the petitioner was assaulted by a man who tried to immobilise her with a belt but he hurt her neck instead, which stopped the oxygen supply to the brain and she ended up having brain damage. This made her survive in a permanent or persistent vegetative state for 36 years. When the case reached the Supreme Court, the Court rejected all the pleas for mercy killing but it recognized the concept of ‘living will’ and it permitted passive euthanasia under certain severe circumstances. This landmark judgement of the Supreme Court paved the way for decriminalizing suicide in India.
The Mental Healthcare Act, 2017 limited the scope of Section 309, which stated that any person who tries to commit suicide shall be presumed unless otherwise proven that they have been suffering from severe stress and that person will not be penalized.
Should assisted suicide be legalized in India
In the present day, most people agree that human beings should have the right to die with dignity. In fact, India’s aversion to euthanasia is seen as cultural backwardness. Individuals should be given the right to end their lives if the circumstances become intolerable and not be penalised for such acts. So many people suffering from terminal diseases have to carry on with their lives and not be able to end it just because the law demands it.
Euthanasia would relieve the family members of the patient suffering from a terminal illness as it is difficult for them to afford the prolonged treatments. Artificially keeping a person alive not only becomes economically challenging for the person’s family, but also puts strains on the medical resources of the country. Long-term palliative care for terminally ill patients is a wasteful drain on the precious medical resources of our country. These medical resources should be utilised by the patients willing to live and can benefit from them.
However, the idea of assisted suicide has been rejected in India by many on the grounds that there are high chances people might misuse it. There are various reasons like property, money, and animosity among family members one can exploit the serious practice of euthanasia. Allowing euthanasia or assisted suicide in India opens up the possibility of unlawful murders disguised as mercy killings. In India, a large population is still uneducated and unaware of their rights. Thus, legalizing euthanasia would only victimize the innocent population and subject them to mercy killings.
Dr Roop Gursahant who was a panellist doctor in the Aruna Shanbaug case, states that assisted suicide should be legalized in such a society that does not suffer from corruption and every individual is ethically and morally responsible. Furthermore, even to this date when the judiciary and administrative bodies are not free from corruption it would be a grave mistake to legalize euthanasia.
Legality of assisted suicide in other countries
The legality of assisted suicide varies from country to country. The legal position of assisted suicide in some countries are mentioned below.
Both euthanasia and assisted suicide have been decriminalized in Canada. In 2014, Quebec passed Bill 52 decriminalizing euthanasia but not physician assisted suicide. But in the next year, the Supreme Court of Canada struck down the prohibition on assisting suicide, therefore giving the Parliament enough time to pass a law legalizing physician-assisted suicide and the conditions regulating it. The law lays down, “medical assistance in dying means (a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes death; or (b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death.” However, the law also stated the eligible people for this statute are:
- Permanent residents of the country,
- Must be above 18 years, and
- Have an incurable medical condition.
In the US several states have legalized assisted suicide such as Oregon, Washington, Colorado, Washington DC, Hawaii, New Jersey, Vermont, California, etc. However, even if the doctor prescribes a fatal drug to a terminally ill patient the presence of a healthcare professional is mandatory when that drug is being administered. And it also requires a 15 day waiting period between two oral requests and a two day waiting period between the final written request and fulfilling the prescription.
In the United Kingdom, euthanasia is considered murder or manslaughter and people who go through with it are severely penalized. Under the Suicide Act, 1961, assisted suicide is illegal, which states that, if any person aids another person to commit suicide then such offence carries a penalty of 14 years of imprisonment. When the Act decriminalized suicide the Coroners and Justice Act of 2009, amended the law and illegalized assisted suicide and euthanasia. When Diana Pretty who was suffering from motor neuron disease petitioned the Director of Public Prosecutions to allow her husband to aid her suicide as she was terminally ill and the Human Rights Act of 1998 should not prosecute anyone who is assisting terminally ill people to commit suicide. Her request was denied by both the Director of Public Prosecutions and the House of Lords.
In 1995, euthanasia was legalized by the Northern Territory of Australia when they passed the Rights of the Terminally Ill Act. However, in the next year, a Bill to overturn the Act was introduced on the federal level, and it made both physicians assisted suicide and euthanasia illegal again.
Efforts were made to legalize euthanasia and physician-assisted suicide in the year 2013 but the Bill was defeated. Recently, Victoria (the second-most populated state in Australia) legalized limited euthanasia and physician-assisted suicide. However, the law has certain conditions, it is only applicable to terminally ill patients who have a life expectancy of fewer than six months. In that case, the patients can obtain a lethal drug from the medical practitioner for self-administration. This also allows the doctor to administer the dose if the patient is unable to do so themselves.
Both assisted suicide and euthanasia are illegal in France. Palliative sedation, in which a person will be deeply sedated until they die is permitted but not assisted suicide. In 2021, the French Parliament blocked a proposal to legalize assisted suicide in the country.
What is passive euthanasia
Passive euthanasia is a kind of euthanasia that allows intentionally letting a patient die by withholding artificial life support such as a ventilator or feeding tube. It is a procedure where the medical treatment is withdrawn to hasten the death of the terminally ill patient. It is also known as the death brought by omission. Passive euthanasia can be of two types such as withdrawing treatment or withholding treatment.
- Withdrawing treatment refers to the removal of the machine which is keeping the person alive so that the person dies from the disease.
- Withholding treatment is not going through with the surgery or medically required treatment which would extend the life expectancy for a short duration.
Passive euthanasia can be voluntary or involuntary. When the patient’s treatment is stopped, the patient consents to no further treatment by signing a DNR (do not resuscitate). It is a medical order written by a doctor that prevents the healthcare providers to stop treating the patient. This is known as voluntary passive euthanasia as the patient consents to terminate the treatment. In the case of involuntary passive euthanasia, the family or next of kin of the patient requests the medical professional to stop the treatment allowing them to hasten the death of the patient suffering from an incurable disease.
The legality of passive euthanasia in India
In 2018, the landmark judgment of the Supreme Court legalized passive euthanasia in India. A petition was filed by an NGO, which moved to the court seeking a direction for recognition of ‘living will’ and further stated that when a medical professional is of opinion that a patient suffering from an incurable terminally ill disease that person should have the right to refuse to put on life support. The petition contended that having a patient live on life support or artificial means without their wishes is an assault on their body.
Therefore, after much deliberation, the Supreme Court allowed passive euthanasia, permitting ‘living will’ by patients on withdrawing medical support if they slip into an irreversible coma. A living will is a written document where a patient can give his explicit intentions in advance about the kind of medical treatment they wish to receive when they would be terminally ill and could no longer be able to give informed consent.
In this judgment, the directions and guidelines laid down by the Apex Court would remain in force until legislation is brought into this subject. Supreme Court in 2011 recognised passive euthanasia in the Aruna Shanbaug case by which it had allowed the withdrawal of life-sustaining treatment from patients who are not in a position to make an informed decision. Supreme Court laid down two important circumstances for passive euthanasia, which are:
- If the patient is in comatose or brain-dead condition, then the ventilator or artificial means of life can be removed.
- For those patients who are in a Persistent Vegetative State (PVS) the feeding tube can be removed and pain managing palliatives can be administered by following the international guidelines.
In the case of Common Cause (A Regd. Society) v. Union of India (2018), the Supreme Court recognized the concept of living will in India. The Court also acknowledged the right to die with dignity, right to self-determination and right to autonomy as fundamental rights among the citizens of India.
Legal developments concerning euthanasia and assisted suicide across the globe
In the last 20 years, the practice of euthanasia and assisted suicide has significantly expanded considerably in Europe, Australia and the United States.
At present, euthanasia is legal in seven jurisdictions across the world such as the Netherlands, Belgium, Luxemburg, Colombia, Canada and Victoria in Australia. Since February 2020, the Spanish Bill debating euthanasia and assisted suicide has been legalized in the year 2021. A similar Bill was introduced by the Portugal Legislature but the President of Portugal has refused to sign the second draft of the bill legalizing euthanasia and physician assisted suicide. In New Zealand, euthanasia became legal when the End of Life Choice Act, 2019 was enacted and it took full effect on 7th November 2021.
Physician-assisted suicide is legalized in Swizterland and ten states of the US. In the US when the efforts to legalize assisted suicide failed in the early 1900s, it was later restarted by fierce public debate followed by court cases, and eventually, the Supreme Court of the US arrived at the decision that the right to die provisions would be left to the states. Therefore, since 1997 physician-assisted suicide has been legalized in the following US states: Oregon, Washington, Montana, Vermont, California, Colorado, the District of Columbia, Hawaii, Maine, and New Jersey.
In February 2020, the German Supreme Court overturned the law banning the practice of physician-assisted suicide in a ruling by the constitutional court. It includes prescribing lethal doses of sedatives to terminally ill patients and providing consultation on how to legally access life-ending assistance in other countries. This enabled the German legislature to enact two separate draft bills on physician-assisted suicide.
With legalizing euthanasia and physician-assisted suicide every jurisdiction has laid down certain substantive, procedural requirements and safeguards. Most countries like Canada, Luxembourg, United States have age restrictions such as the person must be above the age of 18 to request physician-assisted suicide. In some countries, there is no age limit for euthanasia and physician-assisted suicide. However, there exist some common grounds which are followed in every jurisdiction concerning euthanasia and assisted suicide.
- The request must be voluntary.
- The individual requesting it must be suffering from a terminal incurable disease.
- The individual must have unbearable physical or psychological suffering which cannot be cured by medical resources of that state.
- A second physician must be consulted by the treating physician before the procedure is performed.
- Some countries also lay down mandatory waiting periods.
The practice of euthanasia and assisted suicide is becoming legal in the world in recent years with many judiciaries decriminalizing the offence of suicide and the legislatures enacting laws to enable euthanasia and assisted suicide under certain circumstances. As the access to assisted suicide increases, the need for additional research into the impacts on patients, physicians, health care systems, etc. must be the focus of the administration. The substantive and procedural safeguards must be carefully monitored.
In a country like India, apart from the medical prognosis, ethical and religious factors are also to be considered. Legalizing euthanasia would enable a lot of people to misuse it but also we have to consider that euthanasia and assisted suicide facilitates a person to die with dignity and not force them to carry on living just because the law demands it. There are various which are necessary to be considered before legalizing euthanasia or assisted suicide in India. Such factors include proper diagnosis by a psychiatrist or psychologist, to understand whether the physical or mental condition is reversible or irreversible and take necessary steps because of it, a second consultation must be provided to the patient, no physician assisted report should go unnoticed. Therefore, it is the responsibility of both the medical community and the legislature to encourage the practice of euthanasia and assisted suicide with the required rules and guidelines.
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