This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law University, Sonipat. This article explains the background and the concept of euthanasia. It covers both the Indian and International aspects. It also discusses the debate on the acceptance and validity of euthanasia.
This article has been published by Sneha Mahawar.
As enunciated by Justice D.Y. Chandrachud, “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.”
Such is the irony of life. And with this comes the complexity of deciding whether one has a right to decide one’s death. Hence, euthanasia is a hotly debated concept. In simple words, it is when someone voluntarily decides to end his life by removal of life-sustaining systems and medications to end the prolonged suffering from a terminal illness. People across the world have had reservations citing various religious and ethical arguments. On the other hand, the advocates of euthanasia have supported it vehemently, taking the help of humanitarian grounds and other reasons. India has had a long judicial history of legalizing euthanasia and the same is true internationally as well. The concept of euthanasia is an old one and still, the debate goes on.
What is euthanasia
The word ‘euthanasia’ is a product of two Greek words ‘eu’ meaning ‘good’ and ‘thanatos’ meaning ‘death’. It was coined in the early 17th century by the English philosopher Sir Francis Bacon. Basically, it implies ending a person’s life for good. When a person is suffering for a long time due to an ailment and there seems no way to mitigate the pain, death seems to be the only escape. Thus, when that terminally ill patient’s life is ended to terminate the pain and suffering, it is called ‘euthanasia’. Thus, rather than having a painful and slow death, it helps a person in getting a quick and dignified death. In other words, it is an intentional killing of a terminally ill patient by some means. The motive behind the killing here is merciful and intended at liberating the patient from excruciating pain and suffering.
Types of euthanasia
Euthanasia can take different forms depending upon the means by which the terminally ill patient’s life is ended. There are different terms that have different meanings. They are as follows:
Active and passive euthanasia
Active euthanasia is also called ‘‘aggressive’ euthanasia. In this, the patient is put out of his misery by active means. This could include administering a lethal injection of a drug. It is a controversial method and contains many religious, moral, ethical, and compassionate considerations that are hotly debated.
Passive euthanasia is when a patient’s life is ended indirectly by cutting off the life-sustaining treatments. It involves intentionally withholding the life support systems like the ventilator or the feeding tube.
Voluntary and involuntary euthanasia
Voluntary euthanasia takes place with the consent of the patient.
Involuntary euthanasia is administered without the patient’s consent. Going further deeper, it could be “involuntary”, i.e., against the patient’s wishes, or ‘non-voluntary’, i.e., without the consent but the wishes are unknown, like when the patient is unconscious. ’
Self-administered and other administered euthanasia
Self-administered euthanasia is when the patient himself/herself administers the means of death.
Other-administered euthanasia is when a person other than the patient, like the doctor or a close family member administers the means of death.
It is called ‘assisted euthanasia’ when the patient himself/herself administers the means of death, but with the assistance of another person like the doctor.
‘Mercy killing’ is an umbrella term that includes active, involuntary, and other-administered euthanasia thus, it implies killing a patient without his/her explicit consent to end the pain and suffering, i.e. out of mercy.
‘Physician-assisted euthanasia’ is active, voluntary, and assisted euthanasia where a physician ends a patient’s life with his/her consent by actively providing a means of death.
History of euthanasia in India
India is a land of diversity. People from different religions have inhabited the land for a long time. Thus, the views on life and death, the core ideas of euthanasia, have varied with the religions. Both Christianity and Islam preach life as a gift of God or Allah. Thus, it must not be abandoned under any circumstances. Therefore, considering the sacredness of life, both religions are against euthanasia as life is not for men to take.
Traditionally, the principles of life and religion for the Hindus flow from sacred texts like Smritis, Shrutis, Vedas, Upanishads, and Puranas. These texts seem to support euthanasia in the garb of the concept of self-liberation. Manusmriti advocates the use of suicide or self-liberation to exonerate oneself from an incurable disease. Hindu religion believes in concepts like moksha and re-birth. It talks about death as the liberation of the soul, from where it transfers to another body. It has concepts like fasting till death for the liberation of the soul. However, it supports self-liberation only when one has attained all the aims of life. Thus, for a person who is terminally ill and has no scope of recovering, euthanasia for such a person is permissible.
The ideology of Buddhism and Jainism is also along similar lines, i.e., permitting suicide in restricted forms.
Timeline of the changes in legal perspective
- The first effort in the direction of recognising euthanasia was made in 1971. The 42nd Report of the Law Commission for the first time recommended the deletion of Section 309 from the Indian Penal Code, 1860. Section 309 criminalised the attempt to commit suicide with imprisonment, fine, or both.
- In the case of Rathinam v. the Union of India in 1994, the honorable Supreme Court of India declared Section 309 to be unconstitutional. It was held that the Section was cruel and irrational, and it violated Article 21 of the Indian Constitution. It was observed that punishing a person who has already gone through so much suffering implies inflicting more misery on him. Criminalising suicide means an unwarranted interference of the state with the citizen’s personal liberty.
- The decision given in the above case was overruled in the case Gian Kaur v. the State of Punjab in 1996. It was held that Article 21 guarantees the right to life and this is inconsistent with the right to die. The right to live includes the right to live with dignity but up till the natural end of life. It does not include unnatural termination of life. Thus, Section 309 does not violate Article 21.
- In 2006, the Law Commission of India released its 196th Report. In the report, it recommended the legalisation of ‘passive euthanasia. It outlined it to be very strict and controlled, keeping active euthanasia and physician-assisted suicide illegal. It was supposed to be allowed only in those cases where the patient was in a permanent vegetative state (i.e., the patient is not capable of sustaining himself/herself and survives on a life support system). The doctors were given the responsibility to inform the patient of his condition and his future prospects. In such a case, the patient must convey his/her consent for the removal of the support system, voluntarily through written or oral consent. The Report further suggested the doctor must be given protection from Section 309 in such a case when he/she acts on the wishes of the patient. Additionally, in cases where the patient is incompetent to convey the consent, the next friend may seek the High Court’s consent for the withdrawal of the support system.
- The debate erupted again in 2011 with the case of Aruna Ramchandra Shanbaug v. the Union of India (2011).
Aruna was a staff nurse when she was raped and strangulated by a sweeper in the clinic. Due to strangulation, the oxygen supply to her brain was disrupted, which resulted in brain damage. Later on, she went into a permanent vegetative state and her next friend, Ms. Pinki Virani filed a petition under Article 32 to end her misery by euthanising her. The primary issue raised was whether Article 21 also included the right to die. The Court finally recognized passive euthanasia as legal without any legislation. It also provided some guidelines on this issue. However, active euthanasia was completely prohibited, until the legislature came up with suitable legislation. Till then, active euthanasia would be a criminal offense under Section 302 or at least Section 304 of the IPC.
The guidelines issued were as follows:
- The decision to discontinue the life support of the patient must be taken by the parents or the spouse or close relatives. In case none of them were available, then the decision could be taken by a person or a body of persons in the capacity of a ‘next friend’. It could also be taken by the doctors attending the patient. However, it should be kept in mind that the decision should be based on bona fide intention and the best interests of the patient.
- The decision must be approved by the respective High Court.
- In order to prevent the misuse of this provision, the court used the principle of Parens Patriae, i.e., the state has inherent power and authority to protect such persons who are legally incapable to protect their interests themselves. Thus, for an application of passive euthanasia, the Chief Justice of the HC must form a bench of two judges who would act on the assessment of a board of three expert doctors assigned by the Bench itself.
Even though Aruna was denied passive euthanasia as she was not brain dead yet, the case was a landmark judgement where the Court gave detailed guidelines for passive euthanasia and recognised it legally.
6. After scrutinising the situation and the developments related to euthanasia happening around the world, the Indian Psychiatric Society recommended the Law Commission take charge of the change that the world was witnessing. Hence, the Law Commission took a suo moto charge and submitted its report in 2012. It once again suggested to the Indian government to repeal Section 309 of IPC. It elaborately discussed the judicial developments and the constitutionality and validity of the Section. In the context of the decision given in the Aruna Shanbaug case, the report submitted the legalisation of passive euthanasia.
7. Finally, the present status of euthanasia in India was determined by the case Common Cause v. the Union of India (1999). In this case, the appellant had filed a writ petition contending that the right to life must include the right to die with dignity under Article 21. It was argued that the government must ensure that the terminally ill people had a right to create a ‘living will’ which can be presented in the future at the appropriate time to the hospital where the ill person is admitted. As an alternative to this, the government can also issue the requisite guidelines for this and appoint an expert committee including doctors, social scientists, and lawyers to research ‘living wills’.
The Court opined that the issue was a sensitive one because of “the low level of ethical standards to which our society has descended, its raw and widespread commercialisation, and the rampant corruption”. Thus, the question must be answered considering all the legal, medical, and constitutional perspectives.
Thus, the Gian Kaur judgement was upheld and the right to die with dignity was held to be a fundamental right under Article 21. It was observed that an adult having the requisite mental capacity to make an informed and rational decision had the right to refuse medical treatment or the withdrawal of life support systems. And for the persons who could not take responsible decisions for themselves, the ‘best interests principle’ must be applied, and then it would be taken by competent medical experts.
Current status of euthanasia in India
- Post the judgement in the Common Cause case, the right to die with dignity has been held as a fundamental right.
- Passive euthanasia has been legalised.
- In cases where medical experts have declared that a patient has an incurable disease and has reached a point where there is no recovery, the patient has a right to refuse to sustain via artificial means and can opt for passive euthanasia to avoid the pain and suffering.
- The concept of living will has been recognized. It is a written document where a patient gives instructions beforehand about the future that when he/she is terminally ill and is no longer capable of expressing his consent, he/she must be administered passive euthanasia if the medical experts declare that there are no life-saving options are left.
In the US, active euthanasia for humans is illegal in most states, except in Oregon, Washington DC, Hawaii, Washington, Maine, Colorado, New Jersey, California, and Vermont. However, it is frequently used for sick or injured animals. In most states, it is prohibited under general homicide laws. However, passive euthanasia is considered legal in all states. It was in 1990 that the US Supreme Court ruled that the patient could refuse life-sustaining systems, including feeding tubes. There is a heated debate going on in the US concerning the legality of euthanasia and the need for a uniform and standardised law across all the states.
Euthanasia is illegal and a person administering it can be prosecuted for manslaughter, in Northern Ireland. As per Section 13 of the Criminal Justice (Northern Ireland) Act 1966. Also, the individual case is decided by the Public Prosecution Service (PPS), guided by offence-specific guidelines published in 2010.
Euthanasia is illegal even in Scotland. However, there is no particular offense criminalising assisting or encouraging suicide in Scotland. Any such case is dealt with under homicide laws. The decision to prosecute is taken by the Crown Office and Procurator Fiscal Service (COPFS). However, prosecution under this law is uncommon.
The same law of illegality of euthanasia is followed in England and Wales as well. It is to be punished as murder or manslaughter. ‘Assisting or encouraging’ another person’s suicide is punishable under Section 2 of the Suicide Act, 1961.
A private member bill was introduced in the British Parliament in 2021 to liberalise the law, called Assisted Dying Bill. However, it could not be materialised into law.
In the case of Carter v. Canada (2015), the Supreme Court of Canada directed some changes in the Criminal Code in order to satisfy the Canadian Charter of Rights and Freedoms. The provisions that prohibited medical assistance in dying were declared to be invalid. Finally, in June 2016 federal legislation was passed by the Canadian Parliament that permitted medical assistance in dying to persons requesting it. Only physicians and nurse practitioners are allowed to provide medical assistance in dying. However, pharmacists and assistants, family members, and health care providers can provide help.
The persons eligible for such medical assistance in dying are the following:
Who are eligible for health services funded by the government
Who are at least 18 years old and are mentally competent to make sound health care decisions for themselves.
Who are suffering from a grievous and irremediable medical condition
Who makes a voluntary request for it, with no external pressure or influence
Who gives an informed consent
The Netherlands was the first European country to legalise euthanasia and assisted suicide in 2001. However, abetting suicide and assisted suicide are still criminal offences. There are basically five conditions laid down for granting euthanasia, which are as follows:
- The request for euthanasia by the patient must be voluntary and well-considered. If the patient is not in the condition to give valid consent, then the previous declaration made by him to the effect, if written, can be considered. But the patient must be at least 16 years old.
- The patient’s condition must be hopeless with no scope for improvement and the suffering must be unbearable.
- The patient must be well-informed of his condition, the scope for the future, and the options available.
- The doctor and patient must reach a mutual conclusion that there is no better and more reasonable alternative.
- At least one other independent doctor must be consulted and he must give a written confirmation of the above-mentioned conditions. If the need for euthanasia is for a mentally ill patient, then two independent physicians must be consulted, out of which at least one must be a psychiatrist.
In the case of a minor, if the minor is between 16 to 18 years, then the doctor may accept the minor’s request for euthanasia with the consultation of his parents. And if the minor falls in the age group of 12 to 15 years, then parental consent is necessary.
In addition to this, there is also the ‘Groningen Protocol’ that enumerates the necessary conditions and steps that are to be followed in the cases of young children, especially newborns.
The debate on euthanasia
Arguments in favour of euthanasia
The advocates of euthanasia often present the following arguments:
- Freedom to choose for oneself– It is argued that a patient must have the freedom to choose to end his life full of pain and suffering. If someone chooses to escape from continuous misery by dying voluntarily, then the state should not stop him from doing so.
- Insufferable pain – It is inhumane to force someone to go through excruciating pain and suffering when the patient clearly wishes to end it all by dying. It is not just the physical aspects of terminal illness but also mental and emotional that degrades the quality of life completely.
- Right to die with dignity– A person suffering from a terminal illness becomes a burden on everyone around, including family and friends. The patient becomes dependent on sustaining his life on the people around him. This takes a person’s dignity and independence away from him. Everyone has a right to life and this must include that he shall not only live with dignity but also die with dignity.
- Experience of the sufferers– Many people who have witnessed patients suffering from terminal illnesses describe it to be the worst form of torture for the patient. The pain and suffering are intolerable. Thus, allowing such a person to end his life willingly, without any external pressure or influence is the right thing to do.
- Regulation– Such things may not come to the notice of the state but they always happen. Thus, it is better for the state to regulate it by bringing proper rules and checks so that it is not misused.
Arguments against euthanasia
There are also people that are wary of this practice owing to several considerations. Some of them are as follows:
- The Hippocratic oath– The oath binds the doctors to try everything possible in their power to save their patients. They are considered life-savers and not life-takers. Thus, administering euthanasia, even under the direction of the patient goes against their principles and duties. The health professional as a result may be unwilling to compromise their professional role.
- Moral and religious sentiments– Many religions emphasise the sacredness of life. It is god-given and is not for us to take. Thus, any form of suicide is considered a sin and is condemned. In addition to this, morally also euthanasia will lower the sanctity of life in society.
- Patient’s competence to give consent- When a patient is terminally ill, his mental state might not be normal as compared to a healthy person. In such a case, the validity of consent might be doubtful. A person under the mental and emotional stress of being a burden to his family might have suicidal thoughts and opt for euthanasia. The authenticity of consent is even more questionable when the patient is not able to clearly express it. In such cases, there are high chances of misuse.
- Chances of recovery– Science is advancing every day. Research is being conducted on various diseases. Many of the previously incurable diseases have been cured. There is always a hope of recovery. The chance might be missed if the person is euthanised.
- High chances of misuse– This is a matter of life and death and hence, cannot be taken lightly. There is a huge scope of misuse and corruption. There could never be airtight regulation and loopholes will always be enjoyed by unscrupulous people.
Case laws on euthanasia
C.A. Thomas Master and etc. v. the Union of India and Ors. (2000)
Facts of the case
The petitioner, in this case, was an 80 years old retired teacher who had a well-settled family. He was in a good mental and physical state. He believed that he had accomplished the mission of his life and had no desire to live further. However, he did not want to commit suicide. He, on the other hand, was fully content and wanted to put an end to his life or donate his organs to facilitate voluntary death. He argued that under Article 21 of the Indian Constitution, he had the freedom to choose the means of his death. For this purpose, he pleaded to establish ‘Mahaprasthana Kendra’ or ‘Voluntary Death Clinics’ in district hospitals.
Issues involved in the case
Whether voluntary death is the same as suicide?
Judgment of the Court
The Kerala High Court held that there was no difference between suicide and voluntary death. The man’s desire to end his life, having fulfilled all his duties, amounted to suicide. Deaths like this could cause a huge loss to society, as we would miss out on the wisdom gained over the years through experience by such persons. There was also a possibility of misuse or abuse of such a right. Thus, the petition was dismissed.
McKay v. Bergstedt (1990)
Facts of the case
In this case, Kenneth Bergstedt, at the age of ten, suffered from the fate of quadriplegic due to a swimming accident. As a result, he was sentenced to lifetime paralysis by the illness and was kept alive by a life-sustaining respirator. Thus, he petitioned the District Court in the US for the removal of his respirator by someone who could also administer a sedative, so that he is relieved of the pain just before he died. He also sought immunity from civil or criminal liability for the one administering euthanasia.
Issues involved in the case
Whether the petitioner’s life support system can be removed to help him end his suffering?
Judgment of the Court
A qualified physician confirmed that the petitioner’s condition was irreversible. As per a psychiatrist’s evaluation, he was found to be mentally competent to understand the nature and consequences of his decision. His family had also given their consent. He survived successfully only until the respirator was attached to him. The Court upheld his constitutional privacy right to discontinue further treatment. It was recognized that his decision posed no threat to the state’s interest in preserving life and it did not endanger the integrity of the medical profession. Thus, he was granted permission to discontinue further treatment.
Maruti Shripati Dubal v. the State of Maharashtra (1986)
Facts of the case
In this case, the petitioner was a police constable who suffered from a mental illness after a road accident. He was diagnosed with schizophrenia and also suffered from depression. Once he tried to burn himself by pouring kerosene on his body and setting himself on fire. But he was stopped by the police. Subsequently, he was charged with Section 309 of the IPC for an attempt to suicide. Finally, the constitutionality of the Section was challenged in the High Court.
Issues involved in the case
- Whether the petitioner can be held liable for the attempt to suicide?
- Whether Section 309 is constitutionally valid or not?
Judgment of the Court
The Court held that Section 309 was violative of Articles 14, 19, and 21. Article 21 guarantees the right to life that gives us the right to personal liberty and protection of life. Article 19 and Article 21 are intricately linked to each other and must be construed harmoniously together. It violated Article 14 as the word ‘suicide’ was not defined in any statute. The Section did not even differentiate between the attempts to suicide. Though it can be inferred from the intentions of the person, it is unclear whether it will necessarily lead to the end of one’s life. This makes the Section arbitrary. Thus, the petitioner was not held liable under Section 309.
However, the decision was overruled in the case of Gian Kaur v. the State of Punjab (1996)
There is no doubt that matters of life and death are sensitive ones. Many states recognize that we have the right to live. However, whether the right to die is included in it or not remains doubtful. In recent years, more and more countries have come to realise the importance of one’s wishes on whether to live with unbearable pain and suffering or to end one’s life. States have acknowledged the importance of personal choice and have started bringing legislation and rules to regulate it. It is pertinent to note that legalising euthanasia may have its own repercussions as there is always a scope of misuse and corruption. However, the only solution for this is to bring proper and informed laws. Courts have also helped by laying down guidelines in various cases. Thus, the law on legalising euthanasia is a developing one and needs a thorough discussion in order to respect the rights of citizens and balance the interests of the state and society with them.
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