This article has been written by Nikunj Arora of Amity Law School, Noida. This article provides a detailed overview of passive euthanasia along with the concept of euthanasia, in general. The article also includes the global perspective and the landmark judgement wherein passive euthanasia became legal in India.

It has been published by Rachit Garg.

Introduction

One of the ways in which euthanasia can be viewed is as either active or passive; however, the exact meaning of passive euthanasia is sometimes unclear. Regardless of whether all passive euthanasia involves withholding life-sustaining treatment, it seems there is some dispute over whether the whole of such denial of life support should be regarded as passive euthanasia.

Historically, active euthanasia and passive euthanasia have been differentiated. It has long been thought that there is such a fundamental difference between the two that, despite the latter occasionally being permissible, the former is always forbidden. There are several reasons for challenging this doctrine. As a matter of fact, active euthanasia is, in many cases, a more humane method than passive euthanasia. Furthermore, conventional doctrine can lead to decisions regarding life and death being made on an irrelevant basis. The third issue is that the doctrine is founded on a distinction between killing and letting die, which itself does not have much moral weight. In addition to this, some of the most common arguments in support of the doctrine are invalid.

In February 2001, a special task force established by the European Association of Palliative Care (EAPC) attacked passive euthanasia in a very clear and explicit manner. According to it, the term passive euthanasia was a contradiction and that, therefore, it could not be part of the concept of euthanasia. The arguments were discussed in three parts. In the first place, an argument was based on euthanasia being wrong and passive euthanasia being permissible. A second claim was that passive euthanasia was not euthanasia since it did not result in death. There was also a consequences-based argument which argued that passive euthanasia had bad consequences.

An overview of euthanasia

What is euthanasia?

The concept of euthanasia was earlier framed by Sir Francis Bacon during the 17th century. It originated from the Greek words ‘eu and thanatos’, meaning ‘good’ and ‘death’, respectively. However, the earlier meaning of it meant a ‘good’ or ‘easy’ death. 

The act of euthanasia involves the administration of a lethal substance to a patient in order to relieve the patient’s intolerable and incurable pain and suffering. Physicians generally seek to relieve patients’ suffering, and their motives are usually compassionate. Physicians perform euthanasia, which has been classified as either active or passive. 

Types of euthanasia

Euthanasia comes in a variety of forms. The following types are determined by several elements, including one’s viewpoint and level of awareness:

  1. PAS and euthanasia

The concept of PAS (Physician-assisted-suicide) has been mentioned above. PAS refers to when a doctor intentionally assists someone with ending their life. This person could be going through the pain for a longer period of time. They could potentially have been given a terminal illness diagnosis. In most cases, the doctor of such individuals will analyse and assess which procedure is the most effective and painless.

  1. Active and passive euthanasia

In the case of active euthanasia, a person (physician preferably) causes the patient’s death directly and purposefully. While, in the case of passive euthanasia, the patient’s life is not taken directly, instead, they are being let to die.. 

  1. Non-voluntary (involuntary) and voluntary euthanasia 

The individual who is about to die can request voluntary euthanasia. Voluntary euthanasia occurs when a person/patient makes a conscious decision to end his life by the hands of the doctor. Such person/patient must provide his/her full consent to such assistance to end his life and shall establish that they are fully aware of the situation.

On the other hand, under non-voluntary euthanasia, someone else decides to end someone’s life, and in most situations, such a decision is frequently made by a close family member. .

The controversy around passive euthanasia

Both PAS and euthanasia have many supporters and opponents. Arguments typically fall into one of the four categories:

  1. Morality and religion: Passive euthanasia, in most case, can morally unacceptable for some people. Furthermore, many people argue that being able to decide how to end your life weakens the sanctity of life. For similar reasons, several churches, religious groups, and faith organizations are opposed to euthanasia as well.
  2. The judgement of a physician: An individual must be mentally capable of making a decision before they can participate in PAS. Nevertheless, it can be difficult to determine someone’s cognitive capabilities. Studies show that doctors aren’t always able to recognise when someone has the mental capacity to make the decision.
  3. Ethical considerations:There are physicians who oppose PAS who are concerned about ethical complexities. The Hippocratic oath was taken by physicians more than 2,500 years ago. By taking this oath, doctors pledge to take good care of those under their care and never harm them.

PAS reduces suffering and causes no further harm, according to some, so the Hippocratic oath supports it. Some argue, however, that it causes harm to the individual and their loved ones, who must watch their loved one suffer.

  1. Personal choice: Under this argument, the phrase “Death with dignity” is considered a movement that advocates and allows people to choose how they want to die in their lifetime. Some people simply do not want to go through a long death process, frequently because they are worried about the strain it would have on their loved ones.

What is passive euthanasia : an overview 

The concept of passive euthanasia, as discussed above, is like all types of other euthanasia, and entails the desire to hasten death in the patient’s best interests. Passive euthanasia differs from active euthanasia on the ground that the former hastens death by failing to offer something that would have delayed death if provided, i.e., passive euthanasia includes removing or delaying life-prolonging medical therapy to the patient by the doctor. Instances of passive euthanasia can include not giving medication and not performing a surgery that would save the patient’s life.

As a result, there are three requirements that must be met for passive euthanasia to occur:

  • Life-prolonging treatments are being discontinued or withheld.
  • The primary goal of the discontinuation or withholding of the treatment shall be to speed up the death of the patient.
  • The justification for the speed up death is that the action was taken in the patient’s best interests to die, as sooner or later he would die. 

However, not every situation where life-prolonging treatment is withheld or removed automatically amounts to euthanasia. As we have seen, passive euthanasia involves protecting patients’ interests, where there is a risk that their quality of life will be so poor that they would rather die than keep living. But there are other reasons for withdrawing or withholding treatment as well.

Three reasons may exist for this. First, the treatment might be futile and therefore ineffective, second, it may not be cost-effective as well. It does not amount to passive euthanasia, no matter how justifiable it may be, since it does not meet the third condition, namely the hastening of death in the patient’s interests. 

Talking about the third condition. In a third instance, treatment may be withheld or withdrawn due to excessive burden or harm. This does not constitute passive euthanasia because it violates the above second condition.

In some situations, the patient can deny the treatment in question, which can mark a fourth possible cause for discontinuing or withholding treatment. As a basic rule, any adult patient has the right to refuse, and on account of such refusal, the physician’s compliance with that refusal does not constitute passive euthanasia, since the above second condition is not satisfied.

The healthcare provider does not share the patient’s desire to die earlier even if the patient refuses treatment. If a competent patient refuses treatment in spite of the physician’s best efforts, the doctor can simply respect the wishes and autonomy. Furthermore, there is no requirement to agree with the goals of patients related to death.

The legality of passive euthanasia : a global view

Most of the debate about the morality and legality of passive euthanasia has occurred during the latter half of the 20th century and the beginning of the 21st century. According to ancient Greek and Roman beliefs, life should not be preserved at all costs. Therefore, they allowed suicide in certain circumstances, such as when no relief could be offered to a dying person or when a person no longer cared for their lives.The legality of euthanasia in several nations throughout the world is summarised below: 

  1. Netherlands 

The Termination of Life on Request and Assisted Suicide (Review Procedures) Act of 2002  governs euthanasia in the Netherlands. It legalises and governs PAS along with euthanasia, in extremely particular conditions and circumstances.

There was a dramatic shift in the paradigm in the Netherlands during the 1970s and 1980s as a result of a series of court cases which resulted in an agreement between the medical and legal authorities ensuring no physician would be prosecuted for assisting a patient to die as long as certain guidelines were strictly followed. The guidelines were established to permit physicians to perform passive euthanasia when a competent patient requests to die voluntarily and in full knowledge of the consequences of their actions. In the Netherlands, law was passed in November 2000 legalising the practice of passive euthanasia. All parliamentary stages approved the legislation in early 2001.

  1. Australia 

With the passage of a bill in the parliament of Australia’s Northern Territory, the first legislative approval for passive euthanasia was gained. Immediately after the Act became law in 1996, it was challenged by those opposed to passive euthanasia. After more than a decade of challenges, the Australian National Parliament overturned the legislation by prohibiting Australian territories from passing legislation allowing passive euthanasia on constitutional grounds in 1997. West Australia became the second state to adopt legislation allowing voluntary medically assisted death. This law became effective in 2021. A further three states, Tasmania, South Australia, and Queensland, have passed legislation allowing voluntary medically assisted death that will take effect in 2022 or 2023 for the first two, respectively.

  1. Belgium and Luxembourg

In September 2002, euthanasia became legal in Belgium. The Belgian legislation establishes the conditions under which suicide can be carried out by an individual, without permitting doctors. The individuals who want to terminate their lives should be aware of their actions and reiterate their request for euthanasia under the law. Additionally, the law states that a person must be under continuous and intolerable physical or psychological agony of an incurable illness to make a request for euthanasia.

Similar legislation was passed in Luxembourg in 2009 as well. 

  1. Spain

In 2021, Spain became the next country to legalise passive euthanasia. 

  1. Quebec

During 2014, the province of Quebec passed legislation allowing medical assistance in dying. As a result of the 2016 legislation, physician-assisted suicide and passive euthanasia have become legal in the entire Canadian federation.

  1. Italy

In 2017, the Italian legislature passed legislation allowing adults to choose their end-of-life medical care, in cooperation with their doctors, including the situations where they can choose to reject their treatment from the doctor. As a result, Italians can refuse medical treatment, artificial nutrition and hydration. 

In Italy, active euthanasia is currently illegal. Specifically, Article 579 of the Criminal Code prohibits anyone from causing the death of any person, with their consent, whereas Article 580 prohibits assisted suicide. Currently, the punishment for the former is 6 to 15 years in jail and for the latter, five to twelve years. However, passive euthanasia (the deliberate withholding of life-saving treatments from the incurably sick) is legal in Italy. The Constitution of Italy stipulates that “no one may be compelled to receive a specific medical treatment unless it is required by law”. Despite Italy being a secular state, Catholic influences infiltrate all aspects of society and culture in the country, making them a major influence on the public, albeit one that is gradually eroding.

  1. Sweden

The swedish health authority authorised passive euthanasia in 2010, allowing patients to terminate their treatment knowing that this will result in their death. This ruling came after doctors requested clarification because Swedish law allows patients to refuse treatment, but assisted suicide, including shutting off respirators, is illegal. However, active euthanasia, involving the injection of drugs to cause the person’s death, remains illegal in Sweden.

  1. France 

The French government legalised passive euthanasia in 2005 by introducing the concept of ‘right to die’. 2 member of parliament, one from the ruling Socialist party, and the other from the opposition allowed doctors to combine passive euthanasia with ‘deep and continuous sedation’ for terminally ill patients who are conscious, receiving no treatment or wishing to stop taking medications. According to them, in certain cases, patients who were incapable of making decisions could also be put to sleep permanently. Euthanasia debates frequently lead to a battle between those who insist life must be protected at all costs and those who say terminally-ill patients who endure unbearable pain deserve to die. After a string of high-profile end-of-life stories, Francois Hollande (President) committed to looking deeper into this divisive issue during his 2012 election campaign

  1. United State

In the USA, active euthanasia has been outlawed in 50 states, and PAS has been permitted in Oregon, Washington, and Montana. However, the concept of passive euthanasia is legal in most states in the USA. Therefore, doctors must adhere to patients’ desires when conducting euthanasia of any kind, wherever permitted.

  1. Germany

In Germany, it is against the law to actively help someone in suicide. Passive euthanasia, on the other hand, is legal in the country, and on a request made by any patient (written request), doctors can halt life-prolonging measures. The law also provides painkillers to someone who is dying.

The legalisation of passive euthanasia in India

Is passive euthanasia legal in India?

In a major judgement in March 2018 [Common Cause (A Regd. Society) v. Union Of India Writ Petition (Civil) N0. 215 OF 2005], the Supreme Court proclaimed the right to die with dignity to be a fundamental right, allowing for passive euthanasia across the country.

This was not always the case because the concept of passive euthanasia was not legal in India before March 2018. Exception 5 of Section 300 of the Indian Penal Code, 1860 would apply to physicians who induced or participated in euthanasia, because they had the required intention of causing  death of the concerned patient, and the term ‘intention’ was all that matters.

The Supreme Court of India in the above judgement stated that the directions and guidelines issued along with its directive would stay in effect until an effective statute or legislation on this subject is introduced.

While the judges on the bench had four different points of view, the Chief Justice of India (CJI) ruled that the ‘living will’ should be allowed since a person cannot be allowed to suffer in a vegetative condition if he or she does not want to live.

The Supreme Court recognised passive euthanasia in the Aruna Shanbaug case in 2011. Through the case, the Apex Court allowed for the withdrawal of life-sustaining care from patients who were unable to make an informed decision for themselves.

The decision originates from a 2005 Public Interest Litigation (PIL) filed by the non-profit organisation ‘Common Cause,’. This case was argued by Prashant Bhushan as a lawyer. The NGO asked the Court to recognise a ‘living will,’ and strictly argued that when a medical expert says a person with terminal sickness has reached a point of no return, she should be allowed the right to refuse life support, to escape excruciating pain for an extended period.

The Bench in this landmark case had previously reserved its verdict on October 11, 2017. According to the bench, the right to die in peace could not be separated from the right to live under Article 21 of the Indian Constitution.

In Gian Kaur v. State of Punjab [1969 AIR 946, 1996 SCC (2) 648], several arguments were raised in favour of legalising euthanasia in India before the Supreme Court. One of the key arguments was that the Indian Constitution “right to life” encompasses the “right to die” as well. 

The Supreme Court, however, rejected this argument and stated that the right to life of Article 21 of the Indian Constitution does not at all encompass the right to die, and thus, cannot be expanded to signify the same thing. As a result, the Supreme Court does not rule that euthanasia is unconstitutional.

The following are the main takeaways from the above ruling:

  • The Supreme Court has given legal recognition to passive euthanasia. According to the ruling, a patient who is competent to make a decision, and a patient who is unable to make a decision, both shall/may be deemed passive euthanasia.
  • The decision ruled that a patient’s living will is a valid legal document in the context of medical decisions such as withdrawing futile medical treatment.
  • The ruling affirms the right to make an informed decision to refuse medical treatment, including withdrawal from life-saving devices.

Government’s endorsement of passive euthanasia after legalisation

In a press release issued on December 23, 2014, the Government of India has announced its endorsement and revalidation of the judgement-law relating to passive euthanasia, following a speech in the Rajya Sabha. The Government of India stated that the Supreme Court of India, while dismissing the petition for mercy killing in a particular case, took the initiative to lay out comprehensive guidelines for dealing with passive euthanasia cases. Accordingly, the matter of merciless killings was discussed with the Ministry of Law and Justice, and it had been decided that, since the Supreme Court had already laid down the guidelines, they must be followed. As it stands, no legislation had been passed on this subject, and that the Supreme Court’s ruling in the above case (Common Cause (A Regd. Society) v. Union Of India) is binding on all.

As a result of the Court’s decision, active euthanasia through lethal injection was rejected. Considering that there is no law regulating euthanasia in India, the Supreme Court stated that its decision becomes the law of the land until the Parliament of India enacts a suitable legislation on this issue. Active euthanasia is still illegal in India, as well as most other countries, which includes the use of lethal compounds as part of the process of ending life. As the Supreme Court’s guidelines are law as there is no Indian law concerning euthanasia until and unless Parliament passes legislation. The Supreme Court laid down the following guidelines:

  • Parents, spouses, or other close relatives are responsible for the decision to discontinue life support, but, in the absence of them, any person or group acting as a friend can make the decision. The patient’s doctor can take it as well. Although the decision should be taken in the patient’s best interests, it should not be arbitrary.
  • Although the decision to withdraw life support can be made by the relatives or doctors, the high court still has to approve it.
  • Upon receiving such an application, the Chief Justice of the high court should immediately convene a bench consisting of at least two judges who can decide whether or not to approve the application. It will be a panel of three reputed doctors that the bench will nominate, who will report on the patient’s condition. The state and close family members should be notified before the verdict is given. Upon hearing the parties, a decision can be rendered by the high court.
  • A person of sound and healthy mental health can only execute advance directives. It must be voluntary and non-coercive. There shall be a written statement as to when medical treatment may be withdrawn or no medical treatment may be given that would delay the process of death, otherwise causing pain and suffering.
  • Two attesting witnesses should be present when the executor signs the document, and the jurisdictional Judicial Magistrate of First Class (JMFC) should countersign it. It is the responsibility of the witnesses and of the JMFC to certify that the document was signed freely and without coercion. One copy of the document shall be kept by the JMFC in his office, and one copy shall be forwarded to the registrar of the jurisdictional district court for preservation. If the executor is not present at the time of execution, the JMFC shall notify the executor’s immediate family members. A copy of the notification shall be given to the local government.
  • The treating physician shall verify the authenticity of the execution from the jurisdictional JMFC if the executor becomes terminally ill with no hope for recovery. The physician must inform the executor or guardian/close relative about the nature of the illness, the available medical care and the consequences of alternative forms of treatment and remaining untreated if the instructions need to be followed.
  • Medical boards shall be formed by the hospital consisting of the head of the treating department and at least three experienced physicians who shall jointly meet with the patient’s relatives to decide whether to withdraw medical treatment.
  • The hospital must inform the collector about the proposal if the Medical Board certifies that the instructions should be followed. An additional Medical Board shall be formed by the collector in conjunction with the district’s chief medical officer and three expert doctors. If the patient is not able to communicate, the board shall examine the patient and may agree to withdraw the treatment. If the board decides to withdraw the treatment, they should notify JMFC of their decision. After examining all aspects, the JMFC visits the patient and may permit its implementation.

Acceptance of passive euthanasia in India : the way forward 

In India, religious views strongly oppose premature death, and hence, the right to life may outweigh the right to die with dignity, which has just been given legal recognition in the above-mentioned case in 2018.

Despite the Supreme Court’s acknowledgement of the right to die with dignity as a fundamental right, religious communities in India, which are strongly opposed to euthanasia, may pose substantial challenges.

Killing a terminally ill individual, whether by active euthanasia (PAS) or passive euthanasia, is considered an act of disobedience against God by both Sunnis and Shias. From a similar point of view, the concept of euthanasia is opposed by Indian Christians. Euthanasia is against the Catholic Church’s beliefs since it supports the sanctity of life.

According to medical professionals, passive euthanasia is already a common practice in the majority of hospitals across the country, since many poor terminally ill patients and their families prefer to end treatment due to the enormous costs of keeping them alive. On the other hand, for those who can afford it, maintaining life with advanced medical technologies and palliative care has become more routine. 

Conclusion

The above ruling of ‘Common Cause’ is a watershed decision with far-reaching implications. The ruling does assure that those who are unable to recuperate and are considered medically unfit along with those who wish to terminate their lives can get an immense amount of benefit from passive euthanasia. The Bench also asserted that families do not abuse this provision and get rid of individuals who are not ‘fit’ for the family, and therefore, certain measures have been put in place to ensure this.

It is a little surprising that the above landmark ruling has prompted conflicting reactions among India’s palliative care community. The Indian legal position on end-of-life issues has been described as confusing at best, and a review of the terms of the new law legalising passive euthanasia has shown multiple blatant discrepancies. 

Taking a different perspective, this decision of the Apex Court, however, adds some clarity to passive euthanasia. An article published by the University of Glasgow, judicial acceptance of withdrawal/withholding of futile treatment and advance directives could be considered a first step in the right direction with some confusing terminology. Furthermore, a greater clarity, as well as open and honest community dialogues about what offers and preserves dignity at the end of life, is essential.

References

  1. https://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml
  2. https://timesofindia.indiatimes.com/life-style/health-fitness/health-news/everything-you-need-to-know-about-euthanasia/articleshow/63229188.cms
  3. https://www.healthline.com/health/what-is-euthanasia
  4. https://www.sciencedirect.com/topics/social-sciences/euthanasia
  5. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3440914/#ref3
  6. https://legaldesire.com/column-overview-passive-euthanasia-living-will-landmark-judgment-sc/
  7. https://economictimes.indiatimes.com/news/politics-and-nation/landmark-ruling-supreme-court-says-passive-euthanasia-is-permissible-with-riders/articleshow/63228770.cms?from=mdr
  8. https://jme.bmj.com/content/31/2/64
  9. https://www.scconline.com/blog/post/2020/11/28/euthanasia-indian-view/
  10. http://endoflifestudies.academicblogs.co.uk/passive-euthanasia-is-legal-in-india-what-difference-does-it-make/
  11. https://www.livemint.com/Science/Whfhef9I34eZ8iAXWaHVqK/How-will-India-accept-passive-euthanasia.html
  12. https://ili.ac.in/pdf/sms.pdf
  13. https://thewire.in/health/passive-euthanasia-now-a-legal-reality-in-india
  14. https://www.freepressjournal.in/cmcm/euthanasia-aruna-shanbaug-and-4-other-prominent-cases-in-india-where-mercy-killing-was-sought
  15. https://zeenews.india.com/india/active-euthanasia-vs-passive-euthanasia-whats-the-difference-and-which-country-allows-what-2088000.html
  16. https://indiankanoon.org/doc/217501/ 
  17. https://plato.stanford.edu/entries/euthanasia-voluntary/ 
  18. https://timesofindia.indiatimes.com/india/here-are-the-sc-guidelines-on-passive-euthanasia/articleshow/63236173.cms 
  19. https://www.clearias.com/euthanasia/ 
  20. https://www.euronews.com/2021/09/30/is-italy-set-for-a-referendum-on-legalising-euthanasia

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