This article has been written by Priyanka Mansingh pursuing Crack NCA – Canada Examination and edited by Shashwat Kaushik. This article explores the practise of euthanasia in India from a legal and ethical point of view. It also looks at how euthanasia was viewed historically and how it is practised worldwide now. It examines the countries where euthanasia has been legalised and the situations in which it is permitted. The legal landscape in India regarding euthanasia is also examined.

This article has been published by Sneha Mahawar.

Introduction

Euthanasia or “mercy killing,” is the “act or practice of painlessly putting to death persons suffering from a painful and incurable disease or incapacitating physical disorder or allowing them to die by withholding treatment or withdrawing artificial life-support measures.”
It has been the subject of ongoing legal and ethical debates, as those in favour of it advocate respect for every individual’s autonomy and those against it promote respect for life. In India, based on a liberal interpretation of Article 21 of the Indian Constitution, the Supreme Court has recognised that the ‘right to die with dignity’ is a fundamental right. 

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To begin with, let us consider the case of a patient diagnosed with a severe, incurable form of cancer. The patient may survive for up to five years, but will be bedridden and in unbearable pain without any hope for recovery. Should the patient be granted the ‘right to die with dignity’? What about a situation wherein the patient cannot make their choice known because they are incapacitated? Should the ‘right to die’ be a private matter as long as it does not harm others?

Understanding euthanasia

Historically, some cultures have shown a greater level of tolerance for suicide and euthanasia. In ancient Rome, Norse mythology and Viking culture, suicide was considered an honourable act under specific circumstances. In Japan, the act of ritual suicide called seppuku or hara-kiri was practised by samurais as a way to restore their honour, preserve dignity, or atone for failures. In ancient Sparta, a Greek city-state, a practise called ‘exposure’ was used on weak or disabled infants and elderly individuals, whereby those who were deemed unfit were abandoned or left exposed to die. In a few Eskimo or Inuit communities in the Arctic, Aboriginal Australian communities and ancient Chinese societies, where resources were scarce, older people were sometimes abandoned or left to die during times of extreme hardship or famine. 

In India, traditionally, some advanced practitioners of Jainism, usually those who are old or terminally ill, sometimes undertake the practise of voluntary fasting until death called ‘Sallekhana’ or ‘Santhara’ to minimise suffering and purify their souls. Also, in some parts of southern districts of Tamil Nadu, there is a practise called ‘Thalaikoothal’ which refers to the killing of the elderly by their own family members. Although this practise of involuntary euthanasia is illegal, it has traditionally received social acceptance as a form of mercy killing.  

However, the above practises are not representative of the vast majority of cultures and societies. Modern societies now endeavour to care for their weak, vulnerable and elderly populations. 

Euthanasia is often considered a debatable, complicated and delicate topic nowadays because giving societal or legal approval to the deliberate act of ending a person raises a number of moral and legal issues. Some people believe that full autonomy should be given to terminally ill patients, whereas others believe that this could lead to some people being coerced to commit suicide. Also, the role of doctors in the process of ‘mercy killing’ is debateable because, inherently, doctors are trained to heal and cure rather than assist in suicide. Also, there is always a danger that euthanasia regulations may be abused by patients who are not terminally ill, as well as by carers of patients.

Euthanasia or mercy killing, remains illegal in almost all of the world’s countries. Very few countries have legalised euthanasia with varying degrees of restrictions.

Types of euthanasia

Types of euthanasia are:

  • Active euthanasia: Active euthanasia entails the intentional and direct administration of a lethal substance or the carrying out of an action to cause the death of a person. It is carried out under medical supervision. In countries such as the Netherlands and Belgium, active euthanasia is legal under certain circumstances. 
  • Passive euthanasia: Passive euthanasia refers to the refusal or withdrawal of life-supporting treatment or medical interventions that could lead to the natural death of a person. For instance, by removing the ventilators, feeding tubes, or life-sustaining medications. Passive euthanasia is permitted in many countries, including India. The Supreme Court of India, in the case of Aruna Ramchandra Shanbaug vs. Union of India (2011), allowed for passive euthanasia by permitting the withdrawal of life support in certain situations.
  • Voluntary euthanasia: Voluntary euthanasia ensues when a person of sound mind makes an informed decision to voluntarily end their life. This form of euthanasia requires a person’s explicit consent and full participation in the euthanasia decision-making process. Two countries where voluntary euthanasia has been legalised  are Canada and Colombia. In Canada, the Supreme Court’s decision in Carter vs. Canada (2015),  decriminalised physician-assisted dying for competent adults with a grievous and irremediable medical condition.
  • Non-voluntary euthanasia: Non-voluntary euthanasia refers to situations wherein a person is unable to provide consent due to mental incapacity. For instance, in a case where a patient is in a coma or is unconscious, the decision to end the person’s life is made by a family member or legal guardian. Non-voluntary euthanasia is highly debated and restricted due to concerns about a person’s autonomy. The Netherlands and Belgium have limited provisions for non-voluntary euthanasia in exceptional cases involving minors. Whereas the Netherlands allows non-voluntary euthanasia for infants, Belgium permits it for minors of any age under certain circumstances.

International perspectives on euthanasia

To gain a broader understanding of the legality of euthanasia or mercy killing and its application, let us examine countries where it has been legalised. The following countries have implemented legislation or court rulings permitting some mode of euthanasia or physician-assistedphysician assisted suicide:

Canada

In Canada, the Supreme Court’s decision in the case of Carter vs. Canada  on February 6, 2015, brought about a significant change in the legal landscape by decriminalising physician-assisted dying for competent adults with a grievous and irremediable medical condition. The unanimous ruling held that the Criminal Code’s prohibition of physician-assisted dying in cases of assisted suicide and voluntary euthanasia violated the Canadian Charter of Rights and Freedoms and would no longer be valid. This landmark decision also established a framework of safeguards and procedures to protect vulnerable individuals and ensure that their informed consent is obtained.

The subsequent 2016 law in Canada acknowledged that competent adults or Canadians aged 18 and older who have a serious and irreversible medical condition can exercise their right to seek medical assistance in dying. Since then, as of 2021, over 31,000 Canadians have died with medical assistance, as reported in the third annual report on Medical Assistance in Dying in Canada. This report highlighted the noteworthy impact and use of medical assistance in dying in the country, proving the importance of providing people with an option to end their lives when faced with a grievous and irremediable illness.

Netherlands

In 2002, the Netherlands became the first country to legalise both euthanasia and physician-assisted suicide. The legislation allows for the option of euthanasia when a patient is enduring unbearable suffering with no prospects of improvement and when the attending physician meets the statutory due care criteria. Since its legalisation, the number of euthanasia cases in the Netherlands has consistently increased. Notably, by 2019, the recorded cases had grown significantly to 6,361. While these cases represent a relatively small percentage of total deaths, they have doubled from under 2% in 2002 to over 4% in 2019. This upward trend accentuates the increasing acceptance and utilisation of euthanasia in the Netherlands.

Belgium

In 2014, the Belgian Senate expanded their legislation on euthanasia to include minors in exceptional cases involving terminally ill children. However, despite this extension, the federal commission responsible for overseeing euthanasia in Belgium reported that no minors underwent euthanasia in 2021. Since the law’s implementation in 2002, Belgium has recorded more than 29,000 euthanasia procedures. This data reflects that a significant number of people have chosen euthanasia as an end-of-life option in Belgium.

Luxembourg

Luxembourg permits euthanasia and assisted suicide under strict conditions. The law stipulates that individuals seeking euthanasia must be adults suffering from a severe and incurable condition that leads to unbearable physical or psychological pain. However, it also ensures that healthcare professionals are not obligated to perform euthanasia or assist in suicide. From 2009 to 2022, more than 70 people in Luxembourg opted for euthanasia, and a mere 4 people chose assisted suicide. These figures demonstrate the limited utilisation of euthanasia in the country. 

Colombia

Colombia was the first country in Latin America where euthanasia was legally permitted. In 1997, the Constitutional Court of Colombia ruled that euthanasia is lawful under specific circumstances. It recognised the right of individuals with terminal illnesses or incurable conditions causing intolerable suffering to request euthanasia, given they provide informed consent. According to a DescLab report,  from 2015 to October 31, 2022, Colombia conducted 322 medically assisted death procedures. These numbers highlight the implementation and utilisation of euthanasia as an end-of-life option in the country.

United States of America

In recent years, there has been a noticeable rise in the movement towards legalising physician-assisted suicide in multiple U.S. states. At present, physician-assisted death is only permitted in ten states, which include Maine, New Jersey, Vermont, New Mexico, Montana, Colorado, Oregon, Washington, California, and Hawaii, as well as Washington, D.C. However, the demand for compassionate and legally approved end-of-life options extends well beyond the borders of these specific jurisdictions. In the year 2023 alone, twelve U.S. states are actively considering introducing legislation to legalise physician-assisted suicide.

Legal perspectives in India

In India, the legality of euthanasia is a subject of intense debate, particularly regarding whether the ‘right to die’ can be recognised as a fundamental right under Article 21 of the Indian Constitution. Article 21 mentions that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Thus, Article 21 guarantees the protection of life and personal liberty. Over the past decade, the judiciary in India has expanded the interpretation of Article 21 to include the ‘right to live with dignity’, the ‘right to refuse medical treatment’ and the ‘right to die with dignity’. It’s important to note that active euthanasia is still prohibited in India. The debate regarding active euthanasia continues, with differing opinions on whether it should be allowed under certain circumstances.

One poignant case that highlighted the issue of euthanasia in India was that of Aruna Shanbaug, a former nurse who spent 42 years in a persistent vegetative state following a brutal sexual assault. Aruna’s plight caught the attention of the masses and triggered a legal battle. Profound questions about euthanasia or mercy killing, the rights of individuals to live with dignity and ‘living wills’ were raised in this case. In 2011, the Supreme Court of India recognised the concept of passive euthanasia and highlighted the importance of individual autonomy and the right to die with dignity. It also laid down procedures for administering passive euthanasia in certain situations. Passive euthanasia was permitted on a case-to-case- basis, subject to the approval of the High Court after following the due process. Regrettably, Aruna did not benefit from this judgement, as she was declared not brain-dead and so the order could not be applied to her case.

In 1996, a five-judge Constitutional Bench of the Supreme Court held in the matter of Smt. Gian Kaur vs. State of Punjab that the ‘right to life’ does not include the ‘right to die’ or ‘right to be killed’, so euthanasia cannot be recognised as a fundamental right. However, the court opined that withdrawal of life-support in certain circumstances may be justified while stressing the importance of preserving human dignity.

The Supreme Court of India judgement in the matter of Common Cause (A Regd. Society) vs. Union of India (2018) was significant as it recognised the right of a person to die with dignity and laid down the framework for the concept of ‘living wills’. A ‘living will’ is a legal document that allows individuals to express their wish to refuse medical treatment or artificial life support in the event they are unable to communicate their desires in the future. It empowers people to exercise their autonomy and make personal decisions about their lives. 

The Supreme Court in this case of Common Cause (A Regd. Society) held that people have the right to refuse medical treatment or life support in advance. Further, the court outlined guidelines and safeguards for the implementation of advance directives, ensuring they are valid, voluntary, and informed. In January 2023, the Supreme Court of India’s Constitution Bench, headed by Justice K M Joseph, modified this order on passive euthanasia and simplified directions by altering the existing guidelines for ‘living wills’. 

The need for comprehensive legislation in India

While passive euthanasia has received legal recognition in India, the legality of active euthanasia, where a person actively participates in ending their own life or facilitates the death of another, remains uncertain. The lack of legislation governing active euthanasia has led to a legal vacuum and ethical dilemmas for medical practitioners, patients, and their families. In India, a study conducted in 2018 found that 86.2% of the respondents were in favour of legalising euthanasia, while 13.8% were against it. This study shows significant public interest and support for the legalisation of euthanasia in India.

To address this issue, the Law Commission of India, in its 241st report in 2018, recommended the enactment of legislation permitting both passive and active euthanasia under specific circumstances. The report proposed safeguarding measures to ensure that the decision to opt for euthanasia is made voluntarily, without coercion or duress. It also emphasised the importance of establishing appropriate regulatory mechanisms to prevent abuse and misuse of euthanasia laws.

Ethical considerations and public perspective

The World Medical Association, in its declaration on euthanasia, is firmly opposed to euthanasia and physician-assisted suicide. It mentioned that “euthanasia is defined as a physician deliberately administering a lethal substance or carrying out an intervention to cause the death of a patient with decision-making capacity at the patient’s own voluntary request”. On the other hand, the World Medical Association also acknowledges that individual physicians may have different views on the matter. EuthanasiaThe topic of euthanasia elicits strong opinions, and ethical considerations play a pivotal role in shaping discussions regarding its legality. 

Advocates argue that euthanasia offers a compassionate choice to alleviate intolerable pain and suffering, granting individuals the opportunity to pass away with dignity and autonomy. They believe that each person possesses the right to determine the course of their life, including the manner and timing of their own death. Not only can euthanasia relieve suffering, it can save money on healthcare costs as well because it can prevent people from spending long periods of time in the hospital or in hospice care.

Pamela Bone, a journalist and columnist for an Australian newspaper, died after a long and painful battle for four years against myeloma. She said, “I’m not afraid of being dead. I’m just afraid of what you might have to endure to get there.” She, like many other terminally ill patients, wanted euthanasia to become legal and have the right to die on her own terms.  

Opponents, on the other hand, believe that it is morally wrong, even if that person is terminally ill and in pain. They express concerns about potential abuse by both patients and carers, employ the slippery slope argument, and emphasise the sanctity of life. They worry that legalising euthanasia could devalue human life, create openings for involuntary euthanasia, and have detrimental effects on vulnerable populations. Religious, cultural, and moral beliefs further contribute to the diverse range of perspectives on this complex issue. 

The case of Alan Nichols, a 61-year-old Canadian who underwent euthanasia despite not having a life-threatening condition, highlights the ethical dilemma associated with allowing euthanasia. Disability experts argue that Canada’s permissive euthanasia regulations, which enable individuals with disabilities to choose euthanasia, lack essential safeguards and potentially devalue the disabled individuals’ lives. Advocates also express concerns about individuals seeking euthanasia due to inadequate government support. 

Canada’s approach to euthanasia is noteworthy due to the absence of regular case reviews, the involvement of nurse practitioners in the process, and the absence of restrictions on discussing euthanasia with patients. Worries arise regarding the lack of accountability for medical professionals involved in questionable cases, as well as the potential coercion faced by disabled individuals who contemplate euthanasia. The availability of euthanasia as an option has led some disabled Canadians to opt for it due to financial burdens and insufficient support. Critics argue that Canada’s euthanasia laws require further enhancements, particularly as the country plans to expand access to include mental health reasons and potentially minors.

Conclusion

Often, when a country considers legalising euthanasia or physician-assistedphysician assisted dying, the ethical and legal considerations centre around the four principles of beneficence, non-maleficence, autonomy, and justice.

  • Beneficence or the principle of ‘do good’ focuses on the patient’s well-beingwell-being of the patient.
  •  Non-maleficence or the principle of ‘do not harm’, focuses on evaluating the potential risks and benefits of any intervention.
  • Autonomy or the principle of ‘respecting an individual’s right to make decisions about themselves, focuses on considering if the individual left any advance directives or living wills.
  • Justice or the principle of ‘ensuring fairness and equal treatment of all individuals,’ focuses on questions about the availability and accessibility of palliative care, support for patients and their families, and the consistency and fairness of legal frameworks surrounding euthanasia or assisted dying.

After carefully considering all these factors, they decide whether to legally permit euthanasia or not and its scope. Given the prevailing legal ambiguity with regards to active euthanasia, it would be beneficial for India to enact specific legislation that addresses euthanasia comprehensively. Learning from the experiences of countries where active euthanasia has been legalised, India can develop comprehensive laws and guidelines that strike a balance between individual autonomy and the protection of vulnerable individuals from potential abuse.

References

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