An Analytical Study on Right to Die and Euthanasia

I. Introduction

Part III of the Constitution of India contains a long list of fundamental rights and Article 21 is one of the major fundamental rights among them. Article 21 of our constitution deals with "Protection of Life and Personal Liberty".

The Article 21 read as follows:

"No person shall be deprived of his life or personal liberty expect according to procedure established by law."²

According to Article 21, right to life means the right to lead meaningful, complete and dignified life. The object of the fundamental right under Article 21 is to prevent any restriction by the State to a person upon his personal liberty and deprivation of life except according to procedure established by law. But can the right to life be interpreted to such an extent which leads to its self- destruction (right to die)? This is the crucial point where the debate arises.

When a person by his own act ends his life, we call it suicide but to end life of a person by other on the desire of the deceased is called mercy killing or euthanasia. It means implement such methods and means which will make the death painless and relieve the person from despair and pain of life. There are various types of euthanasia out of which the legal one in India is passive euthanasia.

(A) What is euthanasia?

The word euthanasia is borrowed from the Greek word “euthanatos” which means “well death” and it is originally referred to intentional mercy killing. When we define euthanasia in modern times it is limited to the killing of a patient by physician at the request of the patient in order to free him from fatal illness or intolerable pain. Black’s Law Dictionary (8th Edition) has described euthanasia as, “Euthanasia means the act or practice of killing or bringing about the death of a person who suffers from a fatal disease or condition especially a painful one, for reason of mercy”

So, Euthanasia is the intended creation of the death of a human being on the grounds that in his situation it is considered that it is better that he should be dead than that he should continue to live.³

(B) Types of Euthanasia

Voluntary Euthanasia refers to the action taken by the doctor and the patient, who both agree (with informed consent) to end the patient's life. It is basically related with the right to choice of the extremely sick patient who decide to end his/her life. This type of euthanasia is practiced when the desire and consent of the patient is given.

Involuntary Euthanasia refers to a third party taking a patient's life without the consent of the patient. It occurs when a patient is killed against his will and under the law this is a criminal act of murder.

Passive euthanasia involves withdrawing or withholding life-prolonging medical treatment with the intention to accelerate death in the patient's interests because of their expected negative quality of life. In passive euthanasia, the doctors do not actively kill anyone; they simply do not save them by refraining from using devices necessary to keep him alive.

Active euthanasia involves painlessly putting patients with fatal illness to death for generous reasons, as when a doctor administers a devastating dose of medicine to a patient.

Non-Voluntary is where the person is not able to ask for euthanasia, or to make a meaningful choice between living and dying and a relevant person takes the decision on their behalf, perhaps in accord with their living will, or previously expressed wishes like in coma.

II. Legal position of euthanasia in india and other countries

In Netherlands

In 2001, Netherlands became the 1^st nation in the world to legalize euthanasia, often called mercy killing. The Dutch decision to allow physicians to kill patients who are undergoing fatal suffering from terminal illnesses gave rise to angry protests across the world. But the move was also welcomed by several human rights activists who said that a long-accepted practice in the Netherlands had finally been given legal approval. Doctors in Netherland regularly perform mercy killing in consultation with patients and their legal representatives.

In Colombia

In May 1997, the Colombian courts allowed for the euthanasia of sick patients who requested to end their lives. This ruling came from the efforts of a group that strongly opposed euthanasia. When one of the members of that group brought a lawsuit to the Colombian Supreme Court against it, the court issued a 6 to 3 decision that relay out the rights of a depot person to engage in voluntary euthanasia.

In Canada

Patients have the similar rights as in case of U.S. to refuse life-sustaining treatment and formulate advanced injunction. However, they do not occupy right to active euthanasia or assisted suicide.

In USA

Euthanasia is prohibited by the U.S. laws but the courts ruled that passive euthanasia is legalized as it says that doctors should not be punished if they conceal or withdraw a life-sustaining treatment at the request of patient

In India

In our country, attempt to suicide and support to the same are both illegal. In 1994, constitutionality of Section 309 of Indian Penal Code was challenged in the Supreme Court. Section 309 of the I.P.C. was declared unconstitutional by the Supreme Court, under “Right to Life” (Article 21). Justice B. L. Hansaria of the Supreme Court was the one to describe the pain a victim of rape has to go through who is forced to face the trial for attempting to suicide. Judge in the judgement of P. Rathinam v. Union of India⁴, described such trial in one word: “persecution”. In 1996, a compelling case of abetment to commit suicide under Section 30 of Indian Penal Code came to Supreme Court. In the trial court, the accused were criminalised and later on, the High Court passed the sentence. Under appeal in the Supreme Court, they challenged that ‘right to die’ should be included in Article 21 of the Constitution and anyone who is abetting suicide is simply assisting that person in the application of the fundamental right under Article 21, so punishing them is the violation of Article 21. The Supreme Court was convinced to reconsider its earlier judgement and to give a second thought to the decision of right to die. The issue was referred to a Constitution Bench of the Indian Supreme Court instantly, which declared that the “right to life” under Article 21 does not include the Right to Die (Gian Kaur vs. State of Punjab⁵). In a pioneering judgment, The Supreme Court of India allowed passive euthanasia of retreating life support to patients in Persistently Vegetative State (PVS). However, rejected active euthanasia, ending life through administration of lethal injection. Main argument for arbitration before the Supreme Court was whether the right to die is a fundamental right or not under Article 21. So, all citizens living in India have the “Right to Live with Dignity” and should not be forced to end his life, because such actions will be said to approach one to commit suicide.

III. Prohibition of euthanasia in islam

Based on a conclusive interpretation of the Holy Quran, Islamic jurisprudence does not determine a person’s right to die voluntarily. According to Islamic teachings, life is a divine trust and can’t be abolished by any form of active or passive voluntary intervention. The Islamic arguments against euthanasia can be categorized in two main reasons: (I) Life is divine and euthanasia and suicide are not included among the reasons allowed for killing in Islam and (II) Allah decides how long each of us will live⁶ and two verses of Holy Quran support this reason :-

“And do not take any human being’s life — (the life) which Allah has made sacred save with right (justice)”⁷

“Do not kill yourselves: for verily Allah is to you Most Merciful”⁸

From the above verses which are taken from Holy Quran, along with all the Islamic scholars examine active euthanasia as prohibited (Hiram) and there is no difference between Sunni and Shiite schools. The death of a person is under the control of Allah and the human has no say in this matter; the human cannot and should not attempt to expedite or delay the death. The prohibition on life applies equally whether for self, suicide, or others, homicide or genocide.

IV. Arguments in favor of legalizing euthanasia

Euthanasia is a way of ending a person’s life who has been suffering from fatal pain or depraved death. Various countries have legalized it. The debate with reference to euthanasia has been going on from very long time but recently euthanasia gained enormous importance. After the landmark judgment passed by the Indian Court in Aruna’s case it has been cleared that passive euthanasia is now allowed in India but still there is some uncertainty with regard to euthanasia. The various arguments for legalizing euthanasia given by supporters of euthanasia are-

Moral Objectives: When all hope is lost it is morally incorrect to keep a person fighting for no cause. The sufferer and his kinship go through mental strain for a long period of time. The society is compelled to acknowledge the rights of persons and to respect the decisions of those who elect euthanasia. Every individual’s right to self-determination or his right of privacy needs to be admired. obstruction to such rights can be justified if it is to protect values, which is not the case where patients suffering unbearable at the end of their lives request euthanasia leaving them with no substitute. People can’t suffer contrary to their will. It is plain cruelty on them and abeyance of their human rights and dignity.

Individual’s Right to Exercise his Choice: One wanting to live or die is a personal decision. Every person has his/her own rights over their body. When the birth of an individual is not questioned by anyone naturally death as well should not be a hypothetical debate. A painless death is better than a painful life. The increase in patients of Cancer, AIDS and other alarming and impossible cure diseases has stimulated a world-wide need of euthanasia or mercy killing. Especially in the final stages of such diseases which are cureless the want of euthanasia is justified.

Economic Factor: Economic involvement in a country like India is of primary importance. The medical charges are exorbitant for the needed medical care; unsure if the patient is going to improve in any possible way or remain as he is and every incurable disease induces a big amount of risk and money which can’t be ignored. Moreover, there is also growing pressure on hospital and medical facilities; it is argued that patients who have a better chance of recovery the same facilities should be used for the benefit of them and to whom these facilities provided by the hospital would be of terrific value. Thus, the argument runs, when one has to choose between a patient who is incurable to recover and one who may be saved, the latter should be preferred as the former will die in any case.

Refusing Care: In law Right to refuse medical treatment is very well recognized, including medical treatment that assist or prolongs life. For example, a patient suffering from blood cancer can refuse treatment or disallow feeds through medical tube. Acceptance of right to refuse treatment gives a way for passive euthanasia. Many do argue that allowing medical abortion of pregnancy before 16 week is also a form of active involuntary euthanasia. This issue of mercy killing of mangled babies has already been in discussion in the Netherlands.⁹

Right to Die: Many patients in a constant vegetative state or else in fatal illness, do not want to be a burden on their family members. Euthanasia can be considered as a way to sustain the ‘Right to Life’ by honouring ‘Right to Die’ with dignity.

Encouraging Organ Transplantation: Euthanasia provides an opportunity to terminally ill patients to advocate for organ donation. This will help many patients with organ failure who are waiting for transplantation.

It is noticeable from the court’s ruling in the recent case of K. Venkatesh, a twenty-five year old boy suffering from muscular dystrophy, who was aware of his incurable circumstances and hence, wants to donate his organs to someone needy before he could die. The High Court of Andhra Pradesh, however, turned down the humanitarian appeal of an ailing man on deathbed.

V. Arguments against legalizing euthanasia

Research has acknowledged that many terminally ill patients requesting euthanasia, have major depression, and that the desire for death in terminal patients is correlated with the depression.¹⁰ They need consoling and rehabilitative care. Consoling care actually provides death with dignity and a death that is considered good by the patient and the care givers. The various arguments given by the people against euthanasia are-

Eliminating the Invalid: The opposers of Euthanasia argue that if we grasp ‘the right to death with dignity’, people with fatal and debilitating illnesses will be disposed from our civilized society. The practice of consoling care opposes this view, as consoling care would provide relief from distressing symptoms and pain, and the support to the patient as well as the care giver. Palliative care is an active merciful and creative care for the dying.

Constitution of India: ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or destruction of life and, therefore, inappropriate and inconsistent with the concept of ‘right to life’. It is the duty of the physician to provide care and the State’s duty to protect life and not to harm patients. If euthanasia is legalised, then there is a situation that the State may refuse to invest in health (working towards Right to life). Legalised euthanasia has led to a severe decline in the quality of care for incurably ill patients in the Netherlands. Hence, there should not be any role of euthanasia in any form in a welfare state.

Symptom of Mental Illness: Suicide or attempt to suicide are commonly seen in patients suffering from depression, schizophrenia and substance users. It is also observed in patients suffering from obsessive compulsive disorder. Hence, the mental status of the individual seeking for euthanasia should be assessed. In classical teaching, attempt to suicide is a mentally ill emergency and it is considered as a furious call for help or assistance. Several guidelines have been developed for management of suicidal patients in psychiatry. Hence, suicide or attempted suicide has been considered as a sign of mental illness.

Malafide Intention: In the modern era where morality and justice are declining, there is a possibility of pervert euthanasia by family members or relatives for take over the property of the patient. Hence, to keep command over the medical professionals, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 discusses euthanasia briefly and it is in consonance with the provisions of the Transplantation of Human Organ Act, 1994. There is an urgent need to protect patients and also doctors caring the extremely ill patients from unnecessary lawsuit. A report had been submitted to the government on this issue by the law commission.

Commercialization of health care: Passive euthanasia occurs in majority of the where poor patients and their family members because of the huge cost involved in keeping them alive refuse or withdraw treatment. If euthanasia is legalised, then commercial health sector for meagre amount of money will serve death sentence to many disabled and elderly citizens of India.¹¹

VI. Case laws

The question whether the right to die is included under Article 21 of the Indian constitution came for consideration for the first time before the Bombay High Court in State of Maharashtra V. Maruty Sripati Dubal¹² The Bombay High Court held that Article 21 that guarantees the right to life includes a right to die and therefore the court struck down Section 309 of the IPC as unconstitutional. The HC held that everyone, when he desires, should have the freedom to dispose of his life.

On the other hand, the Andhra Pradesh High Court in Chenna Jagadeshwar V. State of A.P.¹³ held that Section 309 of IPC is not unconstitutional hence the right to die is not a fundamental right within the meaning of Article 21.

In P. Rathinam V. Union of India¹⁴ a bench of the Supreme Court agreed with the view of Bombay High Court in Maruti Sripati Dubal case and held that a person has a right to die and declared Section 309 of the IPC unconstitutional. A person cannot be forced to enjoy right to life to his disservice, disadvantage or disliking. The Court explaining the reason of its decision said that Section 309 of the IPC deserves to be eliminated from the Statute Book to humanise our penal laws. It is a cruel and absurd provision and may result in punishing a person again who has suffered misery and would be undergoing ignominy because of his failure to commit suicide.

In Gian Kaur V. State of Punjab¹⁵, a five judge Bench of the Supreme Court overruled the P. Rathinam's case and held that "right to life" in Article 21 does not include "right to die". Any aspect of life which makes it formal may be read into Article 21 of the Constitution but not that which quench it and is, therefore illogical with the continued existence of life resulting in expunging the right itself. Right to life is a natural life embodied under Article 21 but suicide is an unnatural ending or extinction of life and is inconsistent with the concept of right to life.

The court made it clear that right to die with dignity at the end of life is not to be confused with the right to die an unnatural death curtailing the natural span of life.

Gian Kaur, however, appears to have supports passive euthanasia by claiming that one may, in a given case, have “the right to die’ with dignity as a part of ‘right to live’ with dignity”. A person having death hammering at the door because of his fatal illness or excess old age and where death is forthcoming and the process of death has already commanded, may deny any further medical treatment so that his suffering may not be continues, because these are not cases of suffocating life but only of accelerating conclusion of the process of natural death which has already initiated”.

On the subject of euthanasia in Aruna Ramchandra Shanbaugh V. Union of India¹⁶ a writ petition was filed by Ms. Pinki Virani of Mumbai asserting to be next friend of Aruna Shanbaugh with a prayer for direction to the respondent to stop sustain and let Aruna die peacefully. Her parents were dead and her close relatives had no interest in her since she had disastrous assault on her. Regarding the end of life support to a person in PVS(Persistent Vegetative State) or who was otherwise not able to take a decision in this connection, the Supreme Court in a two Judges Bench decision laid down the law of passive euthanasia to continue till the law made by parliament on the subject, as follows:

“A decision has to be taken to discontinue life support either by parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken by a person acting as next friend. It can also be taken by the physician attending the patient. However, the decision should be taken bona fide in the best interest of the patient.”

VII. Conclusion and suggestions

Conclusion

Euthanasia is an alarming issues in the present era where we have both class firstly who support it and on the contrary those who object its implementation. Those who are in favour of legalizing euthanasia emphasis circumstances in which a condition has become vigorously burdened some for the patient, pain management for the patient is inappropriate and only death looks capable of bringing relief. But at the same time there is another class who are very much against to the legalization of euthanasia in its any form whether passive or active, voluntary or non-voluntary. But so far in the present era of science and technology is concerned and also modern inventions in medical science euthanasia in its active or passive form can be avoided. The need is to open the gates of moral and ethical values which could create a friendly environment to the patients who are suffering from acute pain or who are in a persistent fatal state. If the State takes the responsibility of providing equitable degree of health care, then majority of the supporters of euthanasia will definitely reconsider their argument. Euthanasia is to be resorted only when all other options have been disabled and even in an extreme emergency it should be taken into consideration.

Suggestions

Here are some suggestions needed that could bring in focus the proper use of euthanasia:

1. Need of the hour is to analyse the legislations regarding euthanasia, at the same time such regulations should be passed under which proper steps should be taken to save such patients who wants to live in spite of their sufferings.

2. The patients who are suffering from fatal illness shall be provided with financial support so that they could no longer be burden on their family and relatives.

3. Doctors should be given training about the use of latest medical science and technology which could determine their course of decision while meeting with such patients.

4. Strong relationship between doctor and patient is essential which could build ethical and moral values among physicians and they could do every possible effort to save the life of a patient suffering from intense pain.

Such patients should not be forced to die instead they should be given freedom to choose between life and death.

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Footnotes

1. Author is a student at Raffles University, Neemrana, India.

2. INDIA CONST. art 21 ↩

3. Lewy G. Assisted suicide in US and Europe (New York: Oxford University Press, Inc 2011) ↩

4. AIR 1844 ↩

5. AIR 946 ↩

6. European Scientific Journal, 170. ↩

7. The Glorious Qur’an, Chapter 17, Verse 33 ↩

8. The Glorious Qur’an, Chapter 4, Verse 29 ↩

9. Sheldon T., Dutch Legal Protection Scheme for Doctors Involved in Mercy Killing of Babies Receives First Report,. BMJ. ↩

10. Chochinov HM, Wilson KG & Enns M., Desire for Death in the Terminally Ill, AMJ Psychiatry (1995) ↩

11. Gursahani R., Life and death after Aruna Shanbaug, Indian J Med Ethics, 8:68–9 (2011) ↩

12. AIR 1987 Cr LJ 549 ↩

13. AIR 1988 Cr LJ 549 ↩

14. (1994) 3 SCC 394 ↩

15. AIR 946 ↩

16. AIR 2011 SC 1290 ↩