A Critical Analysis Of Mercy Killing: A Good Or Harm To Humanity
Euthanasia literally means mercy killing. The question posed before the
criminologists and sociologists is whether a person who is suffering from an
incurable illness or disease be permitted to die prematurely (before his natural
death).
There are two conflicting views, they are:
Introduction:
Euthanasia (from Greek good death: EU; well or good + Thanatos ; death) is the practice of intentionally ending a life to relieve pain and suffering.[2]
The first apparent usage of the term "euthanasia" belongs to the historian Suetonius, who described how Emperor Augustus, "dying quickly and without suffering in the arms of his wife, Livia, experienced the 'euthanasia' he had wished for.[3] The word euthanasia was first used in a medical context by Francis Bacon in the 17th century, referred to an easy, painless, happy death, during which it was a "physician's responsibility to alleviate the 'physical sufferings of the body."[4] Different countries have different euthanasia laws. As of 2006 euthanasia had become the most active area of research in bioethics.
In some countries, divisive public controversy occurs over the moral, ethical, and legal issues associated with euthanasia. Passive euthanasia (known as "pulling the plug") is legal under some circumstances in many countries. Active euthanasia, however, is legal or de facto legal in only a handful of countries (for example Belgium, Canada and Switzerland), which limit it to specific circumstances and require the approval of counselors and doctors, or other specialists. In some countries - such as Nigeria, Saudi Arabia, and Pakistan - support for active euthanasia is almost non-existent.[5]
Research Methodology:
The research the methodology used in this paper is doctrinal legal research which involves the prevailing state of legal doctrines, legal rules, and legal principles. The source of data is from the secondary source of data like websites, articles, and books related to Euthanasia or mercy killing. The theories of legal interpretation and legal reasoning are also used here. This type of research is otherwise called Data Research and it is also considered to be pure research.
Hypothesis:
Should Euthanasia be legalized or not, whether active or passive euthanasia should be made legal, whether passive euthanasia affects the vulnerable groups to commit suicide if it is made legal?
Literature Review:
Criminology and Penology (including Victimology), written by Prof N.V.Paranjape clearly explains the difference between suicide and euthanasia or mercy killing, the difference between active and passive euthanasia and supporting the passive euthanasia to be legalized which would be more helpful for the terminally ill patients and coma patients who cannot be retrieved back at all.
The Major Works by Francis Bacon written by Francis Bacon regarding euthanasia as the easy, painless death and termed it as happy death in the 17th century where the physician's responsibility is to alleviate the physical sufferings of the human beings.
Variants of homicide- A review written by Manoj Kumar Mohanty who termed and considered Euthanasia as the Criminal Homicide.
The definition of euthanasia must include four elements:
Robert Ingersoll, argued for euthanasia, stating in 1894 that where someone is suffering from a terminal illness, such as terminal cancer, they should have a right to end their pain through suicide. The first attempt to legalize euthanasia took place in the United States when Henry Hunt introduced legislation into the General Assembly of Ohio in 1906.
The Voluntary Euthanasia Legalizations Society was founded in 1935 by Charles Killick Millard (now called Dignity in Dying). The movement campaigned for the legalization of euthanasia in Great Britain. On 6 January 1949, the Euthanasia Society of America presented to the New York State Legislature a petition to legalize euthanasia, signed by 379 leading Protestant and Jewish ministers, the largest group of religious leaders ever to have taken this stance.
However, the petition did not result in any legal changes.[9] West's Encyclopedia of American Law states that "a 'mercy killing' or euthanasia is generally considered to be a criminal homicide"[10] The judicial sense of the term "homicide" includes any intervention undertaken with the express intention of ending a life, even to relieve intractable suffering.
According to euthanasia opponent Ezekiel Emanuel, proponents of euthanasia have presented four main arguments:
Euthanasia can also be classified as:
Euthanasia:
A doctor is allowed by law to end a person's life by a painless means, as long as the patient and their family agree. [13]
Physician-Assisted suicide:
A doctor assists a patient to commit suicide if they request it.
Physician-assisted suicide (PAS) is a controversial subject that has recently captured the interest of media, public, politicians, and medical profession. Although active euthanasia and PAS are illegal in most parts of the world, with the exception of Switzerland and the Netherlands, there is pressure from some politicians and patient support groups to legalize this practice in and around Europe that could possibly affect many parts of the world. As we live in a multicultural and multireligious society, it is essential to understand the effects of culture and religion in decision-making processes, especially in the area of PAS.[14]
Inadequate attention has been given to the cultural, religious, and socioeconomic backgrounds underlying the different views on assisted suicide held by various sections of the society. Current literature shows that cultural differences may account for some inequalities related to assisted suicide[15].
Current position of Euthanasia and Physician-Assisted Suicide in India:
The legal status of PAS and euthanasia in India lies in the Indian Penal Code (IPC), which deals with the issues of euthanasia, both active and passive, and also PAS. According to Penal Code 1860, active euthanasia is an offense under Section 302 (punishment for murder) or at least under Section 304 (punishment for culpable homicide not amounting to murder).
The difference between euthanasia and physician-assisted death lies in who administers the lethal dose; in euthanasia, this is done by a doctor or by a third person, whereas in physician-assisted death, this is done by the patient himself. The legal position of PAS in India would be abetment of suicide falling under Section 306 (abetment of suicide) of IPC. So, technically speaking, anybody willing to consider euthanasia or PAS needs to go through the courts of law in India and on no account have the courts considered a clear judgment on this issue allowing a PAS to go ahead.[16]
Globally, there are three main ways of regulating mercy killing. One group of countries equates it with ordinary murder, while the second group represents the view that euthanasia is privileged murder. Finally, in the third group euthanasia is decriminalized upon fulfillment of prescribed conditions. Since the debate over the legalization of active euthanasia does not subside for many years, its supporters and opponents have created strong organizations that represent their beliefs about the (im) morality and (in) feasibility of the same.
The focus of the problem lies in the question of what extent is necessary to respect the life of terminally ill patients, and accordingly provide strong arguments. In other words, the question is whether in addition to the right on life, as a fundamental human right guaranteed by the European Convention of Human Rights and Liberties, there is a right to die, established through the right to self-determination.
Thus, opponents of the legalization of active euthanasia, as a primary argument, emphasize the holiness of life at all costs (which is supported primarily with arguments in Islamic and Christian religion, which prohibit any form of suicide),[18]while its supporters believe that the moral obligation of doctors is to end the life of a terminally ill patient who is suffering, but they also highlight the strong individual autonomy in the matters of life and death.
In short, both supporters and opponents summarize most of their arguments on the concept of respect for the patient, where they allocate four forms: a concern for the welfare for the patient, respect his wishes, respect for fundamental values of life and respects for the interests of the patient.[19]
This may include the right of a dying man to dying with dignity. But the right to die should not be confused with the right to die, an unnatural death curtailing the natural span of life. The question arises that whether the people should be given assistance in killing themselves or whether they should be left to suffer the pain caused by terminally ill diseases.
Background of the case:
The petitioner, in this case, Aruna Ramchandra Shanbaug used to work as a Nurse in King Edward Memorial Hospital, Parel, Mumbai. On the evening of the 27th November 1973, a sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and yanked her back with it. The sweeper also tried to rape her but when he found out that she was menstruating he sodomized her. To prevent her from moving or creating any chaos, he twisted that chain really hard around her neck.
The next day, a cleaner found her body lying on the floor unconscious with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence the brain got damaged. This incident caused permanent damage to her brain and led her into a permanent vegetative state (PVS). Later an activist-journalist Pinki Virani filed a petition in the Supreme Court under Article 32 of the constitution alleging that there is no possibility for her to revive again and get better. So she should be allowed to go with passive euthanasia and should be absolved from her pain and agony.
To this petition, the respondent parties i.e, KEM Hospital and Bombay Municipal Corporation filed a counter-petition. This led to a rise in the disparities among both groups. Since there were disparities, the Supreme Court in order to get a better picture of the situation appointed a team of 3 eminent doctors to investigate and provide a report of the exact mental and physical condition of Aruna Shanbaug. During this study, doctors investigated her entire medical history and opined that her brain is not dead.
She has her own way of understanding and reacting to situations. Also, Aruna's body language did not show any sign of her willingness to terminate her life. Neither the nursing staff of the hospital showed any carelessness towards taking care of her. Thus, it was believed by the doctor that euthanasia in the current matter is not essential. She stayed in this position for 42 years and died in 2015.
Issues:
Judgement:
The Hon'ble Division bench of the Supreme Court of India, comprising Justice Markandey Katju and Justice Gyan Sudha Mishra delivered this judgment on the 7th of March, 2011. The court declared that Aruna is not brain dead and for its judgment relied on the doctor's report and definition of brain death given under the Transportation of Human Organs Act, 1994.
She was able to breathe on her own without a machine's support, she had feelings and used to show some symptoms. Though she was in a PVS but still her condition was stable. So the grounds presented here are not sufficient for terminating her life. It would be unjustifiable.
Further, the court while addressing the issue opined that in the present case next to the kin of the patient would be the staff of the KEM Hospital, not Pinki Virani. Thus, the right to take any such decision on behalf of her is vested in KEM Hospital. In the present case, it was the food on which she was surviving. Thus removal of life-saving techniques would here mean depriving her of food which is not justified in Indian Law in any way.
The Supreme Court allowed passive euthanasia in certain conditions. But the court decided that in order to prevent misuse of this provision in the future, the power to determine the termination of a person's life would be subjected to High Court's approval following due procedure.
Whenever any application will be filed in High Court for passive euthanasia, the Chief Justice of the High Court should constitute a Bench of at least two judges deciding the matter that whether such termination should be granted or not. The Bench before laying out any judgment should consider the opinion of a committee of 3 reputed doctors. These doctors are also nominated by the Bench after discussing with the appropriate medical practitioners.
Along with appointing this committee, it is also the duty of the court to issue a notice to the state, relatives, kins, and friends and also provide them with a copy of the report made by a committee of doctors, as soon as it is possible. And after hearing all the sides, the court should deliver the judgment. This procedure is to be followed in India everywhere until any legislation is passed on the subject.
In the Ultimate decision of this case, by keeping all the important facts of the case in consideration, Aruna Shanbaug was denied euthanasia. Court also opined that if at any time in the future, the hospital staff feels a need for the same, they can approach the High Court under these prescribed rules. The verdict of this case has helped in clarifying the issues relating to passive euthanasia in India by providing a broad structure of guidelines that are to be followed.
The court also recommended the repealing of section 309 of the IPC. We have discussed all the cases. Now let's discuss the emergence of two important features which came out in this case and have been discussed a lot in subsequent events.[25]
Judgement Analysis:
Euthanasia, as we all know also known as mercy killing, is an 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 can be of two types Active or Passive. Active Euthanasia is the use of some hazardous substance or lethal methods to kill a person. Passive Euthanasia is stopping some medical treatment in the absence of which a person is likely to die.
Passive euthanasia can be both voluntary and involuntary. When the consent from a patient is taken it becomes voluntary and in cases when a patient is not in a condition to provide consent and the decision on his/her behalf is taken by some other person, then it is involuntary.
In Aruna Shanbaug's case, Supreme Court laid down guidelines for passive euthanasia. These guidelines provided for the withdrawal of a life support system which can ultimately lead to a person's death. This verdict made passive euthanasia possible in India in certain conditions which will be decided by the High Court. Later in the year 2018, Supreme Court passed another order in the case of Common Cause v. Union of India, in which the right to die with dignity was again recognized and passive euthanasia was legalized and the permit was given to withdraw the life support system of those who are terminally ill and are in life long coma. Along with this the Court also provided with the concept of living wills.
A living will: it is a document that allows a person to make decisions in advance with regard to what course of treatment he wants in case he gets seriously ill in the future and becomes unable to make decisions. [26]
Thus, India is now one of the countries in the world which have recognized Passive Euthanasia. But there are still loopholes in the execution of passive euthanasia. As after Shanbaug case, it was made mandatory to take High Court's permission before every case, so it was a tedious process. And now in this new judgment, it has been made harder to give passive euthanasia an effect as now it involves the execution of the directive in presence of two witnesses, authentication by a Judicial Magistrate, permission from two Medical Boards, and a jurisdictional collector.
Thus this delay is a major problem coming in the way, as it defeats the main purpose of passive euthanasia which is to end the suffering of the person concerned but on the other hand if the process is made too liberal and easy it is always prone to a great misuse.
Thus we can see on both sides there are problems and issues involved and what we need is a better way out of this all in order to make the concept of passive euthanasia effective and efficient.
There seems to be either a total lack of consciousness or a denial that this kind of individualism can undermine the intangible infrastructure on which society rests the communal and cultural fabric. Individualism untempered by at least concern and perhaps the duty to protect and promote community will inevitably destroy the community.
Thus, although legalizing euthanasia is a result of unbridled individualism, the latter would also promote it, at least in terms of the balance between the individual and the community.[27] Eventually, society will not be able to defend the most vulnerable from abuse, and doctors will become death dealers instead of healers. The dehumanization of doctors will cause a change in perception of doctors, and thus the doctor-patient relationship and the trust and morality in the bond.
Furthermore, euthanasia has a great impact on our perception of death itself. The concept of euthanasia displays death as a solution to human suffering. When death becomes the answer, we as human beings have lost the opportunity to go beyond our limitations, try harder, and offer hope to these people. Agreeing with assisted suicide is an affirmation that, depending on the circumstances, some lives are not worth living and need to be terminated.
While euthanasia may relieve a patient if his/her suffering, it portrays a dark and gloomy picture for the rest of society. Death being a solution, is inherently problematic because, for people suffering from trauma, depression, or other mental disorders, death and suicide become an option even when it is not required. The illicit nature of suicide will not be able to curb and bring change in this mindset.
In this regard, one cannot dismiss the fact that cases of the patient being in a permanent vegetative state, patients as well as their families and friends are subjected to immense emotional and psychological hardships, other than the physical pain endured by the patient. These adversities may be in the form of fear of uncertainty of death, feelings of helplessness, or depression.
The few countries that have legalized active euthanasia such as Belgium and The Netherlands, also make selective usage of the practice by only opting for euthanasia as a last resort, which is when the condition of the patient cannot be facilitated by any possible medical means. In such scenarios, euthanasia provides the patient an option to cease these difficulties, and shorten the duration of suffering.
However, euthanasia has often received backlash on ethical grounds, primarily due to the intense ending of life associated with it, which in turn becomes a reflection of unnatural human interference with the ways of nature. Life, as a concept, is viewed as sublime and sacred, which is respected immensely across civilizations and various religions irrespective of geography and beliefs.
Many religious groups also tend to believe that life, which one has been endowed with, must be honored, and thus euthanasia is not a moral practice or right of an individual.
Thus, opponents of the legalization of active euthanasia, as a primary argument, emphasize upon the holiness of life at all costs (which is supported primarily with arguments in Islamic and Christian religion, which prohibit any form of suicide), while its supporters believe that the moral obligation of doctors is to end the life of a terminally ill patient who is suffering, but they also highlight the strong individual autonomy in the matters of life and death. Thus the ethicality of euthanasia can be both supported and opposed keeping in mind the welfare for the patient, his/her liberty, and the fundamentals of life.
The hospital stated on the question of donation of an organ, in the very case, it amounted to euthanasia or mercy killing, which is illegal in India. High Court judges Devender Gupta and Narayan Reddy said "the existing law has no such provision and the request cannot be conceded." His mother, K. Sujatha, was not ready to give up. She had vowed to fight it out in court, to make mercy killing legal in India.[28]
This incident was followed by many other cases, which did not directly bring about any change, but were considered by the Supreme Court and noted down thereafter. Until 2011, the major incidents included were:
May 11, 2005: SC takes note of PIL of NGO 'Common Cause' seeking nod to allow terminally-ill persons to execute a living will for passive euthanasia. It seeks the Centre's response on the plea which seeks a declaration of 'right to die with dignity as a Fundamental Right under Article 21 (right to life) of the Constitution.
Jan 16, 2006: SC allows Delhi Medical Council (DMC) to intervene and asks it to file documents on passive euthanasia.
In 2006, the 196th report of the Law Commission of India brought out The Medical Treatment of terminally ill Patients Bill 2006. However, no laws on euthanasia were made by the Health Ministry. The first step towards legalizing euthanasia came on 23rd December 2014, following the Aruna Shanbaug case in 2011. The Supreme Court, for the first time, laid down guidelines to process pleas for passive euthanasia.
These guidelines were:
Finally, on 9 March 2018, the Supreme Court of India passed a historic judgment law permitting Passive Euthanasia in the country under the Constitutional provision of ―Next Friend. It is a law that places the power of choice in the hands of the individual, over the government, medical or religious control. The Supreme Court specified two conditions to permit Passive Euthanasia Law in its 2011 Law: (I) The brain-dead for whom the ventilator can be switched off.
(II) Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliatives are added, according to laid-down international specifications.
Other arguments:
Constitution of India:
'Right to life is a natural right embodied in Article 21 but euthanasia/suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of 'right to life. It is the duty of the State to protect life and the physician's duty to provide care and not to harm patients. Supreme Court in Gyan kaur Case, 1996 has held that the right to life under Article 21 does not include the right to die.
Caregivers burden: Right-to-die' supporters argue that people who have an incurable, degenerative, disabling, or debilitating condition should be allowed to die in dignity. This argument is further defended for those, who have chronic debilitating illness even though it is not terminal such as severe mental illness. The majority of such petitions are filed by the sufferers or family members or their caretakers. The caregiver's burden is huge and cuts across various domains such as financial, emotional, time, physical, mental and social.[31]
Refusing care: Right to refuse medical treatment is well recognized in law, including medical treatment that sustains or prolongs life. For example, a patient suffering from blood cancer can refuse treatment or deny feeds through a nasogastric tube. Recognition of the right to refuse treatment gives a way for passive euthanasia.
Encouraging the organ transplantation: Euthanasia in terminally ill patients provides an opportunity to advocate for organ donation. This, in turn, will help many patients with organ failure waiting for transplantation. Not only euthanasia gives 'Right to die for the terminally ill, but also the 'Right to life for the organ needy patients.
In 2001, The Netherlands passed a law legalizing euthanasia including physician-assisted suicide. This law codifies the twenty-year-old convention of not prosecuting doctors who have committed euthanasia in very specific cases, under very specific circumstances. The Ministry of Public Health, Wellbeing and sports claims that this practice "allows a person to end their life in dignity after having received every available type of palliative care."] The United Nations has reviewed and commented on the Netherlands euthanasia law.
In September 2004 the Groningen Protocol was developed, which sets out criteria to be met for carrying out child euthanasia without the physician being prosecuted[35]
In February 2020 the Spanish parliament voted to approve plans to legalize voluntary euthanasia. The bill went to the committee and the Senate before a final vote in the lower house. The lower house approved the bill in December 2020.
On 17 December 2020, the Congress of Deputies passed a bill to regulate the right to euthanasia. The final draft, whose intellectual authorship was attributed to Maria Luisa Carcedo, commanded the support of 192 legislators (the opposition from 138 and 2 abstentions). Given widespread parliamentary support and the incorporation of minor amendments, the law returned to the Congress of Deputies for final approval.[36]
On 18 March 2021, Spain's parliament voted in favor of the final reading of the bill, thus making it law. It was sanctioned by the King on 24 March 2021 and published in the BOE the next day. The law came into force on 25 June 2021, three months after its publication.
The Supreme Court of The United States has not dealt with quality of life issues or futility issues and appears to only condone active or passive "euthanasia" (not legally defined) when it is clear and convincing evidence that informed consent to the euthanasia, passive or active, has been obtained from the competent patient or the legal surrogate of the incompetent patient.
While active euthanasia is illegal throughout the U.S., assisted suicide is legal in Colorado, Oregon, Hawaii, Washington, Vermont, Maine, New Jersey, California, the District of Columbia, one county in New Mexico, and is de facto legal in Montana. Additionally, Louisiana specifically prohibits euthanasia in its Bill of Rights as cruel and unusual punishment[37]
In regard to the principle of double effect, in 1957 Judge Devlin in the trial of Dr. John Bodkin Adams ruled that causing death through the administration of lethal drugs to a patient, if the intention is sole to alleviate pain, is not considered murder even if death is a potential or even likely outcome.[38]
Passive euthanasia is legal, by way of advanced decisions giving patients the right to refuse life-saving treatment. Food and liquid can also be withdrawn from someone in a permanent vegetative state without the need for court approval.
Conclusion:
Deprivation of life from compassion throughout the history of humanity appears as a question that engrosses the attention of lawyers, doctors, sociologists around the world. In certain stages of the development of civilization, it represented a permitted form of depriving another person's life, while in the other stages was strictly prohibited.
Today's legislators basically occupying three positions, so, they prohibit euthanasia and equate it with ordinary or privileged murder, or allow it under the assumption of the meeting of prescribed requirements. Bypassing the countries that privilege euthanasia as less serious murder, in this paper, we have dealt with some legislations that this phenomenon strictly prohibits, and those that deprivation of life out of compassion treat as a permitted medical procedure.
In Islamic countries, such as Iran, Turkey, and part of Bosnia and Herzegovina, euthanasia is an ordinary murder, punishable by serious criminal sanctions. At the opposite pole are the Western European countries, more specifically, the Benelux countries (Netherlands, Belgium, and Luxembourg), in which deprivation of life from the grace does not constitute a crime, if it was carried out in accordance with the clearly defined legal rules and medical procedure.
In this way, we show how a life situation may be in different legal areas regulated in completely different ways. Exactly this lack of harmony in the legislative solution in some European and American countries have led to some adverse events, such as death tourism, as a phenomenon where inhabitants of one country, where euthanasia is prohibited, travel to another state where it is allowed, and where physicians can perform euthanasia. In order to avoid this, it is necessary to achieve a certain degree of harmonization of legislation or to set appropriate limits in the legislation that legalized euthanasia. However, how it is possible to achieve, time will show.
Suggestion:
Bibliography And Webilography:
There are two conflicting views, they are:
- A person kept alive with the help of the respirator due to total failure
of the respiratory system and non-functioning of the brain has no chances of
survival, sooner the respirator is disconnected and the doctor concerned
also knows about this, but he cannot withdraw the treatment even if insisted
upon by the near relatives of the ailing person as this would amount to
murder or abetment of murder.
- Where a person who is suffering from unbearable agony and pain due to incurable cancer or AIDS which have reached the last stage or creeping paralysis for a number of years may no longer wish to survive and express genuine desire to die, but the law would not permit him mercy death and he would be guilty of the offense of suicide, if his attempt to die results in a failure.[1] In this paper, I am going to discuss the history and types of euthanasia, the controversies between active and passive euthanasia, the connection between Euthanasia and Article 21 of Indian Constitution (Right to die with Dignity).
Introduction:
Euthanasia (from Greek good death: EU; well or good + Thanatos ; death) is the practice of intentionally ending a life to relieve pain and suffering.[2]
The first apparent usage of the term "euthanasia" belongs to the historian Suetonius, who described how Emperor Augustus, "dying quickly and without suffering in the arms of his wife, Livia, experienced the 'euthanasia' he had wished for.[3] The word euthanasia was first used in a medical context by Francis Bacon in the 17th century, referred to an easy, painless, happy death, during which it was a "physician's responsibility to alleviate the 'physical sufferings of the body."[4] Different countries have different euthanasia laws. As of 2006 euthanasia had become the most active area of research in bioethics.
In some countries, divisive public controversy occurs over the moral, ethical, and legal issues associated with euthanasia. Passive euthanasia (known as "pulling the plug") is legal under some circumstances in many countries. Active euthanasia, however, is legal or de facto legal in only a handful of countries (for example Belgium, Canada and Switzerland), which limit it to specific circumstances and require the approval of counselors and doctors, or other specialists. In some countries - such as Nigeria, Saudi Arabia, and Pakistan - support for active euthanasia is almost non-existent.[5]
Research Methodology:
The research the methodology used in this paper is doctrinal legal research which involves the prevailing state of legal doctrines, legal rules, and legal principles. The source of data is from the secondary source of data like websites, articles, and books related to Euthanasia or mercy killing. The theories of legal interpretation and legal reasoning are also used here. This type of research is otherwise called Data Research and it is also considered to be pure research.
Hypothesis:
Should Euthanasia be legalized or not, whether active or passive euthanasia should be made legal, whether passive euthanasia affects the vulnerable groups to commit suicide if it is made legal?
Literature Review:
Criminology and Penology (including Victimology), written by Prof N.V.Paranjape clearly explains the difference between suicide and euthanasia or mercy killing, the difference between active and passive euthanasia and supporting the passive euthanasia to be legalized which would be more helpful for the terminally ill patients and coma patients who cannot be retrieved back at all.
The Major Works by Francis Bacon written by Francis Bacon regarding euthanasia as the easy, painless death and termed it as happy death in the 17th century where the physician's responsibility is to alleviate the physical sufferings of the human beings.
Variants of homicide- A review written by Manoj Kumar Mohanty who termed and considered Euthanasia as the Criminal Homicide.
Definition Of Euthanasia:
The definition offered by the Oxford English Dictionary incorporates suffering as a necessary condition, with "the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma"[6]The definition of euthanasia must include four elements:
- an agent and a subject
- an intention
- causal proximity
- an outcome
History Of Euthanasia:
Euthanasia was practiced in Ancient Greece and Rome: for example, hemlock was employed as a means of hastening death on the island of Kea, a technique also employed in Marseilles.[8] Euthanasia, in the sense of the deliberate hastening of a person's death, was supported by Socrates, Plato, and Seneca the Elder in the ancient world, although Hippocrates appears to have spoken against the practice, writing I will not prescribe a deadly drug to please someone, nor give advice that may cause his death.Robert Ingersoll, argued for euthanasia, stating in 1894 that where someone is suffering from a terminal illness, such as terminal cancer, they should have a right to end their pain through suicide. The first attempt to legalize euthanasia took place in the United States when Henry Hunt introduced legislation into the General Assembly of Ohio in 1906.
The Voluntary Euthanasia Legalizations Society was founded in 1935 by Charles Killick Millard (now called Dignity in Dying). The movement campaigned for the legalization of euthanasia in Great Britain. On 6 January 1949, the Euthanasia Society of America presented to the New York State Legislature a petition to legalize euthanasia, signed by 379 leading Protestant and Jewish ministers, the largest group of religious leaders ever to have taken this stance.
However, the petition did not result in any legal changes.[9] West's Encyclopedia of American Law states that "a 'mercy killing' or euthanasia is generally considered to be a criminal homicide"[10] The judicial sense of the term "homicide" includes any intervention undertaken with the express intention of ending a life, even to relieve intractable suffering.
According to euthanasia opponent Ezekiel Emanuel, proponents of euthanasia have presented four main arguments:
- that people have a right to self-determination, and thus should be allowed to choose their own fate;
- assisting a subject to die might be a better choice than requiring that they continue to suffer;
- the distinction between passive euthanasia, which is often permitted, and active euthanasia, which is not substantive (or that the underlying principle the doctrine of double effect is unreasonable or unsound), and
- permitting euthanasia will not necessarily lead to unacceptable
consequences. Pro-euthanasia activists often point to countries like the
Netherlands and Belgium, and states like Oregon, where euthanasia has been
legalized, to argue that it is mostly unproblematic.[11]
Classification Of Euthanasia:
Euthanasia can be classified in different ways, including:- active euthanasia:
where a person deliberately intervenes to end someone's life eg giving drugs with the intention of bringing about death. - passive euthanasia:
where a person causes death by withholding or withdrawing treatment that is necessary to maintain life eg. a life support machine is turned off, or a feeding tube is removed.[12]
Euthanasia can also be classified as:
- voluntary euthanasia:
where a person makes a conscious decision to die and asks for help to do this
- non-voluntary euthanasia:
where a person is unable to give their consent and another person takes the decision on their behalf. , eg a doctor or a family member, decides that it would be in the person's best interest if their life was ended. For example, if the person is in a coma.
- involuntary euthanasia:
where a person is killed against their expressed wishes. eg a doctor or a family member decides that it would be in the person's best interest if their life was ended. For example, if a person has had an accident that will lead to imminent and painful death, a decision might be made to end their life even if the person wanted to live.
Euthanasia And Physician-Assisted Suicide(PAS):
Euthanasia and physician-assisted suicide refer to deliberate action taken with the intention of ending a life, in order to relieve persistent suffering.Euthanasia:
A doctor is allowed by law to end a person's life by a painless means, as long as the patient and their family agree. [13]
Physician-Assisted suicide:
A doctor assists a patient to commit suicide if they request it.
Physician-assisted suicide (PAS) is a controversial subject that has recently captured the interest of media, public, politicians, and medical profession. Although active euthanasia and PAS are illegal in most parts of the world, with the exception of Switzerland and the Netherlands, there is pressure from some politicians and patient support groups to legalize this practice in and around Europe that could possibly affect many parts of the world. As we live in a multicultural and multireligious society, it is essential to understand the effects of culture and religion in decision-making processes, especially in the area of PAS.[14]
Inadequate attention has been given to the cultural, religious, and socioeconomic backgrounds underlying the different views on assisted suicide held by various sections of the society. Current literature shows that cultural differences may account for some inequalities related to assisted suicide[15].
Current position of Euthanasia and Physician-Assisted Suicide in India:
The legal status of PAS and euthanasia in India lies in the Indian Penal Code (IPC), which deals with the issues of euthanasia, both active and passive, and also PAS. According to Penal Code 1860, active euthanasia is an offense under Section 302 (punishment for murder) or at least under Section 304 (punishment for culpable homicide not amounting to murder).
The difference between euthanasia and physician-assisted death lies in who administers the lethal dose; in euthanasia, this is done by a doctor or by a third person, whereas in physician-assisted death, this is done by the patient himself. The legal position of PAS in India would be abetment of suicide falling under Section 306 (abetment of suicide) of IPC. So, technically speaking, anybody willing to consider euthanasia or PAS needs to go through the courts of law in India and on no account have the courts considered a clear judgment on this issue allowing a PAS to go ahead.[16]
Alternatives To Euthanasia:
There are two main alternatives to euthanasia:- Hospice - this is where specialist medical staff looks after the
terminally ill. Palliative drugs are used to help ensure that the person
does not suffer any more pain than is absolutely necessary. Staff is able to
talk with patients about death and dying and any fears they may have. They
are also available to support the family of the dying person.
- Refusing treatment - in the UK all adults have the right to refuse treatment as long as they have the capacity to understand the situation they are in and to make an informed decision and are of sound mind.
Euthanasia: A Murder Or Not: A Comparative Approach:
Euthanasia is one of the most intriguing ethical, medical and law issues that marked whole XX century and beginning of the XXI century, sharply dividing scientific and unscientific public to its supporters and opponents. The line that separates admissible from impermissible merciful deprivation of life through the centuries has consistently been moved: in the direction of legalization of euthanasia and towards the complete ban of euthanasia[17].Globally, there are three main ways of regulating mercy killing. One group of countries equates it with ordinary murder, while the second group represents the view that euthanasia is privileged murder. Finally, in the third group euthanasia is decriminalized upon fulfillment of prescribed conditions. Since the debate over the legalization of active euthanasia does not subside for many years, its supporters and opponents have created strong organizations that represent their beliefs about the (im) morality and (in) feasibility of the same.
The focus of the problem lies in the question of what extent is necessary to respect the life of terminally ill patients, and accordingly provide strong arguments. In other words, the question is whether in addition to the right on life, as a fundamental human right guaranteed by the European Convention of Human Rights and Liberties, there is a right to die, established through the right to self-determination.
Thus, opponents of the legalization of active euthanasia, as a primary argument, emphasize the holiness of life at all costs (which is supported primarily with arguments in Islamic and Christian religion, which prohibit any form of suicide),[18]while its supporters believe that the moral obligation of doctors is to end the life of a terminally ill patient who is suffering, but they also highlight the strong individual autonomy in the matters of life and death.
In short, both supporters and opponents summarize most of their arguments on the concept of respect for the patient, where they allocate four forms: a concern for the welfare for the patient, respect his wishes, respect for fundamental values of life and respects for the interests of the patient.[19]
Euthanasia: Right To Die With Dignity:
Article 21 of Indian Constitution,1950 states that Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life includes the right to live with dignity means the existence of such right up to the end of natural life.This may include the right of a dying man to dying with dignity. But the right to die should not be confused with the right to die, an unnatural death curtailing the natural span of life. The question arises that whether the people should be given assistance in killing themselves or whether they should be left to suffer the pain caused by terminally ill diseases.
Distinction Between Euthanasia And Suicide:
In a suicide, a man kills himself by stabbing, poisoning, or by any other way. It is an act of intentionally killing oneself mostly due to depression or frustration in love, or failure of examinations or in employment whereas Euthanasia is an action of some other person to bring to an end the life of the third person and the third person is actively or passively involved in it.Important Case Laws In Determining Euthanasia Is Right To Die With Dignity Or Not:
- Maruti shripati Dubal vs State of Maharashtra[20], In this case, a police
constable of Bombay City Police Force who was suffering from mental illness and
schizophrenia due to a road accident in 1981 attempted to commit suicide outside
the office of the Municipal Commissioner, Bombay, at 10 am, on 27 April 1985 by
pouring kerosene on himself and trying to light his clothes. He was arrested and
proceeded against under section 309 I.P.C. The learned JJ Sawant and Kolse Patil
of the Bombay High Court ruled that Right to life as recognized by Article 21 of
Constitution includes also a right not to live or not to be forced to live which
is a positive term would mean the Right to die or end one's life. Section 309
IPC, was, therefore, ultra vires and violative of Article 14 and 21 of the
Indian Constitution.
- Olga Tellis & others vs Bombay Municipal Corporation[21], popularly known as
Pavement Dweller's Case, the court held that the right to life also includes the
right to livelihood. The Bombay High Court, however, clarified that mercy
killing or Euthanasia is not suicide and hence, would not be covered under
section 309 IPC. The reason being that suicide by very nature is an act of
terminating one's own life by one's own actions without the aid and assistance
of any other human agency.
- P.Rathinam Nagbhushan Patnaik vs Union of India[22], distinguished suicide
from euthanasia and observed that the legal and other questions relatable to
Euthanasia are in many ways different from those raised in suicide. Therefore,
justification for allowing a person to commit suicide cannot be played down or
cut down of any encouragement to persons pleading for legislation of mercy
killing.
The court, further clarified that self-killing is conceptually different from abetting others to kill themselves. The court observed that one of the objects of punishment is the protection of society from the degradation of dangerous persons. There is no question of the protection of society from the degradation of dangerous persons in case of suicide. Considered from this point of view, suicide is not an offense. Therefore, the arguments that by quashing section 309 IPC, Which makes attempts to suicide is a penal offense, section 306, IPC would also not survive and is not tenable.
- Smt.Gyan Kaur Vs State of Punjab[23], In this case, the appellant Gyan Kaur
and her husband Harban Singh were convicted by the trial court under Section
306, IPC and sentenced to 6 years Rigorous Imprisonment and fine of Rs. 2000 in
default Rigorous Imprisonment for 9 months for abetting the commission of
suicide by Kulwant Kaur. The conviction of both was maintained by the High Court
except the sentence of Gyan Kaur was reduced to 3 years of Rigorous
Imprisonment.
His appeal was against the court held that the Right to life under Article 21 does not include the Right to Die because the extinction of life is not included in the protection of life. Therefore, penalizing for an attempt to commit suicide under section 309, IPC. Is not violative of Article 21 and is not unconstitutional, and it is perfectly valid. Hence, the appeal was disallowed.
Active Vs Passive Euthanasia:
In Active Euthanasia, something is done to intentionally bring about the patient's death, patient or someone else can perform or assist, Not currently legal (except in Oregon and outside the U.S.), seen by some as a morally problematic form of killing, Whereas in Passive Euthanasia, Something needed for the continued patient, survival is intentionally withheld, which facilitates the patients death via natural causes, can include non-treatment or withdrawal of nourishment or hydration, usually instigated by medical staff, Currently legal and regarded as acceptable within medicine, seen as a less morally problematic omission.Analysis Of Aruna Shanbaug Case:
Aruna Ramchandra Shanbaug vs Union of India [24]:Background of the case:
The petitioner, in this case, Aruna Ramchandra Shanbaug used to work as a Nurse in King Edward Memorial Hospital, Parel, Mumbai. On the evening of the 27th November 1973, a sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and yanked her back with it. The sweeper also tried to rape her but when he found out that she was menstruating he sodomized her. To prevent her from moving or creating any chaos, he twisted that chain really hard around her neck.
The next day, a cleaner found her body lying on the floor unconscious with blood all over. It was believed that the supply of oxygen to the brain stopped because of strangulation by the chain and hence the brain got damaged. This incident caused permanent damage to her brain and led her into a permanent vegetative state (PVS). Later an activist-journalist Pinki Virani filed a petition in the Supreme Court under Article 32 of the constitution alleging that there is no possibility for her to revive again and get better. So she should be allowed to go with passive euthanasia and should be absolved from her pain and agony.
To this petition, the respondent parties i.e, KEM Hospital and Bombay Municipal Corporation filed a counter-petition. This led to a rise in the disparities among both groups. Since there were disparities, the Supreme Court in order to get a better picture of the situation appointed a team of 3 eminent doctors to investigate and provide a report of the exact mental and physical condition of Aruna Shanbaug. During this study, doctors investigated her entire medical history and opined that her brain is not dead.
She has her own way of understanding and reacting to situations. Also, Aruna's body language did not show any sign of her willingness to terminate her life. Neither the nursing staff of the hospital showed any carelessness towards taking care of her. Thus, it was believed by the doctor that euthanasia in the current matter is not essential. She stayed in this position for 42 years and died in 2015.
Issues:
- Does withdrawal of life sustaining systems and means for a person who is in a permanent vegetative state (PVS), should be permissible?
- If a patient declares previously that he/she does not want to have life-sustaining measures in case of futile care or a PVS, should his/her wishes be respected in such a situation?
- Does the family or next of kin of a person get to make a request to withhold or withdraw life sustaining systems, in case a person himself has not placed such a request previously?
Judgement:
The Hon'ble Division bench of the Supreme Court of India, comprising Justice Markandey Katju and Justice Gyan Sudha Mishra delivered this judgment on the 7th of March, 2011. The court declared that Aruna is not brain dead and for its judgment relied on the doctor's report and definition of brain death given under the Transportation of Human Organs Act, 1994.
She was able to breathe on her own without a machine's support, she had feelings and used to show some symptoms. Though she was in a PVS but still her condition was stable. So the grounds presented here are not sufficient for terminating her life. It would be unjustifiable.
Further, the court while addressing the issue opined that in the present case next to the kin of the patient would be the staff of the KEM Hospital, not Pinki Virani. Thus, the right to take any such decision on behalf of her is vested in KEM Hospital. In the present case, it was the food on which she was surviving. Thus removal of life-saving techniques would here mean depriving her of food which is not justified in Indian Law in any way.
The Supreme Court allowed passive euthanasia in certain conditions. But the court decided that in order to prevent misuse of this provision in the future, the power to determine the termination of a person's life would be subjected to High Court's approval following due procedure.
Whenever any application will be filed in High Court for passive euthanasia, the Chief Justice of the High Court should constitute a Bench of at least two judges deciding the matter that whether such termination should be granted or not. The Bench before laying out any judgment should consider the opinion of a committee of 3 reputed doctors. These doctors are also nominated by the Bench after discussing with the appropriate medical practitioners.
Along with appointing this committee, it is also the duty of the court to issue a notice to the state, relatives, kins, and friends and also provide them with a copy of the report made by a committee of doctors, as soon as it is possible. And after hearing all the sides, the court should deliver the judgment. This procedure is to be followed in India everywhere until any legislation is passed on the subject.
In the Ultimate decision of this case, by keeping all the important facts of the case in consideration, Aruna Shanbaug was denied euthanasia. Court also opined that if at any time in the future, the hospital staff feels a need for the same, they can approach the High Court under these prescribed rules. The verdict of this case has helped in clarifying the issues relating to passive euthanasia in India by providing a broad structure of guidelines that are to be followed.
The court also recommended the repealing of section 309 of the IPC. We have discussed all the cases. Now let's discuss the emergence of two important features which came out in this case and have been discussed a lot in subsequent events.[25]
Judgement Analysis:
Euthanasia, as we all know also known as mercy killing, is an 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 can be of two types Active or Passive. Active Euthanasia is the use of some hazardous substance or lethal methods to kill a person. Passive Euthanasia is stopping some medical treatment in the absence of which a person is likely to die.
Passive euthanasia can be both voluntary and involuntary. When the consent from a patient is taken it becomes voluntary and in cases when a patient is not in a condition to provide consent and the decision on his/her behalf is taken by some other person, then it is involuntary.
In Aruna Shanbaug's case, Supreme Court laid down guidelines for passive euthanasia. These guidelines provided for the withdrawal of a life support system which can ultimately lead to a person's death. This verdict made passive euthanasia possible in India in certain conditions which will be decided by the High Court. Later in the year 2018, Supreme Court passed another order in the case of Common Cause v. Union of India, in which the right to die with dignity was again recognized and passive euthanasia was legalized and the permit was given to withdraw the life support system of those who are terminally ill and are in life long coma. Along with this the Court also provided with the concept of living wills.
A living will: it is a document that allows a person to make decisions in advance with regard to what course of treatment he wants in case he gets seriously ill in the future and becomes unable to make decisions. [26]
Thus, India is now one of the countries in the world which have recognized Passive Euthanasia. But there are still loopholes in the execution of passive euthanasia. As after Shanbaug case, it was made mandatory to take High Court's permission before every case, so it was a tedious process. And now in this new judgment, it has been made harder to give passive euthanasia an effect as now it involves the execution of the directive in presence of two witnesses, authentication by a Judicial Magistrate, permission from two Medical Boards, and a jurisdictional collector.
Thus this delay is a major problem coming in the way, as it defeats the main purpose of passive euthanasia which is to end the suffering of the person concerned but on the other hand if the process is made too liberal and easy it is always prone to a great misuse.
Thus we can see on both sides there are problems and issues involved and what we need is a better way out of this all in order to make the concept of passive euthanasia effective and efficient.
Related Case Laws Supporting Passive Euthanasia:
- Mr. Narayan and Mrs. Iravati Lavate, Mumbai (2017), An elderly couple from
Thakurdwar, near Charni Road, Mumbai, wrote to President's office, seeking
permission for 'active euthanasia. Mrs. Lavate, a retired school principal, and
her husband, a former Government employee have no major medical problems. But
the fear of falling terminally ill and of not being able to contribute to
society made them write to the President seeking permission for mercy killing.
- Anamika Mishra, Women from Kanpur wrote to PM Narendra Modi seeking
euthanasia for her daughter Anamika Mishra who is suffering from Muscular
Dystrophy Disease. Her father lost his life because of the disease. And now,
because of this disease and poor financial condition, her mother had asked for
euthanasia for her daughter.
- Dennis Kumar, Tamil Nadu, Dennis Kumar from the Kanyakumari district asked
permission from the district collector to grant euthanasia for his infant son
who is suffering from an unknown disease since birth. Unable to bear the
expenses for his treatment or see his son's suffering, Kumar asked permission to
give euthanasia, which would relieve both his son and him of their adversity.
However, the court rejected the plea in 2008.
- Jeet Narayan of Mirzapur in Uttar Pradesh, In 2008, Jeet Narayan pleaded for euthanasia for his four sons, Durgesh (22), Sarvesh (18), Brijesh (13), and Sushil (10) all crippled and paralyzed below the neck. Narayan wrote to the president of India, who later rejected his plea.
Impact Of Euthanasia In The Society:
The impact of euthanasia on society as a whole is colossal. Not only does it directly affect the patient undergoing euthanasia, but also every family member, friend, and acquaintance. It affects the role of physicians and the general view and perception of death itself. The legalization of euthanasia has commenced in the past few decades. One of the factors responsible for euthanasia is, no doubt, the increasing importance given to individualism in society.There seems to be either a total lack of consciousness or a denial that this kind of individualism can undermine the intangible infrastructure on which society rests the communal and cultural fabric. Individualism untempered by at least concern and perhaps the duty to protect and promote community will inevitably destroy the community.
Thus, although legalizing euthanasia is a result of unbridled individualism, the latter would also promote it, at least in terms of the balance between the individual and the community.[27] Eventually, society will not be able to defend the most vulnerable from abuse, and doctors will become death dealers instead of healers. The dehumanization of doctors will cause a change in perception of doctors, and thus the doctor-patient relationship and the trust and morality in the bond.
Furthermore, euthanasia has a great impact on our perception of death itself. The concept of euthanasia displays death as a solution to human suffering. When death becomes the answer, we as human beings have lost the opportunity to go beyond our limitations, try harder, and offer hope to these people. Agreeing with assisted suicide is an affirmation that, depending on the circumstances, some lives are not worth living and need to be terminated.
While euthanasia may relieve a patient if his/her suffering, it portrays a dark and gloomy picture for the rest of society. Death being a solution, is inherently problematic because, for people suffering from trauma, depression, or other mental disorders, death and suicide become an option even when it is not required. The illicit nature of suicide will not be able to curb and bring change in this mindset.
Ethics Of Euthanasia:
The complexity and magnanimous effect of practicing euthanasia, and its irreversible consequences for the practitioner, have led to an endless series of intellectual arguments debating its ethical foundation. As the main purpose of the availability of euthanasia as a medical practice is for a patient afflicted with incurable and painful medical diseases to have the option, or liberty to end their suffering, it further debated the nature and purpose of life and death of the person concerned.In this regard, one cannot dismiss the fact that cases of the patient being in a permanent vegetative state, patients as well as their families and friends are subjected to immense emotional and psychological hardships, other than the physical pain endured by the patient. These adversities may be in the form of fear of uncertainty of death, feelings of helplessness, or depression.
The few countries that have legalized active euthanasia such as Belgium and The Netherlands, also make selective usage of the practice by only opting for euthanasia as a last resort, which is when the condition of the patient cannot be facilitated by any possible medical means. In such scenarios, euthanasia provides the patient an option to cease these difficulties, and shorten the duration of suffering.
However, euthanasia has often received backlash on ethical grounds, primarily due to the intense ending of life associated with it, which in turn becomes a reflection of unnatural human interference with the ways of nature. Life, as a concept, is viewed as sublime and sacred, which is respected immensely across civilizations and various religions irrespective of geography and beliefs.
Many religious groups also tend to believe that life, which one has been endowed with, must be honored, and thus euthanasia is not a moral practice or right of an individual.
Thus, opponents of the legalization of active euthanasia, as a primary argument, emphasize upon the holiness of life at all costs (which is supported primarily with arguments in Islamic and Christian religion, which prohibit any form of suicide), while its supporters believe that the moral obligation of doctors is to end the life of a terminally ill patient who is suffering, but they also highlight the strong individual autonomy in the matters of life and death. Thus the ethicality of euthanasia can be both supported and opposed keeping in mind the welfare for the patient, his/her liberty, and the fundamentals of life.
Legality Of Euthanasia In India:
Euthanasia is still new to India and there are no special provisions regarding this either in law or legislation. In recent years, few medical cases signify the necessity of euthanasia in India. In the absence of legal euthanasia in India, patients are deprived of receiving organs from a donor. Venkatesh, a boy, died in his sleep on December 17, 2004, and his plea to donate his organs before his death was not accepted by the Andhra Pradesh High Court.The hospital stated on the question of donation of an organ, in the very case, it amounted to euthanasia or mercy killing, which is illegal in India. High Court judges Devender Gupta and Narayan Reddy said "the existing law has no such provision and the request cannot be conceded." His mother, K. Sujatha, was not ready to give up. She had vowed to fight it out in court, to make mercy killing legal in India.[28]
This incident was followed by many other cases, which did not directly bring about any change, but were considered by the Supreme Court and noted down thereafter. Until 2011, the major incidents included were:
May 11, 2005: SC takes note of PIL of NGO 'Common Cause' seeking nod to allow terminally-ill persons to execute a living will for passive euthanasia. It seeks the Centre's response on the plea which seeks a declaration of 'right to die with dignity as a Fundamental Right under Article 21 (right to life) of the Constitution.
Jan 16, 2006: SC allows Delhi Medical Council (DMC) to intervene and asks it to file documents on passive euthanasia.
Law Commission 196th Report On Passive Euthanasia On April 28, 2006:
Law Commission suggests a draft bill on passive euthanasia and says such pleas be made to HCs which should decide after taking experts' views. [29]In 2006, the 196th report of the Law Commission of India brought out The Medical Treatment of terminally ill Patients Bill 2006. However, no laws on euthanasia were made by the Health Ministry. The first step towards legalizing euthanasia came on 23rd December 2014, following the Aruna Shanbaug case in 2011. The Supreme Court, for the first time, laid down guidelines to process pleas for passive euthanasia.
These guidelines were:
- A decision has to be taken to discontinue life support either by the
parents or the spouse or other close relatives or in the absence of any of
them, such a decision can be taken even by a person or a body of persons
acting as a next friend. It can also be taken by the doctors attending to
the patient. However, the decision should be taken bona fide in the best
interest of the patient.
- Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires the presence of two witnesses and countersigned by a first-class judicial magistrate, and should also be approved by a medical board set up by the hospital.
Finally, on 9 March 2018, the Supreme Court of India passed a historic judgment law permitting Passive Euthanasia in the country under the Constitutional provision of ―Next Friend. It is a law that places the power of choice in the hands of the individual, over the government, medical or religious control. The Supreme Court specified two conditions to permit Passive Euthanasia Law in its 2011 Law: (I) The brain-dead for whom the ventilator can be switched off.
(II) Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliatives are added, according to laid-down international specifications.
Arguments Against Euthanasia:
- Euthanasia is a homicide.
In most countries killing another person is considered murder, even if the intention is to "ease the pain", even if the person has a terminal illness.
- Euthanasia is never necessary - even less since the advent of
palliative care.
Palliative care provided by a well-trained team helps the patient, his family, and his loved ones. Good palliative care is able to control physical, psychological, social, spiritual, and existential suffering. In extreme cases, palliative sedation is used. It is not only already legal, but effective. Only about 20% of Canada's population has access to palliative care.
- The right to die implies a duty to kill.
The so-called "right to die " (for the patient) implies the duty to kill (for someone else, in this case, the doctor).
- Euthanasia devalues ​​some lives.
Accepting euthanasia means accepting that some lives (such as elderly or people with disabilities) are worth less than others. Legalizing euthanasia would send a clear message: it is better to be dead than sick or disabled. For a healthy person, it is too easy to perceive life with a disability or an illness as a disaster, full of suffering and frustration.
- Euthanasia is not in the best interests of the person.
It is easy to imagine cases where a patient could request euthanasia, freely or under pressure, while it goes against her best interests.
- The diagnosis is wrong and the patient is not suffering from a terminal illness.
- The prognosis is wrong and the patient will not die quickly.
- The patient does not receive good care and suffering could be alleviated.
- The doctor does not know all the treatment options that could be offered to the patient. Veterinarians receive five times more training than doctors about pain management!
- The request for euthanasia is often a cry for help. The patient does not really want to die, he wants to see his symptoms and fears treated and relieved.
- The patient is depressed and believes that his situation is worse then it really is.
- The patient maintains unrealistic fears about possible future pain.
- Euthanasia encourages vulnerable people to end their lives.
Directly or indirectly, euthanasia imposes many pressures on the elderly and people with disabilities. These pressures stem from family or society. Patients who are ill or dependent often feel worthless and a burden to their family and loved ones. The growing number of cases of abuse or neglect of the elderly or those with disabilities illustrates that this is a major issue to consider. An overburdened health care system limits the quality of care and may create pressure on patients, making them choose death. Patients estranged from their families may think that euthanasia is the only solution.
- Euthanasia may weaken patients.
Access to euthanasia could cause an internal conflict for the patient, torn between fear of pain and the desire to continue to live rich moments with his family and loved ones. Thus, in the context of a society open to euthanasia, the patient having difficulty living with a demanding illness would bear an additional burden.
Additionally, faced with a doctor who both heals and kills, the patient lives with uncertainty that adds to her vulnerability.
- Euthanasia would transform hospitals into unsafe places.
Many people would hesitate to seek treatment at the hospital. Euthanasia is therefore in contradiction with the demands for dignity and genuine compassion that are at the heart of medicine.
- Danger: slippery slope.
Voluntary euthanasia puts us at the top of a slippery slope that leads to involuntary euthanasia of people who are considered undesirable. This scenario may seem extreme, but we should remember that ideas that were initially thought impossible and unthinkable can quickly become acceptable. Take the example of Belgium: 10 years after the legalization of euthanasia, the law (which was said to have strong safeguards) was amended to allow euthanasia for children with incurable diseases, regardless of their age .[30]
- Euthanasia is against intrinsic value and personal dignity.
The Universal Declaration of Human Rights guarantees the right to life for every individual. It proclaims the fundamental rights of the human person, including respect for his dignity and his value. The United Nations Convention on the Rights of Persons with Disabilities promotes respect for the inherent dignity of persons with disabilities.
Arguments Supporting Euthanasia:
Historically, the euthanasia debate has tended to focus on a number of key concerns. According to euthanasia opponent Ezekiel Emanuel, proponents of euthanasia have presented four main arguments:- that people have a right to self-determination, and thus should be allowed to choose their own fate
- assisting a subject to die might be a better choice than requiring that they continue to suffer
- the distinction between passive euthanasia, which is often permitted, and active euthanasia, which is not substantive (or that the underlying principle the doctrine of double effect is unreasonable or unsound);
- permitting euthanasia will not necessarily lead to unacceptable consequences. Pro-euthanasia activists often point to countries like the Netherlands and Belgium and state like Oregon, where euthanasia has been legalized, to argue that it is mostly unproblematic.
Other arguments:
Constitution of India:
'Right to life is a natural right embodied in Article 21 but euthanasia/suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of 'right to life. It is the duty of the State to protect life and the physician's duty to provide care and not to harm patients. Supreme Court in Gyan kaur Case, 1996 has held that the right to life under Article 21 does not include the right to die.
Caregivers burden: Right-to-die' supporters argue that people who have an incurable, degenerative, disabling, or debilitating condition should be allowed to die in dignity. This argument is further defended for those, who have chronic debilitating illness even though it is not terminal such as severe mental illness. The majority of such petitions are filed by the sufferers or family members or their caretakers. The caregiver's burden is huge and cuts across various domains such as financial, emotional, time, physical, mental and social.[31]
Refusing care: Right to refuse medical treatment is well recognized in law, including medical treatment that sustains or prolongs life. For example, a patient suffering from blood cancer can refuse treatment or deny feeds through a nasogastric tube. Recognition of the right to refuse treatment gives a way for passive euthanasia.
Encouraging the organ transplantation: Euthanasia in terminally ill patients provides an opportunity to advocate for organ donation. This, in turn, will help many patients with organ failure waiting for transplantation. Not only euthanasia gives 'Right to die for the terminally ill, but also the 'Right to life for the organ needy patients.
Legality Of Euthanasia In Various Countries:
Argentina:
On 9 May 2012, the Argentine Senate turned into law a project that enables to reject treatments that artificially prolong the life of patients with terminal or irreversible symptoms. The consent maybe given by the patient or, if not in a position to do so, their relatives or legal representatives. It was promulgated on 24 May 2012 as "Law 26,742"Belgium:
The Belgian parliament legalized euthanasia on 28 May 2002. In December 2013, the Belgian Senate voted in favor of extending its euthanasia law to terminally ill children. Conditions imposed on children seeking euthanasia is that "the patient must be conscious of their decision and understand the meaning of euthanasia", "the request must have been approved by the child's parents and medical team", "their illness must be terminal" and "they must be in great pain, with no available treatment to alleviate their distress". In January 2020, the assizes court in Ghent acquitted three doctors of murder charges for euthanasia in 2010.[32]France:
In July 2013, French President Franois Hollande stated his personal support for decriminalization of voluntary euthanasia in France, which had been one of his presidential campaign promises (introduction of the right to die with dignity), despite objections from France's National Consultative Ethics Committee, which alleged abuses in adjacent jurisdictions that have decriminalized and regulated either voluntary euthanasia or physician-assisted suicide (Belgium, Switzerland, the Netherlands, and Luxembourg). More socially conservative members of the Catholic Church and other major religious groups in France had announced that after expressing an opposition to the introduction of same-sex marriage in France, their next target may be the possible decriminalization of voluntary euthanasia.[33]Luxembourg:
The country's parliament passed a bill legalizing euthanasia on 20 February 2008 in the first reading with 30 of 59 votes in favor. On 19 March 2009, the bill passed the second reading, making Luxembourg the third European Union country, after the Netherlands and Belgium, decriminalize euthanasia. Terminally ill patients will have the option of euthanasia after receiving the approval of two doctors and a panel of experts.[34]Netherlands:
In the 1973 Postma case a physician was convicted for having facilitated the death of her mother following repeated explicit requests for euthanasia. While upholding the conviction, the court's judgment set out criteria when a doctor would not be required to keep a patient alive contrary to their will. This set of criteria was formalized in the course of a number of court cases during the 1980s.In 2001, The Netherlands passed a law legalizing euthanasia including physician-assisted suicide. This law codifies the twenty-year-old convention of not prosecuting doctors who have committed euthanasia in very specific cases, under very specific circumstances. The Ministry of Public Health, Wellbeing and sports claims that this practice "allows a person to end their life in dignity after having received every available type of palliative care."] The United Nations has reviewed and commented on the Netherlands euthanasia law.
In September 2004 the Groningen Protocol was developed, which sets out criteria to be met for carrying out child euthanasia without the physician being prosecuted[35]
Spain:
Active euthanasia and assisted suicide are legal in Spain.In February 2020 the Spanish parliament voted to approve plans to legalize voluntary euthanasia. The bill went to the committee and the Senate before a final vote in the lower house. The lower house approved the bill in December 2020.
On 17 December 2020, the Congress of Deputies passed a bill to regulate the right to euthanasia. The final draft, whose intellectual authorship was attributed to Maria Luisa Carcedo, commanded the support of 192 legislators (the opposition from 138 and 2 abstentions). Given widespread parliamentary support and the incorporation of minor amendments, the law returned to the Congress of Deputies for final approval.[36]
On 18 March 2021, Spain's parliament voted in favor of the final reading of the bill, thus making it law. It was sanctioned by the King on 24 March 2021 and published in the BOE the next day. The law came into force on 25 June 2021, three months after its publication.
United States:
Active euthanasia is illegal throughout the United States. Patients retain the right to refuse medical treatment and to receive appropriate management of pain at their request (passive euthanasia), even if the patients' choices hasten their deaths. Additionally, futile or disproportionately burdensome treatments, such as life-support machines, may be withdrawn under specified circumstances and, under federal law and most state laws only with the informed consent of the patient or, in the event of the incompetence of the patient, with the informed consent of the legal surrogate.The Supreme Court of The United States has not dealt with quality of life issues or futility issues and appears to only condone active or passive "euthanasia" (not legally defined) when it is clear and convincing evidence that informed consent to the euthanasia, passive or active, has been obtained from the competent patient or the legal surrogate of the incompetent patient.
While active euthanasia is illegal throughout the U.S., assisted suicide is legal in Colorado, Oregon, Hawaii, Washington, Vermont, Maine, New Jersey, California, the District of Columbia, one county in New Mexico, and is de facto legal in Montana. Additionally, Louisiana specifically prohibits euthanasia in its Bill of Rights as cruel and unusual punishment[37]
United Kingdom:
Active euthanasia is illegal in the United Kingdom. Any person found to be assisting suicide is breaking the law and can be convicted of assisting suicide or attempting to do so. Between 2003 and 2006 Lord Joffe made four attempts to introduce bills that would have legalized voluntary euthanasia all were rejected by the UK Parliament. Currently, Dr.Nigel Cox is the only British doctor to have been convicted of attempted euthanasia. He was given a 12-month suspended sentence in 1992.In regard to the principle of double effect, in 1957 Judge Devlin in the trial of Dr. John Bodkin Adams ruled that causing death through the administration of lethal drugs to a patient, if the intention is sole to alleviate pain, is not considered murder even if death is a potential or even likely outcome.[38]
Passive euthanasia is legal, by way of advanced decisions giving patients the right to refuse life-saving treatment. Food and liquid can also be withdrawn from someone in a permanent vegetative state without the need for court approval.
Conclusion:
Deprivation of life from compassion throughout the history of humanity appears as a question that engrosses the attention of lawyers, doctors, sociologists around the world. In certain stages of the development of civilization, it represented a permitted form of depriving another person's life, while in the other stages was strictly prohibited.
Today's legislators basically occupying three positions, so, they prohibit euthanasia and equate it with ordinary or privileged murder, or allow it under the assumption of the meeting of prescribed requirements. Bypassing the countries that privilege euthanasia as less serious murder, in this paper, we have dealt with some legislations that this phenomenon strictly prohibits, and those that deprivation of life out of compassion treat as a permitted medical procedure.
In Islamic countries, such as Iran, Turkey, and part of Bosnia and Herzegovina, euthanasia is an ordinary murder, punishable by serious criminal sanctions. At the opposite pole are the Western European countries, more specifically, the Benelux countries (Netherlands, Belgium, and Luxembourg), in which deprivation of life from the grace does not constitute a crime, if it was carried out in accordance with the clearly defined legal rules and medical procedure.
In this way, we show how a life situation may be in different legal areas regulated in completely different ways. Exactly this lack of harmony in the legislative solution in some European and American countries have led to some adverse events, such as death tourism, as a phenomenon where inhabitants of one country, where euthanasia is prohibited, travel to another state where it is allowed, and where physicians can perform euthanasia. In order to avoid this, it is necessary to achieve a certain degree of harmonization of legislation or to set appropriate limits in the legislation that legalized euthanasia. However, how it is possible to achieve, time will show.
Suggestion:
- People with advanced, potentially fatal illnesses and those close to them should be able to expect and receive reliable, skillful, and supportive care
- Physicians, nurses, social workers and other health professionals must commit themselves to improve care for dying patients and to using existing knowledge effectively to prevent and relieve pain and other symptoms.
- Palliative care should become, if not a medical specialty, at least a defined area of expertise, education, and research.
- The nation's research the establishment should define and implement priorities for strengthening the knowledge base for end-of-life care.
- I personally believe that passive euthanasia should be legalized and protected by the law. However, the legalization of euthanasia must be accompanied with a number of definite and specific restrictions, which must be well thought out after consideration of its effects as a public policy, as well as an individual right.
- Furthermore, only voluntary euthanasia as a form of active euthanasia should be legalized.
- A document should be signed by the patients themselves stating that they wish to receive euthanasia.
- However, nonvoluntary euthanasia, which is delivered when the patient is in an unfit state to make the decision themselves, and involuntary euthanasia, or euthanasia without patient consent, should remain as illicit activities
- This framework would prevent discrimination and misuse of euthanasia. Euthanasia should only be opted for as a last resort, after an evaluation of both physicians as well as psychiatrists when required.
- Finally, alternatives such as palliative Care should be encouraged and considered before opting for euthanasia.
Bibliography And Webilography:
- Dr. N.G. Kulkarni Legalising Euthanasia published in A.I.R. 2006( Journal Section)17
- Euthanasia (http://www.worldrtd.net/euthanasia-fact-sheet)
- Philippe Letellier, chapter: History and Definition of a Word, in Euthanasia: Ethical and Human Aspects By Council of Europe
- Francis Bacon: The Major Works by Francis Bacon, edited by Brian Vickers, p. 630.
- Empirical Research in Bioethical Journals. A Quantitative Analysis J Med Ethics
- Euthanasia (http://www.oxforddictionaries.com/definition/euthanasia) Oxford University Press
- Draper, Heather (1998). "Euthanasia". In Chadwick, Ruth (ed.). Encyclopedia of Applied Ethics. 2. Academic Press. p. 176.
- Stolberg, Michael (2007). "Active Euthanasia in Pre-Modern Society, 1500-1800: Learned Debates and Popular Practices". Social History of Medicine. 20 (2): 206-07
- Dowbiggin lan(2003), A merciful end: the euthanasia movement in modern America. Oxford University Press pp10-13
- Manoj Kumar Mohanty (August 2004). "Variants of homicide: a review". Journal of Clinical Forensic Medicine
- The vulnerable will be the victims: Opposing View(https//www.usatoday.com/story/opinion/2015/10/20/California
- Computerscience.johncabot.edu/courses/
- C://Users/User/Desktop/Euthanasia/
- ncbi.nlm.nih.gov/pmc/articles/
- Clark JA, Potter DA, McKinlay JB. Bringing social structure back into clinical decision-making. Soc Sci Med. 1991;32:853-66. [PubMed] [Google Scholar]
- Indian Penal Code. [Last accessed on 2012 Jun 30]. Available from: http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode1.htm
- Williams G (1969). Euthanasia legislation: A rejoinder to the non-religious objections. In: Euthanasia and the Right to Death: the Case for Voluntary Euthanasia. Ed. Downing A., London, pp. 134�147. [Google Scholar]
- Haseeb Ansari A, Sambo AO, Abdulkadir AB (2012). The Right to Die Via Euthanasia: An Expository Study of the Shari'ah and Laws in Selected Jurisdictions. Advances in Natural and Applied Sciences, 6(5): 673�681. [Google Scholar]
- Harris J (1995). Euthanasia and the value of life. In: Euthanasia Examined � ethical, clinical, and legal perspectives. Ed. Keown J, Cambridge, pp. 6�22. [Google Scholar]
- 1987 Cr. L.J. 743
- A.I.R. 1986 SC 180
- A.I.R. 1994 SC 1844
- A.I.R. 1996 SC 946
- A.I.R. 2011 4 SCC 454
- lawcirca.com/aruna-ramchandra-shanbaug-v-union-of-india-case-analysis-passive-euthanasia/
- https://www.brittanica.com/topic/euthanasia
- https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4441884
- https://www.nature.com/articles/6603365
- Annadurai, Danasekaran, Mani. ―Euthanasia: Right to Die with Dignity‖. J Family Med Prim Care. 2014 Oct-Dec; 3(4): 477-478
- Viveredignite.org/en/against-euthanasia/
- clearias.com/euthanasia/
- Smets T, Bilsen J, Cohen J, Rurup ML, Deliens L (February 2010). "Legal euthanasia in Belgium: characteristics of all reported euthanasia cases". Med Care. 48 (2): 187-92
- France adopts sedated dying law as a compromise on euthanasia. The Guardian Associated Press 27 January 2016
- Memorial A n 46 de 2009- Legilux (www.legilux.public.lu) archieved on 13 March , 2013
- Rietjens JA, van der Maas PJ, Onwuteaka-Philipsen BD, van Delden JJ, van der Heide A (September 2009). "Two Decades of Research on Euthanasia from the Netherlands. What Have We Learnt and What Questions Remain?". J Bioeth Inq. 6(3):271-283. doi:10.1007/s11673-009-9173. PMC 2733179. PMID 19718271
- Spanish MPs Approve bill legalizing Euthanasia(18 March 2021)
- O'Reilly, Kevin B. (18 January 2010). "Physician-assisted suicide legal in Montana, court rules". American Medical News
- Case Histories: End of life decisions,10 May 2002 Retrieved 6 October
2018 via news.bbc.co.uk
Award Winning Article Is Written By: Ms.Sarala Jayakumar
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