Analysis: Legality of Euthanasia

INTRODUCTION

Sanjay Leela Bhansali’s movie ‘Guzaarish (2010)’ which portrayed the excruciating life of the quadriplegic hero’s fight for his right to die has raised significant questions among folks regarding good death, also known as euthanasia or mercy killing. The term Euthanasia has been derived from the Greek word ‘Eu’ and ‘Thanatos’ which means good or easy death. In simple terms it means, allowing a person suffering from terminal illness to die peacefully either by introducing a lethal agent into the body of the person [active euthanasia or physician assisted suicide (PAS)] or by removing the life support system (passive euthanasia). The term euthanasia comes into picture in situations of chronic medical illness, where the person is brain dead or is in coma condition. This has been a controversial topic of debate among the scholars, academicians and the medical experts. Ab initio the question which arises is whether or not euthanasia amounts to suicide or murder. Though it has been attacked by the religious stance that only the almighty has power to give and take life of a person, there are relevant situations where mercy killing is the only way to relieve the person suffering from acute pain provided consent of the patient as well as parents is recorded. This article focuses on the theme of euthanasia in India as well as its position in the international scenario.

ARTICLE 21 AND THE RIGHT TO DIE

The landmark decision by the Supreme Court in Maneka Gandhi’s case[1] has widened the scope of Article 21 of the Indian Constitution which enshrines the protection of life and personal liberty. By incorporating natural justice within its ambit, the right to life also covers within itself a plethora of other rights such as the right to live with human dignity[2],right to livelihood[3],right to shelter[4], right to privacy[5], right to health and medical assistance[6],right to education, prisoner’s right, right to free and fair trial, right to sleep etc.

An important question which aroused before the Bombay High Court was whether right to life included a person’s right to die[7].In this case, the Court struck down Section 309 of Indian Penal Code which criminalizes suicide and held that individuals have the right to freedom of death. But this decision was reversed in Chenna Jagadeeshwar v. State of A. P[8].Again in the case of P. Rathinam v Union of India[9] the Supreme Court reiterated the view of the Bombay High Court and held that right to live also included the ‘right not to live’. But the Court did not approve the plea of euthanasia as it was beyond the scope of the petition. However, in Gian Kaur v. State of Punjab[10] a five-judge bench of the Supreme Court overruled the decision in P. Rathinam’s case and clearly mentioned that right to die is inconsistent with the right to life as the latter speaks with regard to right to live with human dignity till the end of a person’s natural death.

EUTHANASIA IN INDIA; LIVING WILL OR ADVANCE DIRECTIVE

India legalized passive euthanasia in the year 2018[11] after Aruna Shanbaugh’s case[12] though there aren’t any legislations as such by the Parliament till date. In Shanbaugh’s case a petition was filed by a next friend of the victim praying before the Court to let her friend die peacefully as she was under Permanent Vegetative State (PVS). She was attacked in 1973 by a sweeper who strangulated her with a dog-chain and tried to rape her. Finding that she was menstruating he sodomized her. The victim performed all involuntary functions on her own but her brain was virtually dead due to the strangulation. She continued to be in coma stage for a period of 37 years[13]. In 2015, she died at the age of 66 years due to severe pneumonia in the same hospital bed.

It was in the landmark decision by the Supreme Court in Common Cause’s case[14] that the Court used the terminology ‘Advance Medical Directive’ in par with ‘Living Will’ and recognized passive euthanasia. A living will denote a statement of consent given by patients when in situations of deteriorated health or terminal illness, for appropriate and right action by the authorities regarding whether or not to prolong the life, when there is no hope of recovery. It is pertinent to note that in this case the learned counsel put forth the contention that the claim was not to include the right to die within the ambit of right to life but that the right to die with dignity is an inseparable part of the right to live with dignity.

INTERNATIONAL SCENARIO

Though passive euthanasia has been legalized, active or physician-assisted suicide (PAS) is still criminalized in most of the countries due to strong opposition from the conservatives. Active euthanasia is a term used for the intervention by the physician in introducing any lethal substance into the body of terminally ill patients with their consent with a view to terminate life.

In England, euthanasia is punishable but the doctors can introduce certain pain-relieving drugs into the patient’s body though it reduces the lifespan and hastens death provided it is done in good faith and with the patient’s consent.

Though the Dutch Penal Code criminalizes active euthanasia and PAS, the doctors are immune from the criminal liability provided that they follow certain strict rules and practices under the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act[15]. Euthanasia is legal in Netherlands for all over 12 years of age and for infants up to a year old with parent’s consent. Lately there has been discussion in the Dutch Government for legalizing euthanasia for the children aged between one and twelve years old[16]

Belgium is the second country in the world to legalize voluntary or active euthanasia after Netherlands by ‘Euthanasia Act’ which came into force in 2002. In 2014 this law was amended to include terminally ill children within the ambit of the Act provided that they are fully aware and conscious of their decision and also with the consent of their parents who has the veto power[17] .This amendment has been widely criticized by the medical professionals and scholars as the Belgian euthanasia law is the only law that has expanded its scope without any age barriers.

 Northern territory of Australia has legalized PAS by the introduction of Rights of the Terminally Ill Act, 1995. It permits the doctors to aid the patient to terminate life after fulfilling certain conditions prescribed under the Act. Recently the South Australian Legislative Council has passed the active euthanasia bill for people aged 18 years and above suffering from acute illness and the bill if approved by the lower house would come into force in the state in near future[18].

Spain is one of the European countries which have legalized voluntary euthanasia as well as PAS in the recent times in recognition of the human rights by the Parliament though it faced vigorous opposition from the religious party which believes euthanasia as morally incorrect.

The conditions to be fulfilled includes that the patient must be a Spanish national or a legal resident who is “fully aware and conscious” to make a request of dying which should be submitted twice in writing, 15 days apart. The patient must be suffering from a “serious or incurable illness” or a “chronic or incapacitating” condition which has led to “intolerable suffering”. The doctor can reject request if the conditions are not fulfilled and it must be approved by a second medic and by an evaluation body. Any medic can withdraw on grounds of “conscience” from taking part in the procedure that would be available through Spain’s national health service[19].

CONCLUSION

The health and the medical sector are advancing day by day with novel innovations in palliative care. The apprehensions of proponents of Euthanasia cannot be ignored as there are families that grieve due to the chronic sufferings faced by their kindred because of terminal illness. On the other hand, there are cases which escalates hope of living and which forces people to believe in miracles with examples of patients waking up from coma after prolonged years.

The Indian law on euthanasia has a long way to go. The misuse of the law is something which cannot be left behind. If active euthanasia is to be legalized it has to be backed by stringent rules and regulations. The step taken by the Supreme Court in India in legalizing passive euthanasia is commendable but it is high time that the parliament legislate appropriate law on the same.


[1] Maneka Gandhi v Union of India, AIR 1978 SC 597

[2] Francis Coralie v. Union Territory of Delhi, AIR 1981SC 746

[3] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180

[4] Chameli Singh v. State of UP, (1996) 2 SCC 549

[5] R. Rajagopal v State of Tamil Nadu, (1994) 6 SCC 632

[6] Parmanand Katara v. Union of India, AIR 1989 SC 2039

[7] State of Maharashtra v. Maruthy Sripati Dubal AIR, 1997 SC 411

[8] Chenna Jagadeeshwar v. State of A.P, 1988 Cr. L.J 549

[9] P. Rathinam v Union of India, (1994) 3 SCC 394

[10] Gian Kaur v. State of Punjab, (1996) 2 SCC 648

[11] Common Cause (A Regd. Society) v. Union of India, AIR 2018 SC 1665

[12] Aruna Shanbaugh v. Union of India, AIR 2011 SC 1290

[13] DR. J. N. PANDEY, CONSTITUTIONAL LAW OF INDIA 295 (55th ed.2018).

[14] Supra Note 11

[15] GOVERNMENT OF NETHERLANDS, https://www.government.nl/topics/euthanasia/euthanasia-assisted-suicide-and-non-resuscitation-on-request#:~:text=Euthanasia%20and%20assisted%20suicide%20are,concerned%20immune%20from%20criminal%20prosecution (last visited May 7, 2021).

[16] BBC NEWS, https://www.bbc.com/news/world-europe-54538288 (last visited May 7, 2021).

[17] DIVERSITY&EQUALITY IN HEALTH AND CARE, https://diversityhealthcare.imedpub.com/children-and-euthanasia-belgiums-controversial-new-law.php?aid=3729#:~:text=On%20February%2013%2C%202014%20Belgium,44%20(with%2012%20abstentions) (last visited May 7, 2021).

[18] ABC NEWS, https://www.abc.net.au/news/2021-05-06/sa-legislative-council-supports-voluntary-euthanasia-bill/100119076;PARLIAMENT OF AUSTRALIA, https://www.aph.gov.au/about_parliament/parliamentary_departments/parliamentary_library/pubs/rp/rp9697/97rp4 (last visited May 7, 2021).

[19] THE HINDU, https://www.thehindu.com/news/international/spain-mps-pass-law-legalising-euthanasia-assisted-suicide/article34100168.ece (last visited May 7, 2021).


Author: Rana Banu from SDM Law College, Mangaluru.


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