EUTHANASIA-AN INDIAN PERSPECTIVE

This article was written by Ankesh Kumar, a student of Army Institute of Law.

       “Right to life is an inalienable and inherent right of every human being.”

                                                                                                                 –Thomas Jefferson

INTRODUCTION

Euthanasia is an attempt to end life which is undergoing lot of suffering, grieve, pain and trauma. The term ‘Euthanasia’ is derived from the Greek words which literally mean “good death”. The term was coined by the great historian Suetonius, who described the way King Augustus opted for quick, painful death without suffering. It is also known as “mercy killing.” In some countries there is a divisive public controversy over the moral, ethical and legal issue of euthanasia.

Euthanasia can be categorized into two types-

ACTIVE EUTHANASIA– When a person directly and deliberately does something which results in the death of patient. Here specific steps/procedures are undertaken (by the third party) like the administration of a lethal drug. This is a crime in India (and in most parts of the world) under the Indian Penal Code section 302 or 304. There are countries which have passed legislation permitting assisted suicide and active euthanasia. The differences between them are in the former, patient himself administers lethal medications and in the later doctor or some other person does it.

PASSIVE EUTHANASIA-It involves withholding of medical treatment or withdrawal from life support system for continuance of life (like removing the heart– lung machine from a patient in coma). Hence in passive euthanasia death is brought about by an act of omission. Euthanasia can be further classified as ‘voluntary’ where euthanasia is carried out at the request of the patient and ‘non-voluntary’ where the person is unable to ask for euthanasia (perhaps because he is unconscious or otherwise unable to communicate), or to make a meaningful choice between living and dying and a surrogate person takes the decision on his behalf. Legally speaking voluntary euthanasia is illegal as it can be interpreted as attempt to commit suicide which is punishable under Indian Penal Code section 309.

SITUATION IN INDIA

When a child is born, he or she is guaranteed with all the basic fundamental rights. Right to life is one of the basic as well as fundamental right without which all rights cannot be enjoyed. Right to life means a moral principle based on the belief that a human being has the right to live and, in particular, should not be killed by another human being. But the question arises that if a person has a right to live, whether he has a right to die or not?  In order to give this answer let us see how Indian constitution work.

In 1996, an interesting case of abetment of commission of suicide (IPC Sec 306) came to Supreme Court.  The accused were convicted in the trial court and later the conviction was upheld by the High Court. They appealed to the Supreme Court and contended that ‘right to die’ be included in Article 21 of the Constitution and any person abetting the commission of suicide by anyone is merely assisting in the enforcement of the fundamental right under Article 21; hence their punishment is violation of Article 21. Immediately the matter was referred to a Constitution Bench of the Indian Supreme Court. The Court held that the right to life under Article 21(which is consider heart of fundamental right in Unni Krishnans) of the Constitution does not include the right to die.

In India, euthanasia (consent killing) is illegal and punishable under section 300 exceptions 5 of the IPC as culpable homicide not amounting to murder. However there is growing awareness amongst jurists and social scientists that euthanasia should be made legal in case of terminally ill. If enacted such law must provide sufficient safeguards, appropriate supervision and control to avoid misuse of the provision. However in other countries like Netherland and Belgium legalise euthanasia.

The case which brought the concept of passive euthanasia was Aruna Ramachandra Shanbaug v. Union of India & Ors.  In this particular case the Supreme Court, made it clear that passive euthanasia is permissible in our country as in other countries, proceeded to lay down the safeguards and guidelines to be observed in the case of a terminally ill patient who is not in a position to signify consent on account of physical or mental predicaments such as irreversible coma and unsound mind. It was held that a close relation or a ‘surrogate’ cannot take a decision to discontinue or withdraw artificial life sustaining measures and that the High Court’s approval has to be sought to adopt such a course. The judgment of SC is based on the following logic:

1. If we leave it solely to relatives and friends, there is a chance that this may be misused by some unscrupulous elements who wish to grab or inherit patients’ property.
2. If euthanasia is legalised, then commercial health sector will serve death sentence to many disabled and elderly citizens of India for meagre amount of money.

The High Court in its turn will have to obtain the opinion of three medical experts. In this particular case, Aruna Shanbaug was in Persistent Vegetative State (PVS for short) for more than three decades and the Court found that there was a little possibility of coming out of PVS. However, the Court pointed out that she was not dead. She was abandoned by her family and was being looked after by staff of KEM Hospital in which she worked earlier as staff nurse.  The hospital staff who treat and take care of her did not support euthanizing her .The Court started the discussion by pointing out the distinction between active and passive euthanasia and observed that the general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained. The distinctive feature of PVS was that it pointed out, is that brain stem remains active and functioning while the cortex has lost its function and activity. The Supreme Court addressed the question when can a person is said to be dead. It was answered by saying that “one is dead when one’s brain is dead” and brain death is different from PVS. Reference was made to American Uniform Definition of Death, 1980. Then it was concluded: “Hence, a present day understanding of death as the irreversible end of life must imply total brain failure such that neither breathing nor circulation is possible any more”.

ARGEUMENT AGAINST EUTHANASIA

1. Constitution of India: Article 21 include “Right to life” which is natural right, but euthanasia is an unnatural termination of life and, therefore, inconsistent and incompatible with the concept of ‘right to life’. It is the duty of the State to protect the life of peoples and give medical aid. In Gian Kaur Case 1996 Supreme Court held that right to life under Article 21 does not include the right to die.
2. Neglect of Healthcare by State: If euthanasia is legalised, then there is a grave apprehension that the State may refuse to invest in health (working towards Right to life). Legalised euthanasia has led to a severe decline in the quality of care for terminally-ill patients in Holland.
3. Malafide intention: In the era of declining integrity and equity, there is a risk of misusing euthanasia by relatives or society for inheriting the patient property. The Supreme Court has also raised the same issue in the Aruna Shabaug judgement.
4. Commercialisation of Health Care: Passive euthanasia occurs in majority of the hospitals across the county, where poor patients and their family members withdraw or refuse treatment because of the tremendous amount required for keeping them alive. Commercial health sector will serve death sentence to many elderly and disabled citizens of India for meagre amount of money if euthanasia is legalised. This has been highlighted by the Supreme Court in the Aruna Shabaug Judgement.

Arguments In Favour Of Euthanasia

1. Right to Die With Dignity: ‘Right to die’ supporters argue that people who have an, incurable, degenerative or debilitating condition should be allowed to die with dignity.
2. Care-givers Burden: The caregiver’s burden is huge and cuts across various domains such as physical, mental, financial, emotional and social.
3. Refusing Care: Right to refuse medical treatment is well recognised in law, including medical treatment that sustains or prolongs life. For example

• Blood cancer patient can deny feeds through nasogastric tube or refuse treatment. Recognition of right to refuse treatment gives a way for passive euthanasia.
• Allowing medical termination of pregnancy before 16 weeks is also a form of active involuntary euthanasia. This issue of euthanasia of deformed babies has already been in discussion in Holland.

4. Encouraging Organ Transplantation: By giving euthanasia to terminally ill patients provides an opportunity to donate his/her organs who want to donate. So, euthanasia not only gives ‘Right to die’ for the terminally ill patient, but also give ‘Right to life’ to patients who need organ.

CONCLUSION

Thus I would like to conclude saying that there is ranging controversy all over the world as to its legal standing aside from the moral and ethical issues involved. Having seen that the law is not unprepared to re-examine former rigid attitude toward the sanctity of life those in favour of euthanasia exhibit some zeal in supporting their views. The opponents of euthanasia state that there are moral, religious and ethical obligations which cannot be ignored. They argue that no one has right to take away the life of an individual not even individual him or herself. The concept of sanctity of life is inviolable and doctors having taken an oath (The Hippocratic oath) “to preserve life at all cost” cannot justify a patient to die. Government should give proper health care system to poor people because investment in health is not a charity also right to life in our constitution also include right to health.