Euthanasia – Power in the Hands of the individual, Not the Government

THIS ARTICLE WAS WRITTEN BY AROHI KASHYAP A STUDENT OF NORTHCAP UNIVERSITY.

Introduction

Many people have been known to say that morality is how we treat those we know and ethics is how we treat others we don’t know. Here, in mercy killing it becomes a fight of morality and ethics, both are subjective phenomenon that vary from person to person. The morality of the people closest to the sufferer and the ethics of the on looker to let it happen or not is the what is in question. Euthanasia in simpler terms is mercy killing. The title itself reflects mercy, mercy for someone in pain, about to die, immobile, unable to feel and experience the joy of life. In India and all around the world this has been an extremely debated topic. The fundamental right of Right to Life is given in the Constitution of India but the constant and everlasting debate has been whether Right to Die is included in this fundamental right; people have been in a constant battle mainly pertaining to the morality of the act.

Judicial Arguments

Many people believe that mercy killing is equitable to suicide, that taking one’s own life, is taking life in their own control. This is seen as immoral, sinful and depraved. However, there are many others who find it as an act of mercy, humanity and compassion. Giving someone a peaceful, pain free and easy death instead of having them suffer till the day they die.

In the support of the former view, i.e. that right to life does not include the right to die, there have been several case laws.

For instance Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. In Chenna Jagadeeswar and Anr. Vs. State of Andhra Pradesh, 1988 Crl.L.J.549, is the decision by a Division Bench of the Andhra Pradesh High Court. The challenge to the constitutional validity of Section 309 IPC was rejected therein. The argument that Article 21 includes the right to die’ was rejected.[1]

The Bombay High Court in Naresh Marotrao Sakbre and Another vs. Union of India and others, 1895 Crl.L.J. 96, considered the question of validity of Section 306 I.P.C. and held that there is nothing to support that it is not constitutionally valid, therefore it was held to be constitutionally valid.

Such case laws and judgments have been used several times in order to support, justify and back-up the notion that right to life does not include right to die.

However, in the latter opinion, i.e. right to die is included in right to life, several case laws have emerged.

Here, in this article the latter in supported. It can be argued that when it comes to suffering or complete immobility (permanent vegetative state) the power to continue such suffering should be in the hands of the individual and not an onlooker. The government cannot give an unbiased decision neither can they truly feel the pain that the person has to bear. The government is swayed by popular opinion, belief and/or religion. They see what the mass public shows or what existed several years ago don’t fully understand the plight of the patient. Religious belief and norms see all suffering as destiny, something that cannot and should not be altered; basically the suffering are in pain for a reason and let them suffer in peace.

Neither religion nor the government can appreciate the misery and agony that one goes through when they have an incurable disease that leads to nothing but increasing pain and immobility.

Until 2015, an individual in India, who could not move their hands or feet, could not sit up, was completely paralyzed, had to live out their days in that state with no hope of getting better and in many cases, completely dependent on the hospital that only prolong their agony. Finally in the case of Aruna Ramchandra Shanbaug v. Union of India  the Hon’ble Supreme Court had mercy and let Aruna Shanbaug die in peace. In this case, Aruna Shanbaug was a nurse working at King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973. She was working her shift when a sweeper grabbed her, forced a dog collar on her neck to restrain her movement and attempted to rape her. When he discovered that she was menstruating he stopped and sodomized her. The next morning another hospital worker found her immobile body drenched in her blood. It was later found that due to the pressure of the dog collar, the oxygen supply did not reach her brain and there was irreparable damage to her brain causing paralysis of her arms and legs. There was no possibility of improvement and Aruna would have been forced to live out her days dependent on life support machines, clumps of food, in a hospital with the memory of her attack to haunt her forever. In an annual ritual, each and every batch of nursing students is introduced to Ms. Aruna Ramachandra Shanbaug, and is told that “She was one of us”; “She was a very nice and efficient staff nurse but due to the mishap she is in this bed-ridden state”; basically meaning that every year she was reminded of the attack, the fact that she had an active life which can never happen again and people would gather around her bedside and show her pity. Finally, by way of a writ petition, the Hon’ble Supreme Court in a landmark judgment allowed the life support to be withdrawn and let Aruna die in peace however they still refused active euthanasia. Recently the bill for allowing passive euthanasia in India has finally been drafted The Union government has come up with a draft bill on passive euthanasia that gives patients the right to “withhold or withdraw medical treatment to herself or himself” and “allow nature to take its own course”. The bill provides protection to patients and doctors from any liability for withholding or withdrawing medical treatment and states that palliative care (pain management) can continue.

Even though this was a massive step forward by our judicial system and legislative, what needs to be realized is that this it is not enough.

Global Perspective

In countries like a person is given the freedom and support to have a peaceful and pain free death if they are suffering from a incurable disease, a disease which is only going to lead to more pain, suffering, immobility, depression and death in the most horrid and inhumane manner. The primary example of this is Switzerland.

In Switzerland Article 115 of the Swiss Penal Code considers assisting suicide a crime if, and only if, the motive is selfish. The code does not give physicians a special status in assisting suicide; although, they are most likely to have access to suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs. The Swiss law is unique because (1) the recipient need not be a Swiss national, and (2) a physician need not be involved. Many persons from other countries, especially Germany, go to Switzerland to undergo euthanasia.[2]

If we gaze upon the global stance on euthanasia, we see that there are several places that not only allow passive euthanasia but have also legalized active euthanasia and physician-assisted suicide.

In the Netherlands, euthanasia is regulated by the Termination of Life on Request and Assisted Suicide (Review Procedures) Act ,2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life.

In the United States of America, Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in the states of Oregon, Washington and Montana. Further, Washington and Montana also have similar legislations in place. Countries like Belgium, Canada have also joined the move. On the other hand, countries such as Spain, UK, do not express their solidarity towards euthanasia.

Conclusion

What needs to be understood is that no government, no onlooker, no religious leader can understand the plight of the suffering. Having an individual suffer, stay in excruciating pain, immobile and dependent till the day they die is the most unkind and inhumane form of death lacking compassion, benevolence and sympathy. The power and right to make the choice must always be in the hands of the person who has to live with the consequences of the choices when it has to do with their suffering and pain. If someone wants to end suffering that has no chance of getting better and only of getting worse, they should be allowed to make that choice. The power must be in the hands of the individual and not the government.

[1] https://indiankanoon.org/doc/235821/

[2] http://www.lawctopus.com/