Should Euthanasia be legalised in India?

 SHOULD EUTHANASIA BE LEGALISED IN INDIA?

“No life that breathes with human breath has ever truly longed for death”

INTRODUCTION

“Euthanasia” is a broad term for mercy killing - taking the life of a hopelessly ill or injured individual in order to end his or her suffering. Mercy killing represents a serious ethical dilemma. People do not always die well. Some afflictions cause people to suffer through extreme physical pain in their last days, and euthanasia may seem like a compassionate way of ending this pain. Other patients may request euthanasia to avoid the weakness and loss of mental faculties that some diseases cause, and many feel these wishes should be respected. Medical science has now acquired life supporting systems and medications to extend life artificially for long periods even after the loss of brain activities and the control of bodily functions. Many people have a fear today that they will be kept alive artificially in this manner, with consequent sufferings and distress to them and members of their family. The decision to reject such artificial treatment should be of the patient alone and no one else. This decision of the patient constitutes the act of ''euthanasia''. While once commonly understood as "mercy killing," the term "euthanasia" now encompasses acts from lethal injection, to "assisting" in suicide, to withholding basic levels of care from non-terminal patients. In all cases of euthanasia, the action or omission is expressly intended to cause the death of a person.

But euthanasia also seems to contradict one of the most basic principles of morality, which is “killing is wrong”. Viewed from a traditional Judeo-Christian point of view, euthanasia is murder and a blatant violation of the biblical commandment “Thou shalt not kill.” From a secular perspective, one of the principal purposes of law is to uphold the sanctity of human life. Euthanasia is so controversial because it pits the plight of suffering, dying individuals against religious beliefs, legal tradition, and, in the case of physician-assisted death, medical ethics.

STATISTICS

In the case of Euthanasia and Physician Assisted Suicide, the countries that advocate ''mercy killing'' are Holland, Northern Provinces of Australia and also some states in the United States of America. The Netherlands has become the first country in the world to legalize euthanasia in April 2002. The bill allows doctors to kill patients with terminal diseases who are suffering "unbearably" if they request it. Earlier Oregon became the only state in US to pass the “Death with Dignity Act, 1997”. As of 2009 some or the other forms of Euthanasia are legal in Belgium, Luxemburg, the Netherlands, Switzerland, Thailand, the US state of Oregon and Washington.

MEANING

 The term euthanasia comes from the Greek words "eu"-meaning good and "thanatos"-meaning death, which combined means “well-death” or "dying well". It refers to practice of ending life in a painless manner. It may be defined as intentional killing by act or omission of a dependant human for his or her alleged benefit. The keyword here is “intentional” because if death is not intended then there is no act of euthanasia. Euthanasia, Mercy killing or Physician Assisted Suicide may be referred to as murderous by some and merciful by others and hence it is always surrounded by controversy which arises from serious moral and legal issues involved in it.

ORIGIN

 Hippocrates mentions euthanasia in the Hippocratic Oath, which was written between 400 and 300 B.C. The original Oath states: “To please no one will I prescribe a deadly drug nor give advice which may cause his death”. Despite this, the ancient Greeks and Romans generally did not believe that life needed to be preserved at any cost and were, in consequence, tolerant of suicide in cases where no relief could be offered to the dying or, in the case of the Stoics and Epicureans, where a person no longer cared for his life[1].  English Common Law from the 1300s until the middle of the last century made suicide a criminal act in England and Wales. Assisting others to kill themselves remains illegal in that jurisdiction. However, in the 1500s, Thomas More, in describing a utopian community, envisaged such a community as one that would facilitate the death of those whose lives had become burdensome as a result of "torturing and lingering pain".[2]

HISTORY

Most observers trace the modern euthanasia debate back to the court case of Karen Ann Quinlan, and her story is a poignant example of medical technology’s ability to prolong life.

CASE: In 1975, after consuming alcohol and tranquilizers at a party, Quinlan collapsed into an irreversible coma that left her unable to breathe without a respirator or eat without a feeding tube. Her parents asked that she be removed from the respirator, but her doctors objected. The New Jersey Supreme Court case that followed was the first to bring the issue of euthanasia into the public eye. In 1976 the court allowed Quinlan’s parents to have the respirator removed. Although Quinlan lived for another nine years (her parents did not want her feeding tube removed), the case set a precedent for a patient’s right to refuse unwanted medical treatment. This case led to the legalization of Euthanasia in California.

Later, in 1998, Physician Assisted Suicide was also legalized in the United States of Oregon after the judgment passed in the landmark case of Gonzales.[3]

In 1990, this right was further expanded in the case of Nancy Cruzan.

CASE: Cruzan had gone into an irreversible coma in 1983 after a severe car crash, and her parents wanted the machine that was keeping her alive removed. However, in this case the machine consisted of intravenous feeding tubes that provided Cruzan with hydration and nutrition. Her parents viewed the removal of the machine as the termination of unwanted treatment. However, the state of Missouri argued that to remove the feeding tubes would be to intentionally kill Cruzan through starvation. In a controversial vote, the U.S. Supreme Court ruled that the provision of artificially delivered food and water is a treatment which patients may legally refuse, even if doing so will result in death.

The cases of Quinlan and Cruzan helped develop a social policy recognizing that some lifesaving treatments are not always appropriate and permitting the removal of these treatments as a form of “passive” euthanasia. But shortly after the Cruzan case more active forms of euthanasia became the focus of public attention. One of the persons most responsible for this is Timothy E. Quill, a physician who in 1991 described in the New England Journal of Medicine the case of “Diane,” a longtime patient of his who was suffering from acute leukemia. She asked Quill for the means to end her life should she find it intolerable, and, unable to dissuade her, he prescribed sleeping pills, telling her how many were necessary to cure insomnia and how many were necessary to commit suicide. Four months later Diane killed herself.

Quill’s article provoked immediate and heated discussion over the legality of physicians’ assisting in suicide. Quill’s self-proclaimed goal is to improve the care dying people receive rather than to legalize any form of euthanasia. Nevertheless, he became a central figure in a court case that challenged the constitutionality of state bans on assisted suicide—Quill and other right-to-die advocates essentially argued that terminally ill patients have a constitutional right to assisted suicide. In 1997, however, the Supreme Court disagreed, ruling that states may legislate for or against physician-assisted suicide as they see fit.

Prior to and during the historic World War II the Nazis led by Adolf Hitler carried out an involuntary program of Euthanasia largely in secret. In 1939, in what was code-named as ‘Action T4’[4], the Nazis killed children under the age of 3 who exhibited mental retardation, physical deformity or other debilitating problems which they considered gave the disabled child ‘a life unworthy of life’. This program was later extended to include older children and adults.[5] In the book ‘Permitting Destruction of Life not Worthy of Life’, authors Alfred Hoche, M.D., a professor of psychiatry at the University of Freiburg, and Karl Binding, a professor of law from the University of Leipzig, argued that patients who ask for "death assistance" should, under very carefully controlled conditions, be able to obtain it from a physician. This book helped support involuntary euthanasia by Nazi Germany.[6]

DR. DEATH

Ironically, however, the person most responsible for bringing euthanasia into the public eye is one from whom most right-to-die activists have tried to distance themselves: former pathologist Jack Kevorkian, who has admitted helping over 130 people die since 1990. Whereas Quill is regarded as a reasoned, thoughtful spokesman for the terminally ill, Kevorkian is seen as a renegade. Many of the people he has helped to die were not terminally ill, and he did not know them before they requested his assistance in suicide. He holds some bizarre opinions: In his book Prescription: “Medicide”, Kevorkian advocates experimentation on patients before they die and non-voluntary euthanasia for anyone whom physicians deem to have an extremely low quality of life. Many of his views and methods have been condemned by right-to-die leaders, yet Kevorkian is the name people most associate with euthanasia.

Prior to 1998, Kevorkian only assisted in suicides. He rigged so-called suicide machine called ‘Thanatron’ that allowed patients to self-administer a lethal dose of drugs. However, on November 23, 1998, 60 Minutes aired a videotape of Kevorkian participating in a more active form of euthanasia. For the first time, he administered the fatal injection himself, ending the life of Thomas Youk, a fifty-two year old who suffered from Lou Gehrig’s disease. On March 26, 1999, a Michigan jury faced with this videotape evidence found Kevorkian guilty of murder. The judge in the case did not allow the defense to present testimony about Youk’s pain and suffering, and emphasized that whether the victim consents is legally irrelevant in murder cases. Kevorkian plans to appeal the verdict.

LEGALIZATION

The demise of the 25-year-old Andhra youth K Venkatesh, a muscular dystrophia patient, who wanted to be given euthanasia so that he could donate his organs, has sparked once again the fierce debate on the legalization of euthanasia or mercy- killing. Can we look towards a future where there would be laws regarding euthanasia in the country? Venkatesh sought the right to die not to escape suffering from the degenerative muscular dystrophy, but to be able to donate his vital organs as doctors had warned that these could not be used once they became infected. But the Andhra Pradesh High Court rejected his mother’s plea. The court ruled that the petition sought to violate the Transplantation of Human Organs Act, 1995, which had no provisions that allowed individuals to donate organs before they were brain dead. The court's caution in this case is understandable considering the implications of easing restrictions in organ transplant. However, the order indirectly reiterated the stated legal position that an individual had no right to end his life voluntarily. The debate over the legalization of Euthanasia or some forms of it has been going on in our country for over a decade now. The arguments for and against the legalization can be briefly stated as follows:

ARGUMENTS FOR LEGALIZING EUTHANASIA

Regarding euthanasia, at the present juncture, the debate largely revolves around active euthanasia and not passive euthanasia. Supporters of euthanasia argue that society is obligated to acknowledge the rights of patients and to respect the decisions of those who elect euthanasia. It is argued that euthanasia respects the individual’s right to self-determination or his right of privacy. Interference with that right can only be justified if it is to protect essential social values, which is not the case where patients suffering unbearably at the end of their lives request euthanasia when no alternatives exist. Not allowing euthanasia would come down to forcing people to suffer against their will, which would be cruel and a negation of their human rights and dignity.

Every person has a right to live with at least a minimum dignity and when the state of his existence falls below even that minimum level then he must be allowed to end such tortuous existence. In such cases relief from suffering (rather than preserving life) should be the primary objective of health-care providers.

Supporters of active euthanasia contend that since society has acknowledged a patient’s right to passive euthanasia (for example, by legally recognizing refusal of life-sustaining treatment), active euthanasia should similarly be permitted. When arguing on behalf of legalizing active euthanasia, proponents emphasize circumstances in which a condition has become overwhelmingly burdensome for the patient, pain management for the patient is inadequate, and only death seems capable of bringing relief. Moreover, in light of the increasing pressure on hospital and medical facilities, it is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom the said facilities would be of greater value. Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved, the latter should be preferred as the former will die in any case.

It is not the case of the supporters of euthanasia that this right is not capable of exploitation. Rather they point out that almost any individual freedom involves some risk of abuse and argue that such risks can be kept to a minimum by using proper legal safeguards. Furthermore, merely because the risk of abuse of a right exists is no reason to deny a person the right itself.

ARGUMENTS AGIANST THE LEGALISATION OF EUTHANASIA

1. Legalizing the deliberate killing of humans (other than in legitimate self-defense/war or possibly for the most heinous of crimes) fundamentally undermines the basis of law and public morality.

2. No system of safeguards could ever be foolproof, so in practice legalizing ‘voluntary euthanasia’ would result in legalizing involuntary euthanasia. This has been the experience in both Nazi Germany and, currently, in Holland.

3. Legalizing ‘voluntary euthanasia’ on the basis of excruciating ‘hard cases’ would result in its being routinely practiced on a large scale. Bad cases do not make good law. One leading medical ethicist said more than twenty years ago "We shall begin by doing it because the patient is in intolerable pain but we shall end up doing it because it is Friday afternoon and we want to get away for the weekend"[7]. The precedent of abortion is chilling: "Aging Advisory Services" would offer a 1-stop shop where you could pop in your inconvenient relatives and, for a suitable fee, euthanize them in your lunch-hour.

4. Even if someone sincerely wants to be euthanasia this may well be due to depression or to a misapprehension of their true prognosis. Palliative specialists report that such requests are often used by patients to assess their worth and value to others. A positive response merely confirms their worst fears and such a decision, once acted upon, is irreversible.

5. Legalized euthanasia would produce huge social pressures on very vulnerable people to ‘volunteer’, causing much stress and suffering.

6. It would undermine the financing and provision of proper geriatric and palliative care: with stretched budgets euthanasia would be see as the cost-effective option. Indeed it would be very "cost effective".

7. It would also undermine funding of research into these areas.

8. Even without it being explicitly stated, legalizing euthanasia would mean that the state was offering it as an alternative to people who were seeking benefits for sickness or unemployment or to pensioners, to refugees and people with disabilities. If it were legalized, why not then insist that such people have ‘euthanasia counseling’ before they receive care or benefits?

9. It would fundamentally undermine the relationships between elderly or dependent relatives and their families, with overwhelming pressures being applied on people to ‘take the honorable course’ and ‘not be a burden’.

11. Any form of suicide is devastating for the people left behind who love the person who has decided that his or her life is no longer worth living: it is especially damaging for children.

12. Whereas the advocates of euthanasia are mostly members of the chattering classes who seem to be having difficulty in coming to terms with their own mortality, the victims would predominantly be the most disadvantaged members of society: the old, poor, disabled, infirm and unemployed.

PRESENT LAW IN INDIA

In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under clause first of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. But it is only cases of voluntary euthanasia (where the patient consents to death) that would attract Exception 5 to Section 300. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal.

The Indian Constitution says that the ''Right to Die'' is not a fundamental right under Article 21[8]. The question whether the right to die is included in Article 21 of Constitution came for consideration for the first time before the Bombay High Court in The State of Maharashtra v. Maruti Shripathi Dubal[9]. The Court held that the right to life guaranteed by Article 21 includes the right to die, and consequently the Court struck down Section 309 IPC, which provides punishment for attempt to commit suicide as unconstitutional. The judges felt that the desire to die is not unnatural but merely abnormal and uncommon. They listed several circumstances in which people may wish to end their lives, including disease, cruel or unbearable condition of life, and a sense of shame or disenchantment with life. They held that everyone should have the freedom to dispose of his life as and when he desires. The Supreme Court in P. Rathinam v. Union Of India[10], upheld the Bombay High Court’s decision but the same Court in Gian Kour v. State of Punjab[11], a five judge Constitution Bench of the Court overruled the P. Rathinam’s case and, held that ''Right to Life'' under Article 21 of the constitution does not include ''Right to Die'' or ''Right to be Killed.'' The Right to Die is inherently inconsistent as is death with life.

The Court held that the Right to Life is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life and, incompatible and inconsistent with the concept of Right to Life. Referring to protagonists of euthanasia’s view that existence in persistent vegetative state was not a benefit to the patient of terminal illness being unrelated to ''Principle of Sanctity of Life'' or the ''Right to Live with Dignity''. The Court said that this argument was of no assistance to determine the scope of Article 21 of the Constitution for deciding whether the guarantee of ''Right to Life'' therein includes the ''Right to die.''

The court made it clear that the ''Right to Life'' including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. This may include the right of a dying man to also die with dignity when his life is ebbing out. But the ''Right to Die'', with dignity at the end of life is not to be confused with the ''Right to Die'' an unnatural death curtailing the natural span of life. The Court reiterated that the argument to support the views of permitting the termination of life in such cases (dying man who is terminally ill or in vegetative state) by accelerating the process of natural death when it was certain and imminent was not available to interpret article 21 to include therein the right to curtail the natural span of life.

On the contrary the advocates of Euthanasia contend that in cases of terminal illness the medical professionals do not prolong the life of a person; instead they prolong the death of that person. One cannot say that since the Constitution of India says that Article 21 is the right to life of an individual he must be kept alive through all the sufferings that he has to undergo throughout the period till death releases him from his ordeal. Sufferings can be physical, mental as well as monetary. Euthanasia can be considered to be a solution to get rid of such sufferings but this would be possible only when the legal provisions provide for a fool-proof mechanism that shall prevent the abuse of the law legalizing Euthanasia.

CONCLUSION

From the above discussion we can conclude that no such law could be guaranteed to be free of the possibility, if not the likelihood, of abuse, chiefly centered on the lives of other sick persons who did not want their lives taken. An especially dangerous aspect is that such abuse may be easily made undetectable. Thus although mercy killing appears to be morally justifiable, its fool-proof practical applicability seems near to impossible.

The medical loopholes, listed above, alone justify the common finding of the inquiries, that legalization would be dangerous. Rather than seek recourse to medical life-taking, all doctors with responsibility for the care of terminally ill patients should accept their duty to deliver this care at the known best standards, as they are legally obliged to do in other branches of medical practice. In this world of fast development and miracles, I staunchly believe that someday man would develop a mechanism to reduce pain to the minimum possible extent and make life less burdensome. The appropriate course of action would be to introduce proper care ethics ensuring a dignified existence rather than attempting to terminate one’s life.

Tejashree M Dusane

ILS Law College, Pune