Legalizing passive euthanasia

E U T H A N A S I A

 

It’s my life

It’s now or never

I am not gonna live forever

 I just want to live while

I am live

Jon Bon Jovi

 

In a more recent development, the Apex Court on Wednesday issued notice to all States and Union territories on a plea for legalizing passive euthanasia. It sparked a debate like never before in India: does right to life include the right to peaceful and willing death? The matter came up in the background of a plea filed by an NGO Common Cause that a person, who is afflicted with a terminal disease, should be relieved from agony by withdrawing any artificial medical support provided to him.[2]

Euthanasia is the intentional premature termination of another person’s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia), either at the express or implied request of that person (voluntary euthanasia), or in the absence of such approval (non-voluntary euthanasia). It is non-voluntary euthanasia that has forever been the primary reason to oppose mercy killing as opponents of the idea have regularly said (and rightfully so, if I may add) that mercy and killing do not go together, no matter what the circumstances. They further cite religion as a source to support their theory which espouses the line of thought on life being a gift from God, is sacred in nature and He alone possesses the right to extinguish it. In the thirteenth century, Saint Thomas Aquinas, a renowned Catholic Theologian and philosopher, condemned suicide as wrong because it contravenes one’s duty to oneself and because it violates God’s authority over life, which is God’s gift. Such opinions emanating from the ages have deeply impacted the modern day views of individuals opposing mercy killing and equating it to medical termination of pregnancy; the underlying principle being that both involve voluntary ending of life and should not be left to the whims and fancies of the individual preferring such an option.

Euthanasia is putting to death a person who because of disease or extremely old age or permanently helpless or subject to rapid incurable degeneration and can not have meaningful life. It may also be defined as the act of ending life of an individual suffering from a terminal illness or incurable condition, by lethal injection or by suspension of life support extraordinary treatment. The issue of euthanasia in last decades has turned out to be most controversial in law, medicine, ethics, religion and politics[3]. There are some who believe that individuals should have unqualified right to die. While there are some others who consider all form of euthanasia to be murder and thus regard it immoral. Ancient Indian philosophy also justify the idea of willing death. As per Hindu mythology Lord Rama took jal Samadhi in Saru river and likewise[4], Lord Buddha and Lord Mahiaveer attained death in similar way. Veer Savarkar and Vinoba Bhave also had chosen to die in their lives by refusing to take food. Mahatma Gandhi also supported the idea of willful death. Thus trace of right to die existed in earlier times.

 

Among the western religion euthanasia has always been viewed as illicit exercise of divine prerogative by the Christians. Right from 5th century B.C. it has been the belief of Christians that every human owes his existence to a loving being who has graciously brought him or her into this world. Birth and death are part of the process of life which God has created. So humans should respect them and therefore no human being has the authority to choose the time and manner of his death. Islam does not accept any kind of justification for the killing of person and thus euthanasia and suicide are prohibited in Islam.

Among the eastern religion Hinduism and Buddhism, human beings are captured in endless cycle of rebirth and reincarnation. It is the deeds (kerma) of a human in the present life that determine his or her fate for the next life. The ultimate goal of mortal life is to achieve Moksha of  liberation from the cycle of death and rebirth. As per Hindu mythology Lord Rama took jai Samadhi in Saru River and likewise, Lord Buddha and Lord Mahiaveer their lives by refusing to take food. Mahatma Gandhi also supported the idea of willful death. Thus trace of right to die existed in earlier times.

Suicide is not prohibited in both religions. In ancient India suicide was permissible under certain circumstances. Manu is his commentatary, Goverdhana and Kulluka, says that man may under-take mahaprasthan on a journey which ends in death[5]. When he has incurable disease or meats with great misfortune, and also because it is taught in sastras and it is not opposed to the vedic rules which forbids suicide. Similarly the practice of so called Santhara in practiced in jain religion. From these passage it is clear that in ancient India, voluntary death by starvation was considered to be a benefiting conclusion of a hermit’s life. Jain ascetics are also known to consider the practice of starving unto death.[6] In Biddhism also , there have been instances of monks practicing suicide. In fact suicide was used as political weapon by Buddhiast monks during the Vietnam war.

 

The last decade witnessed significant debates over the legalization of euthanasia. In April 2001, Netherland became the first country in the world to legalize euthanasia. Prior to it, it was practiced without any legislative force. In September 2002,Belgium became second country to legalize to Euthanasia. From November 1994, The Oregon state of U S enacted a physician assisted suicide law. Recently U K house of lord has blocked a bill which sought to help terminally ill people to die.

Under the Indian Law, the Courts have forever struck down petitions by terminally ill petitions seeking a peaceful death with dignity so as to not harangue their kith and kin during times of their ‘invalidity’. The rationale given by the Courts while dismissing such petitions has forever been of favoring life over everything else and how it would tantamount to legalizing suicide (under Section 309 of the Indian Penal Code, attempt to commit suicide is an offence punishable with imprisonment/fine/both). In certain instances, the Courts have directed for the medical practitioners to desist from assisted death practices as a way to uphold the sacred Hippocratic oath which prohibits them from ‘killing’ any person under their watch. Nevertheless, a judgment delivered by the Apex Court in 2011 reopened the debate over mercy killing more so because the Hon’ble Court managed to draw a fine line between what would constitute as ‘active’ and ‘passive’ euthanasia under the Indian context and how the latter would not be termed illegal or as a ‘positive act of killing.’

  

KINDS OF EUTHANASIA

 

Euthanasia can be either active or passive. Passive euthanasia allow one to die by withholding or withdrawing life supporting means. Life supporting means may further be ordinary or extra ordinary. Ordinary means such as nutrition and hydration which are never to be with held since they are one’s basic rights in order to survive. However, one may not be obliges to used extra ordinary means to sustain life, such a discontinuance of medical treatment which is burdensome, dangerous, extra ordinary to the expected out come. To withdraw a life supportive treatment as condition worsen, is letting one die and not a direct killing. In this case, it is the disease that is killing and not the one who withdraw or consent to withdraw the treatment.

 

Active euthanasia or mercy killing is direct international killing of a patient with either consent or without consent when impossible to obtain, (non voluntary), without consent when not sought (involuntary). Propounders of this theory have closed their ear to the God’s command: thou shall not kill , The goal is to eliminate or relive suffering by an evils means of death. The suffering of the patient may be lessened, but, this act of killing can never be justified. These patient , whether having incurable disease, being elderly or suffering in the other ways, are crying out for help and love. Palliative care, not death is answer. Suffering and pain is manageable in advanced scientific age. Pain killer can be prescribed as long as there is no danger. Consciousness of patient is strongly encouraged, so that if dying, one may prepare to accept to meet the Almighty.

 

LEGAL ASPECT OF EUTHANASIA

 

In India, both form of euthanasia are prohibited and illegal as per penal law of the country. However, exception of section 300 of I P C provides that who accepts to cause voluntary death may suffer less sentence in terms of punishment prescribed for murder under section 302 of I P C but in case of physician assisted suicide, the doctor who provides the necessary prescription to the deceased will be liable for abetment of suicide and may be punished under section 305 or 306 of I P C.

This issue came for consideration before Delhi high court and it has been held that section 309 of I P C, 1860 is  anachronism and paradox[7]. This decision was followed by Bombay high court decision which struck down section 309 as violative of right to life and liberty enshrined in article 21 of the constitution of India, where as Andhra Pradesh High court held the section 309 as constitutionally valid[8]. The above issue came before the apex court and has been held that section 309 I P C is outdate, irrational and cruel after placing reliance on 42nd law Commission report which has recommended deletion of the attempt to suicide from penal code, 1860[9]. The supreme court has thus recognized, “the right to die” in the above case. If a person has right to live, he has right not to live. The apex court further held that ‘right to life’ including the right to live with human dignity would mean the existence of such right up to the end of natural death. In other words, this may include the right of dying man also to die with dignity[10]. In 1994, a two – years after a five- judge constitutional bench upheld the validity making attempt. to suicide an offence.

Every man as per Hindu religion live to accomplish Dharma, Artha, Kama and Moksha. When earthly objectives are archived, religion would required a person not to clinch to the body. Thus man has moral right to terminate his life, because death is simply changing old body in to new one. Our mythology is full of incidents when our Gods have terminated their life. Lord Rama took jal Samadhi is saru river and likewise, Lord Buddha and Lord Mahaveer attained death in similar way. Veer savarkar and Vinoba Bhave also chosen their lives by refusing to take food. Instances are there where Jain Munis have terminated their lives by going fast and which is nothing bur example of passive euthanasia.

 

On legislative side in April 2001, Netherland became the first country in the world to legalize euthanasia. Prior to it, it was practiced without any legislative force, and thereafter Australia has also recognized it. In September 2002, Belgium became second country to legalize Euthanasia. From November 1994, The Oregon states of U S enacted a physician assisted suicide law. Recently U K House of  Lords has blocked a bill which sought to help terminally ill people to die. In India a bill was introduced in 1972 to amend the Indian Penal code by deleting section 309. it lapsed, and so far no attempt was made to implement 42nd law commission report8 which has recommended deletion of the offence of attempt to suicide from Indian Penal Code, 1860. Now in 2008 taking the first step towards legalizing euthanasia of mercy killing, law commission has recommended to allow terminally ill to end their lives to relieve them of long suffering[11].

On social side care of the issue was taken in 1981 by social activist Minoo Massani who formed the society for right to die with dignity (SRDD). After his death the baton was passed on to well-known urologist, the late Dr B.N. Colabawalla who too, passed away in 2002 but the cause of dying with dignity that Masani passionately campaigned for still lives in the hearts and mind of nearly 200 persons who are member of the SRDD. Dr Dhelia is one of such member who has left no stone unturned to propagate the cause and with the efforts of SRDD a bill in the Maharasthra legislature was introduced in 1984 to legalize mercy killing, but it was dropped for want of support. The SRDD has also published a document called the living will or IchaMaran. It specifies the wishes of a person upon the instances of grave illness. The document would instruct under which circumstances the person would want to be euthanized[12]. Dr. Narang, member of SRDD says concept that God has given life and only he can take it away is rubbish. He further says that “all I can say , please visit the Tata memorial cancer hospital and spend a day or two there. Children with huge bulbous growth, old people suffering inhumanely, is that what you call life”. Doctor like Kumar and Narang spent hours passionately debating the concept of Euthanasia and its possible legalization in India. In present political scenario and sentiments of the people, there seems little hope of it become legalized despite positive recommendation of law commission.

With the advancement of civilization and scientific knowledge, the traditional moral view has gone sea change. Euthanasia has become debatable issue in many countries as there has been a steady increase in number of persons seeking permission to commit it. Consequently, nation around the globe are revising their laws. It will only be in the fitness of things that the Indian parliament would also reconsider the end of life issue a fresh in light of recent law Commission recommendation.

In a landmark judgment, covering a sensitive topic like mercy killing, the Supreme Court went on distinguish between ‘active’ and ‘passive’ euthanasia and held that causing the death of a person  who is in a permanent vegetative state, with no chance of recovery, by  withdrawing artificial life support is not a “positive act of killing”. A Bench of Justices Markandey Katju and Gyansudha Misra held that the difference between active and passive euthanasia was that in active euthanasia something is done to end the patient’s life, while in passive euthanasia something is not done that would have preserved the patient’s life and the latter could be permitted on a case-by-case basis. The Hon’ble Court also added that the judgment allowing passive euthanasia will remain in force until such time as Parliament enacts a suitable law on euthanasia. Until then, the following process will be followed:-

a)A special two-judge bench will be formed in every High Court to decide applications seeking permission for euthanasia;

b) A committee of three reputed doctors from a panel constituted by the High Court in consultation with the state government will examine the patient and submit its report to the High Court Bench.

c) Notices will be issued to all those concerned with the doctor’s report attached.

d) After hearing everyone, the bench will give its verdict. The matter must be dealt with speedily as delays prolong the agony of the patient.

In a more recent development to this issue, the Apex Court issued notice to all States and Union territories on a plea for legalizing passive euthanasia. A constitution bench headed by Chief Justice RM Lodha, Justice JS Khehar, Justice J. Chelameswar, Justice AK Sikri and Justice Rohinton Fali Nariman issued the notice on a plea filed with it, stating that the question of passive euthanasia (mercy killing) needs a comprehensive examination as there was no authoritative judicial pronouncement on the issue. [13]

 

The concept of voluntary euthanasia does not appear to be a degrading concept. If permitted, it can bring an end to the pain and agony which vast number of persons are suffering from in our country. The fear of misuse is people base less as checks and balances can take care of such fear. in any case, every law can be misused , even medicine or molecules can be misused. Does that mean one should stop manufacturing medicine.  It would be quite appropriate to conclude this article with quote from decision on human rights[14] “The vary essence of the convention is respect for human dignity without  in any way negating the principle of sanity of life protected under convention, the court consider that it is under article 8 that notion of the quality of life take on significance  in an era of growing medical sophistication many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity”

Every individual has the right to a dignified life and a wholesome life. If by an unfortunate turn of events, he/she is deprived of that right and is rendered ‘invalid’, he should also have the right to end a life which is soldiering on only due to dependence on others. Desmond Tutu put it succinctly when he wrote in support of assisted death saying, “People should die a decent death. For me that means having had the conversations with those I have crossed with in life and being at peace. It means being able to say goodbye to loved ones – if possible, at home.” Prolonging a life which has reached a point of no return, through machines is purely agonizing and nothing more. For the patient as well as his loved ones. As they often say, ‘Hope in reality is the worst of all evils because it prolongs the torments of man.’ Truer words have not been spoken.[15]

 

J S Rajawat, Advocate

SPL. P P/ CBI / Jaipur

 

[1]  SPL. P P  C.B.I , E mail –Jsrajawat53@gmail.com 

[2] TOI Dated  17th 2014 Jaipur edition Page 1

[3] Bal krishan The Right ti Die – Regancy publication at page 20

[4] Calberine Dupre,Human diginity and withdrawal of medical treatment

[6] Mehatiha’s Commantry on Manu

[7] State v. Sanjay kumar 1985 Cr. . l. J.   931 Delhi

[8] Murti S. dubai v. maharasthra 1987 Cr. L. J. 743 Bombay

[9] 42 nd  aw commission report 1971

[10] P. Rathinam v. union of India A I R 1994 S C 1844

[11] Justice A R Lakshmanan, Chairman , Law commission of India

[12] Devotees of mercy by Ketan Tanna Published in times of India on 24th April

[13]  Apex court on 16th July 2014, issued notice on PIL filed by Common cause society

[14] Diny pretty v.  U K-2202 . 35 EHRR 1

[15] Live law.com

 

 

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