A lot of people suffer from terminal diseases, which are not curable, and they have to suffer for the rest of the life with immense pain and suffering. Euthanasia also know as ‘mercy killing’ is regarded as putting an end to the unrelieved pain and suffering of a patient by taking the life of that person. , that’s the reason the legalization of euthanasia is being argued so that the patients with no chance of recovery should not suffer in pain till they naturally die.
Euthanasia is when the patient’s life is taken by another person (a physician or medical personnel) for the sake of the patient. In the case of euthanasia the patient is not denied the right to life but the ill person is provided with a painless death instead of a painful death. Therefore euthanasia is deliberately taking the life of the ill person or patient so that there is less suffering. Euthanasia is varied from different types of killing as in this type of killing, compassion is being showed to the ill person and it is an act of mercy towards the patient as the suffering of the patient is relieved by a painless death.
Euthanasia can be broadly classified into two parts : Active Euthanasia and Passive Euthanasia. Active Euthanasia is nothing but to put a terminally ill patient to death by using lethal injection. Passive euthanasia is nothing but discontinuing the treatment when the life of the ill incurable patient is dependable on it, this is only when the treatment is more burdensome than beneficial. Passive Euthanasia is considered more acceptable as the patient is allowed to die naturally.
Legalizing Euthanasia would change the perspective of human life and its meaning, it fundamentally changes the understanding of ourselves. Birth and Death is considered one of the two greatest events in a human’s life. In a secular society the main objective should be to protect the ‘human spirit’.
LEGAL ASPECTS OF EUTHANASIA
India joins a couple of nations that are Belgium, Luxembourg, Netherlands, Switzerland and the United States of America in allowing some form of Euthanasia after the Aruna Shanbaug case decided by the honorable Supreme Court. As outlined from the judgement ‘Passive Euthanasia is allowed in exceptional cases after a review by medical experts and approval of the high court’ at the same time the court made it clear that Active Euthanasia in which a patient is given lethal injections and life ending drugs is strictly not allowed. This is the first time the Supreme Court has actually allowed any kind of Euthanasia.
The court in the Aruna Shaunbagh case held that under Article21 of the Constitution there is no right to die or suicide and it is a crime under Section 309 of the Indian Penal Code . The court held that the right to life includes to live with human dignity. In case of a person who has terminal illness and is in a vegetative state and is going through a lot of suffering the court may accordingly permit to premature of extinction of the patients life in these circumstances and it is not a crime. Euthanasia is considered only for those patients who are under continuous, unbearable and incurable conditions. There are a few other secondary conditions that has to be considered before the patient is being judged for euthanasia that are the patient must be of sound mind, and his or her request to die must be made voluntarily, independently and persistently.
After the judgement of Aruna Shaunbagh the scenario of Euthanasia in India has completely changed. The Supreme Court held that Section 309 of the IPC is constitutionally valid in Gian Kaurs case, according to me it’s time that it should be deleted by the parliament as it has been become anachronistic. I believe that a person tries to suicide it is out of depression and hence needs help and not punishment. It is recommended to the parliament to consider the feasibility of removing the section 309 of the IPC. There was a clarification given by the court that the parliament would enact the law regarding euthanasia and its judgement of active and passive euthanasia would be in force.
Legalization on euthanasia should be there as without a law no kind of decision with judicial order can be made. A lot of humanitarian points have to be looked into and examined and only then the petitions can be allowed otherwise it will be used as ‘an instrument’ to kill somebody.
Euthanasia is widely considered to be criminal homicide but in several countries voluntary passive euthanasia is considered to be non-criminal. The death of the patient by the help of a physician is termed as “Assisted Suicide”. Euthanasia if carried out without knowing the patients desire to die and the condition of the patient does not allow to express the desire then it is non voluntary euthanasia. For example child euthanasia, which is considered to be illegal all over, the world but decriminalized under certain circumstances in Netherlands under the Groningen Protocol. It is also considered valid and legal in Albania if three or more family members give their consent towards the decision of euthanasia. Both forms of euthanasia are considered to be illegal in Switzerland and assited suicide is considered to be illegal if done for any selfish motives. In 1995, Australians northern territory approved the bill regarding euthanasia and then in 1996, the Australian government turned the bill down . In 1997 the Supreme court of Columbia ruled in favour of mercy killing but it is not gone into effect as the Columbian congress has to approve the guidelines for it yet . In Mexico active euthanasia is illegal since 2008 but allows passive euthanasia . Although in Norway active euthanasia remains illegal but the country has softened the penalties if a caregiver takes the life of a person who is “hopelessly sick” and gives his/her consent to such an act. Coming back to India the honorable Supreme Court of India has allowed Passive Euthanasia under “exceptional circumstances”, though the court has made It very clear that Euthanasia as an act and assisted suicide is considered illegal. The court also stated that until the parliament forms or enacts a legislation regarding euthanasia the judgement on active and passive euthanasia will be in force by the courts.
Rationale Thought on Aruna Shanbaug Case
Aruna Shanbaug was working at the King Edward Memorial Hospital, Parel,Mumbai as a nurse . on 27th November 1973 she was strangled and sodomized by Sohanlal Walmiki. During the attack due to deprivation of oxygen she has been in a vegetative state ever since . She was being treated at the KEM hospital since the incident took place and she was kept alive by a feeding tube. On behalf of Aruna Shanbaug her friend Pinki Virani who is a social activist filed a petition on the Supreme Court on behalf of Aruna Shanbaug claiming “continued exsistence of Aruna Shanbaug is in violation of her right to live in dignity”. The decision by the Supreme Court was made on 7th March 2011 and the court rejected the plea to discontinue Aruna’ support for life but the court had issued broad guidelines for legalizing passive euthanasia in India. The Supreme Court decided to reject discontinuation of Aruna’s life support was on the basis that the staff, which took care of her, did not support with euthanizing her. She died from pneumonia on 18th May 2015, after being in coma for 42nd years.
The court had allowed Passive Euthanasia, by laying down important guidelines to prevent misuse of this provision and these guidelines have to be followed strictly in every case dealing with such matters till the legislation is made by the government. The guidelines to be followed in such cases are as follows:
Any petition for Passive Euthanasia has to be filed with the relevant high court. The Chief Justice of the High Court should constitute a Bench of at least two Judges who should decide to grant approval or not.
Before taking a decision, the bench should seek the opinion of a committee of three reputed doctors to be nominated by the bench. Preferably, one of the three doctors should be a neurologist; one should be a psychiatrist, and the third a physician.
The High Court Bench should issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence, the next friend.
The Court should supply a copy of the report of the doctor’s committee to them as soon as it is available.
After hearing all the parties, the High Court bench should give its verdict.
The High Court should give its decision at the earliest.
The Honorable Supreme Court also distinguished between active euthanasia and passive euthanasia further in the Aruna Shanbaug case. The court says that active euthanasia is considered as a crime all over the world except in those places where it is permitted by legislation. It is considered as a crime in India and it is illegal under Section 302 or Section 304 of Indian Penal Code. Assisted suicide, which was discussed earlier in this paper, is considered a crime under Section 306 of the Indian Penal Code. The basic difference between active and passive euthanasia is that a substance is used or something is practically done to end the person’s life while in passive euthanasia something is not done that could probably preserve the patients life.
The court had defined Active Euthanasia by taking steps to cause the patients death, for example injecting a lethal substance in a patients body which causes a person deep sleep in a few seconds and the person instantaneously and painlessly dies in this deep sleep. The court also observed the difference between euthanasia and physician assisted dying, the difference that is figured is who administers the lethal medication. In the case of euthanasia a third party or a physician will have to administer It where as in case of physician assisted suicide it is been done by the patient itself by the advise of the doctor.
In a concluding note, I would like to say that one has the right to terminate the life at will and it is subject to social, ethical, and legal structures. The legalization of euthanasia is more of a subjective question than that of an objective one as it depends more upon the circumstances and that particular case.
Euthanasia can be given only when the process of natural death has started. The person should be either in the Permanent Vegetative State or in coma or is living with a dead brain. The consent to discontinue life support of the patient should be obtained. In case the patient is not in a state to give his consent then the decision has to be taken either by parents or spouse or other close person, it can be given by the person’s next friend, it can also be taken by the doctors attending the patient. The Supreme Court of India made a statement that only in ‘Exceptional Circumstances’ passive euthanasia is granted but the court failed to define the exceptional circumstance.
Euthanasia is been a debatable topic for over a long period of time. Euthanasia is one of the main reasons because of which all the legislatures and courts are facing issues. Life is a god given gift no one has the right to take away this right but in the case of euthanasia the person gets rid of his life who is in pain, who is fruitless and full of sufferings. The problem to the solution is just not legalizing euthanasia but to judge and consider each case individually so that there is effectiveness of legislations.