EUTHANASIA - FOR LIFE UNWORTHY OF LIFE

“EUTHANASIA”  

FOR LIFE UNWORTHY OF LIFE

Mahatma Gandhiji once observed: "Death is our friend, the trust of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties-- a defeated man". The dead is relieved of the agony, pain and suffering and no evil consequences known to our law follow.

Euthanasia, literally means "good death" or “well death” in Ancient Greek. This  refers to the practice of ending a life in a painless manner. The term euthanasia has its origin in the Greek term “en thanetos” which means “good or easy death”
The declaration on euthanasia “lura at bona” issued by the Congregation for the Doctrine of Faith on may, 05th 1980, define euthanasia as “an action or omission which in itself or by intention causes death in order that all suffering may in this way be eliminated”

As of 2008, some forms of euthanasia are legal in Belgium, Luxemburg, The Netherlands, Switzerland, the U.S. state Oregon, and Thailand.  History of Euthanasia goes back to 400 and 300 B.C. Hippocrates mentions about euthanasia in his Hippocratic Oath as , “To please no one will  prescribe a deadly drug nor give advice which may cause his death.” 

In 1828, the first known anti-euthanasia law in the United States was passed in the state of New York After the Civil War; voluntary euthanasia was promoted by advocates, including some doctors. Euthanasia societies were formed in England in 1935 and in the U.S.A. in 1938 to promote aggressive euthanasia. In 1939, Nazis, in what was code-named Aktion T4 (Action T4), killed children under three who exhibited mental retardation, physical deformity or other debilitating problems which they considered gave the disabled child "life unworthy of life”. This program was later extended to include older children and adults. Inmates of mental asylums in Germany and Austria would be transported to an intermediate facility, from where they would be re-transported to one of six killing centres at Brandenburg near Berlin (January 1940 - September 1940), Grafeneck near Stuttgart (January 1940 - December 1940), Hartheim near Linz in Austria (January 1940 - December 1944), Sonnenstein/Pirna near Dresden (April 1940 - August 1943), Bernburg near Magdeburg (September 1940 - April 1943), Hadamar near Koblenz (January 1941 - August 1941). Hitler's decree of October, 1939, typed on his personal stationery and back dated to Sept. 1, enlarged “the authority of certain physicians to be designated by name in such manner that persons who, according to human judgment, are incurable can, upon a most careful diagnosis of their condition of sickness, be accorded a mercy death.” The first known case of the application of this principle concerned ‘Baby Knauer’. The child's father requested of Adolph Hitler himself that his son be allowed death because he was blind, retarded, and missing an arm and a leg. Surely, in his condition, he would be better off dead. Hitler turned the case over to his personal physician, Karl Brandt, and in 1938 the request was granted.
The T4 program of the Nazis was extended to killing of concentration camp inmates when Philipp Bouhler,the head of the T4 program, allowed Heinrich Himmler to utilize T4 doctors, staff and facilities to kill concentration camp prisoners who were "most seriously ill" in a program designated "14f13".

Euthanasia is classified as Euthanasia by consent and Euthanasia by means. Euthanasia by consent is voluntary euthanasia or without consent is involuntary euthanasia.  Euthanasia by means may be conducted passively, aggressively and non-aggressively. Passive euthanasia entails the withholding of common treatments or the distribution of a medication to relieve pain, knowing that it may also result in death. Passive euthanasia is the most accepted form, and it is a common practice in most hospitals. Aggressive euthanasia entails the use of lethal substances or forces to kill and is the most controversial means. Non-aggressive euthanasia entails the withdrawing of life support and is more controversial.

In 1977, California legalized living wills and other states soon followed suit. In 1990, Dr. Jack Kevorkian, a Michigan physician, became infamous for encouraging and assisting people in committing suicide which resulted in a Michigan law against the practice in 1992. Kevorkian was tried and convicted in 1999 for a murder displayed on television. In 1994, Oregon approved the Death with Dignity Act, permitting doctors to assist terminal patients with six months or less to live to end their lives. The U.S. Supreme Court allowed such laws in 1997. The Bush administration failed in its attempt to use drug law to stop Oregon in 2001, in the case Gonzales v. Oregon. In 1999, non-aggressive euthanasia was permitted in Texas.In 1993, the Netherlands decriminalized doctor-assisted suicide, and in 2002, restrictions were loosened. During that year, physician-assisted suicide was approved in Belgium. Belgium's at the time most famous author Hugo Claus, suffering from Alzheimer's disease, was among those that asked for euthanasia. He died in March 2008, assisted by an Antwerp doctor. Australia's Northern Territory approved a euthanasia bill in 1995, but that was overturned by Australia’s Federal Parliament in 1997.

It is forbidden for a Muslim to plan, or come to know through self-will, the time of his own death in advance In fact, a Muslim who commits suicide is not even given burial rights. The precedent for all of this thinking comes from the Islamic prophet Muhammad having absolutely refused to bless the body of a person who had committed suicide. If an individual is suffering from a terminal illness, it is permissible for the individual to refuse medication and/or resuscitation. Other examples include individuals suffering from kidney failure - who refuse dialysis treatments and cancer patients who refuse chemotherapy.

Euthanasia can be accomplished either through an oral, intravenous, or intramuscular administration of drugs. The following is a Dutch protocol for parenteral (intravenous) administration to obtain euthanasia: Intravenous administration is the most reliable and rapid way to accomplish euthanasia and therefore can be safely recommended. A coma is first induced by intravenous administration of 20 mg/kg sodium thiopental (Nesdonal) in a small volume (10 ml physiological saline). Then a triple intravenous dose of a non-depolarizing neuromuscular muscle relaxant is given, such as 20 mg pancuronium bromide (Pavulon) or 20 mg vecuronium bromide (Norcuron). The muscle relaxant should preferably be given intravenously, in order to ensure optimal availability. Only for pancuronium bromide (Pavulon) are there substantial indications that the agent may also be given intramuscularly in a dosage of 40 mg.

Netherlands legalized euthanasia and passed the Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002.  . Euthanasia is still a criminal offence but the law codified a twenty year old convention of not prosecuting doctors who "allows a person to end their life in dignity after having received every available type of palliative care”.  Prosecution of doctors who performed euthanasia will be suspended in cases where the following conditions is fulfilled: (a) the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents) (b) the patient must be fully aware of his/her condition, prospects and options (c) the patient's request for euthanasia must be voluntary and persist over time (the request cannot be granted when under the influence of others, psychological illness or drugs) (d) the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present (e) there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above and (f) the patient's suffering is unbearable with no prospect of improvement. In the Netherlands, 1626 cases were officially reported of euthanasia in 2003 in the sense of a physician assisting the death (1.2% of all deaths). Usually the sedative sodium thiopental is intravenously administered to induce a coma. Once it is certain that the patient is in a deep coma, typically after some minutes, Pancuronium is administered to stop the breathing and cause death. Officially reported were also 148 cases of physician assisted dying (0.14% of all deaths), usually by drinking a strong (10g) barbiturate potion. Euthanasists raise the question, how long should one sustain life? A patient Euthanasists raise the question, how long should one sustain life? A patient might say,“I do not want a vegetative existence by drips, drugs and dialysis. I want to die with dignity. I have a right to lay down my life just as I have a right to live”. The  opponents of Euthanasia believe that even if it is a Voluntory Euthanasia  a patient could give into emotional and psychological pressures. Some opponents raise the objection saying that in principle it may be justifiable, a number of instances of pressure from family to burden of expenses, psychological depression due to longstanding illness, and neglect by medical personnel can be fitted into the category of ‘euthanasia’, if it is legal. These other instances, which technically would fit the category, though not in real terms would tantamount to abuse of the license granted by the state. 
Some believe that there is inherent value in human life, and it should be sustained under all circumstances. Some believe that human life is an endowment of God, and hence euthanasia, would go against the will of God. The Anglicans and Catholics have consistently argued that the ‘terminally ill’ need care, they do not deserve to get killed. 
The Proponents of euthanasia believe that (1) when a person faces unbearable pain or disability, and the dignity in his/her life is lost, it is only noble that the state grants him/her the right to choose to have death hastened (2) euthanasia is not about the right to die but it is about the right to kill (3) Euthanasia is not about giving rights to the person who dies but, instead, is about changing the law and public policy so that doctors, relatives and others can directly and intentionally end another person's life (4)  Since certain killing in certain circumstances is legalized by the state, the pro-euthanasia wing, advocate that mercy-killing should be legalized, as an act in the interest of humanism (5)  pro-euthanasia groups believe that  Euthanasia is not a private act nut suicide is a private act (6) it can lead to gross abuse, exploitation and erosion of standards care for the most vulnerable people among us.
A widespread ‘mercy killing’ program of the sick and disabled was in place in the Nazi regime. Code named ‘Aktion T 4’, the Nazi euthanasia program to eliminate ‘life unworthy of life’ at first focused on newborns and very young children. Midwives and doctors were required to register children up to age three who showed symptoms of mental retardation, physical deformity, or other symptoms included on a questionnaire from the Reich Health Ministry. The Nazi euthanasia program quickly expanded to include older disabled children and adults. Legalized Euthanasia

Euthanasia in India
Euthanasia has not been specifically covered in any Indian statute. The closest the issue has come to be addressed, is in section 309 of the Indian Penal Code,1860, which states that an attempt to suicide is a criminal offence. While it is considered as an offence under the same section, any person assisting an attempt to commit euthanasia, can be accused u/s 306 of IPC for abetment to suicide.
A bill for legalization of ‘euthanasia’ or mercy-killing was allowed to be lapsed by Professor Sadanand Varde, who himself introduced it in the Maharashtra Legislative Assembly when he was a member of the Legislative Council.  Professor Varde had then argued that if a terminally ill patient cannot be treated with the existing medical technology and doctors have declared the disease incurable, that person’s wish to be subjected to euthanasia should not be considered a crime. But the debate remained inconclusive even after circulating in the House for more than a year.
In P. Rathinam v. Union of India, 1994 (3) SCC 394,1994 Indlaw SC 454, Justice B.L Hansari argued that section 309, and consequently section 306 of the Penal Code, had violated Article 21 and were unconstitutional. Article 21 confers positive rights as well- the right to life includes wholesome living, not mere animal existence. He put forth a sociological understanding of ‘suicide’, the wide range of acts that can come under the ambit of ‘suicide’. He argued that suicide should not be understood as other crimes, but a psychosocial phenomenon.  The P. Rathinam judgment was criticized and overturned by Justice J.S.Verma in Gian Kaur v. Union of India 1996 (2) SCC 648, 1996 Indlaw SC 662  laying down that “….(T)he significant aspect of 'sanctity of life' is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life' be read to be included in protection of life'. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the right to die' as a part of the fundamental right guaranteed therein. 'Right to life' is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life', citing the examples of the UK Suicide Act, 1961, and American and Canadian case law where the ‘right to die’ has not been upheld.
This question was again debated in Gian Kaur v. State of Punjab (AIR 1996 SC 946). The full bench reviewed the Rathinam judgement and held that the protection of life and personal liberty, guaranteed in article 21, nowhere includes extinction of life by a stretch of imagination. The court held, “… Right to life is a natural right embodied in article 21, but suicide is an unnatural termination or extinction of life, and therefore, incompatible and inconsistent with the concept of right to life…” The court validated section 309.
In this case, the Honourable Supreme Court distinguished between euthanasia and attempt to commit suicide in a passing reference. The court defined euthanasia as termination of life of a person who is terminally ill or in a persistent state. Death, in such a case, due to termination of natural life is certain and imminent. The process of natural death has commenced and the in euthanasia, the period if suffering the process of natural death is reduced. The process of natural death, which has already begun, is only accelerated in euthanasia.
The Honourable Supreme Court further maintained that euthanasia may fall within the concept of right to live with human dignity upto the end of natural life. This may include the right of a dying man to die with dignity when the life is ebbing out. But this cannot be equated with the right to die an unnatural death curtailing the natural span of life. But these assertions of the Honourable Supreme Court are more in the manner of obiter dicta and do not carry the force of law.
The Division Bench of Delhi High Court in State v. Sanjay Kumar Bhatial, 1985 Cri LJ 931 :(1985) 2 DMC 153 (Del) 402   in which the Court observed: "It is ironic that Section 309 IPC still continues to be on our Penal Code. ... Strange paradox that in the age of votaries of Euthanasia, suicide should be criminally punishable. Instead of the society hanging its head in shame that there should be such social strains that a young man (the hope of tomorrow) should be driven to suicide compounds its inadequacy by treating the boy as a criminal. Instead of sending the young boy to psychiatric clinic it gleefully sends him to mingle with criminals.... The continuance of Section 309 IPC is an anachronism unworthy of a human society like ours. Medical clinics for such social misfits certainly but police and prisons never. The very idea is revolting. This concept seeks to meet the challenge of social strains of modem urban and competitive economy by ruthless suppression of mere symptoms this attempt can only result in failure. Need is for humane, civilized and socially oriented outlook and penology.... No wonder so long as society refuses to face this reality its coercive machinery will 1 invoke the provision like Section 309 IPC which has no justification to continue to remain on the statute book."

P Venkatesh, a bubbly child of tender age, who was diagnosed with muscular dystrophy, a rare disorder which would make his end painful and inevitable. In next few months his muscles would refuse to function one by one before his vital organs ultimately fail bringing his life to an end. The child was distraught and so were his parents and those who loved him. The child and his parents wanted to make an informed decision. They wanted euthanasia for Venkatesh, not only would it relief Venkatesh of his pain, it would facilitate organ transplant to several needy patients. Loss of Venkatesh’s life could thus, be somewhat compensated by giving this rare gift of life to such others for whom death was possible to avoid if timely intervention was made. But the Honourable Andhra Pradesh High Court found itself on an infirm ground while dealing with legal aspect of euthanasia in a country where the debate is still in its nascent stage. P Venkatesh was made to die a slow and agonising death and in the process his vital organs lost their utility for transplantation.

Life is sacrosanct, precious, lovable and every body must have right to live in dignity. A prolonged coma for years, waiting for the death, the only death to come, when it still waits for its own time,  in an unknown dark tunnel, the one and the only way to live in dignity is to die. The lack of care and palliative touch to the dead bodies of the lively bodies –  forced to agree with Voluntary Euthanasia making the words of the
English poet William Ernest Henley true:

 "I am the master of my fate; I am the captain of my soul."  .

Adv. K.C. Suresh, B.A., LL.M (Crimes), PGDHR (Human Rights), Special Public Prosecutor, Legal Adviser (Rtd), Vigilance & VACB, Kerala 




 

K.C.Suresh 
on 08 August 2008
Published in Constitutional Law
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