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8/18/2019 Zahid Health Law

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Health Law

Euthanasia – Mercy Killing

Made by Zahid Laiq Ahmed, 7th Semester Section - A

Submitted to Mr. Pratima Singh


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TABLE OF CONTENTS

S.NO. CONTENT PAGE NO.

1. ACKNOWLEDGMENT 2

2. INTRODUCTION 3

3. EUTHANASIA AND ITS TYPES 4-5

4. HISTORICAL, RELIGIOUS, AND

PHILOSOPHICL PERSPECTIVE

6

5. INTERNATIONAL OUTLOOK

TOWARD EUTHANASIA

7-8

6. THE JUDICIARY AND

EUTHANASIA

9-12

7. LEGISLATIVE STATUS OF

EUTHANASIA IN INDIA

13

8. CONCLUSION 14

9. BIBLIOGRAPHY 15


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ACKNOWLEDGEMENT

I take this opportunity to thank the Health Law teacher Ms. Pratima Singh for teaching us th

eprinciples of Health Law, with the understanding of which I have made this project today.

ZAHID LAIQ AHMED


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INTRODUCTION

Article 21 of our constitution deals with "Protection of Life and Personal Liberty". And reads

as follows:

"No person shall be deprived of his life or personal liberty expect according to procedure

established by law."1

According to this article right to life means the right to lead meaningful, complete and

dignified life. The object of the fundamental right under Article 21 is to prevent any

restriction by the State to a person upon his personal liberty and deprivation of life except

according to procedure established by law.

But can the right to life be interpreted to such an extent which leads to its self

destruction(right to die) ? This is the crucial point where the debate arises.

When a person ends his life by his own act we call it suicide but to end life of a person by

other on the request of the deceased is called mercy killing or euthanasia. It means applying

such methods and means which will make the death painless and relieve the person from

misery and pain of life. There are various types of euthanasia out of which passive euthanasia

is legal in India.

Suicide and euthanasia cannot be treated as one and same thing. They are two different acts.

But in State of Maharashtra V. Maruty Sripati Dubal 2 the Court explained the position of

Indian law on euthanasia as under:

"Mercy killing is nothing but homicide, whatever the circumstances in which it is affected.

Unless it is specifically accepted it cannot but be an offence. Our penal code further punishes

not only abetment of homicide but also the abetment of suicide."

1 The Constitution of India,19502 AIR 1987 Cr LJ 549


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EUTHANASIA AND ITS TYPES

Euthanasia is the deliberate production of the death of a human being on the grounds that in

his situation it is considered that it is better that he should be dead than that he should

continue to live3. Several types of euthanasia can and should recognised. These may be

classified on the basis of the presence or absence of the agreement of the subject. Such as-

1. Voluntary Euthanasia-refers to the action taken by the physician and the patient,

who both agree (with informed consent) to end the patient's life.

2. Involuntary Euthanasia-refers to a third party taking a patient's life without the

informed consent of the patient. This is commonly practiced in veterinary medicine

when animals are "put down" or "put to sleep." In modern medicine, it could

conceivably be applied to the act of taking a terminally ill, suffering patient's life who

has lost all mental capacity to make his/her own decisions. It is also known as

physician-assisted suicide or mercy killing

3. Passive euthanasia-involves withdrawing or withholding life-prolonging medical

treatment with the intention to hasten death in the patient's interests because of their

expected negative quality of life.4. Active euthanasia-means a positive merciful act to end useless sufferings and a

meaningless existence. It is an act of commission.

5. Non-Voluntary- this is where the person is unable to ask for euthanasia (perhaps they

are unconscious or otherwise unable to communicate), or to make a meaningful

choice between living and dying and an appropriate person takes the decision on their

behalf, perhaps in accordance with their living will, or previously expressed wishes.

Situations in which the person cannot make a decision or cannot make their wishes

known, includes cases where:

• The person is in a coma.

• The person is too young (e.g. a very young baby).

• The person is senile.

• The person is mentally retarded to a very severe extent.

• The person is severely brain damaged.

3 Lewy G. Assisted suicide in US and Europe. New York: Oxford University Press,Inc; 2011.


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• The person is mentally disturbed in such a way that they should be protected

from themselves.

HISTORICAL, PHILOSOPHICAL AND RELIGIOUS PERSPECTIVE.

Hinduism and Buddhism allow "prayopaveshan" since it is a non violent, calm and much

time taking way of ending life and it occurs by starving oneself to death at the right time.


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Prayopaveshan is for people who are content with their lives. While on the other hand,

suicide is a sudden act and associated with the feelings of anger, frustration, depression which

is why it is not allowed by any of these religions. Though there is a division of views

regarding euthanasia in Buddhism, the most common view is that voluntary euthanasia

should not be permitted. Again there are two views of Hinduism regarding euthanasia which

are contradictory, one is supporting euthanasia as a moral deed and another is considering

euthanasia as a bad deed which disturbs the life and death cycle.

Ancient Indian philosophical tradition also justifies the idea of a man willing his own death.

As per Hindu mythology Lord Rama and his brothers took ‘jal samadhi’ in River Saryu near

Ayodhya. Ancient Indian history also tells that Lord Buddha and Lord Mahavir attained death

by seeking it.

Jainism gives full consent to its followers who want to embrace death mostly by fasting, if

they believe that ‘moksha’ can be achieved that way.

Muslim, Christian and Jewish laws are all against suicide and even euthanasia. According to

these religions , all human life is sacred since it is given by God, and human beings should

not interfere in this.

The Roman Catholic Church regards euthanasia as morally wrong since it has always taught

how important the commandment ‘you shall not kill’ is.

The idea of willful death is traceable to Socrates, Plato, and Stoics in ancient Greek and

Roman philosophy as well. In ancient Greece and Rome, helping others to put end to their

lives was also permitted in certain situations.

INTERNATIONAL OUTLOOK TOWARD EUTHANASIA

In the case of Euthanasia and Assisted Suicide, the countries that advocate 'mercy killing' are

Holland, Northern Provinces of Australia as well as some states in the United States of

America. The Netherlands is the first country in the world to legalize euthanasia. The bill


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allows doctors to kill patients with terminal diseases who are suffering "unbearably," if they

request it.

Colombia

Despite its strict Roman Catholic history, in May 1997 Colombian courts allowed for the

euthanasia of sick patients who requested to end their lives. This ruling came about due to the

efforts of a group that strongly opposed euthanasia. When one of their members brought a

lawsuit to the Colombian Supreme Court against it, the court issued a 6 to 3 decision that

spelled out the rights of a terminally person to engage in voluntary euthanasia.

France

The controversy over legalizing euthanasia and physician assisted suicide is not as big as in

the United States because of the country's "'well developed hospice care program." However,

in 2000 the controversy over the uncontroversial topic was ignited with Vincent Humbert.

After a car crash that left him "unable to 'walk, see, speak, smell or taste'", he used the

movement of his right thumb to write a book, I Ask the Right to Die in which he voiced his

desire to "die legally." After his appeal was denied, his mother assisted in killing him by

injecting him with an overdose of barbiturates that put him into a coma, killing him 2 days

later. Though his mother was arrested for aiding in her son's death and later acquitted, the

case did jumpstart a new legislation which states that "when medicine serves no other

purpose than the artificial support of life they can be suspended or not undertaken."

USA

U.S. laws prohibit active euthanasia. But the courts ruled that passive euthanasia is legalized

as it says that doctors should not be punished if they withhold or withdraw a life-sustaining

treatment at the request of patient. In 1991 Federal Patient Self-Determination Act, was made

effective which required federally certified health-care facilities to notify adult patients of

their rights to accept or refuse the medical treatment. The facilities should also inform the

patients of their rights under the state laws to formulate advanced directives.

Netherlands


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On 18 April, 2001, the first nation in the world to legalize euthanasia, often called mercy

killing. The Dutch decision to allow doctors to kill patients who are undergoing unbearable

suffering from terminal illnesses gave rise to angry protests from the pro-life lobby across the

world. But the move was also welcomed by several human rights activists and patients

organizations who said that a long-accepted practice in the Netherlands had finally been

given legal sanction. Doctors in Holland regularly perform mercy killing in consultation with

patients and their families.

Australia

Assisted suicide was legal in Australia for a period, but now is not. In 1995, the world's first

euthanasia legislation, the Rights of the Terminally ill Act 1995, was passed in the Northern

Territory of Australia. Four patients died under the Act, using a euthanasia device designed

by Dr. Philip Nitschke. The legislation was overturned by Australia's Federal Parliament in

1997. In response to the overturning of the Act, Dr. Nitschke founded Exit International.

Canada

Patients have the similar rights as in case of U.S. to refuse life-sustaining treatment and

formulate advanced directives. However, they do not possess right to active euthanasia or

assisted suicide.

THE JUDICARY AND EUTHANSIA

In answering the question concerning the expanding paradigms of “right to life”, especially as

conjoined to “right to die”, the apex court has held that the term “life” under Article 21 “does

not connote mere animal existence or continued drudgery through life”. It has been

interpreted to include within its ambit “some finer graces of human civilization, which

make(s) life worth living”, which, in the expanded form would mean the “tradition, culture

and heritage” of the concerned person. Further, physical and mental health has been treated as

an integral part of right to life, because without good health the civil and political rights


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assured by our Constitution cannot be enjoyed.

In State of Maharashtra v. Maruti Sripati Dubal (hereinafter, “Maruti”) , the Bombay High

Court observed that “right to life” as enshrined in Article 21 includes a “right to die”. It was

held that every individual should have the freedom to dispose of his life as and when he

desires. The challenge in this case was based on the unconstitutionality of Section 309 of The

Indian Penal Code (hereinafter, “I.P.C.”) wherein it was held that “..the provisions of section

309 being arbitrary are ultra vires the Constitution... being violative of Articles 14 and 21 [of

the Constitution] thereof and must be struck down”.

Closely following this case was that of Chenna Jagadeeswar v. State of Andhra Pradesh,

wherein the Andhra Pradesh High Court held that right to die is not a fundamental right

within the meaning of Article 21 and hence section 309 of the I.P.C. is not unconstitutional.

The opposing views of the different high courts were placed to rest by a division bench4 of

the Supreme Court in P. Rathinam v. Union of India5 (hereinafter, “P. Rathinam”). The apex

court, agreeing with the view expressed in Maruti, upheld the contention that section 309 of

I.P.C. violates Article 21, and is hence void. Further it was held that this section should be

effaced from the face of the statute books not only to keep abreast with the global

developments on the treatment to be meted out to those attempting suicide, but also to

humanise our penal laws. Justice B.L. Hansaria further observed that “The right to life which

Article 21 speaks of can be said to bring in its trail right not to live a forced life”.

And though:

“The negative aspect may not be inferable on the analogy of the rights conferred by different

clauses of Article 19. One may refuse to live, if his life is not according to the person

concerned worth living of, if the richness and fullness of life were not to demand living

4 Article 145(3) of the Constitution of India explicitly enumerates that ‘the minimumnumber of judges who are to sit for the purpose of deciding any substantial questionof law as to the interpretation of this Constitution SHALL be five’. The case at handshould have been before a constitutional bench and not the division bench as thepertinent issue involved therein was a ‘substantial question of law’ relating to thepossible inclusion of ‘right to die’ via interpretation of Article 21 of The Constitution.There was thus, a visible defection from the Constitutional provision.

5 (1994) 3 S.C.C. 394.


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further. One may rightly think that having achieved all worldly pleasure or happiness, he has

something to achieve beyond this life. This desire for communication with God may very

rightly led even a healthy mind to think that he would forgo his right to life and would rather

choose not to live. In any case, a person cannot be forced to enjoy right to life to his

detriment, disadvantage or disliking”.

However, in Gian Kaur v. State of Punjab6 (hereinafter, “Gian Kaur”), a constitutional bench

overruled P. Rathinam, and, univocally held, that “right to life” does not include within its

ambit the “right to die”. Though this case was concerned with the validity of sections 306 and

309 of I.P.C., the Supreme Court had an occasion to discuss the issues related to euthanasia

and stopping of life sustaining treatment. The court while distinguishing between euthanasia

and withdrawal of life support observed that the principle of sanctity of life, which is the

concern of the state, is “not an absolute one”. The withdrawal or withholding of life support

was held to be a part of the right to life with dignity, and was hence, held to be permissible,

when it related to death occasioned, when the natural termination of life is certain and

imminent and the process of natural death has commenced. However, regarding euthanasia,

the court was of the view that bringing about a change through legislation is the function of

the legislature. Such a law may provide therein adequate safeguards to prevent any possible

abuse. Justice J.S. Verma, nevertheless observed that “right to a dignified life upto the point

of death including a dignified procedure of death may include the right of a dying man to also

die with dignity when his life is ebbing out”. These judgments touched extensively upon

decisions made in other countries, all of which dealt with withdrawal or withholding of the

ongoing treatment.7

It was only in March 2011 that the Supreme Court, in Aruna Ramchandra Shanbaug v. Union

.

6

(1996) 2 S.C.C. 648.

7 See Airedale NHS Trust v. Bland, (1993) 1 All ER 821; See also, for unanimity on thelegal principle, the American Supreme Court in Cruzan v. Director MDH, (1990) 497US 261, the Irish Supreme Court in Re A Ward, [1995] 2 ILRM 401, the CanadianSupreme Court in Ciarlariello v. Schater, [1993] 2 SCR 119 and in Rodriguez v.British Columbia (Attorney General), [1993] 3 SCR 519, the Australian Courts in Q vGuardianship and Administration Board & pilgrim (1998) VSCA 45, Northridge v.Central Sydeny Area Health Service, [2000] NSWSC 1241, Isaac Messiha v. SouthEast Health, [2004] NSWSC 1061 and Auckland Area Health Board v. Attorney

General, 1993(1) NLLR 235, to name a few.


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of India8 (hereinafter, “Aruna”), allowed for the first time, passive euthanasia under certain

circumstances. The decision draws a distinction between active and passive euthanasia and

recommends that the latter be permitted in certain circumstances. The Court ruled that “The

general legal position all over the world seems to be that while active euthanasia is illegal

unless there is legislation permitting it, passive euthanasia is legal even without legislation

provided certain conditions and safeguards are maintained”, stating therein that pending

legislation, passive euthanasia is permissible.

The court has reiterated the view that active euthanasia is frowned upon, especially in the

absence of any legislative backing, but has laid down the procedure for the exercise of

passive euthanasia, pending legislation.

However, in the case before hand, of 60-year-old Aruna Shanbaug, who has spent 37 years in

a hospital bed after an unfortunate assault on her (who is neither in coma nor brain- dead, but

in PVS state) was not allowed to die. In the opinion of the court, the fundamental ground for

refusing to entertain the prayer in the petition for termination of life of the petitioner was

based on the fact that as the parents of Aruna Shanbaug were already dead and other close

relatives were not interested in her, it is the KEM hospital who have the best locus standi in

making decisions for her and not Ms. Pinky Virani who has filed the petition on behalf of

Aruna. KEM hospital had expressly voiced their view that Aruna should be allowed to live.

. 8 (2011) 4 S.C.C. 454.


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LEGISLATIVE STATUS OF EUTHANASIA IN INDIA

There is no mention of the concept of euthanasia in the Indian Penal Code. In the eyes of law,

euthanasia is either:

1. Murder - If committed without consent or committed with consent in case of a minor or

insane person;

2. Culpable homicide - in case of consenting adults of sound mind.

3. Abetment to Suicide - if any person commits suicide, whoever abets the commission of

suicide. As the contours of the present paper are restricted to active euthanasia and hence

exclude secondary mode of commission of a crime, abetment is not considered in the paper.

Consent cannot be pleaded as a defence in cases where consent is acquired to cause death or

grievous hurt. The “murderer” is either a principle offender or an abettor, depending upon thefacts and circumstances of each case. However, consent may have the effect of reducing the


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gravity of the offence and existence of consent may mitigate the punishment in certain cases.

Hence the defence of consent or consent coupled with “good faith” and/or “benefit” is

irrelevant once euthanasia is administered.

The constitutional provisions too do not expressly mention the “right to die” with medical

assistance, though the interpretation with regard to Article 21 can vary, as can be seen in the

transition from P. Rathinam to Gian Kaur.

CONCLUSION

Thus, the Right to Die in fact does exist and is covered under to Right to Life subject to

various stict conditions and circumstances such as terminal illnesses, active or pasive status

of the euthanasia and the state of the person and legislation in the land.

However, doctors often disagree on what defines terminal illness. And while there will

certainly be some cases where death is inevitable, there will be many cases where death is

fairly far off in the future, and there is some hope, however small. As medical experts have

acknowledged that it is virtually impossible to predict the life expectancy of a particular

individual and the term "terminally ill" has no precise definition though Jack Kervorkian, a

famous proponent of euthanasia, defined terminal illness as "any disease that curtails life

even for a day". Some laws define terminal as one from which death will occur in a relatively

short time or within a span of six months.

This is the situation till now and seems to remain the same in near future, and the suffering of

people like Venkatesh is unfortunate. On the other hand, if in future It could be convinced

that doctors could specify the cases where euthanasia is the best option with upwards of 99%


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certainty (this would require a classification of terminal illnesses and ascertainment of

survivability, then may be legalizing euthanasia would also serve the common good.

Though the legalization of euthanasia in India seems to be a distant dream as most of the

patients succumb to death without receiving any primary health care. India does not have an

appropriate health-care mechanism in place, let alone lay down procedures for euthanasia. If

the State takes the responsibility of providing reasonable degree of health care, then majority

of the euthanasia supporters will definitely reconsider their argument9.

BIBLIOGRAPHY

• Statutes Referred:

1. The Indian Penal Code,1860

2.

The Indian Medical Council (Professional Conduct, Etiquette and Ethics)

Regulations, 2002

3. The Transplantation of Human Organ Act, 1994

• Books Referred:

1. A.M. Bhattacharjee, Equality, Liberty and Property under the Indian Constitution

(Calcutta: Eastern Law House, 1997)

2. The Constitution Of India, 3rd

Edition, Eastern Law Company, Lucknow

3.

Dr. J.N. Pandey, The Constitutional Law Of India, 49th Ed., Cental Law Agency,

2012

4. Black Law Dictionary, 9th Edition

9 Law Commission report no.196 on medical treatment to terminally ill patients.


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• Articles Referred:

1.

A.M. Bhattacharjee, Article 21 and the Due Process and the Exclusionary Rule of

Evidence (1983) 3 SCC (J). (accessed on October 2, 2013)

2.

B.B. Pande, Right to Life or Death ? For Bharat both cannot be Right (1994) 4

SCC (J). (accessed on October 2, 2013)

3. Rajeev Dhavan, “The Right to Die”, The Hindu ( accessed on October 2, 2013).

4. Sheeraz Latif Ali Khan, ” Right to Die or not to Die : A Note on the Supreme

Court Judgement” (1993) 1 SCJ (J.S.). (accessed on October 2, 2013)

5. Law Commission report no.196 on medical treatment to terminally ill patients.

(accessed on August 12, 2013). From

http://lawcommissionofindia.nie.in/reports/rep196.pdf

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