Passive Euthanasia

AUTHOR’S PROFILE: Nikita Saha, a Final Year Student of B.A.LL.B. (Hons.) programme at Assam University, Silchar. She takes an active interest in Criminal law and Human Rights Law.

“I think those who have a terminal illness and are in great pain should have the right to choose to end their own life, and those that help them should be free from prosecution”

- Stephen Hawking

INTRODUCTION

Euthanasia also known as ‘mercy killing’ is a practice of painless death to someone who has nearly zero chances of getting back normal from the ailing state. It can be of various kinds. In some countries, it is banned and some have decriminalized it. Various Scholars consider it killing and thus regard it as an immoral act, others take a compassionate approach to it, according to them voluntary death is better than painful suffering.

According to Merriam-Webster Dictionary, the term Euthanasia means “the act or practice of killing or permitting the death of hopelessly sick or injured individuals (such as persons or domestic animals) in a relatively painless way for reasons of mercy”.[i] The word has originated from the Greek word “euthanos” which means good death. It was coined by Sir Francis Bacon and was first used in the year 1605. Euthanasia is administered by a physician to a patient to relieve him from intolerable and incurable suffering. The motive is merciful with an intention to end suffering. It is administered only when there is no chance of going back to normalcy and with the consent of the patient or his family. Therefore, legally and medically defined as ‘an act of terminating or ending the life of an individual who suffers from an incurable disease or situation especially painful’.[ii] In simple words, euthanasia means intentional killing by an act/omission of a person whose life is felt is not to be worth living.

TYPES OF EUTHANASIA

The following are the various forms of Euthanasia :

(1) Voluntary: Here the Euthanasia is conducted with the consent of the patient who makes a request orally or written, preferring euthanasia rather than to continue living in suffering

(2) Non-Voluntary: In Non-voluntary Euthanasia, the patient is unable to give consent being unfit mentally.

(3) Involuntary: In this type, the patient has not requested termination of his or her life, or euthanasia has been conducted against the will of the patient. This form is considered immoral as it ends one’s life without their wish constitutes murder. Hence this kind is not preferred.

(4) Active: In this medical intervention takes place, at the patient’s request. In order to get him rid of the painful suffering and meaningless existence. It is a quick and less painful way to put an individual to death. Active Euthanasia is also known as Positive or Aggressive Euthanasia.

(5) Passive: In Passive euthanasia, the treatment of the patient which is necessary for the continuance of life, is withheld in order to allow death naturally. Passive Euthanasia is also known as ‘Negative Euthanasia’ or ‘Non-Aggressive Euthanasia’. [iii]

DIFFERENCE BETWEEN ACTIVE AND PASSIVE EUTHANASIA

PASSIVE EUTHANASIA

Passive euthanasia entails not doing something to prevent the death of a terminally ill patient.
In this form, the patient refrains from the necessities and ordinary care. The patient consents to discontinue or withdraw from the life support system. Thus, passive euthanasia is carried out without any medical intervention to save the person’s life. It is intentionally letting a patient die by withholding artificial life support such as a ventilator or feeding tube.

Passive euthanasia, according to some experts, is not euthanasia because the intention to end life is absent. Passive euthanasia entails the withholding of common treatments, such as antibiotics, necessary for the continuance of life. It is also called ‘Negative Euthanasia’ or ‘Non-Aggressive Euthanasia’.

ARUNA SHANBAUG CASE

In this case, a writ petition was filed by Pinky Virani, the next-friend of the patient, Aruna Shanbaug, claiming that her Right to Life guaranteed by the constitution under Article 21 had been violated. For more than 38 years, Aruna Shanbaug had been in a vegetative condition. She worked as a nurse in a Mumbai hospital where she was assaulted and sodomised, as well as strangled with a chain, causing her to lose consciousness and thus to a vegetative state. The Supreme Court refused to recognise Virani as the next friend, instead stating that the medical staff who had been caring for her should be considered as the next friend and that their decision should be sought. The hospital officials turned down the request to discontinue the medical support and hence the euthanasia, in this case, was denied. Shanbaug died of pneumonia on 18 May 2015, after being in a persistent vegetative state for nearly 42 years.[iv]

Even though the Supreme Court denied the administration of euthanasia to Aruna Shanbaug, this case came to be a landmark. This was the first time Passive Euthanasia was legalized in India. [1] [2] [3] The court observed that it could be authorized in case of exceptional circumstances where the patient's condition is irreversible. First, the brain-dead for whom the ventilator can be turned off, according to the court and those in a Persistent Vegetative State (PVS), for whom the feed can be tapered off and pain-relieving palliatives administered, as per international specifications. The apex court also asked for the scrapping of Section 309 of the Indian Penal Code, which punishes those who survive suicide attempts, to be repealed.

As a result of the Supreme Court's judgment, there have been several conflicts and misunderstandings. While the Shanbaug decision supported passive euthanasia under certain conditions, the Gian Kaur decision in 1996 said that "the right to life does not include the right to die." Thus, the court referred the case to a constitution bench to resolve areas of contention between the Aruna Shanbaug and Gian Kaur cases.

SUPREME COURT GUIDELINES

In the Aruna Shanbaug case, the Supreme Court has established specific principles to be considered while authorising passive euthanasia. The decision to withdraw life support must be made by the parents, spouse, or in their absence by a next friend. Such a decision must be approved by the concerned High Court. After reviewing all reports, the High Court will form a bench and decide whether or not to allow Euthanasia in the best interests of the patient.

Later a three-judge bench of the Supreme Court of India stated in 2014, in a response to a PIL filed by the NGO Common Cause, that the judgment in the Aruna Shanbaug case was based on an incorrect interpretation of the constitution bench judgment in Gian Kaur v. the State of Punjab. Hence, the matter was referred to the 5 Judge Constitutional bench because it raises the question of the Right to life includes the Right to Die with Dignity. The Supreme Court pronounced its judgment giving legal recognition to “Advanced Medical Directives” or “living wills” to the terminally ill patient in a vegetative state or who are at the last stage of their life without any hope of recovery or improvement to withdraw of life-saving treatment. A living will is a document that authorises the discontinuation of medication or therapy when the patient has no possibility of recovery, to avoid pain and suffering. The Supreme Court's strict guidelines state that the living will be executed voluntarily. It should state when the therapy will be stopped, who will be the guardian if the patient is unable to make decisions, and when the treatment will be stopped.[v]

DOES THE RIGHT TO LIFE UNDER ART 21 INCLUDE THE RIGHT TO DIE WITH DIGNITY?

According to Article 21 of the Constitution of India, no one should be deprived of the Right to Life and Liberty. Article 21 has a wide scope; it includes many other rights within its parameter. In the case of Unni Krishnan v. the State of A.P[vi], the Supreme Court expanded the scope of the Right to life under Article 21. The Court observed that Article 21 includes the following :

The right to go abroad, The right to privacy, The right against solitary confinement, The right against handcuffing, The right to education, The right against delayed execution, Right to livelihood, The right to shelter, Right to health and medical aid, The right against custodial death, The right against public hanging, The right to Doctor’s assistance, etc.

But does it include the right to die with dignity? The question is very controversial has been dealt with in several cases. This can be briefly understood by the following points :

● In the case of Maruti Shripati Dubal v. the State of Maharashtra,[vii] the Bombay High Court declared Sec.309 of IPC as ultra vires under Article 21of the Constitution of India. According to the Court, the 'right to life' encompasses both the 'right to live' and the 'right to end one's life if one so wants.

● Next in the matter of P. Rathinam v. Union of India,[viii] the constitutionality of Sec 309 of the IPC was challenged, claiming that it violates Articles 14 and 21 of the Constitution. A Division Bench of the Supreme Court upheld the Bombay High Court’s decision in Maruti Shripati Dubal's case and observed that Sec.309 of IPC is cruel and that it violates Article 21 of the Constitution. The Court affirmed that the 'right to life includes the 'right not to live a forced life,' expanding the scope of Article 21.

● But two years later in the matter of Gian Kaur v. the State of Punjab,[ix] this decision was overruled. The Supreme Court's Constitution Bench of five members dismissed the petition challenging the constitutionality of Sec 306. The Court observed that it constitutes a separate crime and can exist without Sec. 309 of the IPC. It further held that Art 21 i.e., ‘Right to life’ does not include ‘Right to Die’ or to be killed, and thus Sec 306 and 309 are valid and do not violate the Constitution.

● The Law Commission of India released the 196th report, in the year 2006, Based on this report the Union Government introduced The Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill. The Bill protected patients and doctors from liability for withholding medical treatment. It also included a method for authorizing euthanasia but it had several loopholes. Experts were dissatisfied with the Bill because it lacked clarity on various material concepts such as a Living Will. However, based on their recommendations, the Health Ministry decided not to pass any legislation at the moment. [x]

● Meanwhile, the Aruna Shanbaug case was going on in the Supreme Court. In which the Court legalized passive euthanasia and also laid down specific guidelines to be followed till the parliament brings legislation.

● The draft Bill, proposed in 241st report of Law Commission named “Passive Euthanasia: A Relook” deals with passive euthanasia and living will, which are documents in which a person expresses his or her desire to have or not have medical life continuing treatments used when recovery is not possible. In the case of a person who has not decided to stop receiving life support earlier and is in a state of permanent coma or continuous vegetative state. In such a case, the Law Commission recommends that relatives or doctors should seek the High Court’s permission to withdraw life support. After hearing from a panel of three medical experts, the High Court will decide on the matter.[xi]

● In 2012, the health ministry prepared a draft bill and requested feedback from the public through email by 19th June 2016, so that it could decide on whether or not to establish a law on passive euthanasia. [xii]

● In the year 2018, the Supreme Court in the case of, Common Cause (A Regd. Society) v. Union of India & Anr, held that a person in a permanent vegetative state can choose for passive euthanasia, and can also execute a living will to decline medical treatment in case of a terminal illness. The court also issued comprehensive guidelines on the procedure for execution of a living will as well as for giving effect to passive euthanasia. Until Parliament passes legislation on the matter, the guidelines will stay in effect. [xiii]

● The "Treatment of Terminally Ill Patients Bill, 2016," which allows passive euthanasia, is now pending in Parliament. The Bill empowers people to refuse medical treatment for themselves. It also shields patients and doctors from legal repercussions if they stop receiving medical treatment. The proposed legislation stated that it aims to assist "for the right to a dignified death,"

INTERNATIONAL PERSPECTIVE

One cannot be denied the Right to Euthanasia and should not be forced as well otherwise basic human rights of a person will be violated. The [4] [5] Right to life is the most fundamental. A person cannot be deprived of their right to life unless under certain exceptional circumstances. However there is no specific provision relating to Euthanasia in International Law, but there are certain fundamental rights that no human being should be deprived of. The International Covenant on Civil and Political Rights (ICCPR) stipulates a number of rights that should be considered while dealing with euthanasia:– [xiv]

● Right to life (Art- 6)

● Freedom from inhuman or degrading treatment (Art -7)

● Right to liberty and security (Art – 9)

● Right to Privacy (Art – 17)

● Freedom of Thought (Art – 18)

CONCLUSION

When all other life-saving procedures fail to provide a better life for a terminally ill patient or one who is in a permanent vegetative state, euthanasia is considered to be the sole realistic alternative. Even though the Supreme Court has authorised passive euthanasia, India still lacks legislation on the subject. There are numerous obstacles to overcome. In such a diverse country as India, several religious institutions hold opposing viewpoints. Some consider passive euthanasia to be immoral, while others think it's a good thing because it frees the person from agony and suffering. This right can also be abused by doctors, thus the legislation must be clear on subjects like Living Wills to ensure that it is not abused.

Regardless of these factors, the patient must be given all necessary amenities and must give their all in order to survive. Passive euthanasia should only be used when there is no reasonable prospect of recovery, and medical therapy is merely exacerbating the patient's suffering. However, this right can be protected by appropriate protections, preventing abuse. At the end of the day, the health of the patients should be the utmost priority.

FAQ –

Q. Which is the first Country to legalise Euthanasia?

A. Netherlands.

REFERENCE

[i] “Euthanasia.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/euthanasia. Accessed 22 Oct. 2021.

[ii] Achal Gupta, “Euthanasia – Indian View”, The SCC Online Blog. (28th November 2020) <https://www.scconline.com/blog/post/2020/11/28/euthanasia-indian-view/> accessed on 18 October 2021.

[iii] Australian Human Rights Commission, “Euthanasia, human rights, and the law” (May 2016) <https://humanrights.gov.au/our-work/age-discrimination/publications/euthanasia-human-rights-and-law#Heading566 > accessed on 20 October 2021.

[iv] Aruna Ramchandra Shanbaug v. Union Of India & Ors, [2011] 4 SCC 454

[v]Amit Anand Choudhary, “Here are the SC guidelines on passive euthanasia” The Times of India. (Delhi, 9th May 2018) <https://timesofindia.indiatimes.com/india/here-are-the-sc-guidelines-on-passive-euthanasia/articleshow/63236173.cms> accessed on 20 October 2021.

[vi] Unni Krishnan v. State of A.P [1993] AIR SC 2178

[vii] Maruti Shripati Dubal v. State of Maharashtra [1987] Cri LJ 743 Bom.

[viii] P. Rathinam v.Union of India [1994] SCC (3) 394

[ix] Gian Kaur v. State of Punjab [1996] AIR 946

[x] Law Commission of India, “196tht Report on Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)”, Government of India, (28th April 2006).

[xi] Law Commission of India, “241st Report on Passive Euthanasia – A Relook” Government of India, (August 2012).

[xii] Malathy Iyer, “Centre finally comes up with a draft bill on passive euthanasia” The Times of India. (Mumbai, 15th May, 2016) <https://timesofindia.indiatimes.com/city/mumbai/centre-finally-comes-up-with-a-draft-bill-on-passive-euthanasia/articleshow/52283576.cms> accessed on 21 October 2021.

[xiii] Common Cause (A Regd. Society) v. Union of India & Anr, [2014] SCC 5 338

[xiv] Dr. H.O Agarwal, International Law & Human Rights. (Central Law Publications, 22nd Edition, 2019)

Disclaimer: This article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns.