Euthanasia Defined
The Oxford English Dictionary defines ‘euthanasia’ as ‘the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma’. The word appears to have come into usage in the early 17th century and was used in the sense of ‘easy death’. The term is derived from the Greek ‘euthanatos’, with ‘eu’ meaning well, and ‘thanatos’ meaning death.
In ancient Greece and Rome, citizens were entitled to a good death to end the suffering of a terminal illness. To that end, the City Magistrates of Athens kept a supply of poison to help the dying ‘drink the hemlock’[1].
The above Greek definition of euthanasia apart, it is a loaded term. People have been grappling with it for ages. Devised for service in a rhetoric of persuasion, the term ‘euthanasia’ has no generally accepted and philosophically warranted core meaning. It is also defined as: ‘killing at the request of the person killed’. That is how the Dutch medical personnel and civil authorities define euthanasia.
In Nazi discourse, euthanasia was any killing carried out by medical means or medically qualified personnel, whether intended for the termination of suffering and/or of the burden or indignity of a life not worth living (Lebensunwertes Leben), or for some more evidently public benefit such as eugenics (racial purity and hygiene), Lebensraum (living space for Germans), and/or minimizing the waste of resources on ‘useless mouths’.
Understandably, in today’s modern democracies these Nazi ideas and practices cannot be countenanced. Racist eugenics are condemned, though one comes across discreet allusions to the burden and futility of sustaining the severely mentally handicapped. The popular conception which is widely accepted is that some sorts of life are not worth living; life in such a state demeans the patient’s dignity, and maintaining it (otherwise than at the patient’s express request) insults that dignity; proper respect for the patient and the patient’s best interests requires that that life be brought to an end.
In this thought process, the basic Greek ideology that it signifies ‘an easy and gentle death’ still remains valid. Recognition is to the Human Rights principle that ‘right to life’ encompasses ‘right to die with dignity’.
Types of Euthanasia
In common parlance, euthanasia can be of three types, namely, ‘voluntary euthanasia’ which means killing at the request of a person killed which is to be distinguished from ‘non-voluntary euthanasia’, where the person killed is not capable of either making or refusing to make such a request. Second type of euthanasia would be involuntary euthanasia where the person killed is capable of making such a request but has not done so.[2]
These terms can be described as under:
(i) Voluntary Euthanasia: People concerned to legalize the termination of life on medical grounds have always concentrated on Voluntary Euthanasia (this implies that the patient specifically requests that his life be ended.) It is generally agreed that the request must come from someone who is either;
(a) in intolerable pain or
(b) who is suffering from an illness which is agreed as being terminal.
It may be prior to the development of the illness in question or during its course. In either case it must not result from any pressure from relatives or those who have the patients in their care. Both active and passive euthanasia can be termed as forms of voluntary euthanasia.
(ii) Non-Voluntary Euthanasia: Seen by some as sub-variety of voluntary euthanasia. This involves the death, ostensibly for his own good, of someone who cannot express any views on the matter and who must, therefore, use some sort of proxy request that his/her life be ended.
This form of Euthanasia is that which most intimately concerns the medical profession. Selective non- treatment of the new-born or the doctor may be presented with demented and otherwise senilely incompetent patients. In practice, non-voluntary euthanasia presents only as an arguable alternative to non-treatment.
(iii) Involuntary Euthanasia: It involves ending the patient’s life in the absence of either a personal or proxy invitation to do so. The motive ‘The relief of suffering’ may be the same as voluntary euthanasia-but its only justification – “a paternalistic decision as to what is best for the victim of the disease.”
In extreme cases it could be against the patient’s wishes or could be just for social convenience. It is examples of the latter which serve as warnings as to those who would invest the medical professional with more or unfettered powers over life and death[3].
Type of Euthanasia in Law
Contrary to the above, in legal parlance, euthanasia has since come to be recognised as of two distinct types:
-the first is ACTIVE EUTHANASIA, where death is caused by the administration of a lethal injection or drugs. Active euthanasia also includes physician-assisted suicide, where the injection or drugs are supplied by the physician, but the act of administration is undertaken by the patient himself.
Active euthanasia is not permissible in most countries.
PASSIVE EUTHANASIA occurs when medical practitioners do not provide life- sustaining treatment (i.e. treatment necessary to keep a patient alive) or remove patients from life sustaining treatment. This could include disconnecting life support machines or feeding tubes or not carrying out lifesaving operations or providing life extending drugs.
In such cases, the omission by the medical practitioner is not treated as the cause of death; instead, the patient is understood to have died because of his underlying condition.
In Aruna Ramachandra Shanbaug v. Union of India (2011), the Court recognised these two types of euthanasia i.e. active and passive. It also noted that active euthanasia is impermissible, which was so held by the Constitution Bench in Gian Kaur v. State of Punjab (1996).
In Common Cause v. Union of India (2018), while allowing passive euthanasia in India, the Supreme Court said, “Thus, insofar as active euthanasia is concerned, this has to be treated as legally impermissible, at least for the time being.”
Passive Euthanasia and Aruna Ramachandra Shanbaug Case
In Aruna Ramachandra Shanbaug, a two Judges’ Bench of Supreme Court discussed in much greater detail various nuances of euthanasia by referring to active and passive euthanasia as well as voluntary and involuntary euthanasia; legality and permissibility thereof; relationship of euthanasia vis-a-vis offences concerned under the IPC and doctor assisted death; etc.
The Court also took note of legislations in some countries relating to euthanasia or physician assisted death. Thereafter, it discussed in detail the judgment in Bland wherein the House of Lords had permitted the patient to die. Ratio of Bland was culled out in the following manner:
“Airedale (1993) decided by the House of Lords has been followed in a number of cases in UK, and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime.”
The Court was of the opinion that this should be permitted when the patient is in a Persistent Vegetative State (PVS) and held that it is ultimately for the Court to decide, as parens patriae, as to what is in the best interest of the patient. The wishes of the close relatives and next friends and opinion of the medical practitioners should be given due weight by the Court in coming to its decision.
The Court then noted the position of euthanasia with reference to Section 306 (abetment of suicide) and Section 309 (attempt to commit suicide) of the IPC, inasmuch as, even allowing passive euthanasia may come in conflict with the aforesaid provisions which make such an act a crime.
While making a passing observation that Section 309 should be deleted by the Parliament as it has become anachronistic, the Court went into the vexed question as to who can decide whether life support should be discontinued in the case of an incompetent person, e.g. a person in coma or PVS. The Court pointed out that it was a vexed question, both because of its likely misuse and also because of advancement in medical science. It noted:
“104. It may be noted that in Gian Kaur case although the Supreme Court has quoted with approval the view of the House of Lords in Airedale case, it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS.
This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support.
This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialisation, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.
Also, since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future.
In this connection we may refer to a recent news item which we have come across on the internet of an Arkansas man Terry Wallis, who was 19 years of age and newly married with a baby daughter when in 1984 his truck plunged through a guard rail, falling 25 feet. He went into coma in the crash in 1984, but after 24 years he has regained consciousness.
This was perhaps because his brain spontaneously rewired itself by growing tiny new nerve connections to replace the ones sheared apart in the car crash. Probably the nerve fibres from Terry Wallis’ cells were severed but the cells themselves remained intact, unlike Terri Schiavo, whose brain cells had died (see Terri Schiavo case on Google). However, we make it clear that it is experts like medical practitioners who can decide whether there is any reasonable possibility of a new medical discovery which could enable such a patient to revive in the near future.”.
It held that passive euthanasia would be permissible when a person is ‘dead’ in clinical sense. It chose to adopt the standard of ‘brain death’, i.e. when there is an ‘irreversible cessation of all functions of the entire brain, including the brain stem’.
The Court took note of President’s Committee on Bioethics in the United States of America which had come up with a new definition of ‘brain death’ in the year 2008, according to which a person was considered to be braindead when he could no longer perform the fundamental human work of an organism. Three such situations contemplated in that definition are the following:
“(1) openness to the world, that is receptivity to stimuli and signals from the surrounding environment,
(2) the ability to act upon the world to obtain selectively what it needs, and
(3) the basic felt need that drives the organism to act … to obtain what it needs.”
The Court held that when the aforesaid situation is reached, a person can be presumed to be dead. In paragraph 115 of the judgment, the position is summed up as under: “When this situation is reached, it is possible to assume that the person is dead, even though he or she, through mechanical stimulation, may be able to breathe, his or her heart might be able to beat, and he or she may be able to take some form of nourishment.
It is important, thus, that it be medically proved that a situation where any human functioning would be impossible should have been reached for there to be a declaration of brain death —situations where a person is in a persistent vegetative state but can support breathing, cardiac functions, and digestion without any mechanical aid are necessarily those that will not come within the ambit of brain death.”
The Court clarified that brain death was not the same as PVS inasmuch as in PVS the brain stem continues to work and so some degree of reactions may occur, though the possibility of regaining consciousness is relatively remote. The Court further opined that position in the case of euthanasia would be slightly different and pointed out that the two circumstances in which it would be fair to disallow resuscitation of a person who is incapable of expressing his or her consent to the termination of his or her life.
These are: “(a) When a person is only kept alive mechanically i.e. when not only consciousness is lost, but the person is only able to sustain involuntary functioning through advanced medical technology— such as the use of heart-lung machines, medical ventilators, etc.
(b) When there is no plausible possibility of the person ever being able to come out of this stage. Medical “miracles” are not unknown, but if a person has been at a stage where his life is only sustained through medical technology, and there has been no significant alteration in the person’s condition for a long period of time—at least a few years—then there can be a fair case made out for passive euthanasia.”
Taking a clue from the judgment in Vishaka and Others v. State of Rajasthan and Others[4], the Court laid down the law, while allowing passive euthanasia, i.e. the circumstances when there could be withdrawal of life support of a patient in PVS. This is stated in paragraph 124 of the judgment, which we reproduce below:
“124. There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. We agree with Mr Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted. Hence, following the technique used in Vishaka case [Vishaka v. State of Rajasthan, we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject:
(i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
(ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale case.
In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.”
It can be discerned from the reading of the said judgment that court was concerned with the question as to whether one can seek right to die? This question has been dealt with in the context of Article 21 of the Constitution, namely, whether this provision gives any such right. As is well-known, Article 21 gives ‘right to life’ and it is guaranteed to all the citizens of India.
The question was as to whether ‘right to die’ is also an integral part of ‘right to life’. In Gian Kaur this ‘right to die’ had not been accepted as an integral part of ‘right to life’. The Court in Aruna Ramachandra Shanbaug maintained this position insofar as an active euthanasia is concerned. However, passive euthanasia, under certain circumstances, has been accepted.
In Common Cause v. UOI (2018), the Supreme Court had laid down elaborate procedure to allow passive and active euthanasia.
Reference
Common Cause v. Union of India (2018)
[1] Michael Manning, Euthanasia and Physician-Assisted Suicide (Paulist Press, 1998)
[2] These definitions of voluntary, non-voluntary and involuntary euthanasia correspond to those employed by the House of Lords Select Committee on Medical Ethics (Walton Committee)
[3] See Euthanasia and Its Legality and Legitimacy from Indian and International Human Right Instruments Perspectives published in Human Rights & Social Justice by Muzafer Assadi
[4] (1997) 6 SCC 241