The word 'euthanasia' comes from two Greek words with the literal meaning "well death" or “easy death”. Today it is also referred to as "mercy killing" and is understood as causing or bringing about a person's death painlessly, usually because the person is suffering greatly, is terminally or irreversibly ill, or is severely mentally or physically disabled. To extend the definition, it includes doing something (or omitting to do something) with the intention of causing death for the purpose of reliving someone of the suffering. However, intention to cause death is always the precursor to euthanasia.
To begin with the deliberation, it is important to discuss the connotation of certain terms, which go indispensably with the understanding of euthanasia. The term ‘euthanasia’ can be analysed in four different ways, depending upon the modalities that are followed for its performance. These are, voluntary, non-voluntary (or in-voluntary), active and passive euthanasia. Though technically understood, Euthanasia, either voluntary or involuntary, is always meant as the intentional killing by act or omission of a dependent human being for his or her alleged benefit. The key word here is "intentional". If death is not intended, it is not an act of euthanasia.
To further illustrate, euthanasia is passive when death is caused because a treatment that is sustaining the life of the patient is held off and the patient dies as a result thereof. For example, withdrawing life-supporting devices from a serious patient, removing which, the patient dies. It is termed as active when a human intervention, directly causes or accelerates death of a person who would otherwise die at that time from other certain causes. The distinction on the grounds of voluntary or involuntary is on a totally different plain and can be understood as, when the person who is killed has requested or consented to be killed, it is an act of voluntary euthanasia. On the other hand, when the patient is killed without an expressed wish to this effect, it is a form of involuntary euthanasia. Herein, the concept of assisted suicide is also involved, which can be defined as providing an individual with the information, guidance, and means to take his or her own life with the intention that it will be used for this purpose. Conversely, when a doctor helps people to kill themselves it is called "physician assisted suicide."
However, euthanasia is not assisted suicide and an easy way to distinguish between these two acts, euthanasia and assisted suicide, is to look at the last act – the act without which death would not occur. Using this distinction, if a third party performs the last act that intentionally causes a patient’s death (for a merciful reason though), euthanasia can be said to have occurred. For example, giving a person a lethal injection or putting a plastic bag over their head to suffocate them would be considered euthanasia. On the other hand, if the person who dies performs the last act, assisted suicide has taken place. Thus it would be assisted suicide if a person swallows an overdose of drugs that has been provided by a doctor for the purpose of causing death. It would also be assisted suicide if a patient pushes a fatal injection after he has inserted a needle into the vein.
Thus, while one is transient with suicide, the other falls squarely within the category of homicide, however one may term it merciful or for a noble cause. Both are different sides of a related issue and cannot be taken up together without doing injustice to one or both of them. So is better that we take for consideration only one of them for once and in this project, it is the latter i.e. that form of homicide which is termed as merciful, that forms the matter of deliberation.
Though the debate on the issue of euthanasia, on moral and ethical grounds has prolonged well over a decade, attempts to make it legal have been made only fairly recently and it is in the light of these affairs that the present project aims to review euthanasia with a special focus in the Indian context.
NOTION OF MERCY KILLING
The opinion that euthanasia is morally impermissible goes back to Socrates, Plato, and the Stoics. It is rejected in traditional Christian belief, chiefly because it is thought to come within the prohibited category of murder (Sixth Commandment). In modern scenario, the first organized movement for legalization of euthanasia commenced in England in 1935, when C. Killick Millard founded the Voluntary Euthanasia Legalisation Society (later called the Euthanasia Society). The society's bill was defeated in the House of Lords in 1936, and so also was a motion on the same subject in 1950. In the United States, the Euthanasia Society of America was founded in 1938.
The conceptual definition of voluntary euthanasia is based on a philosophy which embraces humanism and compassion, and one which recognises the autonomy of the individual and his freedom of choice, along with recognition of his dignity as much in the process of dying as in that of living.
There are many reasons why people want to end their life by committing suicide, either by themselves, or with the aid of someone else. Some people are severely depressed over a long period of time. To them, suicide may be a "permanent solution” to their problems. Similar is the case for those people who live in excessive and chronic pain, suffer from poverty, lack health-care coverage, do not wish or cannot afford the proper medication. Many other people who are terminally ill do not want to diminish their (family) assets by having high medical bills. Other reasons may include contracting a incurable illness, loss of independence while for some, simply because they would like to control their future and want to be in charge of their own death.
People who call for voluntary euthanasia appeal to the value of liberty. This forms the basis of the common view that individuals can do as they want, unless there are reasons that dictate otherwise. Thus, given that prohibiting voluntary euthanasia is a restriction on our liberty -- patients are prevented from getting what they want, and physicians from providing it -- there is a standing case for legalizing those practices, and it is up to their opponents to show why they should be forbidden.
Another reason for volunteering euthanasia is the prevention of suffering and the bestowing the dignity of the individual. Patients sometimes are in medical conditions (vegetitative state) for which there is no relief, and await death in a life filled with suffering. Thus people have a right to preserve their dignity and minimize their suffering and that of others and prohibition of voluntary euthanasia, it is argued, creates an inequality as it prevents persons physically unable from choosing a dignified life, when that option is open to others.
Moreover, this being a recent concept, the existing provisions of the law do not encompass the realities involved in death by choice, that is, cases in which by omission or by commission one's own death or the death of another is opted for in preference to continued living. The kinds of death spoken of here are those usually referred to in popular parlance as mercy killing or euthanasia. The motives for these deaths are compassion and an unselfish desire to bring on death when continued living is unbearable for the patient due to physical and/or mental suffering, which are not contemplated in majority of existing laws.
Another issue is of the Patient’s Right in his treatment. In legal parlance, a doctor is responsible on various counts such as a professional, as a provider of service (with the doctrine of consumer protection setting in), under criminal law (for criminal negligence) and also under Civil law. Now how would a legal luminary contemplate a situation wherein the patient requests the doctor to end his life while the doctor refuses to do so. As a patient, for such act, one can institute a claim against the doctor for breach of contract or deficiency in service. On the other hand, what would the contention of the counsel of the doctor? Will he take the plea of the doctor being bound by the Hippocrates Oath or his professional ethics or in the light the liability that would have been imposed upon him had he conceded to the requests of the patient, under the Criminal Law, which does not take not of the emotional condition of the patient under which he took such a decision to end his life? If such argument come up before the Judge, acknowledging the stand of the doctor would mean strictly abiding by the mandate of the Criminal Law but also liquidating the patient’s right in his treatment. However, tilting on the other side i.e. accepting the existence of such right of the patient would be construed as amounting to setting aside the consideration of the doctor or in stronger words, the very existence of the doctor as a life-giver would come under question and would tantamount to turning him to be of mechanical existence, who, meekly follows the wish of his patient (read master). In such circumstances, what should be the right approach of the judge or how the law needs to be established requires to be reconsidered and also needs an unambiguous and definite settlement.
However, in the same example, we also have to remember that any right of the individual is subject to the fact that it should not trample upon the rights of others or vitiate societal ethics and values (read public policy). It may be difficult to accept that an individual's decision affecting nobody else except himself, either violates anybody's rights or has an impact on societal values. Nevertheless it has to be considered. So if the deciding authority keeps this concept in contemplation, the whole focus changes from an individualistic approach to a wider one, involving socio-cultural considerations and there implications as well.
Coming to the contention of social groups and organisations, it has long been argued that competent, rational human beings must have the right to determine their own health care according to their personal wishes, values and beliefs, as long as such a determination does not jeopardize the safety or well being of any other person. And this understanding also naturally flows from the freedom of the enjoyment of life and personal liberty i.e. the liberty to determine the way of one’s living, the right to determine as to how and till when to live and when to decide to demise from the world.
Now this freedom of choice, as raised above raises one issue - and that is the ‘reasonableness' or ‘unreasonableness' of the decision and request. In the context of voluntary euthanasia, the ‘reasonableness' of the request may be questioned when an individual wishes to have his life terminated in the early stages of even an incurable disease when the quality of life and functional usefulness to the family and society is not severally compromised. One may have to draw a line between the decision made after considerable deliberation and that made on the spur of the moment under stress of acutely distressing circumstances.
Now for the infected individual, pain is not the only factor in suffering. One has to take into account mental distress caused by other manifestations of the disease, such as loss of control over bodily functions or loss of cognitive existence, causing a sense of loss of dignity of life. The respect for life and duty to preserve it are concepts of value but they have to be taken in conjunction with the quality of life preserved. We have to differentiate between existence and living. When an individual is no longer able to contribute to his own physical, intellectual and spiritual well being, sustaining such a state is a perversion of the concept of respect for life.
It is also to be considered that the adoption of the bill legalizing euthanasia, as in Netherlands was described as "a sign of a society which is becoming more mature." What does this contemplate? Should it come to mean that all those societies which still deprecate euthanasia are immature or are still bound within the shackles of conservative ideas, traditional values, which consider an individual incompetent to decide the question of ending his life?
If we consider the view of the California Supreme Court in the case of People v. Conley , Chief Justice Traynor gave an interesting observation. He stated "one who commits euthanasia bears no ill will toward his victim and believes his act is morally justified, but he nonetheless acts with malice if he is able to comprehend that society prohibits his act regardless of his belief." Now what should be the probable outcome, should both the suppositions hold true in a particular case i.e. the accused considers himself morally justified in reliving someone of unbearable pain and suffering and also simultaneously aware of the legal propositions being clear on this issue. Should he be extended Executive Clemency or Official Pardon (or a case fit for Mercy Petition, as in India)? Or should the case be treated like other cases and the normal procedure be observed. The latter places doctors or others who dispatched the patient at his request to put him out of terrible misery, in a class with a rapist who kills his victim to eliminate the witness. Both prima facie are murderers in the eyes of law.
On account of these considerations, it finally comes down on the following. To permit euthanasia, the following conditions must be met.
• The decision has to be made by a mature adult.
• He (or she) should be in full possession of his (her) decision-making capacity.
• The decision should be made after careful consideration and due deliberation.
• There should be no element of duress or coercion.
• The conditions of ill health must be such as to qualify as of an irreversible illness which is causing undue pain and suffering and where the terminal event of death is probable in a relatively short period of time.
And the rights flowing out of these are,
• It establishes the individual's legal rights to refuse of any form of treatment offered to him.
• The declaration outlines certain conditions under which he would not like his life to be prolonged, when all treatment is deemed futile.
• The living will should preferably be made out when the individual is in fit state of health for future consumption.
• The individual has the right to withdraw the declaration at any time.
MERCY KILLING: THE INTERNATIONAL STANDING
The legal position, as of present, of Euthanasia is fairly stable. Other than Netherlands, in majority of the countries, euthanasia is not lawfully permitted or even accepted as a defence to the offence of murder.
Japan has medical voluntary euthanasia approved by a high court in l962 in the Yamagouchi case, but instances are extremely rare, seemingly because of complicated taboos on suicide, dying and death in that country.
New Zealand forbids assistance to murder under Sec. 179 of the New Zealand Crimes Act, 1961, but cases being reported under it, so far, have been rare and only lenient penalties have been imposed.
While earlier in the Northern Territory of Australia, voluntary euthanasia and assisted suicide were punishable for nine months, the Federal Parliament repealed the law in l997. However, before long, the position was changed back as of earlier, with only four people being able to get the advantage of the transitory position. Similar attempts were made by other states to change the position of law with respect to euthanasia but so no concrete step have been undertaken.
In Central and Southern America, while Colombia's Constitutional Court in 1997 approved medical voluntary euthanasia, it was never ratified by the Parliament. Thus as of present, assisted suicide remains a crime in Columbia.
In Uruguay, while euthanasia is cognizable as of murder, Article 27 of the Penal Code of Uruguay (effective since 1934) lays that "The judges are authorized to forego punishment of a person whose previous life has been honourable where he commits a homicide motivated by compassion, induced by repeated requests of the victim." Following this Clause, as far as is known, there have been no judicial sentences for mercy killing in Uruguay.
As in Canada, the debate that follows is too enormous in magnitude. Whereas Sec. 241 of the Criminal Code lays that
“Every one who
(a) councils a person to commit suicide, or
(b) aids or abets a person to commit suicide whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.
This law, governing suicide (Sec. 241(a)) was amended in 1974 to decriminalize the act of suicide itself. However, section 241(b) still stands and is the reason for presently existing debate and there is a great hue and cry on this issue, to make an amendment to this section. Following the great demands, on May 16, 1991, Mr. Robert Wenman, member of Parliament introduced a bill in the Parliament with the purpose of the bill being “to protect a physician from criminal liability where, the physician does not initiate or continue treatment at the request of the patient or where the physician does not prolong life, except at the patient's request.” It would also protect a physician who administers pain-killing treatment to a patient, even though the effect of that treatment would be to hasten death. The bill passed second reading and was referred to a legislative committee but later on could not be passed because of the hostile attitude of the Parliamentarians. This bill was followed by a series of Private Member Bills on the same issue but they all met the same fate.
In essence, active euthanasia is punishable under sections 14, 219, 222 and 245 of the Canadian Criminal Code and an individual who violates these sections can be charged with first-degree murder. Physician-assisted suicide is punishable under section 241 and a violation of this act can result in a maximum prison sentence of fourteen years. However, as long as the physician has not initiated treatment, the withholding of treatment does not violate the Canadian Criminal Code.
The legal position on this point in Germany is peculiar. While direct killing by euthanasia is a crime, assisted suicide is not punishable. It was on this account that in the year 2000 a German Appeal Court cleared a Swiss clergyman of assisted suicide because there was no such offence, but convicted him of bringing the drugs into the country. However still, there was no imprisonment.
France does not have a specific law banning assisted suicide, but such a case could be prosecuted under Sections 223 to 226 of the Penal Code for failure to assist a person in danger. However, convictions are rare and punishments minor but also, all publications that advise on suicide are banned. Denmark has no specific law banning assisted suicide but in Italy an action to assist euthanasia is legally forbidden. Luxembourg also does not forbid assistance in suicide, although under Sections 410 to 411 of its Penal Code a person could be penalized for failing to assist a person in danger. A legislation on this issue is also under consideration by parliament.
Most importantly, three countries legally, authorize assisted suicide of dying patients. They are, Switzerland (since 1941), Belgium (with effect from 2002) and Netherlands (voluntary suicide as well as voluntary euthanasia, lawful since April 2002, but permitted by the courts since l984).
However, for this purpose, two doctors must be involved in Belgium, and in the Netherlands, plus a psychologist if there are doubts about the patient's competency. But these formalities are not stipulated in Switzerland, although at least a doctor usually present because the right-to-die societies insist on medical certification of terminality before assisting.
Also, Belgium and the Netherlands permit voluntary euthanasia, but Switzerland bans death by injection, and while the former two countries recognize the right to residents only, Switzerland alone does not bar foreigners to opt for euthanasia provided they are critically or terminally ill. As again in 2001 while the Swiss National Council confirmed the assisted suicide law, it kept the prohibition of euthanasia.
In Scandinavian countries, while Sweden has no law specifically proscribing assisted suicide persons assisting in such acts are often charged with offence of manslaughter. While Norway has criminal sanctions against assisted suicide by using the charge "accessory to murder", in cases where consent was given and the reasons compassionate, the courts pass lighter sentences.
On April 29, 2002, the European Court of Human Rights in Strasbourg, in a major case over the issue of assisted suicide, rejected the assisted-suicide petition of a paralysed British woman (Wesley J. Smith) who argued that not being able to die in "dignity" violated her human rights. Another point considered was whether the British law violated the "right to life" guaranteed by the European Convention on Human Rights by outlawing assisted suicide? Or the law against assisted killing violated the convention's guarantee of privacy, freedom of conscience, prohibition on discrimination and the right not to be treated in an inhumane and degrading way? The Court answered in negative to each of the issues and held that along the same lines as the U.S. Supreme Court has with respect to the U.S. Constitution, no fundamental right to assisted suicide exists under the developing European Union legal system.
In United States of America, there are a number of conflicting legal opinions on euthanasia. While some states permit euthanasia, some severely deprecate it. In Cooley v. Granholm, the Court of Appeal rejected the contention that non-recognition of the right to die, by way of assisted suicide was violative of the Fourteenth Amendment where the right “to be relieved from unbearable pain and suffering” was recognized. This clearly indicates the fact that approach of the Court (as in United States) in interpreting the present provisions is rigid and narrow so as not to recognize the legality of mercy killing.
Also, the United States has a specific federal enactment namely, the Assisted Suicide Funding Restriction Act, 1997 which aims at abolition of the practice of suicide, both self as well as assisted, as Assisted suicide, euthanasia, and mercy killing have been criminal offences throughout the United States. Herein the methodology adopted is that the rate of suicide is aimed to be reduced by furthering the knowledge and practice of pain management, depression identification and treatment, and issues related to palliative care and suicide prevention and funds are being flown in this direction. Thus while in U.S., euthanasia has not only been made unlawful and punishable, attempt is also being made to reduce the incidents by promoting research in the direction of coordinated health care and creating awareness against resorting to mercy killing.
In the United Kingdom, the law is so settled that if a doctor assists someone, even a terminally ill patient in dying, he may be faced with a charge of murder. Murder is unlawful homicide under the Queen’s Peace committed with malice aforethought . Malice aforethought describes the mens rea required for a conviction of murder. That is generally recognised by the courts in England as intention to kill or cause grevious bodily harm. If the doctor is to be safe from criminal liability, he must show to the court that the killing of the patient was either lawful or justified. If he just denies intention to kill, he might still be held liable for the offence of manslaughter. If he does not perform the mercy killing but assists the patient in committing suicide (assisted suicide), for example by procuring medicine that the patient could take by himself, he would be guilty of an offence under the Suicide Act 1969 for the abetment of suicide.
The decision in R v. Cox made it clear that “causing death in order to relieve pain and suffering amounts to murder under current law, but the administration of pain killing drugs was declared lawful.” These results were confirmed in the House of Lords decision in Airedale NHS Trust v. Bland . Lord Goff of Chieveley held in this case that “…it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to avoid or to end his suffering … So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia –actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law’. The law draws a distinction based on the purpose of medication; ‘if a doctor genuinely believes that a certain course is beneficial to his patient, either therapeutically or anelgetically, then even though he recognises that that course carries with it a risk to life, he is fully entitled nonetheless to pursue it. If in those circumstances the patient dies, nobody could possibly suggest that in that situation the doctor was guilty of murder or attempted murder’ .
However, in the same country itself, a conflicting opinion exists. The moral and to some extent legal justifications for euthanasia are supported by the doctrine of double effect. One of the basic distinctions between criminal law and this doctrine is the different understanding of intention. The doctrine of double effect distinguishes between intended and unintended but foreseen consequences. The criminal law views foreseen consequences as intended. Nevertheless the doctrine of double effect appears to have made some inroads in the criminal law as far as the issue of euthanasia is concerned, as it was illustrated by the decisions in the cases of ‘Cox’ and ‘Bland’.
But as of recently, the House of Lords in its deliberative capacity has set itself against euthanasia , and in its judicial capacity against relaxation of the rule prohibiting assisted suicide. Lord Steyn in Ex parte Pretty summarised the present position in English law;
… by virtue of legislation (The Suicide Act, 1961) suicide is no longer an offence …mercy killing in the form of euthanasia is murder and assisted suicide is a statutory offence … A competent patient cannot be compelled to undergo life saving treatment. Under the double effect principle medical treatment may be administered to a terminally ill patient to alleviate pain although it may hasten death. This principle entails a distinction between foreseeing an outcome and intending it. [In Bland] the House of Lords held that under judicial control it was permissible to cease to take active steps to keep a person in a permanent vegetative state alive. It involved the notion of a distinction between doctors killing a patient and letting him die.
A further reform attempt began in February with House of Lords debates on the Compassion in Dying Bill 2003. The Bill has no government backing and so is condemned to die. However, if passed, the Compassion in Dying Bill is an intriguing exercise in applied ethics, but would herald a master class in statutory interpretation.
EUTHANASIA IN NETHERLANDS: A REVIEW
To further the debate, we must first consider the legal sanction given by Netherlands so as to argue as to whether the provisions made are sufficient or there remains a lacuna, which exploits the bargain rather than gain to the intended patients.
Under section 293(2) of the Dutch Criminal Code, doctors involved in voluntary euthanasia or medically assisted suicide must observe the following rules:
1. They must be convinced that the patient's request was voluntary, well considered and lasting.
2. They must be convinced that the patient's suffering was unremitting and unbearable.
3. They must have informed the patient of the situation and prospects.
4. They must have reached the conclusion with the patient that there was no reasonable alternative.
5. They must have consulted at least one other physician.
6. They must have carried out the procedure in a medically appropriate fashion.
These being the sanctions, what is to be considered is that how fair are they in their practical or real life situations. What determines that the request of patient was voluntary and was not given under moral, financial or emotional compulsion of the relatives? Moreover, when in a state of indelible pain and suffering, which human being, unless not of extraordinary patience and forbearance, will not want to get rid of the cause?
The law provides no answer to these and other related questions and there remains a lacuna for much exploitation.
Life Protection Provisions in International Human Rights Documents
(1) Universal Declaration of Human Rights,
Article 3 " Everyone has the right to life, liberty and security of person."
(2) International Covenant on Civil and Political Rights
Article 6, Section 1 "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."
(3) American Convention on Human Rights
Article 4, Section 1 "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”
(4) American Declaration of the Rights and Duties of Man
Article 1 "Every human being has the right to life, liberty and the security of “is person.
(5) European Convention for the Protection of Human Rights and Fundamental Freedoms
Article 2 "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty provided by law.”
SOCIO-CULTURAL & ETHICAL DIMENSIONS OF MERCY KILLING
While the case for euthanasia gaining legal status is well argued, the opposition on this stand does not fall short either. The most critical concern comes with the consideration and conceptualization of the right to life. Human Right activists, taking over from religious institutions do not fail to take up the stand that all human life is sacred, and no-one has the right to take away that life.
However, the arguments of the opposition i.e. euthanasia supporting activists also blows off this contention of the ‘life valuing’ groups. The argument is well devised and calls for an open minded and critical outlook, which if believed, certainly persuades to accept the notion. It goes on to state that the fundamental right of self-determination, logically, must apply to all significant life decisions, including what is perhaps the most intimate and personal decision of all i.e. whether to hasten death if one's condition becomes terminal. The protection of this right becomes particularly compelling when the only real choices remaining are intolerable suffering or indefinite confinement in a morphine-induced haze . The argument that the right to determine when meaningful life has come to an end is a fundamental aspect of personal autonomy and self-empowerment cannot, nevertheless, be rejected prima facie.
Is really the "nightmarish" existence of living with a "degenerative" disease a cause for recognizing euthanasia? Do we really need to avoid such “terminally ill” people? The question here is twofold. Firstly, do they need to be relieved of this intense pain and be set off from the liabilities to their end, so as to release them from the disabilities, being "handicapped," "confined to wheelchairs," and "suffering indignity of being borderline individuals." Secondly, it is also to be considered can we abide with them? Do we possess the capacity and the competence to stay with them, serve their cause and provide them the maximum satisfaction we can to them till they reach a natural end? The point also is that we also must be willing enough to serve them. If we are not capable enough and merely wish to cast off our liabilities in the name of providing them a comfortable and peaceful end to their miseries, we are not justified in supporting the cause. We have to take their responsibility and it cannot be cast any under any excuse.
The moral argument against euthanasia is equally strong. The point of ethics, culture and moral well being of the individual raises a strong contention. One view, which is certainly a considerable point of contention, is when life is a gift from God, what right have individuals got to take it away, even though with a purpose of reliving someone from intolerable pain or suffering. When one cannot create, one should not destroy.
Is not mercy killing a step towards ending human love and care, a devotion that man has always had to others of his kind? Are we ceasing to exist with the same attachment we had as of earlier. The perception of the patient is also to be witnessed. Has human mind lost the spirit to fight? Is Stephen Hawkins not leading, presently, the march of science, despite being unable even to communicate without the aid of machine! Why cannot the others of his kind show the same spirit and fight the odds. More importantly, if some individuals find unable to bear the reactions/ mutilations, as a result of physical or medical deformities, is there really a need to aid a legal protection to all those violators who aim to get rid of these “unwanted burdens” once and for all. Death is not just about the dying person, it is also about the people left behind who might feel the pain of death. Emotions and feelings are the very things that make us human. They are the roots of creativity and passion. If we accept euthanasia as a part of society, then we would be encouraging ourselves and others to miss out on the emotions one experiences when one is at the verge of death. How would we then be different from robots that are discarded after they outlive their usefulness?
In order to offer another ethical perspective to the question, we must consider the purpose of medicine. Medicine aims at preventing illness and healing disease in order that a person may achieve optimal human functioning in accord with his or her capabilities. But optimal human functioning involves more than physiological function. In order to function humanly, there must be some capacity for cognitive-affective function. If the potential for cognitive-affective function is not present, for example if a person is in an irreversible coma, then applying medical care does not have a purpose. Hence, medical care should be withdrawn once it is determined that it cannot achieve its purpose of improving physiological function so that the cognitive-affective function can be prolonged or restored. The only reason for continuing medical care for a person whose cognitive-affective function has been irreversibly lost is to keep the person comfortable. Even if the family of a person in such a condition asks that aggressive care be continued, the ethical response of the physician would be: "We have done everything possible. It is now time to allow your loved one to die." If there is no hope that cognitive-affective function will be restored, why not end the person's physiological function and thus terminate life with an injection of air or some other lethal procedure? Why must a family suffer, as a loved one slowly and perhaps painfully wends his or her way to a "natural" death? Many ethicians in England and America would opt for this form of treatment maintaining that since the person in question will die anyway, why prolong the suffering?
Thus there are two persuasive and overriding reasons why such persons should not be put to death, even "to end their suffering:" (1.) respect for human life makes us realize that we are stewards of life, not masters of life. People who believe in God will state that God is the author of life and human beings do not have the right to directly cause the end of their own lives nor the life of another innocent person. Human beings have only the right to prolong life and this only when prolongation will help a person fulfils God's plan. If exceptions are made to this moral precept then the strong and the violent dominate and justice and culture are stifled; (2) the second reason for asserting that mercy killing is unethical is more pertinent to health care professionals. If physicians and nurses become associated with killing people, then trust which is the basis of the healing contract will be eroded and slowly disintegrate. If health care professionals offer health care for any primary motivation other than patient benefit, they will soon lose the trust and respect of their patients.
Even some who accept the above-mentioned principles would maintain that there is no real difference between allowing a person to die (i.e. passive euthanasia) and putting a comatose suffering person to death (i.e. active euthanasia) in order to relieve suffering. After all, the argument goes, the outcome is the same in both cases. But what has to be seen is that, though the two actions, mercy killing (active) and allowing to die, are similar in result, they are not the same in process nor in proximate motivation. In the case of allowing to die, it is true that the patient usually dies upon removed of the life-prolonging mechanisms or therapy, but the cause of death is an existing pathology which is now allowed to have its natural effect. For example, the respirator is removed and the patient dies because of pathology in the cardiopulmonary system. Or in other words, nature is allowed to take its course.
Drawing a parallel with the killing of animals, when some dogs or cats are seen suffering from some skin or other disease such that they will not be able to come through, they arrange to kill those poor animals and call this action, mercy killing. Seeing it objectively, this actually is not killing out of mercy towards those animals but killing them for their own precaution and in most cases, to get rid of an awful sight. Thus how can we rate this treatment and extend it to the case of humans when it is not worth even for animals.
Euthanasia was rejected in the ancient Greeks as well, where Hippocrates (460-370 BC), the ancient Greek physician, in his famous oath states, "I will not prescribe a deadly drug to please someone, nor give advice that may cause his death." Clearly, the oath places emphasis on the value of preserving life and in putting the good of patients above the private interests of physicians.
Supporting euthanasia, an emphatic doctor states the reason for his choice. Firstly, he reasons, doctors neglect (even avoid) the patients they cannot cure. They often ignore their dying patients’ preferences for care and often fail to address their dying patients’ physical suffering. Instead, continued unnecessary medical treatment often contributes to the dying person’s pain. Secondly, families of the dying patients routinely face financial devastation on top of their grief and for elderly patients living alone or in institutions, poverty and isolation worsen the fear and suffering they naturally feel as they face the end of their lives. Lastly, the consent of the family members reflects the emotional bonding and the love for each other that they agree to mitigate the cause of pain. In such circumstances, the aspect of mercy killing being permitted is no wrong. But how can one be sure that the patient is not being coaxed into taking the decision by others, is still a matter that needs to be settled.
Elaborating the point, it can be stated that the consent issue also fails to consider that if one is in great pain or is suffering from mental problems then the person is not in a position to make a free and balanced decision. What consent then it actually remains and more importantly, is it worth while to decide the question of one’s life on the basis of he himself, who in majority of times would certainly be liked to be relieved of the immense pain and suffering, that undergoes in every medical operation whether involving the question of life or otherwise. Does that mean that each time one feels dissatisfied with his present lot, being in a not-so-comfortable physique, he or other will be allowed to end his life? Certainly, this must not be the end point of any law in this regard as it will, nevertheless, be more exploitative rather than beneficial.
Then again, even the consent of the patient alone, thus, would never justify the taking of another person's life. A lot of patients will not wish their families' suffering to be caused from having to look after them.
Nevertheless, the supporters are not wrong when they contend that there is nothing ennobling in terminal suffering. There is nothing morally uplifting in watching a loved one or relative writhe in anguish on the cross of hospital profit. The moans and whimpers of the dying cancer patient are not songs of triumph but of deep, personal tragedy. If a person's life has reached the point, such that the quality has been compromised beyond an acceptable level for them, they ought to be allowed to end it in whatever manner they choose.
Conversely, our present day medical professionals view death as an enemy. In this century the technological advancements, aiding the medical science, have perpetuated in the doctors the mandate of overcoming death at all costs. Combined with this, doctors are also usually action-oriented individuals. The general trend states that they feel a sense of failure when they are not able to cure someone. Physicians feel that their goal is to cure illness, and it is a personal defeat when the patient dies. This attitude on the part of some medical professionals has resulted in many individuals perpetuating the fear of the process of dying i.e. lives being prolonged needlessly by artificial and intrusive measures when they become terminally ill and they want to be permitted to die peacefully. However, how far this cause of the patients can be sustained, is though controversial, well established. It needs be overruled and none else. It should be considered that legally permitted euthanasia and assisted suicide would not only imperil the care of the terminally ill but would also fundamentally undermine the respect for human life on which the health of society depends.
Even a newborn infant cannot feed himself, clean himself, or communicate, and lives his life essentially as a vegetable. Taking care of him is surely a burden on his family, yet no one would question this burden or pity the family. The same approach should apply when the patient is someone who has lived a full life and sacrificed to take care of their children. Let's not forget that life itself is a terminal condition that can be very painful. We all die, and many of us go through great pain. But where there is life there is always hope. We who are healthy must remember this everyday, even more so those of us in pain.
The preservation of life is a natural instinct. Any act contrary to this is unnatural and therefore morally evil. Our world is a pleasure-seeking world that has lost the sense of dignity in suffering.
Allowing mercy killing, it is argued in India, will shatter the social fabric of the society and in certain cases the dishonest and un-scrupulous people may abuse it and in some cases in the name of euthanasia old and infirm may be killed and age old traditions of human values of this country will become a casualty. However, it is also argued that certain patients who are in between life and death become a liability for medical institutions and drain away a major chunk of resources which could be utilized, for the health care of more needy people.
Nevertheless, it also has to be contemplated that our society is not so advanced as in the case of western society. Can we follow the western culture where people after a certain age are compulsorily sent to old age homes or infirmity centres and they are then the responsibility of their. What happens to the traditional system of family of ours where people suffering from any disease/infirmity is not a liability for his family and therefore any system of attempt to allow mercy killing will break the social set up of the society.
To summarize, Euthanasia is not only an ineffective and inappropriate response to the pain of advanced disease; it also fails to understand the psychological vulnerabilities, fears the dying and misinterprets their problems of clinical depression, grief, and brain dysfunction. It is for those who have not yet encountered death in their own family that they will be shocked to learn that most patients facing incurable illness remain hopeful, positive, active, and fully engaged in life despite their experience of grief and sadness. Euthanasia advocates fail to appreciate the richness and depth of the psychology of dying. Yes, the cries "Let me die," "Help me die," or "I wish I would die," are real and deep, but they can be interpreted only in the context of lamentation. Here lamentation is a call for support and relief, a search for meaning, and an invitation for relationship. It is a cry of life. Not to die.
We must not be diverted by the mirage of euthanasia, by this seductive quick-fix approach to suffering and death. Euthanasia, in fact, would open a floodgate of fear and pain. It would rob us of scarce resources and block the development of the effective community responses to pain that we so urgently.
Concluding, what is tried to be established herein is that, no immutable guidelines can be suggested, as each individual case must be addressed on its own merits. Nonetheless the requirements as laid out in a ruling of the Nagoya High Court in Japan may be of some aid, indicating what might be ethically acceptable.
a. The patient is suffering from unbearable pain.
b. The patient's condition must be terminal with no hope of recovery.
c. Euthanasia must be undertaken to relieve suffering.
d. It can only be undertaken at the expressed request of the patient.
e. A doctor must carry out the procedure.
f. The method must be ethically acceptable.
MERCY KILLING: INDIAN LEGAL VIEW POINT
What is euthanasia? What is assisted suicide? To view it from the legal viewpoint, simply put, it is the intentional causing death of a human being, for reasons of compassion, resulting in death by unnatural means. The definition involves three things: intention, motive and causation. The intention is to kill. The motive is to eliminate suffering. And the cause of death is human intervention, not some underlying illness. With this intent, let us view the position of various provisions of law under which mercy killing is to be analysed.
(a) Ambit of Sec. 300 (murder)
In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient hence such cases would fall squarely within clause firstly of Sec. 300, Indian Penal Code i.e. intention to cause death. However, the case would also attract Exception 5 of the same section, the death being caused with the consent of the deceased (as in case of voluntary euthanasia). In other words, to go strictly by Sec. 300 of the Code defining murder, euthanasia qualifies as consensual killing. Thus the doctor who has caused such death would be liable for culpable homicide not amounting to murder and the doctor would be punished under Sec. 304 of the Code, more particularly, part I of Sec. 304.
However, it also needs to be considered that what protection remains even under Exception 5 when the Supreme Court holds that fundamental rights are not violable and cannot be waived. To go by this position of law even if the deceased gives his consent to the accused, it is null and void as to the aspect of its legality and renders the accused liable for murder. Thus if the general notion attached with exceptions Sec. 300 (defining murder) is that they mitigate the gravity of the crime, the interpretation fails this understanding and demands it to be held unconstitutional, being inconsistent with Part III of the Constitution, especially Art. 21, recognising the right to life and personal liberty.
However, it is also to be understood that it is only in cases of voluntary euthanasia (i.e. where the patient consents to his death) that the exception 5 of Sec. 300 would be attracted. In the cases of non-voluntary and involuntary euthanasia, the act would be held illegal and the exception will be failed to be attracted because of the proviso one and two of Sec. 92 of the Code and thus punishable like any other case of simple murder.
What makes euthanasia illegal in the difference between killing a person and letting a person die a natural death. It is the difference between intention and causation that decides the fate of the treatment that the case will meet.
(b) Protection under Art. 21 of the Constitution of India.
If one solely relies on the concept of life as envisaged under Art. 21, it is equally contestable that it includes the individual’s right to self-determination or his right of privacy. Interference with that right cannot be permitted, more specifically if they come to mean that individual should be forced to suffer against his will, being suffering from an incurable disease, which would be nothing but a cruel manifestation of how human rights and dignity can be negated, in the light of promoting social values. After all, what is the right to life? Is it not the justified moral claim that all human beings have to live a peaceful and serene life? It is an inalienable right. It is not something any person can give up or any government can take away without committing a moral wrong. Being indefeasible, it cannot be overridden by any other right. Every person has a life to live with at least a minimum dignity and when the state of his existence falls below even that minimum level, then it must be allowed to end such tortuous existence. In such cases, relief from suffering (rather than preserving life) should form the content of the protection vested.
To extend further the discussion of Art. 21 and its concomitants, the purpose of Art. 21, for a laymen, upon whom this right is cast upon, is, in simple terms, to provide him an opportunity to live a life, capable of enjoyment, free from arbitrary interference such that he can perform his duties and his assigned social role uninterruptedly. But for a person, who has no duties to perform, either for himself or for society and is no more fascinated by the charms and wonders this mortal world can bestow on him, being adamant to die, what justification does law hold on forcing him to stay alive and in that way, doing even a larger harm to that individual entity than the good it is doing for him?
But before settling the matter, we have to decide as to, ‘what actually is the scope of Article 21 with respect to euthanasia? What is the meaning of life, as contemplated in Article 21 of the Constitution?’ Is it what the Supreme Court lays, referring to Vedas, Puranas, Jataka Kathas and other religious and ancient commentaries?’ Perhaps not. For that, we must broaden our mindsets. We have to comprehend that is the term “life” is wide enough to contemplate and include the “right to die” within its nomenclature, as the activists state with the argument that, if life includes all actions till death, than certainly the right to die goes along with everything associated with Art. 21 because the decision to die also comes within this purview (as the decision to die certainly comes before dying, upto which the protection of article 21 extends). However fallacious the argument may seem, but technically, arriving to it from logical interpretation, it stands perfectly the tests of all canons of interpretation. So should it be the possible interpretation, still awaits a judicial settlement on the issue.
However, Gian Kaur has held that “the right to live with human dignity cannot be construed to include within its ambit the right to terminate natural life at least before the commencement of the natural process of certain death.” Continuing further, the court has gone to state even that
“the significant sanctity of human life is not to be overlooked. Art. 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 the ‘protection of life’, while “right to life” is a natural right embodied in Art. 21, suicide is an unnatural termination or extinction of life and therefore incompatible and inconsistent with the concept of ‘right to life’.”
On this interpretation, it is submitted herein that, following the approach of Supreme Court as the final word, euthanasia is not only illegal but also unconstitutional no matter for whatever good considerations and with whatever noble purpose to execute.
(c) Interpretation of Suicide
Lodha J. in Naresh Marotrao Sakhre v. Union of India observed,
“Suicide by its very nature is an act of self killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand means and implies the intervention of other human agency to end the life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Sec. 309 (attempt to commit suicide). The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected.”
Also, in India, law is clear on the aspect of assisted suicide as well. Abetment of suicide is an offence expressly punishable under Sec. 305 and 306 of the Code. Moreover, after the decision of the a five judge Constitutional Bench of Supreme Court in Gian Kaur v. State of Punjab , it is well settled that the right to life under Art. 21 of the Constitution does not include the right to die.
Furthermore, an abetment to suicide is also punishable. This certainly points to the philosophy of the lawmakers that any attempts to cast off life, unless natural, is intolerable and comes within the purview of an offence, to be punished. Thus any form of assisted suicide falls within the wide ambit of abetment and is thus punishable under Sec. 305 and 306 of the Indian Penal Code.
(d) Mercy Killing: Available in India?
(A) An interesting case came up before the High Court of Assam wherein the deceased, a three year old female child was killed by her mother and among the defences stated by her, one was that the little child had been done to death because she was suffering from illness badly and accused could not bear the trouble and thus the Court was asked to decide whether mercy killing was a exception to murder available in India? The specific issue before the Court was, whether mercy killing is exempt under Indian Law and is yes to what extent. For this purpose, the Court referred to the defence of diminished responsibility as available under the Homicide Act, 1957 in Britain, which enable the judge to reduce or extinguish the sentence on merciful grounds and does not leave the accused entirely o to the discretion of the executive.
In this light, the Court observed that the purpose of Criminal Law to induce people to control their impulse and thus mercy killing due to impairment of mental faculties of the victim was no exception under the Indian Law even if with the purpose of relieving him from the unbearable suffering.
(B) Another case which is largely relied upon by the supporters of euthanasia is Maruti Shripati Dubal v. State of Maharashtra where the High Court of Bombay, interoperating a number of decisions of Supreme Court came to hold that ‘what is true for one fundamental right is also true of other fundamental rights. It is not and cannot be disputed that the fundamental rights have their positive as well as negative aspects.’ ‘If this is so, logically is must follow that right to live as recognised by Art. 21 will include also a right not to live or not to be forced to live. To put it positively it would include a right to die, or to terminate one’s life.”
The court went on to state the circumstances under which this right (to die) could be exercised. It laid,
“… Abnormality and uncommonality are not unnatural merely because they are exceptional. Mental diseases and imbalances, unbearable physical ailments, affliction by socially dreaded diseases, decrepit physical condition disabling the person from taking normal chores, the loss of all senses or of desire for the pleasures of any of the senses, extremely cruel or unbearable conditions of life making it painful to live, a sense of shame or disgrace or a need to defend one’s honour or a sheer loss of interest in life or disenchantment with it, or a sense of fulfilment of the purpose for which one is born with nothing more left to do or to be achieved and a genuine urge to quit the world at the proper moment are among the various circumstances in which the suicide is committed or attempted.”
The same court also stated that the view that life was sacred, a gift of God, who alone has the right to take it, that premature end of life whether accidental or suicidal keeps the soul hovering in the sphere of ghosts, were only ideological or religio-moral objections which fail to appeal to reason and could not be sustained as a contention against not allowing the right to die to be read in Art. 21.
An analysis of the decision states that while suicide may be permitted under certain circumstances, euthanasia or mercy killing is never permitted, as it amounts to murder. However, the decision of the Supreme Court in Gian Kaur has negated the allowance to commit suicide and thus this decision of Bombay High Court has no force of authority now.
To summarise, in the Indian context,
(1) There is a clear difference between Euthanasia and suicide,
(2) Assisted suicide qualifies as abetment to suicide and is consequently punishable under Sec. 305 or Sec. 306 of the Indian Penal Code.
(3) Euthanasia, as such, is murder (homicide) and falls under Sec. 300
However, what is still unsettled is that
“Whether mercy killing, on the request of the patient, is saved by Exception 5 of Sec. 300?”
It is also submitted that since there has not been any direct case of mercy killing before the Indian courts, it cannot be stated with certainty as to what shall be the reaction of the Courts if such an argument is taken up before the Courts.
LEGISLATION ON MERCY KILLING: FEARS AND FALLACIES
Before any action being taken to legalise euthanasia, we must contemplate of the consequences as well. The most important fact that is associated with the legalisation of euthanasia is that it gives a sanction to the near-relatives and especially the doctor to end that life of any individual in the garb of releasing him from terminal pain. As experience in the Netherlands shows, legalizing voluntary euthanasia soon results in the widespread practice of involuntary euthanasia upon people with disabilities. The official Dutch government survey of euthanasia practices in that country finds more than 25,000 cases where doctors performed euthanasia without the patient's consent. More than 80 percent of those "mercy deaths" were performed on people with disabilities who were not terminally ill. With the population of entire Netherlands being 15.5 million, the number of enforced deaths raise a need for severe review of the entire situation.
Also, one major argument against mercy killing being legalised is that such a law would be tantamount to declaring open season on the disabled because society is flooded with caregivers who would respond by acting upon the self-interested belief that their disabled dependents should be put out of their misery. And if such a person were to kill and claim that he had acted out of compassion, who could prove otherwise?
Even if mercy-killing is legalized, who or what determines the criteria of the suffering, the individual is facing so as to allow him to embrace death. Should it be the recommendation of a recognized doctor that the patient so named cannot be cured? Or it should be testified by the parents or near relatives that their ward cannot survive but with acute pain and suffering, which they cannot withstand? While in the former, there can be no certainty of though, for perception of medical experts differ as well, the amount of pain in the latter option cannot be gauged so as to set a bench mark that this level of pain, if being suffered by the patient will allow him to opt for medical termination of life.
Decisions left in the hands of doctors or relatives are very risky also. It might not always be clear that relatives or doctors are always acting in the patients' best interests. A doctor may be waiting for an organ for a transplant, for instance, or for a bed to become free, and relatives may simply wish to be relieved of the burden of an ill member of the family.
It has been contended that if such legislation is to take effect, euthanasia should be administered at or upon the consent of the patient. But this point of consent of the patient being taken by the supporters of euthanasia also fails to consider that if one is in great pain or is suffering from mental problems then the person is not in a position to make a free and balanced decision. The elements of free consent also need to be imported in our case and for any patient, who gives such consent, it could be argued that his consent was vitiated by undue influence. What consent then it actually remains and more importantly, is it worth while to decide the question of one’s life on the basis of he himself, who in majority of times would certainly be liked to be relieved of the immense pain and suffering, that undergoes in every medical operation whether involving the question of life or otherwise. Does that mean that each time one feels dissatisfied with his present lot, being in a not-so-comfortable physique, he or other will be allowed to end his life? Certainly, this must not be the end point of any law in this regard as it will, nevertheless, be more exploitative rather than beneficial.
Then again, even the consent of the patient alone, thus, would never justify the taking of another person's life. A lot of patients will not wish their families' suffering to be caused from having to look after them and to relieve them of their suffering, both economical and emotional, which in all cases is imputed to them, they would consider. What remains of the legislation with such provisions? Nonetheless the fact that it is virtually not possible.
If policies or laws permitting assisted suicide are approved, assisted suicide could become the only type of "medical treatment" to which certain people -- those who are members of minority groups, those who are poor, or those who have disabilities -- would have equal access, as along with their rich counterparts. Or in other words, the last (poor) to receive health care would be the first to receive assisted suicide. It can be better explained by an illustration to this cause. Let us take two men who suffer from a same incurable, terminal disease but one belongs to a rich and affluent family while the other owes its origin to the slums and marshes. The basic strategy here, of any business minded doctor will be to prescribe euthanasia for the one who has little or perhaps no means to support his cause such that he can get a bed in his hospital free for such others belonging to the high society, prolonging whose treatment, he can not only earn his livelihood, but may as well accumulate the required amount to expand his capacity or to add another wing to his credit i.e. another achievement to add to the hospital’s reputation. Now if this is the simple outcome of legalizing euthanasia, without laying down the implications, the exercise would be futile, proving to be more dangerous, specially for the needy and those unable to afford their means and resulting in giving unfettered powers to the doctors.
To go by the results of the survey conducted on doctors on this issue, in India, the following observations were made. Though this has not been analysed on a significant scale involving a large cross section of the profession, extracts from a sample survey of 200 doctors carried out by the Society for the Right to Die with Dignity in Bombay, do offer some indications :
• 90% stated they had the topic in mind and were concerned.
• 78% argued that patients should have the right to choose in case of terminal illness.
• 74% believed that artificial life supports should not be extended when death is imminent; but only 65% stated that they would withdraw life supports.
• 41% argued that Living Will should be respected. 31% had reservations.
• Considerations involved ethics, morality, law and religion in that order of importance.
• More than 70% were apprehensive of the abuse of the law if one was enacted to legalise voluntary euthanasia.
This entire picture, especially the last one poses a serious reservation to all our attempts to legalise euthanasia in the country. If the carriers or rather the modus operandi of the entire scheme is not clear as to the way this process has to be undertaken, the dilemma on its very existence, leave aside its implications, persists, there in no justification in bringing such a law in force.
To qualify further, even if we permit mercy killing, can we depend upon a doctor's decision to draw the line, certainly who is not a legal luminary so as to understand as to when the requirements of law have been met with and is also flown by the same emotions as the relatives of the patient do, being in constant touch with the diseased? Is it not too much asking them? And the matter gets abruptably ended when asks if the medical fraternity is really qualified to deliver a verdict on whether a patient should live or die.
However, the most talked of is the SLIPPERY SLOPE argument. The essence of the argument relates to the fact that permitting voluntary euthanasia would over the years lead to a slide down the slippery slope and eventually we would end up permitting even non-voluntary and involuntary euthanasia. The opponents of euthanasia point out two relevant examples for the working of this slippery slope.
(1) In England, when the House of Lords, in Airedale NHA Trust v. Bland permitted non-voluntary euthanasia in case of patients in a persistent vegetative state. Subsequently, the Supreme Court of Ireland, in Re A Ward of Court expanded the persistent vegetative state to include cases even where the patients possessed limited cognitive faculties.
(2) In Netherlands, the Supreme Court in 1984 had held that euthanasia could be lawful only in a case of physical illness. However a decade after the case, the same Supreme Court, in Chabot’s Case held that is could even extend to cases of mental illness.
Euthanasia opponents have persistently claimed it is impossible in practice to make mercy killing legislation that will adequately protect vulnerable sick people from being killed.
Another issue that rises is that whose decision is should be that euthanasia should be administered? After all, who gives the verdict that it is high time now to end the life of the patient? The doctor, the near relatives of the patient, an independent physic-analyst or the patient analysis? The issue is still unresolved and remains to continue so. On the one hand, any pertinent laws on these issues ‘cannot’ simply be determined by public opinion since death is after all as personal an experience as life. However, without public support, such laws would obviously have no chance of passing.
Another major fear is that, while recognising the importance of individual patient autonomy, history has clearly demonstrated that legalised euthanasia poses serious risks to society as a whole. Patients can be coerced and exploited.
Thereby, the various considerations that needs to be reviewed while allowing a legislation on euthanasia can be narrowed down to,
1. The circumstances in which it would be lawful for a medical practitioner to cease or to authorise the cessation of life-sustaining treatment of a patient who has no spontaneous respiratory and circulatory functions or whose brainstem does not register any impulses.
2. The right of a mentally competent person to refuse any life-sustaining treatment, even though such refusal may cause or hasten his/her death.
3. The right of the medical practitioner responsible for the treatment of a terminally ill patient to increase the dosage of medication, with the object of relieving pain and distress, even if the secondary effect of this may be to hasten the patient’s death.
4. Whether it would be lawful for a medical practitioner to act on the request of a well-informed, mentally competent, and terminally ill patient to end his/her suffering by administering or providing a lethal agent.
5. The recognition of a written directive or ‘living will’ regarding the cessation of medical treatment in cases of terminal illness.
6. Recognition and validity of a power of attorney, particularly after the patient has become mentally incompetent.
7. Those instances in which the chief medical practitioner of a hospital or clinic may, in the absence of a directive of the patient or his/her agent decide to discontinue the treatment of the terminally ill patient.
8. The circumstances in which a court may order the cessation of medical treatment or the performance of any medical procedure which would lead to the termination of a patient’s life.
These can prove to be the grounds for permitting a legal sanction recognizing as a viable option, at the disposal of the patients who do not wish to live in anymore. However, any decision requires due deliberation and thought. Also, what ever may be the provisions; there always remains a scope for manipulation and abuse. How far an abuse can be permitted in the case involving the life of someone is also a thought requiring criterion.
A critical assessment of the topic would certainly help us to form a rational view. Let us analyse the methodology of the supporters of the cause. First, a "hard case" is spotlighted wherein it is contended, with assertion that mercy killing was a necessary last resort on account of the unbearable and incurable pain of the deceased. Then assurances are made that the method and timing of death were freely chosen by the deceased (who being dead, is unable to refute these claims). Finally, all those who dare to raise questions about such death are accused of lacking compassion and merely want to force others to suffer even beyond the stage where death would inevitably have been the natural outcome, but for the life sustaining equipments, engrossing the deceased. If one looks at the situation from this viewpoint, what shall be the natural outcome of a rational outlook? Certainly a refusal of the claim. However, one cannot follow this way of arriving at a judgement, with a preconceived outlook. It has to be a neutral approach.
Also, the issues of right to a dignified death and mercy killing are not just the concern of the medical profession alone, and it should be so for the entire society to keep a watch over abuse of the concepts. It is an issue of humanism and compassion. Society will need to change its value systems in the context of the changing medical scenario, of socio-economic environment, of increasing cost of medical services and their cost-effectiveness. Death is not really good for any human being. It fulfils no natural need. It does not actualise any potential rooted in human nature. In facts, it destroys all potentiality, all human nature.
After all, what is the connection between rights and laws? Just laws secure natural human rights. A just government passes and enforces just laws. Because the right to life is inalienable and indefeasible, no government can authorize the intentional killing of a patient and no patient can voluntarily consent to being killed. Those who claim of liberty must understand that liberty is not an unlimited good. It is only a qualified liberty that we sustain. It certainly has definite external limits (being harm to others as in case of euthanasia) as well as internal limits (i.e. those acts which are inconsistent with the very nature of liberty) and this is the very precise reason as to why the argument of the patients being given autonomy to take decisions as to when they wish to prescribe death is incoherent and self-defeating.
The vast majority of doctors understand the sense of responsibility and duty expected from them and will continue to strive to meet it. Also, if we really accept the argument of euthanasia, what can be the possible solution to the issue is that on the one hand it should be legal to relieve suffering and on the other it should remain illegal to protect people who are incapable of making a decision. Is such a self-conflicting situation possible? Is it practicably possible to keep such a fact-based application of law? If we cannot, then we are not justified in supporting its stand and thus the only possible solution that remains is to maintain our present position.
At the end I would like to state that euthanasia also known as mercy killing is simply taking one's own life without mercy for there is no mercy in killing. Death is an inevitable and integral part of our lives and we should not sweep the issue under the carpet by using doctors to dispose of the dying. Also, one has to agree that there is hardly a critical thought about what we mean with 'dignity', 'quality of life', 'suffering', 'rational' and the like. These simple words hide a minefield of possible interpretations and only a few think about that my understanding of them may significantly differ from, for instance, the medical or legal profession. Who is to decide then? Why? And on what grounds? In theory some forms of euthanasia could be a blessing, in practise the underlying issues turn it into a battlefield with casualties on both sides.
To conclude, it would be here appropriate to reiterate the observation made in Rex v. Cog
“… euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful: but that result could, I believe, only be achieved by legislation which expresses the domestic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control.”
Whatever direction the law does take, clearly it must attempt to balance the competing principles of personal autonomy and the protection of human life. It must not allow questionable legal fictions or private interests to erode the fundamental values and principles that define the very character and essence of the Indian society. Professor Gerry Ferguson accurately summarized the challenge of any future law reform in these words: "The challenge in any such reform is to uphold respect for the sanctity of all human life, while being careful at the same time to recognize human autonomy, dignity and privacy, and not to force any unnecessary prolonging of an inevitable death."