In 2005, a PIL was filed by NGO ‘Common Cause’ seeking a solid system for certification of Passive Euthanasia and legalisation of ‘living will’ in India. The killing of a patient suffering from an incurable and terrible sickness or in an irreversible coma painlessly. A person who chooses euthanasia has a terminal illness. However, there are times when some people wish to end their lives. In many circumstances, it is done at the desire of the person, but there are times when they are too ill, and relatives or the courts must make a choice. For many years, the problem has been the subject of passionate arguments and debates, surrounded by religious, ethical, and practical factors.
Introduction — Right To Die In India
According to the Constitution of India, the Right to life is one of the basic fundamental rights, without which no other rights may be exercised. The term “right to life” refers to a person’s fundamental Right to live. However, if a person has the Right to life, does he also have the RIGHT NOT TO LIVE, i.e. does he have the RIGHT TO DIE? The Right to life, which includes the Right to live with human dignity, would imply that certain rights are guaranteed until the end of an average lifespan. This could involve a dying man’s Right to die with dignity. However, the right to die with ‘dignity’ must not be mistaken for the Right to die an unnatural death that shortens one’s lifespan. As a result, the problem has been the subject of passionate arguments and debates about whether passive euthanasia should be legal in India.
Euthanasia is derived from a Greek word called “Euthnatos”, which means easy killing. The killing of any person or patient suffering from an incurable and terrible sickness or is in an irreversible coma painlessly. Euthanasia can be understood as mercy killing. A person who chooses euthanasia has a terminal illness. However, there are times when some people wish to end their lives. In many circumstances, it is done at the desire of the person, but there are times when they are too ill, and relatives, doctors or the courts must make a choice. The Supreme Court of India legalised passive euthanasia in 2018 with some conditions and permitted ‘living will’ by patients to withdraw medical support if they go into an irreversible coma. However, active euthanasia is still illegal in India.
1. When and why does someone opt for passive euthanasia? What are the types of euthanasia?
2. What is Living Will? What are the Guidelines related to the living will? What will happen if there is no willing will?
3. What is the difference between suicide and euthanasia?
When and why does someone opt for passive euthanasia? What are the types of euthanasia? A person suffering from terrible sickness and incurable diseases causing unbearable pain to the patient opts for passive euthanasia. However, a survey was done regarding passive euthanasia, and the result was that less than a one- third of patients request euthanasia because of severe pain. These terminally ill patients want Passive Euthanasia because physical conditions severely damage their quality of life, e.g. incontinence, paralysis, and difficulty swallowing. Another factor is Psychological, which directs patients to consider euthanasia, including loss of dignity, feeling like a burden on family, friends and relatives, and Depression.
FORMS OF EUTHANASIA
Active Euthanasia and Passive Euthanasia
Through active euthanasia, a person brings the patient’s death directly and purposefully. In passive euthanasia, the patient’s life is not taken directly; instead, they are left to die.
Illustration: When a person dies due to an act, such as being given an overdose of painkillers, this is known as active euthanasia.
When someone dies due to someone else’s omission, this is known as passive euthanasia. This can be accomplished by discontinuing or delaying treatment. Discontinuing treatment means turning a machine that keeps a person alive so that the person dies of their illness, whereas delaying treatment means not performing a surgery that will extend the life of a patient suffering from a particular illness.
Passive euthanasia is traditionally regarded to be less harmful than active euthanasia. However, some people believe that active euthanasia is morally superior.
Voluntary Euthanasia and Non-voluntary Euthanasia
An individual who is about to die requests voluntary euthanasia then, this is known as voluntary euthanasia.
Non-voluntary euthanasia happens when a person is in an unconscious state of mind and thus unable to make a meaningful choice between living and dying (for example, a newborn or a person with severely low intelligence), and an eligible person makes the decisions or takes action on his behalf.
Non-voluntary euthanasia also includes situations in which the person is a kid who is cognitively and emotionally capable of making the decision but is not legally considered old enough to do so, so someone else must make the decision on their behalf.
When a person chooses life but is killed anyhow, this is called involuntary euthanasia. This is commonly referred to as murder; however, in some situations, the killing could be justified as being for the good of the person who died.
This occurs when a treatment (typically to relieve pain) has the unintended consequence of hastening the patient’s death. Some people consider this morally acceptable because the primary goal is not to kill. The idea of double effect offers a formal justification along these lines.
This generally refers to situations where the individual about to die wants and requests assistance in killing himself. It could be as simple as obtaining medicines for the individual and placing those substances within their grasp.
What is Living Will?
A person’s Right to provide an advance directive on the course of his or her treatment, including the withdrawal of life support, if such a circumstance arises, is known as a living will.
A living will relieve grieving family members of the moral weight of determining whether or not to remove life support from a terminally sick person. When patients have signed a living will, doctors may be exempt from accusations of wrongdoing or negligence.
The Guidelines For Living Will
- After having full awareness, an adult of sound mind can execute the will without coercion, and the document must be signed in front of a First Class Judicial Magistrate in the presence of witnesses.
- It must specify when medical treatment may be stopped or when no particular medical treatment shall be given that has the only purpose of postponing the dying process that would otherwise cause him/her unbearable pain.
- The name of the guardian or close relative who will be authorized to refuse or withdraw medical treatment should be specified.
If There Is No Living Will
- In the absence of an Advance Directive, the procedures and safeguards must follow the same guidelines as in an Advance Directive, with a few exceptions.
- The family members shall be informed of the pros and cons of withdrawing or refusing further medical treatment for the patient, and if they give consent in writing, the Hospital Medical Board shall certify the course of action to be taken.
- The hospital must notify the jurisdictional Collector, who will form a Medical Board consisting of the Chief District Medical Officer as Chairman and three experts with experience in critical care from general medicine, cardiology, neurology, nephrology, psychiatry, or oncology.
- If the board approves the withdrawal of life support, notice must be given to the First Class Judicial Magistrate and the patient’s family members.
- Once again, the Magistrate must verify the medical reports, evaluate the patient’s condition, consult with the patient’s family members, and, if satisfied in all aspects, may support the Collector’s nominated Medical Board’s judgement.
- In case of conflicting opinions – the patient’s nominee, a family member, the treating doctor, or hospital staff can ask the High Court for authorization to remove life support.
- The High Court may appoint an Independent Committee of Doctors, and in such circumstances, the High Court must make a decision as soon as possible.
- The High Court must give detailed reasons, keeping in mind the principle of “best interests of the patient.”
What Is The Difference Between Suicide And Euthanasia?
Between suicide and euthanasia, there is a conceptual distinction to be made. Suicide occurs when a person kills himself voluntarily by getting himself stabbed, consuming poison, or any other means. Without question, suicide is a deliberate attempt to end one’s life. It is the act or occurrence of someone purposefully killing themselves, usually owing to sadness or other factors such as frustration, exam failure, or difficulty finding a good job. Euthanasia, on the other hand, is the action of another person to end the life of a third person. A third party is either actively or passively involved in euthanasia, meaning he aids or abets the killing of another person.
It is also worth noting that this situation distinguishes between ‘assisted suicide’ and ‘euthanasia’. Assisted suicide is when someone knowingly assists someone else in committing suicide, such as by giving the person the means to do so. A ‘physician-assisted suicide’ occurs when a doctor assists a patient in killing himself (by prescribing fatal drugs). As a result, because the patient is the one who commits suicide, the patient has absolute control over the process that leads to death. The other person only assists (for example, providing the means for acting). Euthanasia, on the other hand, can be active, such as when a doctor administers a lethal injection to a patient or passive, such as when a doctor removes the patient’s life support system.
Scenario Throughout The world
- As of March 2018, euthanasia is legal in the Netherlands, Belgium, Colombia, Canada and India.
- Assisted suicide is legal in Switzerland, Germany, Japan, the United States of Washington, Oregon, Colorado, Vermont, Montana and California.
- South Korea has also become a euthanasia legal country, both active and passive euthanasia.
Landmark Cases Of Euthanasia In India
- In the case of Gyan Kaur vs State of Punjab (1996)[i], the Supreme Court held that euthanasia and assisted suicide are unlawful in India. The court held that the Right to life under Article 21 of the Indian Constitution does not include the Right to die.
- In Aruna Ramchandra Shanbaug vs Union of India (2011)[ii], the Supreme court held that passive euthanasia could be allowed under exceptional circumstances under strict monitoring.
- In 2014, a three-judge bench of the Supreme court of India termed the judgment in the Aruna Shanbaug case[iii] to be ‘inconsistent in itself’ and referred the issue of euthanasia to its five-judge Constitution bench.
- In Common Cause vs Union Of India (2018)[iv], a Constitution bench, led by the Chief Justice of India Dipak Mishra, upheld that the fundamental Right to life and dignity includes the Right to refuse treatment and die with dignity. It held that the Fundamental Right to a meaningful existence includes a person’s choice to die without suffering.
Justice Chandrachud held:
“Life and death are inseparable. Every moment our bodies change, life is not disconnected from death. Dying is a part of the process of living.”
In my opinion, the Right to life is one of the most basic fundamental rights, without which no other rights may be exercised. The term “right to life” refers to a person’s fundamental Right to live. However, if a person has the Right to life, does he also have the Right not to live?
According to the above research, we can conclude that only severely ill patients want Passive Euthanasia because physical conditions severely damage their quality of life.
In my opinion, legalising passive euthanasia was correct, and I support it entirely as the person suffers from such a condition that the Right to die should be safeguarded under Article 21.
This article is written and submitted by Mohd Shaaz Peerbaksh during his course of internship at B&B Associates LLP. Mohd Shaaz is a 5th year law student from IMS Unison University, Dehradun.