ACTIVE – PASSIVE EUTHANASIA
This article discusses the concepts of Active – passive Euthanasia, laws relating to Euthanasia and the need for legalisation of Euthanasia in India. This article is written by Ananya Singh and Devanshi Singh, 2nd year law students from Banasthali Vidyapith, Jaipur.
Euthanasia means ‘mercy killing’. Active Euthanasia is illegal in India while, allowing a patient to let him die by withholding his treatment or removing him from life support system if he is terminally ill or is in the vegetative state, then, it is legal. It is a very critical situation that directly killing a terminally ill patient is considered to be a crime but letting him die slowly and let him suffer and tolerate pain for a long time is legal. Now, Passive Euthanasia has been legalized by the Supreme Court in India since 9th of March, 2018 by the Hon’ble Chief Justice of India, Mr. Deepak Mishra. But the agony of the patients does not reduce by the Passive Euthanasia. It is just a ‘Living Will’ which the patient signs in his sound mind state to have the right to withdraw or withhold his treatment if in future he gets terminally ill. Court acts as a guardian of people by providing various rights to them on the basis of different Articles of Indian Constitution, like Article 21, according to which people have the right to life and personal liberty. Under Article 224 of the Indian Constitution we can file case for the violation of Article 21. Similarly, the point is that as if people have the right to life, they should also have the right to die if they need to or if they are suffering from any serious disease which cannot be cured by medication. Active euthanasia should be legalized in India to reduce the number of patients because the quantity of incurable patients in India is much more than some of the other countries. But it should only be legalized when the patient is really in need of that otherwise the crime can get increased in hospitals and among the relatives.
Literary, in Greek, Euthanasia means “good death”. The word Euthanasia was coined by an English philosopher and statesman Sir Francis Bacon in the early 17th century. The act to bring about the death of a person directly or indirectly for their own good is called Euthanasia.
Indirectly to bring about the death of a person by withholding or withdrawing the treatment for his own good if the patient suffers from an incurable disease and is in extreme pain. For example, Shelly gets cancer, but the doctors have caught it early enough that it will be easily curable. If she goes untreated, she will die in a year. She denies the treatment. Treatment is withheld and she dies soon.
This will be the passive euthanasia, as the treatment is withheld or withdrawn either due to patient’s own will or due to some financial problems.
Active Euthanasia or it is called as Physician – assisted suicide. The act to bring about someone’s death directly by giving lethal injection for their own good is called active euthanasia. For example, John suffered from a death causing disease. He had two weeks for living his life. But he was in extreme incurable pain and agony. He spent his time in Agony and was unable to bear the pain. He was not able to sleep and thus asked for death. The doctor gave him a lethal injection to kill him and he died. This will be the active euthanasia, a
s the death is directly brought to the patient if he/she is in extreme pain which is incurable. The High Courts of India has the right to grant permission for euthanasia under Article 226(1) of the Constitution.
But Active Euthanasia is not considered good enough in many countries including India. It is considered to be a murder to directly kill the person, even though he/she is in great demand of it.
DOING v ALLOWING HARM or KILLING v LETTING DIE
- The disease is what leads a person to death in Passive Euthanasia, while in Active Euthanasia the physician or the doctor leads to the death of the patient. This is expressed by the sentence, “just let nature run its course” or “stop prolonging death”.
- We might think that killing an innocent person is always a wrongful act. According to our moral society, killing as always worse than letting die. In active euthanasia, physician directly kills an innocent person, no matter if he would be suffering from an incurable disease.
The traditional distinction between active and passive euthanasia requires critical analysis. Active Euthanasia is in many cases more humane than passive euthanasia, because in active euthanasia patient who is suffering from an extreme pain dies directly by giving a lethal injection and gets an immediate relief from his/her agony. The active and passive euthanasia distinction is considered to be extremely important for the ethics of medical profession. It is allowed in a few cases to stop the treatment and let the patient die. But to directly kill or take the life of the patient is never permissible in most of the countries. This creed is accepted by most of the physicians, and it is supported by The House of Delegates of the American Medical association.
To start with a similar type of condition, a patient who was suffering from an incurable lung cancer was in extreme agony, which could not be reduced any more by medical care. So he asked the doctor to take away his life by withholding the treatment and his family also agreed to this situation. The act of the doctor was justified because the patient was in great pain. Since, he would die either today or tomorrow, so it will be wrong to prolong his suffering needlessly.
LAWS OF INDIA
The country of India is extremely affected by the religion and traditional beliefs. Let us consider the validity of euthanasia under the laws of India by different ways:
UNDER THE INDIAN CONSTITUTION:
Article 21 includes various rights like, the Fundamental Rights; Right to Life and Personal Liberty. The rights of human are those that are concluded from the law which has been evolved through natural rights; rights inherent to people by virtue of their being human and being of a moral and rational nature and having a common capacity to reason.
In the above view, it can be concluded that Euthanasia should be legalized because the life of a person becomes needless or helpless if he is unable to do his jobs by himself. The natural rights of life, to live a healthy life with dignity is broken when he is forced to live with a suffering of a terminal disease.
PATH-BREAKING JUDGEMENT OF ARUNA SHANBAUG CASE:
In the case of&n
bsp;Aruna Ramchandra Shanbaug v. Union of India & Ors., on 7th March, 2011 Aruna was in the Persistent Vegetative State for 37 years due to the sexual assault. She was alive due to life support system. On the basis of her case, the Supreme Court of India legalized Passive Euthanasia in 2018 and added that the High Court can give the permission for Passive Euthanasia to the terminally ill patient according to Article 226(1) of the Constitution.
THE REPORT OF LAW COMMISSION:
It is to remember that the 17th Law Commission of India then headed by J.M. Jugannadha Rao in its 196th Report submitted in April 2006 titled “Medical Treatment to Terminally Ill Patients” had supported and made recommendations for drafting legislation on the passive euthanasia.
Economic value in the country like India is the very basic important need of the people. The hospital or medicine charges are not afforded by everyone and people are also unsure that the patient will recover or not. Thus if there is no chance of recovery then the family will like to choose to withdraw the treatment of the patient according to their financial benefit.
CONCEPT OF A LIVING WILL
A “LIVING WILL” is a document prepared by a person in sound mind condition clarifying that if she/ he goes into a vegetative state or any other disorder which is incurable then his/her poor condition should not be prolonged by using the life support system. Prolonging the life of a patient who is terminally ill, on the basis of love and affection by the near and dear ones increases the agony/problems of the patient.
IMPLICATIONS OF THE SUPREME COURT DECISION
With the living will, there is no chance of misuse of passive euthanasia by the relatives of the patient who want him to die irrespective of his medical condition. It also spares relatives from taking tough decision which is liable to be misinterpreted by others. Relatives often complain of a private hospital keeping a dying patient artificially alive by putting him on life support just to make more money. Passive euthanasia through a living will can put an end to such practices. Above all, the new ruling will gives the people the right to die with dignity.
Euthanasia both in Active and Passive forms, should be legalized everywhere and must be provided to every needy patient according to his need either of Active or of Passive. It must be legalized according to the amount of pain a patient has to suffer from, due to his extreme agony or comatose or vegetative state for a long period of time. The condition of the body can only be defined by the patient, neither by the doctor nor by Govt. In a democratic country like India the Fundamental Rights are given the superior position over any other substantial law. Thus, Right to die should be treated as the fundamental rights of the Constitution which are now given its place in the Constitution according to the latest amendment in Constitution.
The Supreme Court specified two irreversible conditions to permit Passive Euthanasia Law in 2011, i.e.:
- The brain-dead for whom the ventilator can be switched off.
- Those in a PVS for whom the feed can be tapered out and pain managing palliatives added according to laid down international specification.
Finally, on 9th of March, 2018, the Supreme Court of India legalized Passive Euthanasia by means of the withdrawal of life support to patients in a PERMANENT VEGETATIVE STATE. The decision was made on part of the verdict in case of involving Aruna Shanbaug, who had been in a PVS for 37 years until her death in 2015.
IS PASSIVE EUTHANASIA BETTER?
Passive Euthanasia is considered to be morally superior to Active Euthanasia because it means allowing the patient to die and not to kill him, is morally worse and punishable by the law, but letting someone to die is not punishable by law.
Euthanasia is performed when the given conditions are fulfilled-
- The patient’s suffering is unbearable with no sign of improvement.
- The patient’s request for euthanasia must be voluntary.
- The patient must be fully aware of his/her medical conditions.
- The patient’s request cannot be granted when under the influence of others.
span style="font-family: "times new roman"; font-size: 12pt; text-align: justify;">There must be consultation with at least one other independent doctor who needs to confirm the conditions.
- The patient is at least 12 years of age.
- Patients between 12 and 16 years of age require the consent of their parents too.
LEGAL CASES RELATED TO EUTHANASIA
- Mr. Narayan and Mrs. Iravati Lavate, Mumbai v. Union of India: An elder couple from Mumbai requested the president of India for the Euthanasia to be given to them. But as they were not suffering from any incurable disease, their request for euthanasia was rejected. They wanted to die due to the fear of falling terminally ill in future.
- Anamika Mishra v. Union of India: On 13th March, 2018 lady from Kanpur, U.P. wrote to the Humble Prime Minister to seek permission for the euthanasia for her daughter who is suffering from Muscular Dystrophy Disease. Her father lost his life because of the disease. And now, because of this disease and poor financial condition, her mother had asked for euthanasia for her daughter.
- Dennis Kumar v. State of Tamil Nadu: Dennis Kumar asked for the permission of euthanasia to the Distt. Collector for his infant son who was suffering from an unknown disease. He requested because he was not able to bear the financial expenses and also was not able to see the agony of his son. But his plea was rejected by the State.
LEGALIZATION OF EUTHANASIA:
It means to give the legal right to a person to die with dignity when he suffers from a terminal disease or is in PVS of life or in a bad condition due to medical reasons. The Suicide Attempt due to mental pressure is punishable under the Indian laws. But to ask for letting the person die due to extreme agony is not punishable. The Court itself grants the permission for Euthanasia in cases of PVS or when the patient is in extreme pain. But the willingness of a person to die should be due to the fact that there will be no further possible hopes of a recovery in future. The legal status of euthanasia has been presently debated by the legislation and the judiciary of different countries by different ways, and having different opinion about the active and passive euthanasia.
In spite of a great rejection by most of the countries for euthanasia, it is however been permitted in some of the countries, like the Jurisdiction of the United States.
Euthanasia has been completely illegalized by the United States Supreme Court in the cases of Washington v. Glucksberg and Vacco v. Quill.
A physician who provides lethal drugs so that another person can end his life will be liable as abettor of helping him commit suicide. In India, abetment of suicide (Section 306, IPC) is a criminal offence. The constitution bench of the Supreme Court in Gian Kaur v. State of Punjab held that euthanasia is not lawful in India. In Gian Kaur’s case the court held that the Right to Life under Article 21 of the Constitution does not include the Right to Die.
WHY SHOULD EUTHANASIA BE LEGALIZED?
Active Euthanasia should be legalized in each and every part of the world because it is more humane to kill someone who is suffering from pain and agony due to being in vegetative state which cannot be cured again. It is better to kill the patient today to let him die with dignity instead of letting him tomorrow with a severe agony. By Active Euthanasia, physician can give lethal drugs to the patient to directly kill him. But by passive euthanasia, the patient is indirectly killed by withholding his treatment which lets him suffer a lot and he dies slowly and slowly with a severe pain. By legalizing active euthanasia, a great problem and a large number of patients’ agony can be removed or reduced at least, because a person severely suffering from a disease generally wants to die to reduce his suffering, not to increase his pain by withholding or withdrawing the treatment. These are the cases which show the problems suffered by the society due to illegalization of the Active Euthanasia:
Dr. Claudio de la Rocha v. St. Mary’s Hospital, Jimmins Ont.: Mr. Z was suffering from the lung cancer in October, 1991 and was placed on respirator for further survival, in St. Mary’s Hospital in Jimmins, Ont. But he asked for the plea of euthanasia. The doctor gave him active euthanasia by providing him certain doses of morphine at a certain time period of interval so that he may not suffer from exhaustion. But after a year, the doctor was asked for his suspension of 90 days so that the case of active euthanasia may not repeat again.
Dr. Nancy Morrison v. Queen Elizabeth II Hospital: Mr. B had to undergo 6 operations. Due to this he had to be treated in QUEEN ELIZABETH II HOSPITAL for severe infections. His family requested the doctors to withdraw the treatment because of incurable diseases he was suffering from. So, the doctor gave him certain doses of morphine due at a regular time period so that he may not feel suffocating. And, he died soon. But the doctor was suspended for 3 months by the higher authorities, as the case was considered to be of Active Euthanasia which is still not legalized.
“Dying is not a crime” – Jack Kevorkian
People have the right to die
As people have the fundamental right to live, similarly they also have the right to die. Like two side of a single coin, human life cannot occur without death. When people argue for their right to live, unknowingly they also argue for their right to die with dignity.
People have the right to choose
Like people have the right to choose for a life with dignity, similarly they have the right to choose for the death with dignity. No one else should force the person to live if he wants to get rid of his sufferings.
Euthanasia is not immoral
It is not immoral to give death to that person who is terminally ill and severely suffering from the pain. But it is truly wrong to make a person live a forceful life even if he is suffering from the pain and agony.
Euthanasia protects selfhood and human dignity
It is against ones dignity and selfhood if a person is forced to live even if he is unable to walk, talk, eat, breathe, or do his own basic work, etc. Euthanasia, thus, protects this dignity and selfhood.
Euthanasia does not harm the others
There is no harm to others by the legalization of euthanasia as it is linked only with the person to whom euthanasia is given.
Everyone has a right to a good death
As everyone has the right to good death, so it should not be denied to those who want this or those who truly n
Euthanasia does not shorten lifespan
Many of the euthanasia cases are overlooked because of a rare possibility of recovery which only increases the pain of the patient and does nothing else. It does not shorten the lifespan as patient’s normal life finishes the day when he is put to life support system to keep him alive.
It may be concluded that sometimes giving euthanasia to the patient is not good enough because there may be some chances of recovery, but it may be possible in a very rare cases of miracles. Euthanasia is legal only in Netherlands. Now Passive Euthanasia has been legalized in India too. But Active Euthanasia is still not legalized. It should be legalized to relieve the patients from the pain.
Stephen Hawking was also in favour of the Active Euthanasia. He said that there is no sense of keeping someone alive with pain, who is even not able to move, breathe, or talk on his own. Once he also asked for euthanasia when he suffered from Pneumonia but the doctors and the scientists refused to give him euthanasia by saying that he still has to do a lot in the field of Science which is much greater than his disease. But it is wrong I to keep someone alive without his own wish. Mr. Hawking said, “To keep someone alive against their wishes is the ultimate dignity”. He also said, “we don’t let animals suffer, so why humans?” So we should permit humans to decide for their benefit, either it should be by taking euthanasia or by rejecting it.
Hence, Euthanasia should be legalized. Everything has its own positive or negative impacts, but by considering only negative impacts, we should not make anything illegal. We should also consider the positive impacts of the same.
 CMAJ 1999 Mar 23; 160(6): 857-60.
 Health Law Journal 2002; 10: 1-30.