ASSISTED KILLING - A STUDY OF LAW POLICY AND
ETHICS
ABSTRACT
Ethical and legal
issues connected to conduct of clinical research involving human volunteers has
raised the attention of policy makers, attorneys, scientists and clinicians for
many years. Aim of clinical study is to gather and analyze methodical data
which can be generalized and draw conclusions so that clinical practice
improves and patients benefit in the future. Therefore, FBH's and BD's criminals
are inspired by a number of laws which do not privilege mercy killings,
believing compassion for murderer’s poor situation is not an independent reason
for a more lenient sentence. On contrary, in RS, legislator is part of a
charitable organization. Research participants play primary role as data
sources. Researchers are responsible for "protecting and maintaining life,
health, dignity, integrity, self-determination rights, confidentiality and
confidentiality of personal data of study subjects." Recent growth in
research has led to worries about ethical and legal questions. An overview of ethics and law will allow for
conduct of research in accordance with best practices.
Table of Contents
INTRODUCTION TO THE LEGAL
ETHICS
Against Morals Medical
Ethics and Public Policy
ii. Patient's
Autonomy and Best Interest of the Patient
Legal
status of euthanasia in india
Life 'and' Death with
Dignity "as a Human Right
Human Rights and Life
:The Judicial Pronouncements
i. Prettyv. Director of Public Prosecutors
Right to Life under
Indian Constitution
INDIA AND EUTHANASIA:THE
POIGNANT CASE OF ARUNASHANBAUG
Who is Aruna Ramchandra
Shanbaug?
Ethics and the euthanasia
debate
Findings of the Empirical
Study
INTRODUCTION
Physician assisted killing and its procedure entail
complicated issue regarding legal and procedural compliance in countries across
the world
Every adult with sound mind has right to determine what
should be done with his or her person. It is unlawful to administer high risk
medications which cause harm to the patient who is conscious and of sound mind
without his consent.
Patients with PVS and no hope of improvement cannot make
decision about treatment given to them. It is ultimately for the court to
decide as parens patriae as to what is in the best interest of the patient.
A decision not to terminate results in developments such as
advancement in medical science, discovery of new evidence, changes in the law
or simply unexpected death of the patient despite administration of life
sustaining treatment.
Physician assisted killing is much debatable subject
through out the world. The debate became increasingly significant because of
the developments. In Netherlands, Belgium, Colombia and Luxembourg, euthanasia
is legal. Switzerland Germany Japan and some states of USA permit assisted
killing. While it is illegal in Mexico and Thailand.
ETHICAL ARGUEMENTS
There are various reasons for supporting
as well as for opposing euthanasia; few of them are as follows:-
The opponents 'arguments are based on,
Sanctity
of Life
Religion plays a very important role in
building perceptions of the individuals of the society and almost all three religions
have condemned euthanasia. It is argued that it is the almighty god who has
given life to all the creatures and he is the only one who will take it away.
Human life is the gift of the all-powerful god and it is one of the greatest
into endure. It is also argued that human beings have no right to play the part
of God, hence religions condemn it as the biggest in sin, since it devalues the
precious gift given by God [32-35]
1.1 Against
Morals Medical Ethics and Public Policy
The other arguments
keep base of medical ethics. Medical
ethics puts high reliance of Hippocratic Oath. Based on words of 'Hippocratic
Oath' It has been argued that euthanasia is ethically wrong; according to
medical sciences, it imposes duty on the doctor to save lives of its patient
and not to administer any kind of lethal drug that takes away his patients'
life.
Medical ethics requires
health care and healing of experts, which does not stop patient's life. It has also been argued that
during present times, where medical advancements are developing with leaps and
bounds, the cure for a disease that is not found yet might be found in near
future. Thus, duty of a doctor is to protect and preserve life and not to
encourage them in taking their lives. If they are allowed to do so, it will,
also affect mutual trust between a patient and doctor relationship. Moreover,
decision to request deliberate termination of life is not made exclusively by
the patient [36].[1]
i.
No Legal Recognition
It is strongly argued
that law does not recognize euthanasia and is many times equated with homicide. Death with dignity statutes allow mentally
competent adult state residents who have a terminal illness with a
confirmed prognosis of having six or fewer months to live to voluntarily
request and receive a prescription medication to hasten their inevitable,
imminent death.
The issue of “right to die” was again raised in case
of Gian Kaur (1996) before the Supreme Court, comprising of
Constitutional Bench which overruled judgment of P. Ratinam's case and held
that “Right to Life” does not include “Right to die” or “Right to be killed.
If a person is terminally ill, it does not give him or anyone else a right to
terminate it unnaturally on the pretext of dignified death. If one does so, it
is measured as a penal offence [37].
ii.
Slippery Slope
Looking
to euthanasia situation in Netherlands and Belgium where law has been ruthlessly used to terminate the
life, it has been argued that, it would start with legalizing only for
terminally ill people but later on laws will change and then it may allow for
non-voluntary or involuntary euthanasia also.
iii.
Faulty Judgment
Miracles
occur especially in our culture when it is far from death and life; patients
that come out of coma after years are shown examples. Therefore, human life is
all about hope. We should not overlook human existence. Moreover, medical
practitioner is not god; he may err sometimes and may give faulty judgment
[38-40].
While proponents 'arguments are based on,
i. Dignity
of Life
Every
person has right to live a dignified life. If a person is bed-ridden or is in
persistent vegetative state living life
as good as vegetable or suffering from an intractable disease or living in
severe agony and pain with no chances of recovery, is he living a dignified
life? Does right to life impose duty upon a person to live a life, which is not
dignified? These are the few of the questions raised by euthanasia supporters.
Euthanasia
is a procedure according to which a person ends his difficult existence, so as
to alleviate the person of an incurable or terrible condition. When a patient
is suffering from terminal illness, he is deprived of dignified life as he is
forced to bear the pain and sufferings. Therefore, here law itself violates the
right of terminally ill patient by not allowing him a death with dignity
[41-45].[2]
ii. Patient's
Autonomy and Best Interest of Patient
The autonomy of patient and
principle of the patient's best interest are of crucial importance
according to the principles of medical ethics. Every patient is entitled to
choose treatment he or she wishes to take or to refuse. Treatment cannot be
imposed on any patient; this principle is accepted as a common law right of every
patient. If treatment were imposed on
the patient without his willingness, then it would amount to intruding privacy
of the patient [46-50]. Patient's best
interest is the other principle. When the treatment does not relieve the
patient's discomfort and actually adds to the discomfort, it can be of the
patient's best interest.
iii. Human
Right
Human
rights emphasize right to dignity, to
self-determination, and to cruel and inhumane treatment. As it is human right
to have privilege of dignity and self-determination,
plea of dignified death is reasonably justified. Human life has essence of
living a dignified existence and no forcing a person to live against the choice
of a person in an undignified way. The Indian Constitution explicitly lays out in
Article21 that people live with dignity. A person has a right to live a life of
minimal dignity and should this standard be lower than this minimum standard a
person should be allowed to finish his or her life [51].
Euthanasia
supporters frequently stress that if passive euthanasia is allowed and suicide
no longer a criminal offense it must also be allowed to have comparable
aggressive euthanasia. A patient will want to finish his life only with
tremendous pain. Instead of enduring a horrible life of torment and suffering,
he will rather die painless death. It is, therefore, moral that the patient
should die painlessly if he/she is aware that he/she would die due to the
terminal illness [52].[3]
Objective of the Study
Study is conducted with the following
objectives:
i.
To identify and explore
strengths and weakness in the constitutional, legal, ethical and moral
arguments surrounding euthanasia.
ii. To
examine and analyze literature on law on the issue of euthanasia.
iii. To
study juridical responses to euthanasia in expression of human rights.
iv.
To discover if the law in
present state is ample enough to deal satisfactorily with the issue.
v. To
study desirability of active and passive euthanasia in the liberal democracy.
vi.
To explore ways and means by
which the risk of abuse of legalization of euthanasia can be minimized.
LEGAL STATUS OF EUTHANASIA IN INDIA
In India, euthanasia is a crime section 309 of
the Indian penal code deals with the attempt to commit suicide and section 306
of the IPC deals with the abetment of suicide –both actions are punishable.
Only those who are brain dead can be taken off its life support with the help
of family members
Likewise,
the honorable supreme court is also of the view that right to life guaranteed
by article 21 of the constitution does not include the right to die. The court
held that article 21 is a provision guaranteeing protection of life and
personal liberty and by no stretch of imagination can end of life be read onto
it. However various proeuthanasia organizations the most prominent among them
being the death with dignity foundation keep on fighting for legalization of an
individual’s right to choose his own death.
Human
Rights and Euthanasia
Human rights, generally speaking, can be
seen as the fundamental and inalienable rights that are vital to live as a
human being. Human rights, regardless of nationality, caste, beliefs, sex,
etc., are those rights that all human beings hold, just because they are human.
Human rights are, generally speaking, the fundamental rights one cannot exist
without as a human being. These essential freedoms and human rights allow one
to grow and use one's own human traits,
In the 1948 "Universal Declaration
of Human Rights, “It says that the “foundation of freedom, justice and peace in
the world "is" are cognition of the inherent dignity of all members
of the human family and their equal and in alienable rights. "Everybody
has an equal right to life" and "all are equal before the law and
entitled to equal protection of the law without discrimination."
The term 'human rights' refers to all of
those rights inherent in nature without which one cannot live as a human being
and according to the Universal Declaration on Human Rights. In other words,
human rights are an eternal component of the human nature and are fundamental
to people's total growth. The substance of human rights that cannot be
dismissed by anybody must be defined in the spirit underlying adding phrases like
'inherent’, ‘inalienable', 'equal' and 'arbitrary' and 'no discrimination.' The
definition set up in the 'Man Rights Protection Act,'12 1993, repeated in this
respect, clarifying those human rights mean all of the rights which relate,
through various human rights instruments, to life, freedom, equality and the
dignity of a person. The Charter of the United Nations in 1945 reaffirmed the
trust of men, women, and nations, both large and little, in fundamental human
rights, dignity and dignity of the individual.
It is claimed that human dignity would
be affected whenever autonomy is threatened and human rights would be infringed
when a restraint on individual decision-making occurs. It therefore attaches
great weight to human autonomy and states that the suppression of human rights
is suppressed. In the numerous international Human Rights Instruments, the
right to life, freedom and safety for persons have become increasingly
important.
To move to the right to life as a basic
human right. According to John Witherspoon, the right to life is a primary
natural right, even before the signing of the social contract and the
establishment of society that belonged to man. These complete natural state
rights, which people possess after the creation of society, are the rights
which society maintain and protects when it is ratified under the social
contract. The right to life is first and foremost.
The debate on euthanasia continues, for
some life is scared gift from god and therefore, a person cannot have a right
to end it whereas for some human dignity and a dignified life is of a paramount
importance, hence they believe that an individual should have liberty to decide
the time and the way in which he wishes to die.
Life 'and' Death with Dignity
"as a Human Right
The researcher presumes that every
patient has a basic human right
i. A life terminate without
therapeutic stubbornness;
ii. To an end of life without
excessive suffering;
iii. To decide for himself about
his death.
Every patient has the right to care, his
therapy must be in keeping with his or her medical circumstances; his or her
efforts should also reduce his or her discomfort. However, its use should not
be over emphasized. Medical, psychological and spiritual improvement and
well-being of the sick person should be considered with the paramount
importance and the patient should be treated with utmost dignity with minimal
suffering.
The two options do not pose a particular
problem as far as human rights are concerned; although incoherent treatment
terminations and discontinued palliative care are sometimes referred to as
passive euthanasia and euthanasia indirectly, they are subject to decent death
category and are permitted as common law in many countries. However, the third
possibility adds controversy as it falls under the head of voluntary death,
which includes euthanasia and assisted suicide. The researcher in this section
has attempted to analyze few of the provisions of Human Right Instruments to
substantiate the suppositions that are made in the beginning of the section.
The preamble of the Universal
Declaration of Human Rights says in the beginning: “Appreciation of the
inherent dignity of each member of the human family is the basis of freedom,
justice and peace in the world."
The preamble of the Universal
Declaration of Human Rights states that, because of their inherent dignity,
human values are inherent in all human beings. The dignity in actual value is
worth living in this juncture. A human being's dignity is degraded when he is
suffering from a last sickness and is forced to live a horribly agonized
existence. It can help reduce people's suffering by permitting euthanasia for
someone who is finally ill and who has an incurable disorder. If a person
understands that death is approaching and that he is unlikely to recover and
live, he will godlessly wait for the end and all he thinks about is an
unpainful death. It can never be regarded as a decent life.
Human
Rights and Life: The Judicial Pronouncements
Not allowing a person with right to die
is challenged many times before the Human Rights Court as a blatant Human
Rights violation; in this part the researcher has analyzed few of the cases
that came forth the European Court of Human Rights.
i. Pretty v. Director of Public Prosecutors
Pretty v. Director of Public Prosecutors
is a very interesting case that discusses the Human Rights issues. Diane Pretty
suffered from an incurable and degenerative disease. She was doubly in
continent, paralyzed from her neck down. She had been fed in her belly through
a tube and couldn't talk. Her brain remained unharmed, however. Therefore, she
was fully unchanged in her capacity to think, analyze and make choices. She
lodged a petition and declared that she could not commit herself because of her
physical disabilities and so requested that her husband help her in committing
suicide without incurring the penalty provided for under the United Kingdom
Law. She also argued that, in accordance with Article2, Article 3, Article 8,
Article 9 and Article 14 of the European Convention on Human Rights and the
Fundament of Foundation, the refusal of the Director of Public Prosecutions to
grant her husband immunity from prosecutions if he assisted her in carrying out
suicides and prohibition in domestic law of assisted suicide violated her
rights. The petition contended that Article 2 included 'the right to control
the way one dies,' and hence it has a right to commit suicide. It is not
accepted. Under Article 3, it was torture or cruel or humiliating treatment for
her that her husband was prohibited from killing her. It is also alleged that
"The Suicide Act, 1961," according to Article 8, interfered with her
privacy right. It also violated its right under Article 9 to freedom of thought,
conscience and religion. Article2 maintained that the permission to those who
were physically able to commit suicide was discriminatory on the basis of
handicap, while the prohibition of those who were physically unable to commit
suicide was to make arrangements for another person.
There quest was denied by the House of
Lords and the European Court. The Court further found that the Director of the
Public Prosecutor had no authority to issue prosecution immunity. The two
Courts found that Article2, which could not be construed to incorporate in the
right to die, imposed on the State a duty to defend life. While the medical
condition can be seen as a torturing and inhumane treatment, the European Court
of Human Rights concluded that it was not imposed by the State. The Court has
also declared that Article3 should not be read alone but read in addition to
Article2.Article3 should be read. The House of Lord held that the right to
family and private life does not have the choice of shortening or ending life.
The European Court of Human Right show ever recognized the claim that a private
life constituted the right to choose problems relating to death. Arguments
pursuant to Article 9 were also rejected on the grounds that it could not
reflect or explain what it believes. However, pretty was allowed by the
European Court under Article 14 to be discriminated against. However, it was
justified that legalizing aids to suicide could lead to the manipulation of
vulnerable persons.[4].
Though the application was rejected, the
decision must be appreciated on the following three grounds.
a. Firstly, he did not state
that State's prohibition of assistance in suicide is not contrary to the
European Convention nor did he declare that State's making it legal would be
contrary to the European Convention. If the State sees proper, it may legalize
it, so that incompetence is not discriminatory.
b.
Secondly,
the case that if suicide is allowed and not punishable, logically follows that
individual who are unable to commit suicide because of their disablement, they
should be allowed to be killed by another person is given strong legal
endorsement.
c.
Thirdly,
the European Court of Human Rights recognizes that the right of the competent
person to reject life save therapy is recognized and that this right is
protected by the European Convention on Human Rights.
The case has added a fresh and
long-standing suicide and euthanasia issue. In English law, a patient can
refuse to take any treatment, even if the refusal may lead to death of the
person but assistance in committing suicide is still and offence.
ii. Haas v. Switzerland
The second interesting case concerns Haas
v. Switzerland68, where the issue of whether the State is obliged, under a
right to privacy, to ensure that a person who wants to commit a suicide can
obtain a mortal (sodium pentobarbital) product without a prescription, in order
to be able to end his life without pain nor wit, by way of derogation from the
law. Having suffered a severe bipolar affective disorder for around 20years and
thus considering him unable to live in dignity more frequently, the appellant
argued that the conditions which had to be met–and which he had not met–for him
to obtains had violated his right to a secure and dignified termination of his
life in Switzerland.
In the decision of the Court, Article 8
(right to respect privacy) of the Convention was not exceeded and the Swiss
authorities did not infringe that duty in the case of the applicant, assuming a
positive obligation to take measures to encourage suicide in dignity.
In particular, the Court emphasized that
the Council of Europe Member States were far from reaching agreement on an
individual’s right to choose how and when to end his life. Although suicidal
help in various Member States has been decriminalized, the vast majority of
them seem to be more important than their right to end their lives in the
protection of their lives. The Court found that in these situations States had
a broad range of appreciation.
iii. Koch v. Germany
The next in the series was Koch v.
Germany 6, where an application for authorization to receive a deadly dose of a
drug enabling it to commit suicide in Germany was filed in 2004 at the Federal
Institute of Pharmaceutical and Medical Products. The appeal was nonetheless
rejected.
The woman committed herself with the
help of an association in February 2005 both she and her husband went to
Switzerland. In April2005, the husband of the dead filed are quest to take
action to get a statement of illegitimacy of the decision taken by the Federal
Institute. The appeals have been found unacceptable by the Administrative
Court, the Administrative Court and the Federal Constitutional Court. The
applicant's objections related to the fundamental right to protect privacy and
family life in accordance with Article 8 of the Act. The denial of the grounds
of his case violated his right to respect for family and private life .In
particular because there was no consensus amongst Council of Europe Member
States as to whether or not to admit any form of assisted suicide, the Court
held that it was principally the task for the German courts to determine its
merits.
In all the three cases, the issue that
was raised was regarding interpretation of right to life as human right and the
pleas they all had is to respect human dignity in different situations and
allowing then a right to decide about their lives.
Right to Life under Indian
Constitution
Since the Constitution of India is
strongly inspired by England's Constitution, the Magna Carta (in 1215) charter
of England also gives birth to Right to Life. This Charter was reaffirmed by
the following monarchs. One of these accords known as the Statute of London's
Westminster of Liberties,in1354,specifies that "no man will be detained without
response by proper process."In1776, the American Declaration of
Independence was proclaimed that the creator has affirmed some unalienable rights,
including life, freedom and the search for happiness.In1791 it adopted Bill of
Rights and introduced 10 constitutional amendments, of which the fifth
amendment states: "Nobody...shall be...dispossessed without due process of
law of its life, freedom, or property." These two sections provide the
basis for the right to life in India's Constitution.
INDIA AND EUTHANASIA: THE POIGNANT CASE OF ARUNASHANBAUG
Who
is Aruna Ramchandra Shanbaug?
Aruna Ramchandra Shanbaug, a petitioner,
worked as a nurse at King Edward Memorial Hospital in Parel, Mumbai. On the
evening of 27 November 1973, she was assaulted by a sweeper from the same
hospital, tied her neck in a chain and threw her back. The sweeper also
attempted to violate her, but he sodomized her when he found out that she
menstruated. In order to avoid any commotion or movement, he wrapped the chain
around her neck. Next day a cleaner discovered her corpse unconscious with
blood all over lying on the floor. The flow of oxygen to the brain was thought
to have ceased due to strangling by the chain and the brain was thus injured.
This event has damaged her brain permanently and brought her to a lifelong
vegetative condition (PVS). The activist-journalist, Pinki Virani, subsequently
filed a case before the Supreme Court under Article 32 of the Constitution
claiming that she cannot be revived and improved. She should thus be permitted
to go to passive euthanasia and be exempt from her anguish and suffering.
The respondents, namely KEM Hospital and
Bombay Municipal Corporation, filed a counter petition for this case. This led
to an increase in differences between the two groups. In order to obtain a
clearer understanding of the issue, the Supreme Court ordered a team of three
renowned physicians to examine and report on Aruna Shanbaug's precise mental
and physical health. Doctors examined her complete medical history throughout
this research and thought that her brain was not dead. She is able to
comprehend and respond to events in her own manner. Furthermore, the body
language of Aruna showed no indication of her desire to end her life. Neither
the hospital nursing personnel exhibited any negligence to take care of her.
The doctor thus felt that euthanasia is not necessary in the present case. For
42 years she remained in this capacity and died in 2015.
Issues:
Should a person in a persistent
vegetative state (PVS) be allowed to withdraw from life-sustaining systems and
means?
If a patient earlier states that, in
case of futile care or PVS, he/she does not want life support measures, should
his/her desires be honored in such a situation?
Does a person's family or family have a
request to withhold or remove life support systems if such a request had not
previously been made by a person itself?
Judgment:
This judgment was given on 7 March 2011,
by the Hon'ble Division Bench of the Supreme Court of India, which included
Justice Markandey Katju and Justice Gyan Sudha Mishra. Aruna has been deemed
not brain dead and relied on the doctor's report and definition of brain death
provided for in the Human Organ Transportation Act of 1994 for his judgment.
She could breathe without the assistance of a machine on her own, she had
emotions and showed certain signs. While she was in a PVS, her health remained
stable. The reasons given here are thus not adequate to finish her existence.
It would be unwarranted. In addition, when resolving the matter, the Court held
that the KEM Hospital personnel would not be Pinki Virani, in this instance
next door to the patient's relatives. Therefore, the power to take such
decisions on her behalf is conferred to KEM Hospital. In the current instance,
it was the meal she survived. Thus removing life-saving measures would imply
taking her nourishment, which under Indian law is in no way justifiable.
Under some circumstances, the Supreme
Court authorized passive euthanasia. In order to avoid the abuse of this rule
in future, however, the courts determined that, after a proper process, the
authority to determine the end of a person's life would be subject to the
consent of the Court.
Whenever the application to passive
euthanasia is submitted to the High Court, the High Court Chief Justice shall
be a Bench of at least two justices who declare that the termination should be
allowed or not. The Bench should examine the views of a committee of 3 renowned
physicians before making any judgment. These physicians are also nominated by
the Bench after discussions with the relevant doctors. It is also the court's
responsibility, along with the nomination of the committee, to notify the
state, family, kins and friends and to give them with a copy of the report
produced by a committee of physicians as soon as feasible. And the court should
give the judgement after hearing all the parties. This process is to be
followed throughout in India until any law on the issue is enacted.
In the final judgement of this case
Aruna Shanbaug was refused euthanasia, considering all the essential
circumstances of the case. Court further held that if hospital personnel felt
the same need at any point in the future, they may approach the High Court
under these specified procedures. This judgement helps explain the problems of
passive euthanasia in India by giving a wide-ranging framework of rules. The
Court also suggested that Section 309 of the IPC be repealed. We've all
discussed the case. Now let's examine two key characteristics that have emerged
in this case and have been addressed extensively in later occurrences.
Analysis of
Judgment:
Euthanasia, as we all know also known as
the killing of compassion, is an act or practice of painlessly killing or
permitting death by rejection or withdrawal of artificial life support
measures1 for severe and incurable conditions or disabling physical conditions.
It may be active or passive in two
kinds. Active euthanasia is the employment of certain dangerous substances or
deadly techniques for killing a person. In the absence of which a person is
likely to die, passive euthanasia stops certain medical care. Passive
euthanasia may be voluntary and unintentional. If patient permission is
obtained it becomes voluntary and if a patient is not able to agree and someone
else makes decisions on his or her behalf, then this is unwilling.
The Supreme Court set forth rules for
passive euthanasia in Aruna Shanbaug's case. These rules allow for the removal
of a life support system that may eventually lead to the death of a person.
This decision enabled passive euthanasia in India under specific circumstances
which the High Court would determine. Later in 2018, in the case of the Common
Cause v. the Union of India, the Court ruled again that the right to die with
dignity was recognized and passive euthanasia was allowed and permitted for
people terminally sick and in long-term coma to remove their life-support
systems. The Court also included the notion of "living wills."
Living will - it is a document that
enables a person to decide in advance what course of treatment he wants when he
or she becomes severely sick in the future and cannot decide.
India is thus now one of the nations
that has recognized passive euthanasia in the globe. But the implementation of
passive euthanasia still has flaws. Like the case of Shanbaug, it was
obligatory to get authorization from the High Court before each case, and thus
it was a lengthy procedure. And it is now more difficult to provide passive
euthanasia in this new decision as it requires the execution of the Directive
in the presence of two witnesses, a judicial magistrate's authentication, two
medical boards' approval and a collector. Thus this delay is a significant
issue, since the overriding aim of passive euthanasia is to stop the suffering
of the individual involved. If the procedure is too liberal and simple,
however, it would always be susceptible to a tremendous abuse.
There are difficulties and issues on
both sides and what we need is a better method to do all this to make the idea
of passive euthanasia efficient and successful.
Dignity right
to die
Our constitution and legislation clearly
lay forth the right to life for all it’s people. It is an absolute right
protected by Article 21 of the Constitution and the right to life has no
uncertainties. But every time we speak about the right to die issues emerge, it
was always a matter of controversy for our legislators. The courts have read it
differently in separate decisions and have founded their opinions accordingly.
In the Maharashtra v. Maruti Sripati
Dubal2 case, the High Court of Bombay ruled that the right to life in
accordance with Article 21 also includes the right of death. Section 309 of the
Indian Penal Code (attempt to suicide) was argued to be unconstitutional since
it violated Article 21 of the Constitution. In this judgement the Court
explicitly declared that the right to die is not unnatural. The Supreme Court
also acknowledged in P. Rathinam v. Union of India3 that the right to life also
includes the right not to live in accordance with Article 21 of our
Constitution. However, in a subsequent case of Gian Kaur v. State of Punjab4,
the Supreme Court overturned the PR decision and said that Right to life does
not include the right to die, but that Right to life includes living with the
dignity of the person and the right to die with the dignity. The court ruled
that a distinction should be drawn between the right to death with dignity and
the right to die. Since the right to die is an unnatural death that takes away
the normal life span of a person, on the other side a person has a right to die
with dignity. For example, a person in a convent. In Mumbai's Memorial
Hospital, Aruna was a nurse. When she changed the clothes in the basement of
the hospital on November 27, 1973, she was sexually abused by a ward boy,
Sohanlal Bhartha Walmiki. Walmiki tied a dog chain around her neck during a
very violent attack, which stopped supplying her brain with oxygen leaving her
in a permanent vegetative condition. Her spine was also severely injured. For 42
years Shanbaug never recovered from the hand of fellow nurses in a room
attached toward No.4, in the ground floor, at the KEM hospital. Her only food
was mashed food, fed by the nurses. Probably one of the longest living comatose
patients was Aruna, who died in May2015.
Aruna’s Story
In 2009, journalist-activist Pinki
Virani, publisher of Aruna's Story (Story) published a book on that case,
submitted a written request for the legalization of the murder of mercy before
the apex court under Article32 for the withdrawal of the medical aid to put an
end to Aruna's suffering. Aruna argued, as she had been in permanent vegetation
for decades, she did not leave her chance of recovery.
Supreme
Court intervention
The Apex Court set up a Medical
Committee on 24 January 2011, which examined Aruna and found that she fulfilled
most of the criteria for permanent vegetation. The three-doctor group also
reported that the patient was not brain dead and that he was alone in certain situations.
On 7 March 2011, the top court rejected he plea of Pinki Virani but allowed
'passive euthanasia' to remove the lifelong support of permanent vegetative patients
(PVS). It also differentiated active and passive euthanasia.
Ethics and the euthanasia
debate
The Indian Constitution recognizes the
right to live dignified but not to die. The debate on the legality of this
desire is further complicated by the morality and ethics of such an act. With
the killing of mercies, the law must take account of ethics that have divided
the medical fraternity.
Case
law prior to Aruna
It should be noted at the beginning that
suicide attempts are crimes in India, as is any suicide commission.9 In the
Supreme Court, it was previously questioned about the constitutionality of these
provisions, which necessarily have a bearing on euthanasia debate.
In Rathinam, the Indian Supreme Court's
two-judge bench held that the criminalization of suicide attempts is
unconstitutional. The answer was whether a person with the right to live also has
the right not to live in the affirmative. In Part III of the Constitution of
India, the Court stated that all fundamental rights must necessarily be read
together; therefore the same applies to one fundamental right to other rights.
The Tribunal found that the right to life, under Article21 of the Constitution
of India also includes the right to end one's life on the basis of an analogy
with freedom of speech and expression and also freedom of movement and
association which have both a positive and a negative aspect.
But a larger bench of five Gian Kaur
judges immediately overruled this pronouncement. The Court decided that the
'extinction' of life could not be read in the form of a 'protection of life'
provision by means of narrower reading of Article21.Emphasizing the 'sanctity
of life' principle, It held that suicide is an un natural end or extinction and
therefore incompatible with the idea of 'right to life.'
The
Aruna case
The Aruna case involved a written
petition filed under Article 32 of the Constitution of India by a journalist
claiming to be 'next friend' of Aruna (which empowers individuals to directly
approach the Supreme Court, in case of the violation of a Fundamental Right).
18 Aruna Rama chandra Shanbaug worked as a nurse at Memorial Hospital King
Edward, Mumbai (the Hospital). She was sexually attacked on 27 November 1973.
At the same time, her assailant strangled her with a dog chain, which
interrupted the supply of oxygen to her brain. A contusion of brain stem with a
corresponding cervical cord injury was also observed. The petitioner alleged
that Aruna was approximately 60 years old, 38 years ago and had no awareness,
and had a virtually dead brain in a Persistent Vegetation State (PVS).
Accordingly the Writing Petition was asked by the Supreme Court to direct the
defendant (the Dean of the Hospital) to stop feeding Aruna so that she could
die peacefully. Thus, the Supreme Court raised for the first time the same
matter that the Bland19 decision raised in the English courts: Who can legally
stop a life-sustaining (including nutrition or hydration) treatment in which
circumstances, if any the patient would die?
The Court appointed Aruna to be examined
on 24January 2011 by a team of three distinguished doctors. The medical team
found Aruna not in a dead brain or coma. She was diagnosed 'secondary to hypoxic-ischemic brain damage,
which is non-progressive and irreversible but which corresponds to known
effects of strangulation.' Therefore, it fulfilled the key criteria for PVS.
PVS is defined as a clinical condition of unconsciousness in the self and
environment, in which the patient respires spontaneously, has stable
circulation and eye closure and opening cycles which simulate the simulation of
sleep and wake. Finally, it was concluded that no brain damage treatment was
currently available.
In a rather myopic reading of Gian Kaur
– in view of the observations made in it concerning PVS cases–the Court stated
that, because it did not violate a fundamental right, it could cursorily have
rejected the Write Petition because there was no constitutional death right.
Nevertheless, the Court decided to look into the merit of the case in light of
the 'importance of the questions.' Aware of Hercules, it compared itself with
'a ship in an unknown sea' and sought explicit guidance from the legislation
and legal proceedings of foreign countries, especially the United Kingdom and
the United States. The Court has identified and addressed three critical issues
in Indian medical jurisprudence.
RESULTS AND DATA ANALYSIS
In the previous chapters, the researcher
tried to study and examine the issue of euthanasia in the light of Conceptual
Framework, Historical Backgrounds, Religious Propositions, Medical Ethics,
Human and Constitutional Rights, Judicial Trends and the Legislative
Frame-works. The researcher after analyzing the issue in the light of the
above-mentioned are as felt a need of drawing social perspectives on
euthanasia. Therefore, she drew a sample of 449 random individuals from the universe
of educated individuals ranging from the age group of 18 to 78years. The data
was collected through structured questionnaire method. The out-come of the
empirical study is included in this chapter along with the conclusion and
suggestions.
Findings of the Empirical
Study
Ahimsa and compassions are amongst the
arguments, which disapprove the act of euthanasia. However, the response of
Mahatma Gandhi displayed on the first page of this chapter clarify beliefs and
outlook of the strongest proponent of ahimsa. In order to relive the agony of a
maimed calf, he took there sort of active euthanasia. The intention behind this
act was to reduce the suffering of the calf. He does not consider it as himsa
and uses a metaphor of doctor to clarify his point and he says that doctor does
not commit himsa when he uses knife, in fact, it is the purest form of ahimsa.
Gandhiji also shows willingness to end his life in the same manner if he is
suffering from such kind of ailment or is in the similar situation.
The data collected proved to be very
useful to the researcher. This empirical research helped the researcher:
1. To study, examine and
evaluate the possibility of the legislation.
2. To evaluate and analyze the
trends of people towards euthanasia.
3.
To
know the perception level of the people and penetration level of euthanasia in
the Indian society.
4.
To
understand and identify the approach of people towards sanctity of life and
dignity of life.
5. To examine and evaluate the
possibility of implementation as a law in the Indian Society The analysis of
the data collected is as follows:-
i.
Do you know what euthanasia
is?
|
Yes |
71% |
|
No |
15% |
|
Not
sure |
14% |
Figure5.1: Do you know what euthanasia
is
Analysis: -
There searcher expected a certain level
of understanding and awareness about euthanasia. Therefore, with the purpose of
knowing the penetration level of the concept of euthanasia in the society the
question was outlined.
ii.
The
killing of patients with untreated and terrible diseases or an irreversible
coma is euthanasia. Can you name any country where euthanasia is legal?
Since the researcher suspected that
masses might not have the knowledge about euthanasia, therefore the concept of
euthanasia was explained in the present question and they were asked to name
the country in which it is legally allowed.
iii.
In what situations do you
think euthanasia can be morally justified?
|
In case of Incurable
Illness |
48% |
|
Not Allowed it’s a Sin |
14% |
|
Mental or Psychological
Disorder |
5% |
|
When every one wishes |
12% |
|
Either Mental or Physical
Disorder |
7% |
|
When a Person is Terminally
Ill |
14% |
Figure5.2: In what
situations do you think euthanasia can be morally justified
Analysis:
-
In
a country like India, having great cultural diversity, the outlook of masses
depends upon the religious beliefs. Religious texts suggest that it is the
almighty god who gives life and he is the only person who will take it away, it
is the god who has created this world and all human beings. Therefore, he is
the master of all the lives.
In
India, almost all the religions have condemned euthanasia and only few
propagated the practice of fastening up to death to reunite with god.
Therefore, taking away life is justified only in the religious connotations but
not in the manners it is thru in euthanasia.
To the surprise of the
researcher, in a country where religion plays an important role in controlling
ones living and perceptions only 64 individuals consider it as a sin and is
never justified. It shows that only 14 percent individuals believe in the
sanctity of life whereas 53 liberated individuals believe that it is a person's
own choice and whenever one wishes, he should be allowed to die.
iv. As
long as a person is suffering from a Muscular Dystrophy, which leads to a
slower muscle degradation and is incurable, he was forced to wheelchair for the
rest of his life. The individual is marked by gradual weakening and loss of
muscles. The person wants to end his
life. Would you do the same, if you were in his/her place?
|
Yes |
49% |
|
No |
51% |
Figure5.3: The person wants to end his life. Would you do the same, if you
were in his/her place?
Analysis:
-
The
opinion of an individual varies with the situation. An individual might be a
strong supporter of euthanasia but would not like to end his life through
artificial means or a situation may arise when a person is an opponent of
euthanasia on the other hand when he suffers from pain and agony his
perspective changes.
Here
in this question, the researcher tried to take a subjective perspective of the
individuals by putting them in a situation to find their approach if they were
in the same position. Here, it is interesting to note that the opinion of the
people is almost equal. However, the ones who would not like to end the life
are slightly higher than the ones willing to end them.
v. According to you, does
a person have a right to die with dignity?
|
Yes |
78% |
|
No |
9% |
|
Maybe |
13% |
Figure5.4:
According to you, does a person have a right to die with dignity
The
proponents of euthanasia argue on the basis of dignity of life. Therefore, it
becomes very important to recognize the perception of society towards it.
Hence, with the purpose of examining the perception of individuals towards
dignity of life the question was placed in the questionnaire.
vi. Is
PAS ethically acceptable?
|
Options |
Abmulance |
Other Departments |
Emergency Room |
|
Yes |
31.5% |
46% |
0 |
|
No |
63.15% |
46% |
94.73% |
|
Yes in some cases |
5.35% |
14% |
5.27% |
Figure5.5:
Is PAS ethically acceptable
The only difference is that the number of those who think
these procedures ethically have decreased from 25 to 23, while 2 respondents
believe that PAS is ethically acceptable in some cases. We can also assume that
two of these respondents are the same. Therefore, we have the same data if we
compare the ADE and PAS subject percentage with regard to the emergency room.
Simply put, the respondents are totally opposed to these processes except the
one, which believes that PAS is ethically acceptable in some cases. Absolute
life-saving orientation helps to deny the justification of any form of life
deprivation.
CONCLUSION
The euthanasia debate sparked up since
the 19th century, which geared up euthanasia battle, many attempts were made to
legalize euthanasia, many associations, and societies were formed that
struggled to set up a regime for dignified death. Many of the countries have
successfully legalized it while many of the countries are still struggling for
the right. As regards India, the matter came to notice in the case of Aruna Shanbaug
v. Union of India, in which passive euthanasia was legalized by the Supreme
Court, and a comprehensive guide and proceeding was supplied for its practice.
However, the Supreme Court in Shanbaug case in India does not make the case the
first instance in which an application for the legalization of euthanasia in
India expresses a desire. Many different petitions have claimed multiple times
that it is no longer unethical to help him achieve decent and painful deaths
when the condition is incurable and if his death is unavoidable and the law has
to amend his stance on keeping it unlawful. The High Court, the Supreme Court
and the President were submitted a number of applications for the killing of
compassion. The reasons behind asking for mercy killing was however not only
the incurable illness but also due to many other factors.
After analyzing the law ethics and the
accepted principles, the researcher submits that law ethics have always
emphasized on the need of preservation of human life in addition, has always
rejected the act of taking away of life. Therefore, making intentional termination
of life of a human being is contrary to the principles of medical profession.
However, the very foundation on which these principles are based is an ancient
document, which barely has any relevance in the present times. The society and
its needs have changed with the changing times and medical ethics too have
never been static. Ethics have been undergoing changes.
In accordance with Article 21 of the
Constitution of India, the fundamental right to 'Right to Life' is guaranteed.
The meaning of the word 'life' was given a broader interpretation in many of
the cases and it is not confine to mere physical existence of a person, hence
life is a life of dignity. The question of whether right to life includes right
to die has been raised several times in the High Courts and the Supreme Courts
of India. The authority conferred to live is no doubt an inalienable and
inherent right however, it has always been argued that this power does not
permit to terminate one's life.
The Court found that after having seen
several ratios amongst the courts, the term life does not mean 'only animal
life,' but the right to live with human dignity and quality of life. The Court,
however, refused to grant euthanasia since suicide is an act of
self-destruction and self-mortality, whereas a person is actively or passively
participating in euthanasia, which can be considered as aiding or abetting a
person in the act of killing.
If we refer briefly to Roscue Pound's
theory of social engineering, the primary purpose of the law is to speed up the
process of social order, making every effort to avoid conflicts of interest
amongst individuals in society. The courts, law makers, administrators and
lawyers must therefore work with a plan and strive to maintain a balanced
relationship between competing society interests. Therefore, the individuals of
the society are considered the major stake holders in the law, which makes it
extremely important to know their viewpoint on the issue and their attitude
towards euthanasia. With the purpose mentioned above, a survey of a sample of
449 educated individuals aging between 16 to 78years, belonging to different traits
of the society and having different professions including academia, pursuing
education, research, medicine, law, accountancy, banking, retired personals and
housewives was undertaken. The samples were taken using a random sampling
procedure and the primary data were acquired using a structured questionnaire
method.
REFERENCES
1.
Advanced Certificate Program in
Research Ethics for Central and Eastern Europe. Union Graduate College and
Vilnius University; research ethics europe.com
2.
Brody, BA. The ethics of
biomedical research: An international perspective. New York: Oxford University
Press; 1998.
3.
Coleman CH, Bouësseau M-C. How
do we know that research ethics committees are really working? The neglected
role of outcomes assessment in research ethics review.BMCMedicalEthics.2008;
9:6.
4.
Czarkowski M, Rozanowski K.
Polish research ethics committees in the European Union system of assessing
medical experiments. Science and Engineering Ethics.2009; 15:201–212.
5.
Donabedian A. Evaluating the
quality of medical care. Milbank Memorial Fund Quarterly: Health and
Society.1964; 44(3Suppl):166–206.
6.
Famenka A. Ethical review of
biomedical research in Belarus: Current status, problems and perspectives.
Romanian Journal of Bioethics.2011;9(2):74–83.[PubMed:22701397]
7.
Famenka A. in preparation.
Research ethics in the context of transition: An analysis of policies and
programs on the protection of human research subjects in the selected countries
of Central and Eastern Europe.2014
8.
Gefenas E, Dranseika V,
Cekanauskaite A, Hug K, Mezinska S, Peicius E, et al. Non-equivalent stringency
of ethical review in the Baltic States: A sign of a systematic problem in Europe?
Journal of Medical Ethics.2010;36:435–439.[PubMed:20606000]
9.
Euthanasia (The practice and
morality) available at https://www.utm.edu/staff/jfieser/class/300/6-euthanasia.htm.
10. Euthanasia, assisted dying, and suicide http://www.bbc.co.uk/religion/religions/hinduism/hinduethics/euthanasia.shtml.
11. Euthanasia assisted dying, suicide and medical ethics available on http://www.bbc.co.uk/religion/religions/islam/islamethics/euthanasia.shtml.
12. Five pillars of Islam available a thttp://www.islam101.com/dawah/pillars.html.
13. General history of euthanasia available on http://www.life.org.nz/euthanasia/abouteuthanasia/history-euthanasia1/.
14. Hinduism available a thttp://www.patheos.com/Library/Hinduism
15. Hippocratic Oath translations available at http://www.pbs.org/wgbh/nova/body/hippocratic-oath-today.html
16. Historical Timeline-History of Euthanasia and Physician-Assisted
Suicide available at http://euthanasia.procon.org/view.timeline.php?timelineID=000022#500-bc-16th-century-ad
17. History of Final Exit Network available athttp://www.finalexitnetwork.org
/About-Us.html
18. History of Hinduism, available on http://www.religionfacts.com/hinduism/history
19. Human Rights in the Administration of Justice: A Manual on Human
Rights for Judges, Prosecutors and Lawyers, Chapter 2 he Major Universal Human
Rights
Instruments and the Mechanisms for Their Implementation available at http://www.ohchr.org/Documents/Publications/training9chapter2en.pdf
20. Indian Inflorescence On 'Living' Philosophy http://shodhganga.inflibnet.ac.in
/bitstream/10603/127073/14/14_chapter%206.pdf
21. International Convention on the Suppression and Punishment of the
Crime of Apartheid available at https://treaties.un.org/doc/publication/unts/volume%201015/volume-1015-i14861-english.pdf
22. International Covenant on Civil and Political Rights available athttps://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf
23. Investigating Philosophies, Culture, History, Myths
https://mbplee.wordpress.com/2012/01/03/%C2%A77-whoever-kills-a-personunjustly-quran-532/
24. Islam studies available at http://www.inspiredbymuhammad.com/islam.php?&content_80=2
25. Islam and Science available at http://www.islamicity.com/Science/euthanas.shtml
26. Islam Prohibits assisted Suicide and Euthanasia available at http://www.prolifemuslims.com/ISLAM-PROHIBITS-ASSISTED-SUICID.html
27. Islamic code of medical ethics : Kuwait document available athttp://www.worldcat.org/title/islamic-code-of-medical-ethics-kuwaitdocument/oclc/13580458
28. Justice 'earlier comments on right to life available at http://www.nbcnews.com
/id/7278229/ns/us_news/t/justices-earlier-comments-right-to-die/#.WSz_IpKGPIUretrievedon30/5/2017.
29. Kea, The Suicide Is land available a thttp://www.malathronas.com/1056/kea-thesuicide-island/
30. Krishna Iyer proposed legalization of euthanasia, Deccan Herald,
March 9th 2011,available at
http://www.deccanherald.com/content/144412/krishna-iyer-proposedlegalisation-euthanasia.html
31. Legislative Assembly of Northern
Territory available at www.nt.gov.au/lant
/parliamentary-business/committees/rotti/rotti95.pdf
32. News report on Venkatesh case published in times of India available
at http://timesofindia.indiatimes.com/india/Venkatesh-is-gone-but-his-strugglelives/articleshow/963064.cms
33. Palliative Care vs. Hospice
Care available at
https://www.vitas.com/resources
/palliative-care/palliative-care-vs.-hospice-care
34. Passive Euthanasia and Active Euthanasia. What’s the difference
available at https://brandongulnick.com/2017/06/05/passiveactive-euthanasia/
35. Physician-Assisted Death Destroys Medical Ethics, Writes Editor of
Medical Journalhttps://globenewswire.com/news-release/2016/12/21/899677/0/en/ Physician-Assisted-Death-Destroys-Medical-Ethics-Writes-Editor-of-MedicalJournal.html
36. Professor Emeritus David Richmond, Ten Reasons Why Voluntary
Euthanasia Should Not Be Legalized available at http://www.life.org.nz/euthanasia/tenreasons/Default.htm
37. Rajiv Gandhi Assassin Robert Pious Seeks Euthanasia news available
at http://www.livelaw.in/rajiv-gandhi-assassin-robert-pious-seeks-euthanasia/
38. Religious statements/articles (page13) available at http://www.euthanasia.com
39. Right to Life with Human Dignity: Constitutional Jurisprudence
available at http://shodhganga.inflibnet.ac.in/bitstream/10603/89946/10/10_chapter%20-ii.pdf
40. Right to Life with Human Dignity: Constitutional Jurisprudence
available at http://shodhganga.inflibnet.ac.in/bitstream/10603/89946/10/10_chapter%20-ii.pdf
41. Right To Life, http://sam.gov.tr/wp-content/uploads/2012/02/SafaReisoglu.pdf
42. Roy Caesar, Position Of Euthanasia In India-An Analytical Study
Available at http://www.researchgate.net/publication/259485727_POSITION_OF_EUTHANASIA_IN_INDIA_-_AN_ANALYTICAL_STUDY
43. Santhara-A Religious Fast To Death available at http://jainworld.com/jainbooks/images/29/SANTHARA__A_RELIGIOUS_FAST.htm
44. Senicide available at http://wikivisually.com/wiki/Senicide
45. Sikh moral thinking available at http://www.bbc.co.uk/religion/religions/sikhism/sikhethics/euthanasia.shtml
46. Sikh View about Euthanasia(assisted dying or mercy killing) and
Suicide.https://www.sikhnet.com/news/sikh-view-about-euthanasia-and-suicide
47. Suicide, Assisted Suicide, And
Euthanasia available at http://ministryofethics
.co.uk/?p=11&q=3
48. Suicide, Euthanasia, And Physician–Assisted Suicide available athttp://www.encyclopedia.com/caregiving/legal-and-political-magazines/suicideeuthanasia-and-physician-assisted-suicide
49. The Five Maha-vratas (Great Vows) of Ascetics available at http://www.jaina.org
/? Page=FiveMahaVratas
50. The Holy Bible,
English Standard Version
available at https://www.openbible
.info/topics/euthanasia
51. The Meaning of Life According to Hinduism http://www.religionfacts.com
/hinduism/beliefs/purpose.htm#dharma
52. The Oxford Handbook of Global Religions(2006) available at
www.adherents.com
1.
[1] Islamic code of medical ethics : Kuwait document available athttp://www.worldcat.org/title/islamic-code-of-medical-ethics-kuwaitdocument/oclc/13580458
[2] Physician-Assisted Death Destroys Medical Ethics, Writes Editor of
Medical Journalhttps://globenewswire.com/news-release/2016/12/21/899677/0/en/ Physician-Assisted-Death-Destroys-Medical-Ethics-Writes-Editor-of-MedicalJournal.html
[3] Right to Life with Human
Dignity: Constitutional Jurisprudence available at http://shodhganga.inflibnet.ac.in/bitstream/10603/89946/10/10_chapter%20-ii.pdf
[4] Islamic code of medical ethics : Kuwait document available athttp://www.worldcat.org/title/islamic-code-of-medical-ethics-
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