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‘All about Euthanasia in India’ by Team Latest Laws

Introduction

“Marte hain aarzoo mein marne ki Maut aati hai par nahin aati” Mirza Ghalib (A famous Urdu poet)

“I'm not afraid of being dead. I'm just afraid of what you might have to go through to get there.” ― Pamela Bone (A reputed Journalist)

These two quotes give us a fair idea about the fact that sometimes people with terminal illness would rather like to embrace death ‘peacefully’ than clinging on to life filled with intractable pain and suffering.

Euthanasia is described as the deliberate and intentional killing of a person for the benefit of that person in order to relieve him from pain and suffering. The term ‘Euthanasia’ is derived from the Greek words which literally means “good death” (Eu= Good; Thanatos=Death). The term was coined by the great historian Suetonius, who described the way King Augustus opted for quick, painful death without suffering. Euthanasia is defined as the administration of a lethal agent by another person to a patient for the purpose of relieving the patient's intolerable and incurable suffering. Typically, the physician's motive is merciful and intended to end suffering.

According to Oxford English dictionary Euthanasia means, the painless killing of a patient suffering from an incurable and painful disease or a person who is in irreversible coma. According to the British House of Lords Select Committee on Medical Ethics, it is defined as “a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering”.

In our society, the palliative care and quality of life issues in patients with terminal illnesses like advanced cancer and AIDS have become an important concern for clinicians. Parallel to this concern has arisen another controversial issue-euthanasia or “mercy –killing” of terminally ill patients. Proponents of physician-assisted suicide (PAS) feel that an individual's right to autonomy automatically entitles him to choose a painless death. The opponents feel that a physician's role in the death of an individual violates the central tenet of the medical profession. Moreover, undiagnosed depression and possibility of social ‘coercion’ in people asking for euthanasia put a further question mark on the ethical principles underlying such an act.

Euthanasia can be categorized into two types- active and passive

(a)Active Euthanasia– When a person directly and deliberately does something which results in the death of patient. Here specific steps/procedures are undertaken (by the third party) like the administration of a lethal drug. This is a crime in India (and in most parts of the world) under the Indian Penal Code Section 302 or 304. There are countries which have passed legislation permitting assisted suicide and active euthanasia. The differences between them are in the former, patient himself administers lethal medications and in the later doctor or some other person does it.

In Netherlands, euthanasia is sanctioned by the passage of “Termination of Life on Request and Assisted Suicide (Review Procedures) Act” 2002 providing well defined guidelines for the same. Belgium was the second nation to take a stand in this direction. In Switzerland assisted suicide can be performed by nonphysicians . Both Active Euthanasia and Assisted Suicide are legal in Luxembourg since 19th February 2008. Apart from these handfuls of nations, none in Europe have legalized Active Euthanasia or Assisted Suicide.

In USA, active euthanasia is a criminal offence except in the states of Oregon, Washington and Montana where strict guidelines are in place. It is important to mention that the state of Michigan banned euthanasia and assisted suicide after Dr. Kevorkian (infamously known as ‘Doctor Death’) recklessly encouraged and assisted in suicides.

(b) Passive Euthanasia– It involves withholding of medical treatment or withdrawal from life support system for continuance of life (like removing the heart– lung machine from a patient in coma). Hence in passive euthanasia death is brought about by an act of omission. Euthanasia can be further classified as ‘voluntary’ where euthanasia is carried out at the request of the patient and ‘non-voluntary’ where the person is unable to ask for euthanasia (perhaps because he is unconscious or otherwise unable to communicate), or to make a meaningful choice between living and dying and a surrogate person takes the decision on his behalf. Legally speaking voluntary euthanasia is illegal as it can be interpreted as attempt to commit suicide which is punishable under Indian Penal Code section 309. The same was advocated by the judgment from the Constitution Bench of the Apex Court in the year 1996 in Gian Kaur vs. State of Punjab where it stated that the right to life guaranteed by Article 21 of the Constitution does not include the right to die.

Notwithstanding these legal predicaments, passive euthanasia is not illegal in most parts of the world including India; provided certain standard safeguards are present as demonstrated by Supreme Court in Aruna Shanbaug case, which we will be discussing here. To put things into right perspective let us ask ourselves a simple question, what is the need of Euthanasia?

Before the industrial and scientific revolution, the scientists had not invented the artificial ways of keeping a terminally ill patient alive, like ventilators, heart lung machines, artificial feeding, etc. Such patients would have naturally died during the ordinary course of nature. With the scientific revolution, there was better and in-depth understanding of the human body. Simultaneously there was advent of new technology and machines, through which it is possible to prolong the life. Even though the patients are kept alive, often they will be in extreme physical pain and suffering (emotional, social and financial). At this stage let’s reiterate that these advanced intensive care procedures which we are referring here, will by no means cure/control the disease, but it will only prolong the agony as well as existence of terminally ill patients.

Next logical question will be when can we classify a patient as terminally ill?

According to The Medical Treatment of Terminally ill patients (Protection of Patients and Medical Practitioners) Bill 2006, ‘terminal illness’ means –

(i) such illness, injury or degeneration of physical or mental condition which is causing extreme pain and suffering to the patients and which, according to reasonable medical opinion, will inevitably cause the untimely death of the patient concerned, or

(ii) which has caused a ‘persistent and irreversible vegetative’ condition under which no meaningful existence of life is possible for the patient.

Thus according to it, the patient must be suffering some ailment causing extreme pain and suffering, which according to equitable and unbiased medical opinion, will lead to his death sooner or later. Second scenario is when the patient has slipped into Irreversible Permanent Vegetative State. These patients without active lifesaving mechanisms or life prolonging procedures will die a natural death. Thus one would like to ask would it be reasonable to simply keep the patient alive if he is suffering from intractable pain, psychological and emotional distress just for the sake of keeping him alive.

If we widen the ambit of discussion, can we ignore the impact on his family/friends?

What about their socio economic problems, their emotional sufferings?

And in a place like India where most of its citizens meet their health expenses from their own pockets, continuing such expensive treatments results in considerable financial burden on poor households, often pushing them deeper into poverty. Even if the patient is having medical insurance it is usually inadequate. Poignantly our government health sector spending is perilously inadequate and is over burdened by huge population putting strain on the limited government resources.

The WHO Report mentioned that in India about 87% of total health expenditure is from private spending, out of this, 84.6% is out-of-pocket expenditure. The World Bank in its annual report in the year 2002 came up with some other startling observations that more than 40% individuals who are hospitalized in India in a year borrow money or sell assets to cover the cost of health care as well as hospitalized Indians spend more than half of their total annual expenditure on health care.

It has been pointed out that in Hinduism, the word for suicide, atma-gatha, has also the elements of intentionality.

The intention to voluntarily kill oneself for selfish motives was condemned in Hinduism. Subjectively, the evil sprang from a product of ignorance and passion; objectively, the evil encompassed the karmic consequences which impeded the progress of liberation. It was in this context that the Dharmasutras vehemently prohibited suicide.

Nevertheless, Hinduism venerated enlightened people who voluntarily decided their mode of death. Thus, the Pandavas eulogized “Mahaparasthana” or the great journey through their Himalayan sojourn when they walked in pilgrimage, thriving on air and water till they left their bodies one after another.Crawford lists fasting, self-immolation, and drowning at holy places as other examples of such venerated deaths. Such deaths by enlightened persons have never been equated with the popular notion of suicide in the Indian tradition. It has been always considered that suicide increases the difficulties in subsequent lives.

Can the Hindu stance as mentioned above be extended to the question of euthanasia? Here, the Indian attitude toward life and death needs special mention.

In the Hindu tradition, death acts as a prefiguration and model, through which the ties that bind man's self or soul to cosmic impermanence can be completely broken and through which ultimate goals of immortality and freedom can be finally and definitely attained. Crawford considers “spiritual death” in the Indian context to be synonymous with a “good death,” i.e., the individual must be in a state of calm and equipoise. Crawford surmises that to ensure such a noble death, the concept of active euthanasia would not be unacceptable to the Indian psyche. However, this view has been criticized by authors who claim that “spiritual death” or “iccha mrtu” can only be possible when the evolved soul chooses to abandon the body at will. It is also claimed that the evolving soul cannot be equated with mental tranquility as it is at a higher level of consciousness.

Thus, though less dogmatic than other religions, Hindus would traditionally remain skeptic in their view about euthanasia. It has been proposed that a strong objection to euthanasia might arise from the Indian concept of Ahimsa. However, even in the Gandhian framework of Ahimsa, violence that is inevitable is not considered as sin. This emphasizes flexibility of the Indian mind. Hence, though a little skeptic, the Indian mind would not consider the thought of euthanasia and PAS as a sacrilege.

In India, euthanasia is a crime. Section 309 of the Indian Penal Code (IPC) deals with the attempt to commit suicide and Section 306 of the IPC deals with abetment of suicide – both actions are punishable. Only those who are brain dead can be taken off life support with the help of family members. Likewise, the Honorable Supreme Court is also of the view that that the 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 extinction of life be read into it. However, various pro-euthanasia 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.

A number of surveys have been published documenting the practice of euthanasia and PAS among health care professionals. For example, an anonymous survey of Washington physicians conducted in 1995 found that 26% of responding physicians had received at least one request for PAS and two-thirds of those physicians had granted such requests. These statistics suggest that PAS is not a rare event, despite the illegal status (it is also possible that despite the anonymous nature of the survey, some physicians who had in fact carried out these requests were unwilling to acknowledge their actions for fear of repercussions). Even more striking results were reported in a survey of San Francisco area physicians looking after AIDS patients. Slome et al. found that 98% of respondents had received requests for PAS and that more than half of all responding physicians reported having granted requests for PAS, with some physicians fulfilling dozens of such requests. Moreover, in response to a hypothetical vignette, nearly half of the sample (48%) indicated that they would be likely to grant a hypothetical patient's initial request for PAS.

Thus one cannot disagree from the fact that there is genuine need for Passive Euthanasia with definitive, unbiased protocols and safeguards. Now we shall discuss two important judgments: Airedale case from the House of Lords, UK and Aruna Shanbaug case from Supreme Court of India giving us a fair idea regarding the evolution of the laws pertaining to Passive Euthanasia in India and the world.

 

Brief facts about Airedale NHS Trust vs. Bland case:

Tony Bland was injured in Hillsborough stadium, Sheffield, England on 15th April 1989 in a terrible tragedy occurred during a football match. The crush resulted in the immediate death of 94 spectators and injured many other. Tony Bland suffered serious injuries in the form of multiple ribs fractures and two punctured lungs, causing disruption in the supply of oxygen to his brain leading to irrevocable damage to the higher centers of the brain leading to Persistent Vegetative State. He was transferred to Airedale General Hospital. Neuro-radiological investigations showed that there was no cortical activity but his brain stem remained largely intact. His family considered him as dead and medically it was proven that there is no possibility of him emerging out of the coma.

In August 1989, Dr. Jim Howe the Neurologist who was treating Tony Bland contacted the Sheffield Coroner to withdraw all treatment including artificial nutrition and hydration after undertaking comprehensive consultation with the family and in agreement with their wishes. Next day Dr. Howe was visited by the Police who told him that if he ‘withdrew treatment and if Tony dies, that he would be charged with murder. Then Airedale NHS Trust with the support of Tony Bland’s family and Dr. Howe made an application to the court to grant permission to withdraw all life-prolonging treatment. This went on to become a milestone case as Airedale NHS Trust vs. Bland 1993. All the learned judges in the House of Lords unanimously agreed that Tony Bland must be allowed to die and passed the judgment on February 4th 1993. Mr. Bland's parents supported the doctors' court action and said they were "relieved" at the ruling. His life support machine was switched off on 22 February and he died on 3 March. In April 1994 the High Court rejected an attempt by a pro-life campaigner, Father James Morrow, to get the doctor who withdrew food and drugs from Tony Bland charged with murder.

This was a benchmark case which influenced similar petitions throughout the world.

In India passive euthanasia was deliberated in Supreme Court in case, Aruna Ramachandra Shanbaug vs. Union of India (2011)

Brief facts about the Aruna Shanbaug case:

Miss Aruna Shanbaug was working as Junior Nurse in King Edward Memorial (KEM) Hospital, Mumbai, where in the year 1973, she was sexually assaulted by a ward boy. He strangulated her with a dog chain and sodomized her. The resultant asphyxiation caused irreversible injury to the brain causing Permanent Hypoxic Ischemic damage to her brain and since then, she has been in a persistent vegetative state. After some time her family abandoned her, but the nurses at the KEM hospital continued to take care of her.

On 17th December 2010, Pinki Virani claiming to be Aruna’s friend (a social activistcum-journalist) made a plea in Supreme Court for permitting euthanasia on Aruna Shanbaug. The Honorable Supreme Court sought a report about Shanbaug’s medical condition from the Govt. of Maharastra. Three member Expert Committee subsequently examined and opined that she was in a Permanent Vegetative state.

On 7th March 2011, the Apex Court, while rejecting Pinki Virani’s plea for active euthanasia, the court observed that “the general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained”.

The court also formulated guidelines for the passive euthanasia. This is important in a country like India with its vast and culturally diverse population where unfortunately the ethical standards of our society have descended to new low (as evidenced by social evil like rampant sex selective abortions, honour killings, gang rapes etc.); there is an impending possibility that people might misuse passive euthanasia in order to inherit the property etc.

Euthanasia- Aruna Ramchandra Shanbaug vs UOI, 7.3.2011

Basic Guidelines issued by the Hon’ble Court for Passive Euthanasia:

Whenever there is a need for passive euthanasia for some patient, permission has to be obtained by the concerned High Court before life prolonging measures can be withheld. Here the court will act as ‘parens patriae’, a doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.

 The idea behind parens patriae (father of the country) is that the King as the father of nation has a sacred duty to take care of those who are unable to look after themselves. This is essential as in most cases where the question of passive euthanasia arrives; the patients are often unconscious or otherwise unable to communicate their intensions.

Thus in order to prevent any sort of criminality by the patient’s relatives/friends or even treating doctors, courts will oversee and take the decision on behalf of the patient. It is ultimately for the Courts to decide, as to what is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weightage in formulating the decision. Hon’ble Court also laid down procedure to obtain such permission in detail. It also appreciated the entire staff of KEM Hospital, Mumbai (including the retired staff) for their noble spirit and outstanding, exemplary and unprecedented dedication in taking care of Aruna for so many long years. Having never developed a single pressure sore or fracture, in spite of the fact that she was bedridden for almost three and half decades is the standard testimonial of the same. It also opined that KEM hospital staff members are her ‘true friends’ and not Ms. Pinki Virani who has only visited her on few occasions and written a book on her. Hence the decision to withhold life prolonging measures rests on the hospital staff and not Ms. Pinki Virani. KEM staff members have expressed their wish that Aruna Shanbaug should be allowed to live. However in future if they change their mind, they will have to follow this procedure established by the Hon’ble Apex Court.

On 20th April, 2011 Union Law ministry taking note of this important judgment and guidelines (pro-tempore) wrote a letter to the 19th Law Commission to give a report on feasibility of making legislation on euthanasia.

On 11th August 2011, Law Commission submitted their report to Government of India titled ‘Passive Euthanasia- A Relook’.

 In the modified and revised Bill proposed by 19th Law Commission, the procedures laid down are in line with the directions of the Supreme Court in Aruna Ramachandra case.

Salient features of these are as follows:

 ‘Best interests’ include the best interests of a patient :

     (i) who is an incompetent patient, or

    (ii) who is a competent patient but who has not taken an informed decision, and are not limited to medical interests of the patient but include ethical, social, moral, emotional and other welfare considerations.

 ‘Incompetent patient’ means a patient who is a minor below the age of 18 years or person of unsound mind or a patient who is unable to –

    (i) understand the information relevant to an informed decision about his or her medical treatment;

    (ii) retain that information;

    (iii) use or weigh that information as part of the process of making his or her informed decision;

    (iv) make an informed decision because of impairment or a disturbance in the functioning of his or her mind or brain; or

    (v) Communicate his or her informed decision (whether by speech, sign, language or any other mode) as to medical treatment.

'Competent patient’ means a patient who is not an incompetent patient.

‘Informed decision’ means the decision as to continuance or withholding or withdrawing medical treatment taken by a patient who is competent and who is, or has been informed about-

    (i) the nature of his or her illness,

    (ii) any alternative form of treatment that may be available,

    (iii) the consequences of those forms of treatment, and

    (iv) the consequences of remaining untreated.

A competent adult patient has the right to insist that there should be no invasive medical treatment by way of artificial life sustaining measures / treatment and such decision is binding on the doctors/hospital attending on such patient provided that the doctor is satisfied that the patient has taken an ‘informed decision’ based on free exercise of his or her will. The same rule will apply to a minor above 16 years of age who has expressed his or her wish not to have such treatment provided the consent has been given by the major spouse and one of the parents of such minor patient.

This is in accordance with the three paramount principles in medical ethics which are patient autonomy, beneficence and Nonmaleficence.  

Thus in case of any incompetent patient who is in irreversible coma or in Permanent Vegetative State and a competent patient who has not taken an ‘informed decision’, the relatives, next friend, or the doctors concerned/hospital management shall get the clearance from the High Court for withdrawing or withholding the life sustaining treatment. The High Court shall take a decision after obtaining the opinion of a panel of three medical experts and after ascertaining the wishes of the relatives of the patient.

As “parens patriae” the High Court will take an appropriate decision having regard to the best interests of the patient. Provisions are introduced for protection of medical practitioners and others who act according to the wishes of the competent patient or the order of the High Court from criminal or civil action.

Further, a competent patient (who is terminally ill) refusing medical treatment shall not be deemed to be guilty of any offence under any law. This Bill has to pass through various stages before it becomes an Act. Until then the law laid down by Hon’ble Apex Court is to be followed whenever need for Passive Euthanasia arises in our country. 

Arguments For Euthanasia:

  • It provides a way to relieve extreme pain
  • It provides a way of relief when a person's quality of life is low
  • Frees up medical funds to help other people
  • It is another case of freedom of choice

Arguments Against Euthanasia:

  • Euthanasia devalues human life
  • Euthanasia can become a means of health care cost containment
  • Physicians and other medical care people should not be involved in directly causing death
  • There is a "slippery slope" effect that has occurred where euthanasia has been first been legalized for only the terminally ill and later laws are changed to allow it for other people or to be done non-voluntarily. 

Opinion Poll in USA- April, 2015: Poll Shows Americans Oppose  Bills Legalizing Assisted Suicide

As assisted suicide failed to pass in state legislatures across the country this year, a new Marist Poll sponsored by the Knights of Columbus found that a majority of Americans do not support assisted suicide and that strong majorities harbor deep concerns over such proposals.

Assisted suicide proposals have stalled since the start of the year in a number of states, includingConnecticut, Maryland, Colorado and Nevada.

More than 6 in 10 Americans (61 percent) do not support a doctor prescribing or administering a lethal drug dose, saying that a doctor should instead only manage an illness or remove life support.

Additionally, 57 percent of Americans say they are less likely to trust a doctor who engages in assisted suicide.

Strong majorities of Americans also have deep concerns about assisted suicide, including:

  • 67 percent concerned that fewer life-saving options will be given at end of life.
  • 65 percent concerned that the elderly will be at risk in nursing homes.
  • 64 percent concerned that the depressed will be more likely to take their lives.
  • 59 percent concerned about a wrong diagnosis.
  • 55 percent concerned that the doctor could misjudge a patient’s state of mind.
  • 55 percent concerned that it will become a cost-saving measure for health care decisions.
  • 54 percent concerned that patients will be pressured to take their life so as not to be a burden.

Cause of Concern: 

  • 14% of all Dutch Deaths Involve Euthanasia, Assisted Suicide.
  • Assisted suicide increased by 44% in Oregon – 2014 report.
  • Assisted suicide deaths increase by 17% in one year in Washington State.
  • Belgian euthanasia deaths increase by 26.8% in 2013, Euthanasia in Belgium: up 89% in four years.
  • Euthanasia represents 4.6% of all deaths in Flanders Belgium in 2013
  • At this rate if permitted in India this figure would be around 4.50 lakhs Euthanasia Deaths per annum and as per Dutch rate this figure would touch 14 lakhs

Matter refered to Constitution Bench:

Full Bench of Hon'ble Supreme Court observed that on account of inconsistent opinions rendered in Aruna Shanbaug (supra) and also considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, it becomes extremely important to have a clear enunciation of law. With these observations the Bench refered the larger issue to a Constitution Bench.

Euthanasia, Common Cause vs UOI, SC, 25th Feb 2014

 

Law Commission of India Report No 241 on Euthanasia, August,2012

RELATED NEWS-  After 42 years in coma, nurse Aruna Shanbaug dies READ MORE…

-with inputs from Journal of Punjab Academy of Forensic Medicine & Toxicology, Indian Journal of Psychiatry, www.euthanasia.com & www.lifenews.com

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