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Ms.Asiya savanur is a law student of final year under Bangalore University

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Legalizing Euthanasia in India
Legalizing Euthanasia in India
730 days ago 1 comments Categories: Constitution Tags: Legalizing, Euthanasia, India, constitution,
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How is the value of life determined? Are rights to live and die equated? These are primary questions of conflict that every society has witnessed in the course of time. What is legally or morally right or what prevailed among life and death has been a debate over centuries now. The creation of rights of an individual take place with the birth of the individual and such rights extinguish with the death of the individual.

In this broad spectrum, however, where does the right to live or the right to choose to die find its place is a righteous question. If sanctity of life is of supreme and overriding value; from the very primitive times, it ought to preclude and pro-scribe all acts and omissions which may shorten it, even when the shortening of life is a mere deleterious side effect. But this is not the case. The sanctity and value of life compete with a host of other equally potent moral demands. Even the most devout pro-life ethicist accepts that certain medical decisions - for instance, to administer strong analgesics - inevitably truncate the patient's life. Again, doctors are not given the right to terminate any individual’s life with even the consent of the patient’s relatives going by the primal morals of the society. Yet, this is considered moral because the resulting euthanasia is not the main intention of the pain-relieving doctor. Moreover, the apparent dilemma between the two values (reduce suffering or preserve life) is non-existent. The thin line of difference of why death is morally wrong or the act of causing death even with due care is right is a debacle on its own. They are contradictory when put together so how exactly good death or bad death is justifiable is equally a paradox.

Looking back at arguments by famous jurists; Thomas Hobbes argued over fundamental duty to self preserve and how this is naturally a birth right. Hobbes’s social contract highlighted a theory which said that every individual hand over his rights to a person or a body they elect as their sovereign and relatively their actions are deemed to be authoritative. An exception that Hobbes pointed out was that that, as the purpose of signing the social contract was to preserve oneself, the Sovereign cannot order a subject to kill him- or herself. For instance, according to Nazi philosophy, certain people have 'a right' to die and, if they cannot make the choice themselves, the state and its appointed boards of experts may have to exercise this right for them (Hentoff, 1998).

So how far does euthanasia or mercy killing conform to the basic morality standards of a society per se? Euthanasia: can be part of good terminal care. It makes no sense to discuss euthanasia in terms of being for it or against it. The basic question is whether we accept the right of human beings to decide for themselves how their lives will end. From the Greek and Roman era, the Stoic and Epicurean philosophers thought suicide and euthanasia an acceptable option whenever one no longer cared for life. The most famous statement of this attitude is by Epictetus: “If the room is smoky, if only moderately; I will stay. If there is too much smoke I will go. Remember this, keep a firm hold on it, the door is always open.”

Although there are Religious Objections as regards death unless occurred naturally one quote that shows that there is implied faith is; "The right to a good death is a basic human freedom. The Supreme Court's decision to uphold aid in dying allows us to view and act on death as a dignified moral and godly choice for those suffering with terminal illnesses." John Shelby Spong, retired American bishop of the Episcopal Church.

Euthanasia and Morality
Does morality come into play in the form of bioethics as a main cause for not legalizing right to die? Doesn’t the discretion of a person and his right to choose death over life have any significance? Most of the jurists felt that morality needs to be given utmost importance and it’s morally incorrect to let any individual die. Quoting Jeremy Bentham’s analysis, “Jeremy Bentham (1748-1832) argued that the purpose of morality is not the service of God or obedience to abstract moral rules, but the promotion of the greatest possible happiness for creatures on earth. According to Bentham, our decisions should be made on that basis, and only on that basis. But Bentham did not stop when he had articulated this as a theoretical idea. He was concerned with bringing about social change and not merely with voicing a philosophy. Bentham became the leader of a group of philosophers, economists, and politicians who sought to reform the laws and institutions of England along utilitarian lines, and the social and intellectual life of people in the English-speaking countries has not been the same since. Bentham argued, for example, that in order to maximize happiness, the law should not seek to enforce abstract moral rules or meddle in the private affairs of citizens. What consenting adults do in private is strictly their own business, and the law has no right to interfere. The law should concern itself with people's behavior only when they may do harm to others. This idea, now so familiar a part of liberal ideology, was radically new when the Benthamites first urged it on their fellow Englishmen. The implications for euthanasia were obvious. For the Utilitarianisms’, the question was simply this: Does it increase or decrease human happiness to provide a quick, painless death for those who are dying in agony? Clearly, they reasoned, the only consequences of such actions will be to decrease the amount of misery in the world; therefore, euthanasia must be morally right. Moreover, as Bentham's famous follower John Stuart Mill (1806-1873) put it, the individual is sovereign over his own body and mind; where one's own interests are concerned, there is no other authority. Therefore, if one wants to die quickly rather than linger in pain, which is strictly a personal affair and the government has no business intruding. Indeed, Bentham himself requested euthanasia in his last moments.” But applying this principle in the 21st century becomes unreasonable. Morality now has a diminishing value. At the very outset, the needs of the society are ought to be met with for the public benefit at large. If the majority gives a nod to the importance of pro-choice over pro-life then even a sovereign body can’t regulate it along the lines of morals and etiquettes.

ORIGIN OF EUTHANASIA
Thomas Mann had in 1924 said; a man’s dying is more the survivor’s affair than his own’. Today his words are considered to be true as there is a wide range of debate on legalizing euthanasia. Euthanasia has been accepted in some form or the other by certain societies in history. In ancient Rome and Greece helping to die or putting them to death was considered permissible in some situations. For instance, in the Greek city of Sparta newborns with severe birth defects were put to death. Voluntary euthanasia for the elderly was an approved custom in several ancient societies. The traditional Indian law also recognized a person’s right to die. In fact a Brahamana who committed suicide and thus got rid of his body was exalted in the world of Brahmanas.

What is Euthanasia?
Euthanasia is the practice of ending a person’s life in order to free the person from incurable pain of disease or terminal illness. The word Euthanasia derives from the Greek for “good death” and originally referred to intentional mercy killing. In modern times Euthanasia is limited to killing of patients at the request of the patients by the doctors to free the patient from terminal illness.

The legal position in other countries:
Netherlands
Under the Penal code of Netherlands, killing a person at his request or assisting a person in committing suicide is punishable under law. In spite of the code the Courts of Netherlands have come to ruling of providing a defense to a charge of voluntary Euthanasia and assisted suicide. Subsequent to these judicial decisions a Bill was passed in April 2001, Netherlands charted out a new chapter for legalizing euthanasia.

Australia
In 1996 the Northern Territory of Australia was the first jurisdiction to explicitly legalize voluntary active euthanasia; and thereby pass the Rights of the Terminally Ill Act, 1996. Later on the Federal Parliament of Australia had to pass Euthanasia laws Act, 1997 which inter alia repealed the Northern Territory legislation.

England
The patient has the right to refuse life-sustaining treatment as part of his rights of autonomy and self- determination. The non-voluntary euthanasia in case of patients in a persistent vegetative state is legalized.

United States of America
U.S laws prohibit active euthanasia. But the courts ruled that passive euthanasia is legalized as it says that doctors should not be punished if they withhold or withdraw a life-sustaining treatment at the request of patient. In 1991 Federal Patient Self-Determination Act, was made effective which required federally certified health-care facilities to notify adult patients of their rights to accept or refuse the medical treatment. The facilities should also inform the patients of their rights under the state laws to formulate advanced directives.

Canada
In Canada Patients have the similar rights as in case of U.S. to refuse life-sustaining treatment and formulate advanced directives. However, they do not possess right to active euthanasia or assisted suicide.

Euthanasia in United States
Euthanasia in the U.S is not a new concept; it came into existence much before any of the World Wars occurred. Although the debate was initiated in the 1900s, the issue was addressed only in the early 1960s under the rights of the patient to die and non-stringent bioethics. The underlying principle as to how Euthanasia needed to be legalized was similar in countries like India, Mexico, Canada, Netherlands etcetera. The landmark case that threw light upon Euthanasia was the Karen Ann Quinlan case. This case became the grund norm in medical ethics and a milestone precedent for similar cases that followed it. Karen Ann at the age of 21 became unconscious as a result of consumption of valium and alcohol from a party. Consequently, she stopped breathing for two intervals of 15 minutes which resulted in severe brain damage. She remained in coma and was later diagnosed as being in a Persistent Vegetative State (PVS). She was kept on ventilator but the attempts at reviving her were unsuccessful. Her parents asked for the ventilator to be removed and allow her to die. When the hospital refused the parents of Quinlan furthered the appeal to New Jersey Supreme Court which ruled in the favour. After removing the ventilator, she breathed and eventually after nine years died of pneumonia. This is a landmark case because it recurred two main issues: (i) Bioethics, (ii) Right to die.

Terri Schiavo case: Terri Schiavo collapsed at her Florida residence on February 25th 1990. It resulted in loss of oxygen to the brain for a span of 5-6 minutes. She consequently went into the PVS. Thereafter, the parents of Terri Schiavo declared Michael (her husband) to be the guardian. In May 1998, Michael filed a petition to remove Terri’s feeding tube which was opposed by her parents as they alleged that Michael sole motive was to inherit her property and hence wanted her death. Terri, whereas, wished to end her life. A series of events to keep her alive happened; both politically and religiously assisted. There remained a delay of 7 years in granting relief. On March 18, 2005, Judge Greer pronounced a decision in favour of Michael to remove all the ventilators and food ingestion tubes. This case laid clear distinction between the pro-life and right-to-die choice and had a global impact. As the judgment passed by the media, made global awareness.

Cases of Euthanasia in the U.S were predominantly witnessed in states like Washington, Missouri, Oregon, Montana and Texas.

In State of Missouri, initially Euthanasia gathered no support in the Supreme Court of Missouri. Curzan v. Director, Missouri Department of Health 497 U.S. 261-- This is the similar case to the aforementioned cases. Nancy Curzan, the Petitioner sustains severe injuries in an accident which resulted in a condition of PVS. She was fed through feeding tube and after 4 years of wait to see her recover, her parents and husband asked for withdrawal of any kind of treatment given to her. The department’s refusal drove them to the Supreme Court of Missouri. In the first appeal, the court favoured the Missouri Dept. of Health since there were no clear and substantial evidence shown. In the second appeal though, Curzans could gather enough substantial evidence stating that Nancy herself wanted her life support to be cut off and eventually court granted decision in her favour in the late 1990.

Oregon, on the other hand, became the first U.S state to legalize physician-assisted-dying by passing the Oregon Death with Dignity Act in 1994. In 1997, this act was in question for its repeal; the implementation of the act was technically withheld for a restricted period. The implementation of the law became successful in the case of Gonzales v. Oregon; 546 U.S. 243 2006-- This case gave the co-relation between Controlled Substance Act and PAD and also brought about legalization of PAD under the Oregon Death with Dignity Act. The Petitioner used the Interpretive Rule that administering federally controlled drugs by the physician goes against Controlled Substance Act. The State of Oregon which comprised of various pharmacists, terminally ill patients filed for permanent injunction against the enforcement of Interpretive Rule. Ninth Circuit Court of Appeals ruled in State’s favour (Justice Kennedy affirmed Ninth Circuit’s judgment in a 6-3 decision.)

The Washington State also upheld Physician Aid in Dying. Very recently in the year of 2008: Washington v. Glucksberg 521 U.S. 702 1997-- This case gave the clear interpretation of Due Process Clause in the United States Constitution and whether or not does it protect right to assistance by physician in committing suicide. Dr. Harold Glucksberg – a physician, along with other physicians 3 terminally ill patients and a non-profit organization filed a petition challenging Washington’s ban against suicide which was claimed to be protected under the Due Process Clause. The District Court ruled in favour of Glucksberg. But subsequently, Ninth Circuit reversed. After re-hearing Ninth Circuit affirmed the District Court’s decision.

In toto, attempts to legalize Physician Assisted Dying and Euthanasia resulted in ballot initiatives and legislation bills in the US. For instance, Death with Dignity Act in 1994 became one of its first kinds that the U.S jurisdiction brought about to the world. The cases became principle precedents for other nations to decide the legality of Euthanasia/PAD.

INDIAN LAWS
India is a country highly influenced by religion and orthodox beliefs. Let’s examine the validity of euthanasia under the Indian Laws.

Under Constitution of India:

Article-21 confers a fundamental right; Right to Life and Personal Liberty. This Right has a wider application and cannot be defined.

Human rights are those which are derived from natural law which have evolved out of 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. This comprises a core base of basic guarantees, including the right to life; freedom from torture or inhuman or degrading treatment or punishment; freedom from slavery, servitude, and forced labour; the right to free movement; and, the right to food, as a human right, the right to development is also considered to be a basic human right.

From the above mentioned case it can be said that human rights are the rights which person gets from its human existence and the said human right gives the person the right to development when a person is terminally ill or is suffering from incurable disease then in such situation euthanasia should be allowed if not allowed it would violate his human right of development. It was held in a case that the right to life includes the right to carry on such functions and activities adequate to give expression to “human self”.

In this context it could be interpreted that euthanasia should be legalized as the life of an individual becomes meaningless or useless if the person is not able to carry on functions as held in the above case it’s the right of the person under the right to life and such a right is violated if a patient is forced to live when suffering from terminal illness.

Path-Breaking Judgement:

A landmark Judgment was passed by Justice Markandey Katju and Gyan Sudha Mishra which tends to legalize passive euthanasia. This case was filed for grant of permission by one writer-cum-social activist Pinky Virani on behalf of Aruna Ramachandra Shanbaug, a hapless comatose victim of sexual assault who has been in persistent vegetative state for the past 37 years at Mumbai’s KEM Hospital. During Aruna’s case, the learned Judges commented on deletion of the section-309 of IPC as it has become anachronistic. It was further held in Aruna’s case that in case the patient is in competent person to decide whether life support system should be discontinued then in such situation the family member or close relatives or in their absence doctors attending patient can decide in best interest of patient with the bonafide intention. However, such a decision requires approval from the concerned High Court.

Law Commission Report:
It must be remembered that the 17th Law Commission of India then headed by Justice M. Jagannadha Rao in its 196th Report submitted in April,2006 titled ‘Medical Treatment to Terminally Ill-patients (Protection of patients and Medical Practitioners)’ had supported and made recommendations for drafting legislation on the passive euthanasia.

Legalization of Euthanasia
Legalization of euthanasia simply means granting an individual his natural right to die or terminate his life owing to non-normalcy of life or bad quality of life due to medical reasons. Attempt to suicide under mental coercion is punishable under law, but asking for granting of death due to perpetual suffering of an individual is not punishable. In most of the cases when an individual suffers with Persistent Vegetative State (PVS), the court grants physician assisting suicide with a standing consent from the patient showing his willingness to die and there is no undue influence while deciding so. The willingness should be out of the ground fact that there is no hope in improvement in quality of life in the future.

Why should euthanasia be legalized?
Moral Objectives: It is morally incorrect to keep a person fighting for no cause when all hope is lost. The sufferer and his fraternity go through mental trauma for a long period of time. The society is obligated to acknowledge the rights of patients and to respect the decisions of those who elect euthanasia. Every individual’s right to self-determination or his right of privacy needs to be respected. Interference to such rights can be justified if it is to protect values, which is not the case where patients suffering unbearably at the end of their lives request euthanasia leaving them with no alternatives. People can’t suffer against their will. It is plain cruelty on them and cessation of their human rights and dignity.

Individual’s right to exercise his choice: Firstly deciding if one wants to live or die is a personal decision. Every individual has his/her own rights over their body. When the birth of an individual is not questioned by anyone naturally death as well should not be a speculative debate. A painless death is better than a painful life. The increase in patients of Cancer, AIDS and other dreadful and irreparable diseases has sparked a world-wide need of euthanasia or mercy killing. Especially in the final stages of such diseases which are incurable the want of euthanasia is justified.

Economic Factor: Economic concern in a country like India is of primary importance. The medical charges are unaffordable for the needed medical care; unsure if the patient is going to improve in any possible way or remain as he is. And every irreparable disease attracts a big amount of risk and money which can’t be ignored. Moreover, there is increasing pressure on hospital and medical facilities; it is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom these facilities provided by the hospital would be of greater value. Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved, the latter should be preferred as the former will die in any case.

Euthanasia, both in active and passive form, should be allowed in every society. It should be legalized owing to the amount of pain an individual goes through due to the fatal disease or disorder for a long period of time. Having a patient suffer endlessly is not giving him a better quality of life. The kind of quality of life is defined by the patient, not the doctor or government. Consequently, when the patient feels he is not getting the quality of life he wants the doctors can insist upon Physician Assisted Death (PAD). Supporters of active euthanasia contend that since society has acknowledged a patient’s right to passive euthanasia (for example, by legally recognizing refusal of life-sustaining treatment), active euthanasia should similarly be permitted. Court needs to lay reasonable grounds as to why there is a refusal in the first place to grant euthanasia; be it active or passive. When arguing on behalf of legalizing active euthanasia, proponents emphasize circumstances in which a condition has become overwhelmingly burdensome for the patient, pain management for the patient is inadequate, and only death seems capable of bringing relief. In a liberal democracy like India where Fundamental Rights are given highest significance over any other substantial law, right to die should be treated at par with the fundamentals of the constitution.

Euthanasia is a way of ending a person’s life who has been suffering from intolerable pain or undignified death. Various countries have legalized it. The debate regarding euthanasia has going on from very long time but only recently euthanasia gained massive importance. After the landmark judgment passed by the Indian Court in Aruna’s case it’s clear that passive euthanasia is now allowed in India. But still there is some ambiguity with regard to euthanasia. Hence there has been an urgent need to pass legislation on euthanasia. Law on euthanasia is the need of the hour.
**********************
# The Concise Oxford Dictionary of Politics by Iain McLean, Alistair McMillan; page 465
# http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2540646/pdf/bmj00446-0010.pdf
# http://caae.phil.cmu.edu/cavalier/Forum/euthanasia/background/euth/Euthanasia.html
# http://community.compassionandchoices.org/document.doc?id=189, page 13
# http://caae.phil.cmu.edu/cavalier/Forum/euthanasia/background/euth/Euthanasia.html
# http://dying.about.com/od/ethicsandchoices/p/Karen-Ann-Quinlan-A-Pioneer-In-The-Right-To-Die-Movement.htm
# http://iub.academia.edu/JoshuaPerry/Papers/283614/The_Terri_Schiavo_Case_Legal_Ethical_and_Medical_Perspectives
# http://www.law.cornell.edu/supct/html/historics/USSC_CR_0497_0261_ZS.html
# http://www.supremecourt.gov/opinions/05pdf/04-623.p
# http://law2.umkc.edu/faculty/projects/ftrials/conlaw/glucksberg.html
# Election Commission of India v. St. Mary’s School, (2008) 2 SCC 390.
# Ammini E.D. v. Union of India AIR 1995 Ker 252.

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