Painful life or Peaceful Death- An look Out

 

Dipika Vyas

BBA-LLB (3 SEM), ITM University, Naya Raipur

 

ABSTRACT:

Life and death are the two inevitable truth and are closely related to each other. the Indian citizens are blessed with the Fundamental Rights so as to protect them from any unjust treatment and to allow them to live their life with freedom under reasonable restrictions. The most important rather the base of all other rights rights is the Right To Live with Personal Liberty and Human Dignity under Article 21 of the Indian Constitution. it is often argued that when the Constitution has given its citizens the freedom to live their life according to their own will then why can't such right be exercised by a person experiencing excruciating pain due to terminal illness upon the person's own desire. Restraining a person from dying due to terminal illness breaches not only their Right to Live with Personal Liberty but also disown them to have a dignified life because lying in the bed with such unbearable pain is equal to mere body without soul. So, to allow a person to die peacefully rather than such painful life, euthanasia should be legalized in India which is deemed as an urgent need as well as demand of the hour in India.

 

KEY WORDS: Euthanasia, Article, Constitution, liberty, Dignity.

 

MICROFINANCE:††† †

It is a well known fact that 'life' & 'death' are the two sides of the same coin. Just like life, death, is also inevitable.† We all have the freedom to live our life in every possible ways we want, however, within a reasonable restrictions provided by the Constitution. In the same way Indian Constitution has conferred upon all its citizens some Fundamental Rights so as to make the lives of all its citizens safer, better and dignified. One of the most essential and in fact the base of all other rights is the Right to Live with Personal Liberty and Human Dignity [Art.21]. Right to live is much above living mere animal existence. But a person in a Permanent Vegitative State is completely deprived of his /her Right to live with Human Dignity and Personal Liberty. So, such patients must be given a peaceful death rather than a painful life if he/she wishes to do so. For this purpose, euthanasia is one of the greatest weapon and therefore, it must be legalized in India. There are various questions which need urgent answers regarding the meaning of euthanasia, its urgent requirement as law, the specified users who have been terminally ill and death seems pretty much easier and better than a painful life. Euthanasia is not a newly introduced concept rather an age old debate which has found its root in the fifteenth century B.C. in Greece. Later with the development and advancement in the medical procedure and technology it has emerged out as an urgent requirement for terminally ill patients.

 

 


Though there are countries like Netherland, Columbia, USA, U.K. and so on who have allowed euthanasia in one form or the other but there are countries like India who has not adopted itself to the changing outlook of the world rather is rigid with its beliefs. There is an urgent demand of euthanasia in India by the public at large so it should be taken into consideration while making any further amendments in any laws.

 

Research on Euthanasia is a socio- legal research with an objective to be projective and predictive. The research is wholly based on the combination of both Emperical and Doctrinal research with experimental study of research design. The researcher in this research has collected data which is based on both primary and secondary data which has been collected by using Random Sampling Method by close ended questionnaire.

 

Definition of euthanasia:

Euthanasia has derived its existence from the existence of life, therefore, it is essential to define life before defining euthanasia and answer questions raised on its applicability. According to Aristotle, the Greek Philospher(384- 322 B.C.), "life is can be defined as the possession of a soul or vital force, through which entity is rendered animate and given shape." Sanctity is an important cognates of life which means piousness or purity1. So, on combining life with sanctity gives a definition of life which means a pious soul and free from anxiety, pain and suffering. However, for a patient in a P.V.S. condition leading such a life is not possible, such person every second of their life. So, euthanasia provides for the such a peaceful life rather a painless death. Medically, euthanasia can be defined as a process or practice of terminating the life of a patient who does not have any scope of recovery or improvement in the health even after all possible treatment so as to end their suffering and unbearable pain. Legally,† it is a tool of terminating the life of a person upon his own request in order to end his suffering and pain2. So the crux of the whole debate can be simplified by defining euthanasia as one of the most important weapon to be used for such patients who cannot recover even after all possible treatment to end their life as they are experiencing excrutiating pain upon their own wish or upon the wish of their family members or care takers.†

 

Evolution of euthanasia

Life and death are the two inevitable truth. Discussion on euthanasia is an age old topic of discussion and debate. The word euthanasia has derived its origin from the Greek word which means easy death or peaceful death. Euthanasia has found its root in the fifteen century B.C. However, seventeenth and eighteenth century were marked by the widespread support of euthanasia , people not had discussion but debate on its implementation, applicability and morality. In the 1930s, support for euthanasia gained momentum in the U.S.A. and U.K. by societies working towards the same. However, the growth and support for euthanasia became stagnant due to the World War 2. Moreover,they withdrew their support for euthanasia because the use of both active and passive euthanasia was used brutally by Hitler during the war for killing hundreds of person. Hitler injected drug into the body of thousands of people and starved them to death during the war which created negative influence for the support of euthanasia. However, in the early 20th and 21st century the advancement in the technology and ease in the medical procedure along with the changing relationship between a doctor and a patient has contributed towards the support for euthanasia all around the world. Moreover, euthanasia is now considered as an important and powerful weapon to end the suffering and unbearable pain of a person upon his own request. Today, euthanasia is legalized in many countries of the world and many others are working toward the same fate.3

 

Relevance of euthanasia with reference to Art. 21:

According to Art. 21 of the Constitution, " no person shall be deprived of his life or personal liberty except according to the procedure established by law." So, the important components of Art. 21 are

1. Person; 2. Deprivation of life; 3. Deprivation of personal liberty; 4. Procedure established by law.

 

When the Indian Constitution has itself provided us with the Right to live a dignified life and also with Personal liberty it means that everyone should have the freedom to dispose of his life in certain circumstances when the condition of life becomes unbearable. Therefore, Right to Life guaranteed by Art. 21 includes right to die. The three main Fundamental Rights, that is, rights to freedom of equality, liberty and life ( Art. 14, 19 and 21) respectively are to be read together. That means what applies to one must necessarily applies to others as well. Accordingly, if the right to trade includes within itself the right not to trade, the right to life must contain in itself the right to die. 4

 

 

Types of euthanasia:

Euthanasia has always been a matter of debate whether on its applicability or on its legal implementation. Among all these major issues the most important question which arises is that who can opt for euthanasia? Though the answer seems simple that the patients themselves only can apply for euthanasia , however, there are certain critical cases where the patients themselves doesn't give their consent for the same, euthanasia is being demanded for them - may be through their family parents or even care taker.

 

For the purpose, euthanasia has been broadly categorized as Active euthanasia and Passive euthanasia.

 

Active euthanasia:

It refers to a deliberate act of a person to end the life of a patient in order to relief the patient from the unbearable pain and suffering. In other words, it can be defined as an act done in good faith but with an intention to kill a patient immediately in order to terminate the excruciating pain.5

 

Example: Injecting a lethal drug or by giving a medicine which would ultimately end the suffering of the patient.

 

Passive euthanasia:

It refers to a situation when the process by which death of a patient can be speed up by altering some form of support system and letting nature take its course. In other words, its an intentional omission to an act so as to allow the patient to die a peaceful death.6

 

Example:

Removal of life support system such as switching off the ventilator, removal of feeding tube, stopping the medical procedure etc.

 

While active euthanasia aims at commission of an act of intentionally killing a person , passive euthanasia , on the other hand , aims at intentional omission in order to kill a person however, the ultimate result is the painless and peaceful death of a person which could relief him / her from the pain.

 

The above two categories of euthanasia has been further sub- categorized as Voluntary euthanasia and Non- Voluntary euthanasia.

 

 

Voluntary euthanasia:†

The word' voluntary' means anything done with free consent or free will by a person and euthanasia means peaceful death, thus, voluntary euthanasia means providing a peaceful death to a patient upon his free will. It can be defined as a state in which the patients themselves wishes to end their life either by active means or passive ways , that is , either by immediately terminating their life or by removal of life support system . However, this can only be practiced if the patients are suffering from excruciating pain and there are no chance of their recovery.7

 

Example: If 'X' being a terminally ill patient wishes to end his own life by requesting the physician to inject a drug into his body then it will be active voluntary euthanasia. If the same patient 'X' consents to switch off the ventilator or for the removal of the feeding tube then it will be passive voluntary euthanasia.

 

Involuntary euthanasia:

This is a complete reverse of voluntary euthanasia in which the patients themselves doesn't give their free consent for applying euthanasia but somebody in their behalf decides to end the life of such patients in order to terminate their pain. Involuntary euthanasia is practiced when the patients in a P.V.S. and those who cannot convey their suffering, therefore, may be their family members, friends or their care takers can also decides to end the life of such patients if their is no scope of improvement in the health of the patients except for the unbearable pain.8

 

Example: 'A' is a P.V.S. patient and the doctors have declared that 'A' will not be recovering then if 'B' being his family member decides to end A's life then it is involuntary euthanasia. If B decides to end his life by injecting a lethal drug or by switching off the ventilator then the former will be termed as active involuntary euthanasia and the latter is known as passive involuntary euthanasia

 

Euthanasia vs. Suicide

While defining and discussion about euthanasia , we often have a thought that why there is so much of debate on a matter like why do such cumbersome process of euthanasia when we have easy options like suicide as the end result is the same in both the cases, that is , termination of life and unbearable pain of a person. But the proponents of euthanasia advocates euthanasia as a better options of terminating ones life then committing suicide.

The practice of terminating the life of a critically ill patients on his/ her own request of such person who look after them just to end their pain and suffering and gift them a peaceful death while suicide is described as an intentional killing of oneself9. Though the end result is the same but what what differs the two is the medical necessity in euthanasia and emotional stress and mental disorder in suicide. Euthanasia has basically found its roots on medical grounds only whereas suicide is committed by a person on any matter which provide him/ her excruciating pain or suffering whether of their emotional issue, financial issue, medical issue and even peer pressure these days.† That means, euthanasia has a specific boundary within which it can only be practiced and propagated, on the other hand, suicide doesn't have a specified boundary as people commit suicide for any reason. Moreover, euthanasia can be exercised upon a person with or without their consent ( voluntary or involuntary euthanasia) under extreme medical illness while suicide is always committing by a person with his/ her consent. To clarify the above statement example of a coma patient (who cannot recover even after all possible steps/ medical treatment) can be sited. Such patients cannot give their consent but any of their family members or care takers can request to end the life of such patients or critically ill patients can also give his consent to end his life. But when a person commits suicide it is always with his consent if he/ she is committing suicide their consent then it will be termed as murder not suicide.

 

Euthanasia involves only a request by one person to another to end his life and suffering when he/ she is terminally ill. It doesn't involve deliberate action on the part of the person wanting to die because from the medical point of view , such person are not believed to have the physical or mental capability to end their life10. A complete paralyzed person can only request to end his/ her life or anybody on his/ her behalf however, they cannot do an act in order to end his/ her life as he is physically incapable of doing it. But suicide involves a deliberate action by one person to end his/her own life. No doubt there are cases where people take help other people in committing suicide but abetting in suicide is considered equivalent to murder.Since euthanasia involves only a request by one person to another , that means, there is always an involvement of a third party while practicing it on contrary , suicide doesn't involve a third person, it is completely upon the desire of the individual.

 

 

Moreover, even to apply for euthanasia a person or anyone on his/her behalf , needs to be at that state of medical illness where he/she is experiencing excruciating pain and suffering and to him death seems much easier and peaceful than such a painful life whether suicide is committed these days in more of a fashion sense than a mental distress or disorder because the reasons for committing suicide can be their pressure of qualifying in a competitive exam, fight with the parents or friends or even their frequent breakup these days.

 

The two terms also differ in their legal status. Passive euthanasia is legalized in India and many other countries of the world however, active euthanasia is still considered illegal in India and is considered as illegal under sections 309, 306 302 and 304 of Indian Penal Code while suicide and attempt to suicide are no longer considered as an offense in the eyes of law in India.

 

Scope outside india

A patient suffering from any terminal illness has the expectation to seek pleasure in his life. How does he bring happiness in such a phase of life filled with pain and suffering ? The simplest answer is by ending their pain once for ever- through death. Is this legally permissible? The answer differs from country to country. Hence it is necessary to analyze laws permitting euthanasia in different countries. Examples of a few countries where euthanasia has been legalized in the world has been cited below.

 

Netherlands:

Netherlands became the first country in the world to legalize euthanasia in 2002. The patients in Netherlands can opt for euthanasia when the patients are suffering from unbearable pain and are in a mental capabilities to give consent regarding the same. The situation of the patients are been scrutinized now only by patient's doctor but by other two medical experts and law experts. After the death of the patient , the cases are been reviewed by the court.

 

Belgium

Belgium is another country to legalize over a decade. In 2013, there was an open debate was prevailing in the country regarding its legalization so an open vote was conducted regarding the same and euthanasia gained a clear majority for its legalization.

 

 

Albania

Here, passive euthanasia is legalized upon the consent of the patients themselves and if in case the patients are not in a condition to give their consent then at least three members of their family can give such consent on their behalf.

 

Japan

Active and passive euthanasia both are legalized in Japan though for both the conditions are different. For active euthanasia, the patient must be suffering from unbearable physical pain, his express consent and death is inevitable within a few months even after all the possible measure taken by the doctors to avoid death. For passive euthanasia, the patient must be suffering from an unbearable disease at its last stages, gives his express consent or consent of the family members on his behalf.

 

Luxembourg

Luxembourg is the third country in the world to fully legalized euthanasia in 2002. Along with the consent of the patient or their family members , the doctor treating the patient must scrutinized his medical condition and at the same time, a panel of two different experts doctors must check the situation of the patient.

 

U.S.A.

In all the states of the U.S.A. passive euthanasia has been legalized, however, all in all states active euthanasia has been declared illegal. Oregon was the first state to legalized euthanasia in the U.S.A. followed by Washington and other states.11

 

Case laws

1.Cruzan v. Director, Missouri Dept. of Health12

Nancy Beth Cruzan was involved in an automobile accident that left her in a "persistent vegetative state." After being sustained for several weeks by artificial feedings, her parents attempted to end life-support, but state hospital officials refused to do so without court approval.A state trial court authorized the termination of feeding, but the Missouri Supreme Court reversed. In a 5-4 decision, the U.S. Supreme Court upheld the ruling of the Missouri Supreme Court, finding that the State of Missouri's actions to preserve human life were constitutional in the absence of "clear and convincing evidence" that Cruzan desired treatment to be withdrawn."The United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment... However, the question whether that constitutional right has been violated must be determined by balancing the liberty interest against relevant state interests. For purposes of this case, it is assumed that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition. This does not mean that an incompetent person should possess the same right.The Due Process Clause does not require a State to accept the 'substituted judgment' of close family members in the absence of substantial proof that their views reflect the patient's."

 

2.† Washington v. Glucksberg 13

Harold Glucksberg, MD, along with three other doctors, three gravely ill patients, and the nonprofit organization Compassion in Dying, brought a suit challenging the state of Washington's ban on physician-assisted suicide. The plaintiffs asserted that the Washington ban was unconstitutional, arguing that the existence of a liberty interest protected by the Fourteenth Amendment allows mentally competent, terminally ill adults to commit physician-assisted suicide. The District Court ruled that the ban was unconstitutional, and the Ninth Circuit affirmed.

 

The Supreme Court, in a 9-0 decision, reversed, finding that the ban on physician-assisted suicide does not violate the Fourteenth Amendment.

 

3.† Vacco v. Quill14

Timothy Quill, MD, along with two other physicians and three gravely ill patients, challenged the constitutionality of New York state's ban on physician-assisted suicide. The plaintiffs argued that New York's ban violated the Equal Protection Clause of the Fourteenth Amendment, as the law allowed for patients to refuse life-sustaining treatment, but not for them to receive assistance in suicide.

The District Court ruled in favor of the State of New York, and the Second Circuit reversed in favor of Dr. Quill. The Supreme Court, in a 9-0 ruling, upheld the constitutionality of New York's ban on physician-assisted suicide.

 

4. In re Quinlan 15

In 1975, 21-year-old Karen Ann Quinlan was admitted to the hospital in a coma, and was later declared by doctors to be in a "persistent vegetative state." After five months on a ventilator, her parents requested that the ventilator be removed and that Ms. Quinlan be allowed to die. After doctors refused, her parents brought the matter to court.

 

The New Jersey Superior Court denied her parents' request, but the New Jersey Supreme Court reversed and ruled that Quinlan's "right to privacy" included her right to be removed from the ventilator.

 

5.Aruna Ramchandra Shanbaug Vs State Of Maharashtra 16

It was stated that the petitioner Aruna Ramchandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day, a cleaner found her in an unconscious condition lying on the floor with blood all over. It was alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged.Thirty six years had lapsed since the said incident. She had been surviving on mashed food and could not move her hands or legs. It was alleged that there is no possibility of any improvement in the condition and that she was entirely dependent on KEM Hospital, Mumbai. It was prayed to direct the Respondents to stop feeding Aruna and let her die in peace. I

 

6.State of Maharashtra v. Maruti Sripati Dubal17

†In this case the Bombay High Court held that the right to life guaranteed under Article 21 includes right to die, and the Honorable High Court struck down Section 309 of the IPC that provides punishment for attempt to commit suicide by a person as unconstitutional.

 

7. P. Rathinam v. Union of India 18

A two judge Division Bench of the Supreme Court, took cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court supporting the decision of the High Court of Bombay in Maruti Sripati Dubalís Case held that the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking. The court argued that the word life in Art. 21 means right to live with human dignity and the same does not merely connote continued drudgery. Thus the court concluded that the right to live of which Art. 21 speaks of can be said to bring in its trail the right not to live a forced life.

 

8.Gian Kaur v. State of Punjab 19

The Supreme Court has distinguished between Euthanasia and attempt to commit suicide. The court held that death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death that has already commence.

 


Table No. 1.1

 

 


RESULT:

The table number 1.1 given above shows the opinion of the public regarding whether euthanasia should be legalized in India and also the other interrelated and relevant questions without which the legalization of euthanasia cannot be possible.

 

The first question of the research deals with the affordability of high medical expenses for the treatment of a patient who cannot improve can be allowed as a ground for legalizing euthanasia and the answer received was that about 61.11111% of the population agreed to make it a ground 77.77778% people agrees to it while about 22.22222% disagrees to the same.

The question regarding scrutinizing the medical condition of such patients by medical and courts is supported by 94.44444% and about 5.55556% people disagree to the same.

 

About 83.33333% people agrees that petition of a terminally ill must not be rejected but they must be heard and decision are to be taken after realizing their condition while this is been disagreed by 16.66667% people.

 

There is 3:1 ration on including the right to die under the Right to Live with Human Dignity and Personal Liberty. 75% agrees that it should be included while 25% disagrees.

Regarding the inclusion of euthanasia under the purview of Art. 21 80.55556% agrees and 19. 444444% disagrees.

 

77% people agrees that applying euthanasia is morally correct while 22% believed it to be morally incorrect.

The base of the entire whether euthanasia should be legalized in India has been supported by 83.33333% while 16.66667 strongly oppose on its legalization.

 

DISCUSSION:

The base of the entire research that whether euthanasia should be legalized in India has been extremely supported by 83.33333% . People now view euthanasia as a need of the hour because in spite† there are improvement in the medical treatment and technology there remains a fact that with such advancement, there are technologies which could force† a patient to live a life with unbearable pain and suffering even against his wish. Therefore, with the awareness regarding our rights and restrictions over it, people are now demanding to legalize euthanasia in the rarest of the rare case and even after proper scrutinizing by experts.

 

CONCLUSION:

Every beginning has its inevitable end no matter whatever the result might be. However, the positive aspect of everything has its own aura, i.e., it gives birth to several new beginnings. This article is an effort to accelerate the demand for legalizing euthanasia in India so as to provide death with dignity to terminally ill patients who lack representation in the society.

 

In the 21st century, with advancement in the technology which has increase the life expectancy of the people this increasement in the life expectancy has also increased the pain and suffering of terminally ill patients.

 

The research on whether euthanasia should be legalized in India depicts that a large population has agreed to the same. However, like any other Fundamental Right this right must also be practiced under reasonable restrictions such as

1.        Specifying a minimum age limit say 14 years for such patients to apply for euthanasia.

2.        The patient must be mentally capable enough to give their free consent.

3.        Express consent of the patients must be considered in the presence of two witness and a judge of a HC of the respective state. In case, there are chances that the patient may not be able to give his express consent and if he wishes to do so, then a testimantory document must be signed and submitted by the patients themselves.

4.        In case the patient are presently not in a state to give their consent then at three family members must give their free consent in the presence of two witness and a judge of the HC of the respective state.

5.        Along with the doctor of the patients themselves two medical experts must also scrutinized the condition of the patients.

 

Lastly, I want to say that though these measures seems cumbersome but taking these steps can gift a person a peaceful death and can also free him/ her from the unbearable painful life.nd for the same while 38.88889% disagrees to the same.

 

 

LIST OF ABBREVIATIONS:

S. no.

Abbreviations

Full forms

1

ART.

Article

2

SEC

Section

3

IPC

Indian Penal Code

4

PVS

Persistent Vegititive State

5

USA

United States of America

6

UK

United Kingdom

7

VS

Verses

8

AIR

All India Report

9

SC

Supreme Court

10

HC

High court

 

REFRENCES:

1.     Dr. Ghuge Sharmila, " legalizing Euthanasia: A Pedagogue's Perspective", Himalaya publishing House, 1st edition

2.     Ibid

3.     Available at:http://medicine.jrank.org/pages/601/Euthanasia-Senicide-Historical-background.html&lc=en-††† visited on 16th october , 2016 at 10:42pm.

4.     Dr. Ghuge Sharmila, " legalizing Euthanasia: A Pedagogue's Perspective", Himalaya publishing House, 1st edition

5.     Dr. Ghuge Sharmila, " legalizing Euthanasia: A Pedagogue's Perspective", Himalaya publishing House, 1st edition

6.     Ibid

7.     Supra

8.     Supra

9.     DR. Ghuge Sharmila, ď Legalizing euthanasia: A Pedagogue's PerspectiveĒ, Himalaya Publishing House, 1st

10.  supra

11.  Available at: =twww.therichest.com/ricph-list/most-influential/10-countries-where-euthanasia-and-assisted-suicide-are-legal/&ei=22bPsxEV&lc=en- visited at 16th october,2016 at 10:36 pm.

12.  497 U.S. 261 June 25, 1990

13.  521 U.S. 702 June 26, 1997††††††††††††††

14.  526 U.S. 793 June 26, 1997

15.  70 N.J. 10 Mar. 31, 1976†

16.  AIR 2011 SC 1290.

17.  1987 Cri. LJ 549

18.  JT 1994(3) SC 392

19.  JT 1996 (3) SC 339

 

 

 

 

 

Received on 05.01.2017

Modified on 08.02.2017

Accepted on 20.03.2017

© AandV Publication all right reserved

Research J. Humanities and Social Sciences. 8(1): January - March, 2017, 81-88.

DOI: †10.5958/2321-5828.2017.00012.2