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Euthanasia : RIGHT TO LIFE VSRIGHT TO DIE  EXCEUTIVE SUMMARY:Euthanasia is the practice of intentionally ending a life in order torelieve pain and suffering. It’s of two kind viz. Active and Passive.

Active euthanasia occurs when themedical professionals, or another person, deliberately do something that causesthe patient to die. It is illegal in India.  Passive euthanasia occurs when the patient dies because themedical professionals either don’t do something necessary to keep the patientalive, or when they stop doing something that iskeeping the patient alive. This includes:·        switch off life-support machines·        disconnect a feeding tube·        don’t carry out a life-extending operation·        don’t give life-extending drugs We note that in Aruna Shaunbaug case Supreme Court had declared passiveeuthanasia as legal in India. Since there was no law related to euthanasia, theSupreme Court judgement is used as law of the land until the Indian parliamentenacts a suitable law.The Union government has recently come up with a draft bill on passiveeuthanasia.

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It gives patients the right to “withhold or withdraw medicaltreatment to herself or himself” and “allow nature to take its owncourse”.Meaningof Euthanasia:The term euthanasia comes from the Greece words”eu”and “Thanatos” which means “good death” or “easy death”. It is also knownas Mercy Killing. Euthanasia is theintentional premature termination of another person’s life either by directintervention (active euthanasia) or by withholding life prolonging measures andresources (passive euthanasia). Euthanasiaor mercy killing is the practice of killing a person for giving relief fromincurable pain or suffering or allowing or causing painless death when life hasbecome meaningless and disagreeable.In the modern context euthanasia is limited to thekilling of patients by doctors at the request of the patient in order to freehim of excruciating pain or from terminal illness. Thus the basic intentionbehind euthanasia is to ensure a less painful death to a person who is in anycase going to die after a long period of suffering.

                    Classification of Euthanasia: Euthanasia may be classified according to whether aperson gives informed consent under the following heads: ·         Voluntary Euthanasia   ·         Non Voluntary Euthanasia   ·         Involuntary Euthanasia   When euthanasia is practiced with the expressed desire and consent of the patient it is called voluntary euthanasia. This includes cases of: – Seeking assistance for dying – Refusing heavy medical treatment – Asking for medical treatment to be stopped or life support equipment to be switched off – Refusal to eat or drink or deliberate fasting. ?   It refers to ending the life of a person who is not mentally competent to make an informed decision about dying, such as a comatose patient.   The person cannot make a decision or cannot make their wishes known. This includes cases where: – The person is in a coma – The person is too young (e.g. a young baby) – The person is absent-minded – The person is mentally challenged – The person is severely brain damaged NOTE: In these cases, it is often the family members, who make the ultimate decision.

    Involuntary euthanasia is euthanasia against someone’s wish and is often considered as murder. This kind of euthanasia is usually considered wrong by both sides hence rarely discussed. In this case, the patient has capacity to decide and consent, but does not choose death, and the same is administered. It is quite unethical and sounds barbaric. During World War II, the Nazi Germany conducted such deaths in gas chambers involving people who were physically incapable or mentally retarded.     Euthanasia can be furtherclassified in two regarding its manner.They are active euthanasia andpassive euthanasia.a.

    ActiveEuthanasia: Activeeuthanasia involves painlessly putting individuals to death for mercifulreasons. A doctor administers lethal dose of medication to a patient. Activeeuthanasia involves the use of lethal substances. A person cannot himself cause hisdeath but requires someone else’s help with some medication causing death.  In India active euthanasia is illegaland a crime under section 302 or at least section 304 IPC.

Physician assistedsuicide is a crime under section 306 IPC (abetment to suicide).b.   PassiveEuthanasia:Euthanasia is passive when death is caused by turning off the life supportingsystems. Withdrawing life supporting devices from a terminally ill patientwhich leads eventually to death in normal course is a recognized norm. In”passive euthanasia” the doctors are not actively killing anyone;they are simply not saving him.Passiveeuthanasia is described when the patient dies because the medical professionalsrefrain from doing something necessary to keep the patient alive, such as:-Switch off life-support machines-Disconnect a feeding tube-Not to carry out a life-extending operation-Not to give life-extending drugsReasons forEuthanasia: Thereare certain reasons behind advocating euthanasia. People under circumstancesjustify its use. There are various reasons for euthanasia.

Some of them are:(a) Unbearable pain.(b) Demand of “right tocommit suicide”(c) Should people be forced tostay alive? Religious Viewson Euthanasia: Thereare various religious views on euthanasia which are diverse and modifyaccording to changing age of mankind:Hinduism: There are twoHindu approaches on euthanasia. It is a double edged sword. By helping to end apainful life a person is performing a gooddeed and so fulfilling their moral obligations. On the other hand, meddlingwith life and death of a third person is not humanly, which is a bad deed. Hinduism does not advocateactions leading to death of a person. A Sanyasi or a Sanyasini, wish to departthe mortal life, are permitted to end his or her life with the hope of reachingMoksha i.e.

; emancipation of the soul.Muslim: Muslims areagainst euthanasia. They believe that human life is sacred because it is givenby Allah, and that Allah chooses how long each person will live.

Human beingsmust not interfere in these divine powers. According it life is precious andsacred, which Allah will choose to end when, how and where etc. Jainism: MahaviraVaradhmana explicitly allows a shravak (follower of Jainism) full consent toput an end to his or her life if the shravak feels that such a stage would leadto moksha. Salvation can be achieved through self-sacrificeChristianity: Catholicteaching condemns euthanasia as a “crime against life” and a “crime againstGod”. Protestant denominations vary widely on their approach to euthanasia andphysician assisted deathBuddhism: Compassion isa valued virtue of Buddhist teachings. It is used by some Buddhists as ajustification for euthanasia because the person suffering is relieved of pain.

9However, it is still immoral “to embark on any course of action whose aim isto, destroy human life, irrespective of the quality of the individual’smotive.”Shinto:InJapan, the dominant religion is Shinto. 69% of the religious organizations agree with the act of voluntary passive euthanasia. In Shinto, prolonging thelife using artificial means is adisgraceful act and hence against life.

There are mixed views on active euthanasia. 25% Shinto and Buddhist organizations in Japan supportvoluntary active euthanasia.  EUTHANASIA ANDSUICIDE: In India, euthanasia isundoubtedly illegal. The law in India is also very clear on the aspect of assistedsuicide. Right to suicide is not a “right” available in India – it ispunishable under the India Penal Code, 1860. Provision of punishing suicide iscontained in sections 305 (Abetment of suicide of child or insane person), 306 (Abetmentof suicide) and 309 (Attempt to commit suicide) of the said Code. Section 309,IPC has been brought under the scanner with regard to its constitutionality.Right to life is an important right enshrined in Constitution of India.

Article21 guarantees the right to life in India. It is argued that the right to lifeunder Article 21 includes the right to die. Therefore the mercy killing is thelegal right of a person.    CASESRELATED TO INDIA:               ·        .

                                RIGHT TOLIFE” DOESN’T INCLUDE “RIGHT TO DIE”                                                ·        In India abetment of suicide and attempt tosuicide are both criminal offences.·         In 1994,constitutional validity of Indian Penal Code Section (IPC Sec) 309 waschallenged in the Supreme Court . ·        The Supreme Court declared that IPC Sec 309 isunconstitutional, under Article 21 (Right to Life) of the constitution in alandmark judgement·        This debate cuts across complex and dynamicaspects such as, legal, ethical, human rights, health, religious, economic,spiritual, social and cultural aspects of the civilised society·                   ·        InJanuary 2016 on the PIL( public interest litigation ) filed by NGO ” commoncause” which emphasized on the “living will” option to provide to patients, aconstitutional bench of supreme court sat down to solve the prevailinginconsistencies on euthanasia legislation.·        Itwas argued that ventilation can be torturous and financially draining andpossibly against the patients will too.·        Theconstitution bench, led by justice Anil R. Dave, said it will wait till 20 Julyfor govt. or parliament to finalize a law on passive euthanasia·        Medicaltermination ill patient (protection of patient and medical Practioners) bill, 2006is still pending in parliament.

·        241stlaw commission also recommended passive euthanasia to be allowed with certainsafeguards”INTERNATIONAL CASE  SALIENT FEATURE OF  ARUNA RAMACHANDRA CASE JUDGMENT à Best interests’ include the best interests of a patient: (i) Who is an incompetent patient  (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 – ·         Understand the information relevant to an informed decision about his or her medical treatment; ·         Use or weigh that information as part of the process of making his or her informed decision; ·         Make an informed decision because of impairment or a disturbance in the functioning of his or her mind or brain; ·         Communicate his or her informed decision (whether by speech, sign, language or any other mode) as to medical treatment.     ? ‘.?         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- ·         Nature of his or her illness, ·         Alternative form of treatment that may be available, ·         Consequences of those forms of treatment, ·         Consequences of remaining untreated.           Euthanasia:Right to life vs right to dieCRITIQUE VIEW Arguments against euthanasia Euthanasia supporters 1.     Eliminating the invalid: ‘The right to death with dignity’, people with incurable and debilitating illnesses will be disposed from our civilised society 2.

     Palliative care is an active, compassionate and creative care for the dying 3.     Constitution of India: ‘Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life'(welfare state there should not be any role of euthanasia) 4.     Attempted suicide is considered as a sign of mental illness 5.

     Malafide intention:  Possibility of misusing euthanasia by family members or relatives for inheriting the property of the patient. 6.     ‘Mercy killing’ should not lead to ‘killing mercy’ in the hands of the noble medical professionals.

Hence, to keep control over the medical professionals 7.     Commercialisation of health care: Poor patients and their family members refuse or withdraw treatmentà huge cost involved in keeping them aliveà commercial health sector will serve death sentence to many disabled and elderly citizens of India for meagre amount of money 8.      Desire for death in terminal patients is correlated with the depression 1.     Caregivers burden: ‘Right-to-die’ supporters argue that people who have an incurable, degenerative, disabling or debilitating condition should be allowed to die in dignity. 2.     Refusing care: Right to refuse medical treatment is well recognised in law, including medical treatment that sustains or prolongs life 3.

     Right to die: Many patients in a persistent vegetative state or else in chronic illness do not want to be a burden on their family members. Euthanasia can be considered as a way to upheld the ‘Right to life’ by honouring ‘Right to die’ with dignity. 4.     Encouraging the organ transplantation: Euthanasia in terminally ill patients provides an opportunity to advocate for organ donationà ‘Right to life’ for the organ needy patients.

   Forthe purpose of analysing euthanasia, 5 principles are recognized by most of thetheorists.  These principles are:(a) The principle of motive: each action is judged by the intentionbehind it.(b) The principle of certainty: a certainty cannot be voided, changedor modified by uncertainty.(c) The principle of injury: an individual should not harm others or beharmed by others.(d) The principle of hardship: hardship mitigates easing of the rulesand obligations.

(e) The principle of custom: what is customary is a legal rulingThe Medical Treatment of Terminallyill patients (Protection of Patients and Medical Practitioners) Bill 2016Salient Provisions ofthe Draft Bill: ·        A terminally ill patient above the age of 16 years can decide on whetherto continue further treatment or allow nature to take its own course.·        Every competent patient, including minors aged above 16 years, has aright to take a decision and express the desire to the medical practitionerattending on her or him.·        The Bill provides protection to patients and doctors from any liabilityfor withholding or withdrawing medical treatment and states that palliativecare (pain management) can continue.·        When a patient communicates her or his decision to the medicalpractitioner, such decision is binding on the medical practitioner. However,it also notes that the medical practitioner must be “satisfied” that thepatient is “competent” and that the decision has been taken on free will.

·        There will be a panel of medical experts to decide on case by casebasis.·        The medical practitioner has to maintain all details of the patient andensure he/she takes an informed decision. He is also required to inform thepatient whether it would be best to withdraw or continue treatment. ·        If the patient is not in a conscious state, he/she needs to informfamily members. In the absence of family members, the medical practitionerneeds to inform a person who is a regular visitor.·        The draft also lays down the process for seeking euthanasia, right fromthe composition of the medical team to moving the high court for permission.·        The Bill only pretends to legalise what is called “passive euthanasia”,as discussed in the judgement pertaining to Aruna Shaunbaug.

·        Activeeuthanasia is considered Illegal.  SHORTCOMINGS OF THE BILL:1.      The Right to Die with Dignity: The failure torecognise and give effect to Advance Medical Directives, ill definition of’terminal illness’ under the Bill, lack extend immunity from prosecution topalliative care practitioners2.      The Right to Patient Autonomy: Discriminationagainst incompetent patients with terminal illnesses, Paternalism by medicalpractitioners, Incorrect understanding of competence, lack of assessment of’best interests’ by medical practitioners under the Bill,3.      Facilitating the Exercise of Patient Autonomy: ThisBill overlooks provisions of the mental health Bill, which might potentiallyundermine the rights of patients to refuse life-saving medical treatment thathave been recognised in this Bill.4.      Minimising Judicial Intervention in End-of-LifeDecision-making: Clause 9 of the Bill creates uncertainty about thecircumstances in which medical treatment may be withheld or withdrawn fromincompetent patients.

         RECOMMENDATIONS1.      The Bill must thus create a legal framework forthe operation of advance medical directives for extension of right to life. 2.      Every person has a fundamental right to life,which includes the right to die with dignity.

(“SC”) in Gian Kaur v State ofPunjab (1996).It is recommended to State should take  measures within its power to ensure that thisright is protected, respected and fulfilled.3.      Patient autonomy is paramount. A necessarycomponent of the right to dignity includes the right to make decisions aboutone’s body, including the right to refuse medical treatment. {Aruna RamchandraShanbaug v Union of India (2011)}.4.      To ensure that patients are able to exercise hisor her autonomy.

This requires making accurate and comprehensive informationavailable and accessible as well as allowing flexibility in their decisions. {ArunaRamchandra Shanbaug v Union of India (2011)}.5.      Communication and consultation between doctorsand the family, relatives or friends of the patient are key component indetermining the patient’s best interests6.      In order to counter the MISUSEà EUTHANASIA panelshould be set up comprising of skilled doctors, lawyers and a representative ofgovernment who can give proper decision on case to case basis.7.      Before euthanasia is finalizedà consent of at least 2doctors, who are not related to each other or to patients.8.

      Those who survival an attempt to commit suicideare mentally and emotionally distressed and requires medical assistance ratherthan punishments.9.      Like in USA, living wills should be made a legaldocument in India, that is, enforceable in the court of law. It should besigned in the presence of qualified physician and assisted by a lawyer10.  It is recommended that immunity from prosecutionbe extended to medical practitioners who administer palliative care. 11.

  Medical practitioners should only be required toobtain free and informed consent from patients before they administerpalliative care.12.  To ensure that palliative care is administeredin a manner consistent with the right to die with dignity, the Medical Councilof India should frame guidelines for the withholding or withdrawing of medicaltreatment and Standard Treatment Guidelines for the administration ofpalliative care. Further, medical and paramedical students should be trained toadminister palliative care.13.  Competent patient has made an informed decisionto withhold medical treatment, the medical practitioner must only be requiredto communicate to the next of kin.

Sub-clause (3) of Clause 3 of the Billshould be suitably amended. 14.  Under Clauses 5 and 8, the legal liability ofmedical practitioners should not be linked with their assessment of the bestinterests of the patient. A determination that the patient was competent tomake decision and exempt the medical practitioner from legal liability.

15.  Inrequiring the medical practitioner to assess the best interests of the patient,Clause 8 is inconsistent with sub-clause (2) of Clause 3, which states that theinformed decision of a competent patient is binding on the medical practitioner.It is thus recommended that Clause 8 be amended to remove the requirement todetermine the best interests of a competent patient.16.  The Mental Healthcare Bill, 2016, will permitphysical restraints to be placed on persons with mental illnesses who areattempting to cause bodily harm to them. These provisions might affect apatient’s ability to choice to withhold or withdraw medical treatment underthis Bill. It is thus recommended that appropriate provisions be introduced toensure that persons with mental illnesses, but who are competent patients, arenot hindered from giving effect to their informed decisions.

17.  Dueto the use of the word ‘may’ in clause 9 of the Bill, it isn’t clear whether itis compulsory on the part of the patients to seek the permission of the HighCourt before withholding or withdrawing treatment. It is recommended that sucha provision be kept discretionary to minimise judicial intervention in thedecision-making process.

18.  Judicialintervention in end-of-life decision-making should be kept minimum, andpromoted only when there is serious disagreement about what constitutes thepatient’s best interests.19.  Itis recommended that Ethics CommitteesàAppeals may be allowed from the decision of the Ethics Committee to the HighCourt only on the narrow grounds of material error of fact or mala fide.20.

  Laws are made for the people and it should have provision tobring out changes in order to meet the need of change in society. Legislationis duty bound to walk with the society. References:1.      Aruna Ramchandra Shanbaug vs.

Union ofIndia & Ors. Writ Petition (Criminal) no. 115 of 2009, Decided on 7 March,2011. accessed on August 16, 20112.     P. Rathinam vs. Union of India, 1994(3) SCC 3943.

      Gian Kaur vs. State of Punjab, 1996(2) SCC 6484.      The Indian Medical Council(Professional Conduct, Etiquette and Ethics) Regulations. 2002. accessed onAugust 19, 20115.

      Gursahani R. Life and death after ArunaShanbaug. Indian J Med Ethics. 2011;8:68–96.

      Dowbiggin I. Amerciful end: The euthanasia movement in modern America. New York:Oxford University Press, Inc; 2003.