Legal jurisprudence states that there is a right and a corresponding duty to every action and inaction. And as all the rights that every individual possesses in the contemporary society are being defined to the greatest extent, it is also equally true that we lack a few provisions in our laws that would truly draw a balance between individual liberty and the reasonable restraints of the state and society. However, for this the state has to comprehend or realize the fact that not all things are based on reason or logic; that we are human beings, who cannot be governed by mechanical laws.
Today there is a growing debate over the contention, whether people possessing similar rights- such as the ‘right to live’ also posses the ‘right to die’. There is a divided opinion over this issue, as some argue that life is to be continued in every manner possible- be it in a natural or artificial one. The rest believe that it being a matter of individual liberty, all of us are entitled to live and end our lives as and when we deem fit. According to these people, suicide like euthanasia should be morally permissible. Due regard must be given to every case of euthanasia before a person’s right to live and die a pain free life is denied.
It is crucial to draw a definitive line between suicide and euthanasia, where many are of the opinion that by permitting euthanasia we would be indirectly also be permitting suicide, therefore as against suicide the grounds on which euthanasia may be allowed should be very restrictive; and if at all allowed, be in exceptional cases, leaving no window for any mischief.
Suicide as defined in Webster’s Dictionary means an act or instance of intentionally killing oneself. Therefore, suicide could be termed as the intentional termination of one’s life by self- induced means for various reasons, such as, frustration in love, failure in examinations or in getting a good job, but mostly it is due to depression.
The genesis of the desire to live or survive springs from the motivation to live, which every human being normally posses. Such motivations may be numerous and may vary from person to person. For existence it is imperative that every human being has a reason or motivation. But when such reasons or a motivation no longer exist- along with it goes the psychological reason to exist. Therefore it wouldn’t be false to say that our will power to exist is paramount to everything else, even the laws that govern our lives.
Considering the above argument, it is still in the best interest of the society, that suicide not be permitted, however disheartened the person may be, because if permitted, it may have a negative effect on the minds of children who for different reasons may contemplate suicide. Human life is an enigma, where events and circumstances may change even in the blink of an eye. Therefore what may seem like a hopeless situation today, may well be worth living the next day; and also because happiness like depression and sadness is a state of mind, that may change according to circumstances that govern us.
In India, the Supreme Court has held , ” The right to live with dignity cannot be construed to include within its ambit the right o terminate natural life, at least before commencement of the natural process of certain death.
The Supreme Court of India in P. Rathinam’s case observed,
“The principle is that the sole end for which mankind is warranted individually or collectively, in interfering with the liberty of action of any of their number is self protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others… In the part which merely concerns him, his independence, is of right, absolute.”
But it was in Gian Kaur’s case , which overruled P. Rathinam’s case , the Supreme Court of India held, “Right to life is a natural right embodied in Article 21 of the Constitution of India, but suicide is an unnatural termination or extinction of life and is incompatible and inconsistent with the concept of the right to life”.
However, a person who has made up his mind and is determined to end his life at all costs and regardless of all repercussion that his actions may have on those that care about him, cannot be stopped by law because he/she is going to end his/her life sooner or later. As was observed by the great philosopher, poet ‘Khalil Gibran’ , “…you can muffle the drum and you can loosen the strings of the lyre, but who shall command the skylark not to sing?”
An English writer- H. Romilly Fedden observed , ” It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of life so slender, that he has been willing to face pain and death in order to cease his living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation”.
“The secular lives that most of us lead, no matter what our faith (or the lack of it), can often keep us from seeking tough answers to difficult questions. There are no absolute standards for guidance. We are more likely to blur the issues, no matter how well meaning, by appeals to what is practical what works, or is cost effective, or suits our politics and what suits are open society. Most of all, it’s about what suits us”.
Euthanasia or mercy killing is committed on the basis of medical reasons, where the death of a terminally ill person is brought about by another person, who believes that such person’s existence is so bad that he/she would be better of dead; also when his actions are based on the conviction that unless he intervenes and ends the ill person’s life, it shall become so bad that he/she would be better of dead. Considering this observation, it may be stated that the motive of the person committing such acts of euthanasia is to benefit the one whose death is brought about.
The problem of euthanasia has a long history of philosophical discussion. Ancient Greek thinkers seemed to have favoured euthanasia even though they opposed suicide. In medieval times Christian, Jewish and Muslim philosophers opposed active euthanasia, although the Christian Church has always accepted passive euthanasia.
In the sixteenth century, English Humanist Thomas More, in describing a utopian community, envisaged such a community as one that would facilitate the death of those whose lives had become burdensome as a result of torturing and lingering pain. However, it has only been in the last 100 years that there have been concerted efforts to make legal provisions for voluntary euthanasia.
Euthanasia can be classified as:
1. Voluntary Euthanasia: Covers instances of euthanasia in which a clearly competent person makes voluntary and enduring request (either verbally or through a written document) to be helped to die. However, there is no single, objectively correct answer, which has application to everyone, as to when if at all, life becomes burdensome and unwanted. Where a critically ill person is typically in a severely compromised and delibilated state, it is, other things being equal, the patients judgment of whether continued life is a benefit that must carry the greatest weight, provided always that the patient is competent.
In her judgment Judge Barbara Rothsein of the U.S District Court held, “The suffering of a terminally ill person cannot be deemed any less intimate or personal, or any less deserving of protection from unwarranted governmental interference than that of a pregnant woman… like the abortion decision, the decision of a terminally ill person to end his/her life involves the most intimate and personal choices that a person can make in a life time; and constitutes a choice central to personal dignity and autonomy. “
Considering the above, we can say that voluntary euthanasia is primarily concerned with the right to choice of the terminally ill patient who decides to end his or her life, choice which serves his/her best interest and also that of everyone else.
Considering this the advocates of voluntary euthanasia have proposed certain restrictive conditions, which contend that if the person is
a) suffering from a terminal illness;
b) unlikely to be benefited from the discovery of a cure, for that illness during what remains of his/her life expectancy;
c) as a direct result of the illness, either suffering intolerable pain, or only has available a life that is unacceptably burdensome (because the illness has to be treated in ways which lead to her being unacceptably dependent on others or on technological means of life support);
d) has an enduring, voluntary and competent wish to die (or has prior to losing the competency to do so, expressed a wish to die in the event that conditions mentioned in a-c are satisfied; and
e) unable without assistance to commit suicide;
And in such cases only, there should be legal and medical provisions to enable such persons to be allowed to die or be assisted to die . (It is important to note here that these conditions concern access only to voluntary for those who are terminally ill.) The first condition is restrictive in the sense that it allows only persons who are terminally ill and not others such as those suffering from early Alzheimer’s disease, because the inclusion of such persons would, at least for the time being make it far harder to obtain legal sanction for helping those suffering from terminal illness and wish to die.
The second condition is meant simply to reflect that miracle cures, however sensationally spoken of, are not so easily available unless there are painstaking breakthroughs achieved. Which in fact are begotten by a very long and gradual process of research. Therefore, in the present circumstances at least, it would be very unfair to reject the appeals of such terminally ill persons, who wish to die.
The third condition recognizes the fact that it not only release from pain that leads such terminally ill persons to ask for euthanasia, because such people may be relieved from the pain by administration of drugs, however, they also have to endure the ugly side effects of such drugs. Whereas, some may not have to cope with pain, instead are made incapable of living life without life support systems (eg: patients suffering from motor neurone disease).
The fourth condition states that the choice to die not only be voluntary, but that it be made in an enduring way and be competent. Also in cases where the patient be suffering from depression, they should be allowed a certain cooling off period. The choice should be one that reflects will of the person concerned, require discussion and time for reflection and should not be settled in a moment.
The reason there is big divide over the granting of permission for practice of voluntary euthanasia is said to be the lack of evidence, which could prove that the dying persons request to die is competent, enduring and genuinely voluntary.
Also, where a person is racked with pain or befuddled because of the measures taken to relieve the pain; and is not able to think clearly and rationally about the alternatives, such persons in those circumstances who wish to die should not be assumed to have a competent, enduring and genuinely voluntary desire to die. In such cases, living wills or advance declarations could be used as legal instruments for giving voice to the wishes of such people. It is also not necessary for people to have suffered such illness; they can pen their thoughts on the basis of any prior experience of illness or deaths of the family and friends.
The fifth condition further restricts access to voluntary euthanasia by excluding those who are sui juris or capable of ending their own lives.
Moral Arguments for Voluntary Euthanasia
The central ethical argument for voluntary euthanasia- that respect for persons demand, for their autonomous choices, as long as those choices do not result in any harm to others, is directly concerned or connected with the issue of competence because autonomy presupposes competence.
Since dying is a part of life, choices about the manner of dying and the timing of death, are for many people, part of what is involved in taking responsibility for their lives. Most of us are concerned about what would the last phase of our lives be like. Not merely because of fear that our dying may involve us in great suffering, but also because of the desire to retain our dignity and as much control over our lives as possible during this phase.
Voluntary euthanasia can be further classified into:
a) Passive Voluntary Euthanasia refers to cases where life sustaining or life prolonging measures are withdrawn or withheld, and steps which could preserve or prolong life are not taken, thereby allowing the patient to die.
b) Active Voluntary Euthanasia refers to cases where active measures are taken to end the patient’s life, such as by directly administering a lethal dose of a drug.
The alleged distinction between passive and active voluntary euthanasia, is generally a matter of pragmastics, not of anything of deeper importance. For instance consider the practice of deliberately proceeding slowly towards a ward in response to request to provide assistance for a patient who is subject to a not for resuscitation code. Or consider pulling the plug on an oxygen machine keeping and otherwise dying patient alive, as against not replacing the tank when it runs out.
According to James Rachels (Professor of Philosophy at the University of Alabama), “There is no moral difference between actively killing a patient and passively allowing a patient to die.”
He further states that the techniques of passive euthanasia prolong the suffering of the patient, for it takes longer to passively allow the patient to die than it would if active measures were to be taken; and in the mean time the patient is in unbearable pain. Since the decision has to be made to bring an earlier death, it is rather cruel to adopt the longer procedure.
Also, passive and active euthanasia do not differ since both have the same outcome- the death of the patient on humanitarian grounds. The difference between the two is accentuated because we frequently hear of terrible cases of active killings, but not of passive killings.
It is often said that even if motive and consequences are agreed to be in common, if someone’s life is intentionally terminated, he/she has been killed, whereas, if he/she is no longer being aggressively treated his/her life is not ended by the with drawl of such aggressive treatment, but because of the underlying disease.
2. Non-Voluntary Euthanasia: Includes instances where a person is either not competent to or unable to, express a wish about euthanasia, or wherein the patient is unconscious, comatose, or is otherwise unable to explicitly make his/her intentions known; and there is no one authorized to make a substituted judgment (wherein a proxy would choose, as the no longer competent patient would have chosen).
In voluntary euthanasia, the patient has had on prior occasion, given advance directives in the form of living wills (or otherwise) to express his desire or wish in circumstances wherein he himself is not in a position to give any such directives. Whereas in Non-Voluntary euthanasia the patient has left no such living will or given any advance directives, as he may not have had an opportunity to do so, or may not have anticipated any such accident or eventuality. In cases of non voluntary euthanasia, it is often the family members who make the decision, whereas in The Netherlands, it is the Doctors who mostly decide whether the patients’ life is to be terminated or not. However, there are certain legal guidelines that they also have to follow for terminating the patient’s life.
However, today there is also a growing fear among people that by allowing voluntary euthanasia to be legally permitted, we may set foot on a slippery foot that may lead us inevitably to support other forms of euthanasia, especially non-voluntary euthanasia. The arguments pertaining to the permissibility of non-voluntary euthanasia are based on:
a) Psychological, b) logical; and c) arbitrary lines.
a) Psychological Basis: With regard to the psychological inevitability, there is no way of knowing the patients views, because the patient is neither competent, nor has made any provision for a proxy to make a substituted judgment. And those who value the autonomy of the indivisual and support the provisions for voluntary euthanasia cannot be presumed to find it psychologically easier (as there is no reason to believe that they will) to kill patients who are not able competently to request assistance with dying.
b) Logical Basis: There is nothing logically inconsistent in supporting voluntary euthanasia
but rejecting non-voluntary euthanasia as morally inappropriate. The two issues being
logically separate there may be some advocates of voluntary euthanasia who wish to lent
their support to some acts of non-voluntary euthanasia. (eg. Those in Persistent
Vegetative State who never indicated their wishes or those who never anticipated
such eventuality.) Others may think that what may be done with the consent of the
patient sets a restriction on the practice of euthanasia. The difference therefore is not of
logical acumen, but has to be located in the respective values of different supporters.
b) Arbitrary Basis: There can be no substance to the charge that there is a slide from
voluntary euthanasia to non-voluntary (as the line between them is based on clear
After the publication of the Remmelink Report in the 1991 into the medical practice of euthanasia in The Netherlands, it has frequently been said that the Dutch experience shows decisively that legally protecting voluntary euthanasia is impossible without also affording protection to non- voluntary euthanasia that will come in its train… In a second nation wide investigation of physician assisted dying in The Netherlands carried out in 1995 a similar picture emerged as had in the Remmelink Report of 1991. But again no evidence was found of any decent down a slippery slope towards ignoring people’s voluntary choices to be assisted to die.
“If active euthanasia is widely practiced but in ways that are not legally recognized, there is apt in fact to be more danger that the distinction between voluntary cases and non-voluntary cases will be blurred or ignored than in a situation where the carrying out of euthanasia is transparent and subject to monitoring .”
Therefore, while permitting voluntary euthanasia, it is also necessary that safeguards be put against potential abuse of any legal protection for voluntary euthanasia. One effective means for protection is that of advance directives like living wills, which are thought to be widely effective, if not perfect.
3. In-Voluntary Euthanasia: In-Voluntary Euthanasia refers t cases wherein a competent patient’s life is brought to an end against the wishes of that patient that oppose euthanasia; and would clearly amount to murder. In such cases, no matter how honourable the perpetrator’s motive, such form of euthanasia should be unlawful.
The Medical Profession And Euthanasia
Theoretically speaking, medical professionals have several options open to them in cases where the patient is terminally ill, or in intense pain, or voluntarily chooses to end his own life to escape the prolong suffering. These options are: a) The worker can ignore the patient’s request b) The medical personnel can discontinue providing treatment to allow the patient to die (Passive Euthanasia) c) The medical personnel can provide the patient with the means to end his own life (Assisted Suicide) or d) Take active measures to end the patient’s life (Active Euthanasia).
However, the value (or right) of self-determination does not entitle a patient to compel a medical professional to act contrary to his/her moral or professional values. If voluntary euthanasia is legally permitted, it must also be against a backdrop of respect for professional autonomy.
Euthanasia And Laws Pertaining To Euthanasia In Different Countries
1. The Netherlands: In the nineteen seventies and eighties a series of court cases in The Netherlands culminated in an agreement being reached between the legal and medical authorities to ensure that no physician would be prosecuted for assisting a patient to die as long as certain guidelines were strictly adhered to. These guidelines were established to permit physicians to practice voluntary euthanasia in instances where: a) A competent patient had made a voluntary; and informed decision to die. b) The patient’s suffering was unbearable. c) there was no way of making that suffering bearable which was acceptable to the patient. d) The physician’s judgment as to the diagnosis and prognosis were confirmed after consultation with another physician. In November 2000, The Netherlands passed a legislation to legalize the practice of voluntary euthanasia. The legislation passed through all Parliamentary stages; and in early 2001 became Law. Since 2001 many patients suffering from numerous incurable diseases have been able to put an end to their misery by opting for euthanasia.
2. U.S.A: In Oregon, legislation was introduced in 1997, to permit physician assisted suicide, when a second referendum clearly endorsed the proposed legislation. Later, in 1997 the Supreme Court of U.S in two significant cases ruled that, “There is no constitutional right to physician assisted suicide. ” However, the Court did not preclude individual States from legalizing in favour of physician-assisted suicide. As a result the Oregon legislation is still operative and continues to serve the purpose of many people. In Florida the legislators debated the issue of Terri Schiavo, who had been in Persistent Vegetative State for the past fifteen years and had not left any advance directives with the help of which the matter could have been easily resolved. Her husband sought to have her feeding tube withdrawn; and had won the Courts approval to do so. However, Mrs. Shiavo’s parents opposed the said decision of the Court. Meanwhile the Florida legislature hastily enacted a law directing that the feeding tube be applied once more. In this particular case, many are of the opinion that after fifteen years in a persistent vegetative state, perhaps Mrs. Schiavo should be allowed to die.
The Iowa Law Review in October, 1989 published a “Model Aid-In Dying Act”, under which even a child above the ‘age of six’ could request Aid-in-Dying; and if his parents refused to permit him, an “Aid-in-Dying Board” could overrule them and grant the request.
In 1984 the then Governor of Colorado – Richard Lamm said , “The terminally ill elders have a duty to die and get out of the way.”
Jack Kevorkian also known as the ‘Doctor of Death’ in his trial in Michigan said, “If a rational policy of planned death can be attained, the benefit for the society is incalculable .” Also there are many who are of the opinion that euthanasia could also be used to eliminate the defective in order to strengthen the gene pool, or to keep the growing population under check; and thus be very beneficial for the society. But such extreme measures are perhaps too irrational.
In the U.S, in cases such as Nancy Cruzan , John Doe , and that of Karen Ann Quinlan, that Supreme Court has time and again reiterated its view that, though there is a Constitutionally protected ‘right to die,’ this right is not absolute, for the State has an interest in protecting and preserving life.
Today in America, various grants are being made to promote euthanasia by various foundations. Also, education programs are being designed to train medical personnel in the pro-euthanasia newspeak.
3. Australia: In the nineteen nineties in Australia, the first legislative approval for voluntary euthanasia was achieved with the passage of a bill in the Parliament of Australia’s Northern Territory to enable physicians to practice voluntary euthanasia. Subsequent to the Rights of the Terminally Ill Act’s Proclamation in 1996, it faced a series of challenges from opponents of voluntary euthanasia. In 1997, the challenges culminated in the Australian National Parliament overturning the legislation; and prohibiting Australian Territories (The Australian Capital Territory and The Northern Territory) from enacting any legislation permitting euthanasia.
It was observed in an Australian case , “The Rights of the Terminally Ill Act (as amended) (NT) is unique. It is sui generis. It is a composite whole. It establishes a regulatory regime for the intentional termination of human life in stipulated circumstances. In doing so, it removes all criminal, civil and professional sanctions otherwise applicable to a medical practitioner who intentionally terminates a patient’s life or aids a patient to commit suicide in accordance with stipulated procedures. The Act institutionalises intentional killing which would otherwise be murder; it institutionalises aiding suicide which would otherwise be a crime.”
It was approximately a year ago, when an Australian citizen devised an instrument capable of holding carbon monoxide gas; it was made specifically for people who wished to put an end to their lives, without having to bear any pain in the process.
4. Belgium: The Belgian Parliament legislation favouring euthanasia in May, 2002 quite similar to that passed in The Netherlands. And in the first year of its legalization, 203 cases have been recorded, according to the newly released figures provided by the Public Health Ministry. The Public Health Ministry is now examining how patients and doctors are informed about this issue in The Netherlands compared to Belgium; also changes to checks on compliance with the legal conditions under which euthanasia is carried out are also being considered, as are simpler registration forms. Recently there was a forum held by Doctors in Brussels, wherein the doctors admitted that there could be more than thousand deaths annually via euthanasia in very first year of its being legalized, a leading spokesman opined that the practice of euthanasia should be expanded to include teenagers and more disabled people .
Some argue that persons demanding the permissibility of euthanasia are people who, perhaps because of a serious illness or perhaps for reason unrelated to their illness are extremely depressed and say that they want to die. That these people are no different than others who think of suicide- just that they have medical problems in addition to their emotional or psychological problems. Most persons are victims of frustration, because they find themselves in this whole new world, where they are completely dependent on others and find it impossible to lead any active life for that matter. Suicidologists find that those who speak of suicide or ending their life do so, because they wish to seek attention. But the present argument is not directed towards determining whether persons desiring attention should be given such attention. The present argument prominently concerns itself with the issue, which is linked directly to each one of us. It speaks of the rights of those people who are terminally ill (like the right to decide about life sustaining treatment; and right to respect for autonomy) and have no- where to go or seek, but the Court of Law and Justice, because today’s and hopefully tomorrow’s world is based and controlled by the rule of law. However the only contribution that the law can make at this juncture is providing a procedural legal framework that would guide the practice of euthanasia (in the best possible way) in serving the interests of the contemporary and future society.
Also, euthanasia and physician assisted suicide are not simply legal issues alone; and by terming them as legal questions, we may be missing the crux of the matter. With everyday discoveries being made in modern science and medicine, new ways to sustain and prolong life are brought about, keeping us alive no matter what. But unless modern science and medicine come up with a miracle cure for age, that would keep us alive and active, more and more people such as those suffering from Aids, Cancer, or patients in Persistent Vegetative State, or patients suffering from motor neurone disease, would rather prefer to exercise the option of euthanasia and physician assisted suicide.
Whilst most of the medical facilities in the United States and that of some of the most developed nations follow the request of the patient in the form of Do Not Resuscitate (DNR) why then is it difficult to allow a person to chose the manner in which he/she dies. Everyday, we make thousands of exceptions both big and small, many even without our knowledge. Perhaps it’s time we made one towards our policy for euthanasia in exceptional cases of the terminally ill patients, who wish to die.
1. Webster’s Dictionary (II) New Riverside University pg. 1159
2. Gian Kaur v. State of Punjab (1996) 2 SCC 648
3. P. Rathinam v. Union of India (1994) 3 SCC 394
6. The Prophet – Great Works Of Khalil Gibran
7. Suicide (London 1938), pg. 42
8. Suzanne Fields ‘The Washington Times’ October 27, 2003
9. Compassion in Dying v. Washington, Filed March 6, (1996) U.S Court of Appeals 9th Circuit Court.
10. Robert Young “Voluntary Euthanasia”- Stanford Encyclopedia of Philosophy. April 18, (1996-a)
11. “Active and Passive Euthanasia” The New England Journal of Medicine, Vol. 292 January 9, 1975, pp. 78-80
12. Robert Young “Voluntary Euthanasia”- Stanford Encyclopedia of Philosophy. April 18, (1996-b)
13. Robert Young “Voluntary Euthanasia”- Stanford Encyclopedia of Philosophy. April 18, (1996-c)
14. Washington v. Glucksberg, 521 U.S 702 (1997
15. Quill v. Vacco, 521 U.S 793 (1997)
16. Death With Dignity Act, 1997
17. New York Times, 29 March 1984
18. Michigan v. Kevorkian, Oakland Circuit Court, 9th June 1990.
19. Cruzan v. Director, MDH, 497 U.S 261 (1990)
20. Compassion in Dying v. Washington, Filed March 6, 1996 (U.S Court of Appeals) 9th Circuit Court.
21. Source: World Magazine February, 1999
22. Euthanasia Laws Bill, 1996 (The Andrew’s Bill)
23. Christopher John Wake and Djiniyini Ggondarra v. Northern Territory of Australia (1996) 5 NTLR 170
24. Source: Belgian News November 25, 2003
25. Steven Ertelt ‘Livenews.com’ Brussels, Belgium December 8, 2003
26. (1987) Cr LJ 549
27. (1994) 3 SCC 394
28. Gian Kaur v. State of Punjab (1996) 2 SCC 648
29. (1994) 3 SCC 394