Euthanasia

Euthanasia means mercy killing. The word ‘killing’ has a tinge of cruelty. But recently, a new concept of euthanasia is evolving in which there is neither cruelty nor criminality. The question is, should a person, who is suffering from a terminal illness, incurable disease be permitted to die prematurely i.e. before his natural death. A patient in persistent vegetative state i.e. in a state of coma can survive in such unconscious state for months together with the help of respirator. There is no meaning in keeping such person technically alive with the help of medical facilities. If his unconsciousness is irreversible with permanently non-functioning brain, showing no spontaneous respiration or cephalic reflexes, no brain waves (a flat electroencephalographic recording), the doctor should be allowed to disconnect life sustaining machine, such as respirator and withdraw other treatment from such patient. But as the law stands presently, this would be a case of murder committed by the doctor. If the relatives of the patient have sought this course, they would also be likewise guilty of murder or abetment of murder.

A person who is suffering from excruciating pain in the last stage of his incurable cancer or last stage of AIDS or longstanding crippling paralysis or any other painful and incurable disease my express his genuine desire to die. It is in the fitness of the things that he should be granted mercy death. The risk of incorrect diagnosis can be avoided by consulting two expert and experienced doctors. Sometimes person of extreme old age who do not want to be burden on others also desire to die. If their desire is found to be real, they may also be granted euthanasia. Often, a person out of frustration, disappointment or momentary emotional outburst expresses his desire to die. But he really does not want to die. He wants very much to survive provided such unfavourable, unfortunate circumstances are eliminated. Such unreal desire to die must be distinguished from real, persistent, firm desire to die. In such cases of pseudo-desire or momentary desire to die, what is required is psychiatric treatment, proper counselling and dealing with him with love and affection. Giving mercy death promptly on his momentary desire to die would be a blunder. But decision to die taken wisely, in good mental health has to be respected. There is nothing in the world to which man has a more strong title than to his own life and person.

Euthanasia may be passive or active. If life sustaining machine is disconnected or medical treatment is stopped to a patient and a patient dies, this will be a passive euthanasia. On the other hand, if a patient or a person who desires to die is given a lethal injection or a lethal drug and he dies, this will be active euthanasia. One is the act of omission; the other is the act of commission. The effect of both is the same. Today, both these acts would be equally criminal. After legalising euthanasia both these act would be devoid of criminality. In one case, Mckay v. Bergstedt, a patient had filed a petition to the District Court, in the State of Nevada in U.S.A. for permitting disconnection of his respirator. The District Court granted permission. The State appealed to the Supreme Court of Nevada who affirmed by majority the District Court’s judgment. The Court took the view that the desire of the patient for withdrawal of his respirator did not amount to suicide – the same was rather an exercise of his constitutional and common law right to discontinue unwanted medical treatment. It is submitted that the patient was really requesting the Court to sanction affirmative act of suicide. Moreover, there should not be any difference in criminal liability when euthanasia is caused either by omission or commission of the act. The decision of the Court really paves the way of granting euthanasia, and in near future by commission i.e. active euthanasia.

If euthanasia is decriminalised or permitted, attempt to commit suicide cannot survive as an offence. Attempt to commit suicide is self-helped attempt to euthanasia, a third person like doctor, may come into picture. Otherwise there is no difference. With due respect to the Supreme Court, the decision in Gian Kaur v. State of Punjab (AIR 1996 SC 1257) which overruled P. Rathinam v. Union of India (AIR 1994 SC 1844) is clearly wrong. The decision given in P. Rathinam case invalidated S. 309 of the Indian Penal Code (Penalising attempt to commit suicide) on the ground that it violated Art. 21 of the Constitution is a considered and wise decision. Law Commission of India had in its 42nd Report of 1971 recommended deletion of Section 309 of IPC. Attempt to commit suicide is now no crime in many civilised nations like U.S.A. and U.K. Over oneself, over one’s own body and mid, the individual is sovereign. In P. Rathinam’s case after observing that no person can be forced to live a life to his detriment, disadvantage or disliking, held that right to life under Art. 21 of the Constitution also includes the right to die. This decision was unfortunately overruled in Gian Kaur’s case. This decision, if had not been overruled would have helped the euthanasia to take its roots.

Under present legal position, euthanasia is a murder or culpable homicide not amounting to murder if the consent of the person seeking euthanasia is obtained. For this reform of decriminalising euthanasia, Section 300 of the Indian Penal Code defining murder requires to be amended and an exception engrafted thereunder for the act of euthanasia. This exception would be of different type than the present five exceptions. Present five exceptions begin with the phrase ‘Culpable homicide is not murder if . . .’ The Sixth Exception should be worded as:
“Culpable homicide is no crime, if it is a case of euthanasia granted under the rules framed by the State.”

Fears are expressed that if euthanasia is legalised, the provision may be abused e.g. to grab the property of rich person, his heirs may kill him under the guise euthanasia. An enemy or undesirable person may be done away with under the shelter of euthanasia. These fears are not misplaced. But following precautions may be taken to allay these fears and to avoid possible misuse of legalised euthanasia. The rules of euthanasia will be framed by the State Government. The rules should provide for the constitution of a committee of euthanasia. Only after a clearance from this committee, euthanasia will be granted. The committee will consist of four members. The District Judge would be ex-officio member and also Chairman of this committee. Other three members would be: i) Civil Surgeon ii) Experienced Physician or Surgeon iii) Social Worker. This committee would confirm whether following criteria or conditions for granting euthanasia exist.

(1) Euthanasia at the desire of the person himself:
(a) For the reason of terminal and incurable disease – A patient, who is conscious and in sound mental condition suffering from a disease, certified by two expert doctors as terminal and incurable disease expresses repeated desire to die.
(b) For any other reason – A person for any other reason expresses his desire to die and his desire is genuine, persistent and justified in the circumstances.

(2) Euthanasia at the desire of the relatives of the person:
A patient is in come, certified by two expert doctors as irreversible coma and all the near relative of the patient express their desire of euthanasia to the patient.
The phrase ‘near relative’ would be defined to include only major sons, major daughters, spouse and parent.

Any one of the following modes for carrying out euthanasia may be adopted.
(1) Electrocution – In this method, a current of 8 to 10 amperes and 2000 volts passed through the body results in unconsciousness in fraction of a second, before the nervous system of the body can record any sensation of pain and painless death ensues in few minutes.
(2) Lethal Injection – This simple mode of carrying out euthanasia would consist of giving intravenous injection of a lethal drug like sodium pentothal, which causes to the person deep sleep in few seconds and the person thereafter dies instantaneously and painlessly in this deep sleep.

As a general rule, nobody likes death. Except great saints everybody fears death. Everybody wants to live long and to postpone his death with the help of modern medical techniques like by-pass operation on his hear, kidney transplantation and so many other medical facilities. This is but natural as the desire for survival is inborn. But in rare cases, exceptional circumstances, the life may become unbearable and burdensome when a person may prepare to embrace death and get rid of the agony. In such cases euthanasia may be a boon!