Most recently,
Canada and Switzerland have faced crisis regarding suicide tourism and misuse
of domestic laws concerning euthanasia. The rising occurrence of such incidents
has once again revived the old debate vis-à-vis ‘right to life’ vs. ‘right to
die with dignity’. There are a number of countries like USA, Netherlands,
Norway, and Mexico who have legalized passive euthanasia. India joined this
club, when in March 2011, the Supreme Court of India passed a historic
judgment-law permitting ‘passive euthanasia’ in the country, and thus becoming
the first Asian country to legalize it. Before this, euthanasia was a criminal
homicide in the country. This indeed was a remarkable event in the history of
human rights law in India. However, in the present-day Indian context, this
issue is highly debated, ambiguous, convoluted and risky.
Sir Francis Bacon coined the term
‘euthanasia’ in 17th century. ‘Passive euthanasia’, popularly known as ‘mercy
killing’ is the withdrawal of medical treatment with the deliberate intention
of causing the patient’s death. For example, if a patient requires kidney
dialysis to survive and cannot find resources to this effect, or even on the
consent of the patient/relatives, the doctors can disconnect the dialysis
machine, letting the patient to die soon. This form of euthanasia is different
from ‘active euthanasia’ where the death is caused by use of lethal substances
instead of taking recourse to the ‘natural’ route.
Literally meaning ‘good death’,
euthanasia finds itself among one of the most debated issues in human rights
law around the world. In the times of welfare nations where the state regulates
every aspect of human life from pre-birth to post-death scenario, laws
regarding euthanasia are most susceptible to state intervention. This debate is
based primarily on state-jurisdiction over citizen’s life vs. individual’s
right to self-determination.
Proponents of euthanasia in India
perceive it as an act of humanity toward the terminally-ill patients. They
believe that the patient and family should not be forced to suffer through a
long and painful death, even if the only way to alleviate the suffering is
through suicide or mercy killing. They also criticize the demarcation drawn by
the judiciary and the religious organizations between active and passive
euthanasia. It is argued that withdrawal of life support or ‘passive’
euthanasia, actually involves taking an active step to hasten the death of a terminally-ill
patient and it is the patient’s consent which lends legitimacy to the act.
Another argument raised by proponents of legalization is that merely knowing
that one can control the timing and manner of death serves as a form of
“psychological insurance” for dying patients. In other words, knowing there can
be an escape from the suffering of illness may alleviate some of the stress
associated with the dying processes. Most importantly, in a country like India
where proper medical services are exclusive and costly, mercy killing may
actually appear to be the ‘due process’ in some cases.
The Apex court’s legalization of
euthanasia was made as part of the verdict in a case involving Aruna Shanbaug,
who had been in a Persistent Vegetative State (PVS) until her death in 2015.
The Supreme Court specified two irreversible conditions to permit Passive
Euthanasia Law in its 2011 Law: (I) the brain-dead for whom the ventilator can
be switched off, (II) those in a Persistent Vegetative State (PVS) for whom the
feed can be tapered out and pain-managing palliatives be added, according to
laid-down international specifications. This law places the power of choice in
the hands of the individual, over government, medical or religious control
which sees all suffering as ‘destiny’.
Before this momentous verdict, much
confrontation was witnessed between human rights activists supporting ‘right to
die with dignity’ and the governing law of the land. The constitutional
provision on fundamental right to life has also been greatly contested. The
question whether Article 21 includes right to die or not first came into
consideration in the ‘State of Maharashtra v. Maruti Shripathi Dubal’ case. It
was held in this case by the Bombay High Court that ‘right to life’ also
includes ‘right to die’ and Section 309 was struck down. The court clearly said
in this case that right to die is not unnatural; it is just uncommon. However,
in the case Gian Kaur v. State of Punjab it was held by the five judge bench of
the Supreme Court that the ‘right to life’ guaranteed by Article 21 of the
Constitution does not include the ‘right to die’. The Karnataka high court in
September 2010 however, argued that Sections 306 and 309 of the IPC, which
relate to suicide, go against Articles 14 and 21 of the Constitution. It
pointed out during a case that Article 21 grants the right to life, but that
does not imply that one has a right to death. Thus, confusion persisted among
top judicial bodies itself while figuring out what stand should be taken in
such cases.
It is to be noted that in a country
where the basic human rights of individuals are often left unaddressed,
inequality and exploitation is omnipresent, illiteracy is rampant and medical
assistance and care is inadequate, issues related to euthanasia might appear as
irrelevant. Some human rights organizations in India are skeptical about
euthanasia due to the ambiguity present in laws can be misused against
vulnerable groups in the society, such as poor, child, woman, elderly etc. In a
society where ignorance is bliss and social justice is not easily attainable,
mercy killing may turn into ‘right to kill’ from ‘right to die’. Sometimes, the
patient may not seek to die willingly, but under psycho-social pressure.
Legislative dubiousness mounts a
challenge too. The IPC Section 309 under which suicide under any circumstance
is a punishable offence is an example of legislative ambiguousness present.
Moreover, instances of unethical practices in health care sector are reported
regularly. End-of-life issues are major ethical challenges for present-day
medical sciences in India. Religious heterogeneity and lack of a common
consensus on the issue takes this debate a step further towards complexity.
From Christianity and Islam to Jainism and Hinduism, there are differing
perspectives on mercy killing which paralyses the enforcement of a common law
regarding euthanasia. Pessimism regarding mercy killing in India also prevails
by citing the cases of western countries that have lately been facing problems
like ‘suicide-tourism’ and flawed ‘assisted suicide’.
The debate over euthanasia is never
ending in the Indian context. Though the Supreme Court judgment has provided a
major boost to pro-euthanasia activists, it has a long way to go before mercy
killing becomes a realizable process. Moreover, concerns for its misuse remain
a major issue which ought to be addressed before it becomes a law in our
country. Without a proper regulatory body, passive Euthanasia cases will remain
under high risk. Therefore, quick and clear legislation is required along with
a strict monitoring authority. A separation between voluntary and involuntary
Euthanasia must be assured in all circumstances. The duty of the law-making
authority would be to make the process of deliberate death free from external
psychological pressure and social misnomers. One of the safeguards can be that
a proper quasi-judicial authority having a proper knowledge in the medical
field can be appointed to look into the request of the patient and the steps
taken by the doctor. The financial condition of the patient and/or of those who
are bearing the cost of treatment also must be considered.
To sum up euthanasia can put an end
to the suffering of long-term ‘no-cure’ illnesses, by death. Passive euthanasia
is subtle in nature. Moreover, seeking death plea may be unusual, but not
unnatural. Pain, peace and happiness are subjective feelings, so the point at
which one experiences intolerable pain to end up life may be different from
someone who has more tolerance to pain. This point must be kept in mind during
law-making process.
*Preety Sahu is an MPhil. student at the School
of International Studies, Jawaharlal Nehru University, New Delhi.
No comments:
Post a Comment