This article is written by Ms. Muskan ,a 1st year BALLB student from Gujarat National Law University
“It has been often said, that it is not death, but dying, which is terrible.”
“Better to flee from death than feel its grip”. I would say “better to embrace death than feel its grip [it shall please both]”
“I will not give any deadly medicine if asked, or suggest any such counsel”-The oath taken by the doctor that they work in a dignified manner and their profession is meant to save the life of a person not to take the life of a person.
“Life and death are inseparable. Every moment our bodies undergo change…life is not disconnected from death. Dying is a part of the process of living.” said by D.Y.Chandrachud.
All this makes euthanasia hotly debated whether a person has the right to end his life which means a person voluntarily decides to end his life by removing a life-sustaining technique to end the suffering from the disease and illness.Many people favoured on religious grounds and advocate euthanasia favoured it on humanitarian grounds as it is good to remove the life sustaining technique from the person who has given consent and has no chance to live as it can be used by a needed person.
It takes a long time to legalize euthanasia in India and other countries also.
WHAT IS EUTHANASIA?
Euthanasia is also called “Mercy Killing,” which is derived from Greek word i.e., ‘eu’ means good or well and ‘thanatos’ means death.In simple words, it means if someone is suffering from an illness for a very long time and he has no cure and that person give his permission to end his life is called euthanasia.
It is a modern technology to achieve moksha as it ends the life of an ailment person who is not able to achieve moksha.
Euthanasia is categorized into voluntary, involuntary and non- voluntary and it is also categorized into active and passive euthanasia.
Difference between euthanasia and suicide
The difference between euthanasia and suicide is clear from Naresh Marotrao Sakhre v. Union of India,J. Lodha clearly said in this case. “Suicide by its very nature is an act of self-killing or self-destruction, an act of terminating one’s own act and without the aid or assistance of any other human agency. Euthanasia or mercy killing on the other hand means and implies the intervention of other human agency to end their life. Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is affected.” And assisted suicide is when a person intentionally helps another to commit suicide but the person is the one who performs the act of suicide it is not done by a physician or doctor.
RELIGIOUS POINT OF VIEW
As the debate is going on regarding euthanasia and whether it should be legal or not, there is some religious point of view like in Hinduism there are two sets of people one who is against other one who favours euthanasia as they in earlier time there is Prayopavesa which means fasting to death in which death is acceptable in certain circumstances whereas Muslim and Christianity is against it . But Jainism like in Hinduism has ‘salkhana’ which means fast unto death and in Buddhism scriptures, it is said that “Lord Buddha had allowed self-build death for the extremely ill person as an act of compassion”.
LEGAL STATUS OF EUTHANASIA
- Law Commission in its 196th report said that
“Euthanasia and Assisted Suicide continue to be unlawful and we are dealing a different matter ‘with-holding Life- Support Measures’ to patients terminally ill and, universally, in all countries, such withdrawal is treated as ‘lawful'”.
” While ‘Euthanasia’ is an act of any person, including a doctor, of intentionally killing a person who is terminally ill by giving drugs, ‘Assisted Suicide’ is an act of the patient who receives the assistance of a doctor and takes a drug with the intention of committing suicide. They are unlawful as held by our Supreme Court in Gian Kaur vs. State of Punjab: 1996(2) SCC
648 and will continue to be unlawful”.
“Every terminally ill who is a competent patient has a right to refuse treatment and the decision is binding on the doctors provided the decision of the patient is an ‘informed decision’ in the matter of incompetent patients and also competent patients who have not taken informed decisions, the doctor can take a decision to withhold or withdraw medical treatment, if that is in the ‘best interests’ of the patients and if it is based on the opinion of a body of medical experts”.
And the report also said that the doctor is given protection under sec.309 IPC as it is doing this under the instruction of the patient.
· In Aruna Ramchandra Shanbaug v. Union of India, the Supreme Court legalize the passive euthanasia in spite of refusing the 196th report of the Law Commission without any legislation but there are some guidelines:
a) The decision of withdrawing the life support of a patient is taken either by parents, spouse or next friend
b) Such a decision should be approved by High Court
c) The High Court recognized the doctrine of parens patriae so that the next friend can not misuse the law with the help of a doctor to grab the patient’s property.
The court ruled that active euthanasia and physical assisted suicide are illegal under sec. 302,306 of IPC.
- In the 241st report the Law Commission said that
“In this Report, we are of the view that ‘Euthanasia’ and ‘Assisted Suicide’ must continue to be offenses under our law. The scope of the inquiry is, therefore, confined to examining the various legal concepts applicable to ‘withdrawal of life support measures’ and to suggest the manner and circumstances in which the medical profession could take decisions for withdrawal of life support if it was in the ‘best interests’ of the patient. Further, question arises as to in what circumstances a patient t (Protection of Patients and Medical Practitioners) can refuse to take treatment and ask for withdrawal or withholding of life support measure, if it is an informed decision”.
- Inspite of these reports, there is no proper law regarding passive euthanasia in India.
As the law report said we should legalise passive euthanasia and the judgment has also come regarding this which legalize it but till now there is no legislation regarding this which can lead to its misuse in spite of guidelines laid down by the Supreme Court. So there is a need for a proper law like in Netherland, Brazil , Columbia and other countries also in spite of the ambiguous law that we have today.
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