Right to Die: Legal Aspects of Euthanasia

Right to Die

Which is referred In Gian Kaur’s case, is whether a ‘right to die with dignity as part of a ‘right to live with dignity in the context of article 21? The court observed:

A question may arise, in the context of a dying man who is terminally ill or in a PVS THAT HE MAY BE PERMITTED to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the ‘right to die with dignity as a part of the right to live with dignity when death due to termination of natural life is certain and imminent and the process of natural death has commenced.

From the above passages, it is clear that the supreme court accepted the statement of law by the house of lords in Airedale that ‘euthanasia’ is unlawful and can be permitted only by the legislature i.e., the act of killing a patient painlessly for relieving his suffering from an incurable illness. Otherwise, it is not legal. ‘Assisted suicide is where a doctor is requested by a patient suffering from pain and he helps the patient by medicine to put an end to his life. This is also not permissible in law.

But where a patient is terminally ill or is in a persistent vegetative state (PVS), a premature extinction of his life in those circumstances, by withholding or withdrawal of life support, is part of the right to live with dignity and, is permissible, when death due to natural termination of life is certain and imminent and the process of natural death has commenced.

Thus, there is a crucial distinction between in which (a) a physician decides not to provide or continue to provide treatment or case which can or may prolong his life, and (b) where physician decides, for example, to administer a lethal drug, actively to bring an end to the patient’s life. The former is permissible but the latter is not.

Section 87,88 and 92 of the Indian penal code, 1860

These sections of the penal code are also relevant. Section 87 of the IPC deals with ‘act likely to cause harm, but done without criminal intention to prevent other harm.’

It reads as:

Act not intended and not known to be likely to cause death or grievous hurt, done by consent – nothing which I not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offense by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above 18 years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause any such person who has consented to take the risk of that harm.

Illustration:

A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offense.

Section 88 deals with ‘act are done in good faith for benefit of a person with consent? It reads as follows: “act intended to cause death, done by consent in good faith for person’s benefit – nothing, which is not intended to cause death, is an offense by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

Illustration:

A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z with Z’s consent. A has committed no offense”.

Section 92 deals with ‘act is done in good faith for benefit of a person without consent.’ It reads as follows:

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An act has been done in good faith for benefit of a person without consent. – nothing is an offense by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent. If the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or the other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:

Provided –

• First – that this exception shall not extend to the intentional causing of death, or the attempting to cause death;
• Secondly - that this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt or the curing of any grievous disease or infirmity;
• Thirdly – that this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than preventing of death or hurt;
• Fourthly – that this exception shall not extend to the abetment of any offense, to the committing of which offense it would not extend.

Illustrations:

• (a) Z is thrown from his horse and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offense.
• (b) Z is carried off by a tiger. A fire at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill, Z and in good faith intending Z’s benefit. A’s ball gives Z a mortal wound. A has committed no offense.
• Thus, from the above sections, it is concluded that mere pecuniary benefit is not benefited within the meaning of sections 88,89, and 92.
• c) Section 81 of the Indian penal code, 1860

Section 81 of the code is also relevant. It deals with ‘act likely to cause harm’ but done without criminal intent and to prevent other harm. It reads as follows:

Act likely to cause harm, but done without criminal intent, and to prevent other harm – nothing is an offense merely by reason of its being done with the knowledge that it is likely to cause harm if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

Explanation – it is a question of a fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

Illustrations:

• (a) A the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers on board, unless he changes the course of the vessel, and that, by changing his course, he must incur the risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers on boat B, he is not guilty of an offense, though he may run down the boat C by doing an act with he knew was likely to cause that effect if it is found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down the boat C.
• (b) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it is found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of the offence.”

From the above sections, it is revealed that ‘active’ euthanasia is not permitted in India but ‘passive euthanasia’ is permitted on the fulfillment of certain conditions.

However, there is a number of cases where the high courts have rejected the Euthanasia petitions.

In Bangalore, the high court has rejected the euthanasia plea of a 72 years old retired teacher from Devanagere, who sought the court’ permission to die. Justice Ajit Gunjal on Wednesday disposed of H.B. Karibasamma’s petition based on reports by neuro-surgical and psychiatric experts from Nimhans. The reports said karibasamma does not suffer any pain or severe ailment. Her spine is normal and she can get up without any pain. Neither does she suffer from any mental disorder.

“since she is elderly and fears she would become disabled in future due to her multiple ailments, and has no family support, she could be provided psychiatric counseling”, the report suggested, nothing that Karibasamma refused to undergo any further investigation and medication.

Based on the court’s order, doctors examined karibasamma and referred her to experts at Nimhans.

Karibasamma, who claimed to have suffered slip disc and was bed-ridden for 10-11 years, had written to local authorities and even the president and prime minister, seeking permission for euthanasia since 2003. Karibasamma claimed that she was getting only Rs. 8968 as monthly pension in 2010 and it wasn’t enough to meet her medical expenses.

Because of her age, doctors have opted for non-surgical treatment, and the pain she is undergoing is excruciating. However, the high court rejected her plea based on reports by neurosurgical and psychiatric experts from Nimhans that she does not suffer any pain or severe ailment.

Similarly, the Kerala high court in C.A. Thomas Master v. Union of India, dismissed the writ petition filed by a citizen wherein he wanted the government to set up “Mahaprasthan Kendra” (voluntary death clinic) for the purpose of facilitating voluntary death and donation, transplantation of bodily organs.

Euthanasia is totally different from suicide and homicide. Under the Indian penal code, attempting to commit suicide is punishable under section 309 of the Indian penal code and also abetment to suicide is punishable under section 306 of the Indian penal code. A person commits suicide for various reasons like marital discord, dejection of love, failure in the examination, unemployment, etc. But in euthanasia, these reasons are not present. Euthanasia means putting a person to painless death in case of incurable diseases or when life becomes purposeless or hopeless as a result of mental and physical handicaps. It also differs from homicide. In murder, the murderer has the intention to cause harm or cause death in his mind. But in euthanasia, although there is an intention to cause death, such intention is in good faith. A doctor applies euthanasia when the patient, suffering from a terminal disease, is in an irremediable condition or has no chance to recover or survive as he is suffering from painful life or the patient has been in a coma for 20/30 years like Aruna Shanbaug.

Therefore, it is suggested that penal provisions regarding attempts to commit suicide and abetment to suicide should be preserved in the interests of the society as a general rule but euthanasia (voluntary) should be permitted in certain circumstances as an exception to the general rule. Thus, the Indian parliament should enact a law regarding euthanasia that enables a doctor to end the painful life of a patient suffering from an incurable disease with the consent of the patient.