The legal and moral concerns around euthanasia.
For Indian readers, the term ‘euthanasia’ evokes the memory of Aruna Shanbaug, the staff nurse at the King Edward Memorial (KEM), in Mumbai, whose dreams of marrying a young resident doctor were shattered when she was brutally sodomised by a sadistic ward boy, who then strangled her with a dog chain and left her to die in the hospital basement way back in 1973. She survived but was in a comatose state for 42 years, while her body gradually decayed, became mangled and curled into a foetal position, her nails overgrown and cutting into her flesh, her eyes open and transfixed as she was unable to even close them. During the initial days, occasionally, she would scream in fear when even a shadow fell on her – this was a sign that there was some hope of recovery. But eventually, it became clear that she would remain in a brain-dead and permanent vegetative state. She was kept alive by hospital attendants with nasal feeding and a few basic medications until she died a ‘natural’ death.
A journalist activist, Pinky Virani, who in 2000 brought Shanbaug’s plight into the public domain through a non-fiction book titled, Aruna’s Story: The true account of a rape and its aftermath, had approached the Supreme Court in 2009 to be declared her ‘next friend’. Virani wanted to ensure for her the right of passive euthanasia by introducing within Indian jurisprudence the principle that the right to live a dignified life includes the right to not live an undignified life. She accused the hospital authorities of denying Shanbaug basic care, modern line of treatment and regular health check-ups, which might have improved her condition and reduced her pain.
On 7 March 2011, Virani won the case in a historical ruling: the Supreme Court granted recognition to the principle of passive euthanasia. This landmark ruling places the power of choice in the hands of the individual over government, medical or religious control. The court specified two irreversible conditions under which passive euthanasia was permitted: a) the brain-dead for whom the ventilator may be switched off, and b) those in a persistent vegetative state (PVS) for whom the feed can be tapered out and pain-managing palliatives be added, according to accepted international specifications.
Upholding a person’s right to refuse treatment, the court validated the principle of self-determination or informed consent while considering passive euthanasia. The court clarified further that informed consent can be given in advance by introducing the concept of ‘living will’ which can be made at an earlier point of time, while the person is in full control of all faculties, a concept which is acceptable in some Western countries.
The court explained that in passive euthanasia, the question is not whether it is in the best interest of the patient that he or she should die. Rather, the question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of the life support treatment. This opinion must be formed by a responsible and competent body of medical personnel in charge of the patient. However, fearing misuse, the Supreme Court restricted the right of family members, doctors and ‘next friend’ to make the choice of passive euthanasia on behalf of a terminally ill patient and directed that permission must be sought from the High Court which has jurisdiction over the patient in its capacity as parens patriae (guardian of persons unable to protect themselves) on a case-to-case basis after examining the facts and circumstances of each case.
Since attempt to commit suicide is an offence under Section 309 of the Indian Penal Code (IPC), the judgment asked the government to remove the section on suicide in view of its ruling. The implications of this provision to the debate on euthanasia will prove to be central in India.
This cautious ruling on passive euthanasia became controversial and led to a public debate about the pros and cons of introducing this remedy as an option to terminally ill patients who are under extreme pain and suffering. The nurses from the KEM responded from an emotional angle because of their attachment to the staff nurse, for she was one among them. They felt that the Supreme Court should not snatch away their right to take care of her by ordering mercy killing. The Christian religious leadership and medical professionals responded from a pro-life stand, arguing that no earthly power has the right to take away life and any such artificial intervention would not only be unethical and immoral but within the Christian perspective ‘a sin’. It almost seemed that the hospital wanted to prolong this inhuman and undignified life only because of the media publicity this case provided for the hospital. They treated her as though she was their trophy. On the other hand, there were some of us who felt that prolonging her suffering just to prove a point that the hospital had taken good care of her, would be inhuman and violation of basic human dignity.
Since the concept of euthanasia is repugnant to several religious precepts and runs counter to the cultural ethos prevailing in India, the government refrained from drafting a legislation. The logic underlying these sentiments were conservative and the cultural arguments against euthanasia were similar to the one advanced in the 1960s and 1970s when abortion was legalised through the Medical Termination of Pregnancy Act, 1971. It is seen as an intervention against the ‘order of nature’ and hence unethical and immoral. These concerns became the topics of discussion in newspapers and television talk shows.
There were some feminists that argued that the legal provision might be misused with active connivance of doctors and care givers. This would be particularly true in cases of terminally ill women who are considered a drain on the financial resources of the family. Euthanasia could be seen as the easiest option. There was also the fear of misuse by ‘greedy relatives’ who might resort to this remedy and withdraw life support to the wealthy elderly, or the apprehension that this provision might aid husbands to cut short the medical treatment of their wives who are suffering from curable ailments in order to snuff out their lives. Hence, even though I was in support of introducing passive euthanasia in the Indian context, I fully supported the cautious case-to-case approach prescribed by the Supreme Court.
Three years later, on 25 February 2014, a three-judge bench headed by the former Chief Justice of India P Sathasivam, held that the only judgment which deals with the important issue of euthanasia, one that affects humanity (the Aruna Shanbaug judgement cited above) contains an internal inconsistency, and that it must be referred to a larger five-judge Constitution bench. The judgment declared, “While in para 101 the judgment declares that euthanasia could be made lawful only by enacting a legislation, in para 104 it lays down an elaborate procedure for passive euthanasia… Since an important question of law is involved which needs to be examined in the context of social, legal, medical and constitutional perspective, it is extremely important to have a clear enunciation of law through a careful consideration by a Constitution Bench of this Court for the benefit of humanity as a whole”.
However, on 23 December 2014, Government of India endorsed the 2011 judgement on Passive Euthanasia. In a press release, after stating the same in the Rajya Sabha, it declared: “The Hon’ble Supreme Court of India in its judgement dated 7.3.2011 [WP (Criminal) No. 115 of 2009], while dismissing the plea for mercy killing in a particular case, laid down comprehensive guidelines to process cases relating to passive euthanasia. Thereafter, the matter of mercy killing was examined in consultation with the Ministry of Law and Justice and it has been decided that since the Honble Supreme Court has already laid down the guidelines, these should be followed and treated as law in such cases. At present, there is no proposal to enact legislation on this subject and the judgment of the Honble Supreme Court is binding on all.”
Legalising active euthanasia
While passive euthanasia, or withdrawal of life support, is legal in India, active euthanasia, by administration of lethal chemicals for the purpose of ending life, continues to be illegal not only in India but in most other countries. Medical professionals are grappling with similar concerns as the issue has legal, ethical and moral implications.
One issue of ethical concern for medical practioners is that as per the Hippocratic Oath, the primary duty of every doctor is to save lives. Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, explicitly prohibits doctors from practicing euthanasia. Any sanction for practicing euthanasia would violate this mandate. On the other hand, the concern for proponents of euthanasia is the right of a person to a dignified death, particularly in cases of chronic diseases or terminal illness. Such persons are deprived of their rights to refuse cruel and unwanted medical treatment like feeding through hydration tubes, being kept on ventilator and other life supporting machines, in order to artificially prolong their natural life span. The denial of this right leads to extension of pain and agony, both physical as well as mental, and forces them to live a subhuman life against their will.
Active euthanasia, also referred to as physician-assisted suicide (PAS) is illegal in most parts of the world, with the exception of a few countries such as Switzerland, the Netherlands, Canada and some states in the US. But pressure from some politicians and patient support groups to legalise this practice in Europe could affect many parts of the world. Their arguments are based on a plea for a dignified death, eliminating pain and suffering, and providing people with a choice to end their life through active medical interventions. The difference between active euthanasia and physician-assisted death lies in who administers the lethal dose. In active euthanasia, this is done by a doctor or by a third person, whereas in physician-assisted death, this is done by the patient themselves.
Since we live in multicultural and multi-religious societies, it is also essential to understand the effects of culture and religion in decision-making processes, especially in the area of PAS which are matters of public policy. Due to this, the definition of euthanasia varies in different countries, while some are lax, in others the laws are stringent and the scope is limited. Generally euthanasia is defined as “a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering.” On the other hand, PAS is the practice of providing a competent patient with a prescription for medication that the patient would have to directly self-adminster, or through a machine, with the primary intention of ending his or her own life.
Although there are very few studies carried out in India on PAS, Khan Farooq and George Tadros, in their article ‘Physician-assisted Suicide and Euthanasia in Indian Context: Sooner or later the need to ponder!’ quote from the results of a survey where 60 of the 100 (28 men, 32 women) Indian doctors had answered a questionnaire. Of these, 26 were Hindus, 23 Christians, and 10 Muslims, with a mean age of 35.4 years and a mean experience of 10.2 years. In all, 26.6 percent agreed that euthanasia could be an option for patients with motor neuron disease, and 25 percent agreed with the idea of using euthanasia for patients with cancer. Four Christian and 16 Hindu (eight male and eight female) doctors supported the concept of euthanasia. However, there are no studies to assess the attitude of public in general and professionals in specific field who are involved in carework, particularly the terminally ill, towards PAS or euthanasia.
The fear of potential abuse of PAS by the medical fraternity is real. Experts in support of introducing euthanasia say that proper checks and balances must be in place to ensure that that such a law is not abused by unscrupulous medical professionals. This concern must be taken seriously if we go by the manner in which the sex selective tests are being used by medical professional to eliminate a female foetus leading to a gender imbalance in India, where some doctors have been prosecuted. This is where the role of professional judgment will come into play, and the role of psychiatrists in assessing mental health would be necessary in checking the eligibility of the person for PAS if active euthanasia is legalised in India and other Southasian countries. Other professional bodies such as social services, palliative care specialists, and psychologists may also be involved when making such decisions. Hence it would require a strict ethical code and a careful monitoring by regulatory bodies.
At present, under the Indian Penal Code, active euthanasia would amount to murder and attract Section 302 which deals with punishment for murder, or at least Section 304 which deals with punishment for culpable homicide not amounting to murder. A physician assisted suicide would also attract Section 306, abetment to suicide. So, anyone considering this option would need to approach the court for necessary directions. So far, the judgements on this have not been favourable since they have not given clear directions permitting PAS.
The legal position on suicide further complicates argument for euthanasia as attempt to commit suicide is still an offence in India under Section 309 of the IPC, though there have been several attempts to strike this provision down through judicial interventions. In a historical ruling in the case of P Rathinam vs Union of India, the Supreme Court held that the right to life guaranteed under Article 21 of the Constitution of India encompasses within its scope the right not to live a forced life, and therefore, Section 309 violates Article 21. But this decision was subsequently overruled in Gian Kaur vs State of Punjab by a Constitution Bench of the Supreme Court, which held that Article 21 could not be construed to include within its scope “the right to die” as a part of the fundamental right guaranteed by it and therefore, it was held that it could not be validly stated that Section 309 violates Article 21.
International survey results
There is a need to further study the attitudes of doctors in India, especially psychiatrists, oncologists, palliative care physicians and geriatricians, toward the concepts of euthanasia and PAS as the studies available are limited and the number of respondents were too small to make any generalisations.
Internationally euthanasia is one of the most active areas of research in contemporary bioethics. The opinions of medical professionals vary a great deal. A survey in the US of more than 10,000 physicians came to the result that approximately 16 percent of physicians would consider halting life-sustaining therapy if the family demands it, even if they believed that it was premature. Approximately 55 percent would not, and for the remaining 29 percent, it would depend on circumstances. This study also stated that approximately 46 percent of physicians agree that physician-assisted suicide should be allowed in some cases, while 41 percent did not and the remaining 14 percent thought that it had to be decided circumstantially.
A qualitative observational study done in the Netherlands, which is one of the countries where assisted suicide is legal, suggests that the decision to undergo or perform euthanasia involves extensive deliberations. The outcome may not always lead to terminating life. Euthanasia discussions lead to two consequences: first, the discussions helped to place the onus on patients in exercising their options regarding euthanasia death. Second, the socio-therapeutic component of the discussions helps to strengthen social bonds of the patient. The study looked into the reasons for proposing euthanasia and reported that the unbearable suffering was often substantiated with physical symptoms, function loss, dependency, or deterioration. As many as 35 percent physicians reported that there had been alternatives to relieve patients’ suffering which the majority of the patients refused.
Another empirical research carried out in the US on oncology patients, oncologists and the public suggests that about two-thirds of oncology patients and the public found euthanasia and PAS acceptable for patients with unremitting pain. The participants found euthanasia and PAS least acceptable in cases where the reason was “burden on the family” and “life viewed as meaningless.” More than a quarter of oncology patients had seriously thought about euthanasia or PAS, and nearly 12 percent had seriously discussed these interventions with physicians or others. The authors of this study also concluded that patients with depression are more likely to request assistance in committing suicide, than oncology patients experiencing pain. This has important implication for the role of psychiatrists to get involved early in the process of depression and assist in decision making. Appropriate interventions and evaluations are needed to treat such patients for depression before euthanasia can be discussed seriously.
A study in Sweden carried out among physicians working with adult terminally ill patients reported that about half of the physicians had discussed palliative care with all their dying patients, and more than half of the physicians had heard their patients expressing a wish to die. About one-third of the physicians had given analgesics or other drugs in doses such that some of their patients’ deaths were hastened. One-third had also been asked for active euthanasia, whereas 10 percent had been asked to assist suicide.
While there are no such studies conducted in India or the Southasian region, there are institutions for the terminally ill, where painkillers to numb the body and medication to induce an early death are provided routinely as part of the treatment. This is not even considered as euthanasia either passive or active.
A word of caution
Those advocating active euthanasia feel that there will always be arguments among people for and against euthanasia and PAS. People argue that hospitals do not pay attention to patients’ wishes, especially when the patient is terminally ill who are not responding to treatment. But this approach is bound to change with the introduction of new laws, which might be implemented if the PAS is legalised.
Rita L Marker in ‘Assisted Suicide & Health Care Decisions Protecting Yourself & Your Family’ explores the failure of so-called safeguards and outlines the impact that euthanasia and assisted suicide have on families and society in general and the logical progression that occurs when euthanasia and assisted suicide are transformed into medical treatments. For instance, withholding and withdrawing medical treatment and care are not legally considered euthanasia or assisted suicide. Withholding or withdrawing food and fluids is considered as an acceptable form of “medical treatment.”
While it was earlier believed that assisted-suicide option was offered only to competent, terminally ill adults who were suffering unbearably, in recent time the issue of administering euthanasia and assisted suicide for children and teens has surfaced. Initially these concerns were considered only theoretical and outside the realm of possibility. However, in 2004 the ‘Groningen Protocol’ formulated by doctors at the Groningen Academic Hospital in the Netherlands to legally and professionally protect Dutch doctors who kill severely disabled newborns elicited worldwide outrage. Marker argues that while euthanasia for infants (infanticide) was not new, widespread discussion of it was. Dutch doctors were now explaining that it was a necessary part of paediatric care. Also in 2004, Holland’s most prestigious medical society urged the Health Ministry to set up a board to review euthanasia for people who had “no free will,” including children and individuals with mental retardation or severe brain damage following accidents.
Marker states further that prior to the widespread realisation that involuntary euthanasia was taking place, advocacy of assisted suicide for those who request it seemed to be at on one end of the spectrum and opposition to it was at the other. Gradually, the practice of involuntary euthanasia (without the consent of the patient) has taken its place as one extreme, opposition to it as the other and assisted suicide for terminally ill competent adults appeared to be the “moderate middle” – a very advantageous political position – and expansion of the practice to others had entered the realm of respectable debate. She claims that this repositioning has become a tool in the assisted-suicide arsenal.
In May 2006, an assisted-suicide bill, failed to gain approval in the British Parliament. Within two weeks, Professor Len Doyal – a former member of the British Medical Association’s ethics committee who is considered one of UK’s leading experts on medical ethics – called for doctors to be able to end the lives of some patients “swiftly, humanely and without guilt,” even without the patient’s consent. Doyal’s proposal was widely reported and, when the next assisted-suicide bill is introduced in England, a measure that would permit assisted suicide only for consenting adults will appear less radical than it might have seemed prior to Doyal’s suggestion.
In countries such as The Netherlands and Belgium, assisted suicide is now accepted as a form of medical treatment and their proponents erroneously portray such practices as personal and private acts. There is a fear that doctors would resort to euthanasia even when deterioration of a patient was a result of the wrong administration of drugs, or the wrong diagnosis. This diminishes the medical professionals or the healthcare system’s liability towards the patients. Marker argues that legalisation is not about the private and the personal. It is about public policy, and it affects ethics, medicine, law, families and children.
In conclusion, what do we make of this entire discussion in our own context in Southasia? It is obvious that as more western countries adopt the active euthanasia, medical professionals in Southasian countries will also be pressurised to examine this issue and conduct surveys to assess public and professional opinion regarding the implications of introducing such a bill in the context of the religious and cultural ethos prevailing within these cultures. While providing dignified death argument seems convincing for the terminally ill, the wide use of it by medical professionals as a form of medical treatment can be dangerous as it will doctors may choose this as a means of reducing medical expenses especially in public hospitals. The states may also welcome such a move as it will bring down expenditure in healthcare and limit a patient’s options of seeking curative treatment. Where large scale illiteracy prevails and the public health systems are in a deplorable condition we need to examine the issue from its social, medical ethics and public policy angles and exercise the option in only a few extreme cases. For this the cautious approach adopted by the Indian Supreme Court in the Aruna Shanaug case seems to be an important signpost.