At the time of this article, COVID-19 has led the entire world on the path of destruction, death and instability. In India, the case count is rising rapidly with more than 10,000 cases added per day. There is already a shortage of beds and treatment facilities in cities like Mumbai and Delhi and with no positive news about production or public distribution of vaccines, people are in a state of despair. In such a situation, the patients with negligible chances of recovery should be allowed to take the decision of ending their life, instead of passively waiting for death to occur. It is true that the percentage of people who would opt for, or be eligible for, voluntary euthanasia will be low. But being able to limit their suffering is still crucial to preserve an individual’s right to autonomy and respecting their ‘right to die’. Although it appears morally challenging to let someone die it is important to understand the perspective of the patient and understand the difference between ‘killing’ and ‘letting someone die’ with their consent. This article would elucidate on the importance of voluntary euthanasia in the current public health crisis.
With the passage of time, human life has become incredibly precious. In earlier dynasties, killing a person even for trivial matters, like stealing grapes, wasn’t questioned. But in the modern era, where we have an awakened conscience and a rational mind, murdering a person is not acceptable. But what if a person willingly asks for death? Is that unacceptable too? Euthanasia is a practice of deliberately ending the life of a person in order to relieve them of their suffering. This practice is legal in many countries like the Netherlands, Australia, Belgium, Canada, Switzerland, Colombia, Luxembourg and 10 States of the US. The debate on the legality of euthanasia has been going on since decades and the arguments usually involve religious, ethical and moral concerns. However, it is important to look at it from the perspective of providing dignified death to the patients.
On the basis of consent, there are three types of euthanasia; voluntary, involuntary (against the will of the patient) and non-voluntary euthanasia (when the consent is unavailable). The focus of this article is voluntary euthanasia. In voluntary euthanasia, the patient or his/her legal representative asks for the death of the patient, either by active or passive euthanasia. Active euthanasia involves administration of a lethal dose to a patient by the doctor thereby painlessly causing death whereas in passive euthanasia the doctors refrain from using devices necessary to keep a person alive thereby causing death. The free consent of the patient is the most important criteria in voluntary euthanasia. AIIMS is the first hospital in India to develop guidelines for “End of Life Care” policy which gives terminal patients the option of stopping life-prolonging care thus providing the option of voluntary euthanasia.
Legality of euthanasia
In the case of Common Cause v. Union of India (2018) , the Supreme Court of India legalized passive euthanasia in cases when the patient is terminally ill or in a vegetative state. This suggests that India is gradually moving towards supporting a patient’s right to die. It was held by the court that the right to die with dignity is also a fundamental right under Article 21. The court also issued guidelines for administering euthanasia. These were:
- Passive euthanasia can only be administered by an adult of sound and healthy mind
- It must be voluntarily executed without any coercion or undue influence
- The patient must draft a “living will” when he is capable of making decisions. It should mention the circumstances under which his medical treatment is to be withdrawn. It should also include who is authorized to give consent for withdrawal in case the patient becomes incapable of doing so.
- The living will should be executed only when the patient becomes terminally ill with no cure for the ailment and no hope for recovery.
- The document has to be signed by the jurisdictional Judicial Magistrate of First Class in the presence of witnesses and thereafter a Medical Board has to examine the condition of the patient and give approval.
It is evident that the Supreme Court judgement was an effort to protect the right of the patient to die with dignity but what about the criminal liabilities of the doctor who assists the patient in dying? The most important factor in ascertaining criminal liability is the intention of the person or mens rea. An act done without a malicious intention does not invite criminal liability. However, Section 81 of the Indian Penal Code which provides defense for culpable homicide is not available in cases of euthanasia as the doctor intended to cause death. Moreover, Section 306 (abetment to suicide) and Section 309 (attempt to commit suicide) are also applicable in cases of voluntary euthanasia. Even though there is no presence of ‘wrongful’ intention in voluntary euthanasia, it is treated equivalent to culpable homicide not amounting to murder under Section 304 of IPC.
The bill “ Treatment of Terminally Ill Patients, 2016” which allows patients to take decisions relating to passive euthanasia, is still pending in the Parliament. In 2019, the Euthanasia Regulation Bill was also introduced in the Lok Sabha which provides for active and passive euthanasia. The Bill sheds off the criminal liability of the doctor and the patient opting for euthanasia provided that the guidelines of the Act are followed. It is the need of the hour to pass this Bill in order to support the 2018 judgement of legalization of passive euthanasia.
COVID-19 and Euthanasia
Presently, the COVID-19 pandemic has led us towards the path of uncertainty, despair, unemployment and death. The number of coronavirus patients in India is rising at a rapid rate with more than 10,000 cases added per day. At such an alarming rate, the shortage of personal protective equipment (PPE) for the health care workers adds to the plight. Along with this, cities like Mumbai and Delhi, having the highest number of coronavirus cases, are already facing a shortage of hospital beds, ventilators and space in intensive care units (ICU). It is predicted that India is likely to reach its peak in COVID-19 cases in the near future. On top of that, the exorbitant medical bills of terminally ill patients in private hospitals keep on adding pressure on the family members without any sign of recovery in the patient. In such situation, opting for voluntary euthanasia is a viable option.
It is true that the recovery rate of the patients has been rising rapidly, however, there are patients who are terminally ill and have no chance of recovery. It is certainly true that the duty of a doctor is to provide palliative care and always try to sustain the life of the patients. It appears morally challenging to ‘let someone die’ but it is important to see it from the perspective of respecting the right to autonomy and self-determination of a patient. The key point here is ‘voluntary’ which sheds off the moral and ethical issues of euthanasia. Moreover, there are five essential conditions which need to be fulfilled before opting for voluntary euthanasia:
- The patient should be suffering from a terminal and incurable disease.
- The patient is unlikely to benefit from the discovery of a new medicine in the remainder period of his/her life
- The patient cannot survive without life-prolonging machines.
- The patient should have an enduring and voluntary wish to die
- The patient cannot commit suicide without assistance.
Some of the patients of coronavirus are at a difficult stage of treatment wherein recovery seems impossible and they fulfill every condition mentioned above. Although coronavirus is a curable disease, it was found that patients with a history of diabetes, hypertension or heart diseases were easy prey and “it will be difficult for them to survive.” The decision of voluntary euthanasia will be based on diagnosis for recovery rather than disability of the patient, age or financial problems of the patient. It would be done after following the guidelines given by the Supreme Court, thus there is no scope for medical prejudice. Voluntary euthanasia should be provided to patients who reach the state of incurability, where the medical professionals agree that chances of saving their life is negligible and death is reasonably foreseeable. Even though many clinical trials of vaccines for coronavirus are being conducted in different countries, there is no certainty about the results. The public distribution of the vaccine is estimated to take place by 2021. There is a long way to go before this crisis ends completely.
All individuals have the right to take control of their own life. It is necessary to understand the distinction between ‘killing’ and ‘letting someone die’ and the Indian Penal Code needs a provision to deal with such cases. Additionally, in the current public health crisis, allowing voluntary passive euthanasia will not only help the patient die with dignity but will also aid the government economically in managing the public health crisis. Killing a person without his/her consent or forcing them to take such a step is morally incorrect and akin to Nazi’s reign in Germany. But administration of voluntary euthanasia to a person is justified if he is well-informed about the medical procedures and capable of making a sound decision for himself. As long as the consent is not obtained forcefully, taking a decision to end his life should be valid and allowed instead of passively waiting for death, not only during this pandemic but after it as well. The right to die is available to every human being. With proper safeguards and protocol being followed, voluntary euthanasia can be carried out in a safe and ethical manner.
“Life is pleasant and death is peaceful. It’s the transition that’s troublesome.”
~ Isaac Asimov
Author: Mona Das, NMIMS School of Law.