ACTIVE EUTHANSIA: AN UNCONVENTIONAL RIGHT TO LIFE

Abstract

The debate over euthanasia has been reignited ever since the judgment of Common Cause has
emerged. The landmark ruling has held passive euthanasia to be legal; however, it fails to
deal with the grappling issues of active voluntary euthanasia. This paper deals with the legal
issues and the ethical dilemmas that go concurrently with the concept of euthanasia. The first
part presents the pros and cons of legalizing active voluntary euthanasia. The second part of
the paper deals with the present interpretation of Article 21 of the Constitution of India and
whether the Right to Die can be read into the provision. Lastly, the third part puts forth
various mechanisms through which active voluntary euthanasia can be imbibed into the
present legal framework of our country concluding that for certain patients death is not a
tragedy but a blessing and a legislation to legalize active voluntary euthanasia in India as well
as all over the world is indeed the need of the hour.
 INTRODUCTION

The term Euthanasia is derived from the Greek words “eu” and thanatos” which mean “good
death” or “easy death”. This word was first invented in the seventeenth century by Francis
Bacon in his book “Novum Organum”. Euthanasia means putting a person to painless death
by doing or withholding certain actions, in order to benefit the person seeking death.1
History is rich of examples of Euthanasia which prove that the concept of a painless
administered death has been in existence since time immemorial. Earlier, people with
incurable diseases were drowned in the Ganges in India. In Israel, it was claimed by authors
of several books that Frankincense, a poison, was given in order to kill the patients whose
diseases were incurable. In Ancient Greece, citizens were administered with poisoned drink
when the suffering was unbearable. On the other hand, in Mesopotamia, Euthanasia was
prohibited and shortening the life of the handicapped was strictly prohibited by the Jewish
society as it was against the teachings of Bible and the Sixth Commandment which says
“Thou Shall Not Kill”. Judaism equated Suicide and Euthanasia with Murder and the same
was the case in Ancient Rome.2However, in the early time Euthanasia was practiced quite
often. The first objection to Euthanasia came from the Hippocratic Oath. Although written in
antiquity, the Hippocratic Oath written by Hippocrates himself is one of the oldest binding
documents in the history. It still expresses the principles for the ideal conduct of the
physician. One of the principles states, “I will not administer poison to anyone when asked to
do so, nor suggest such a course”.3
The debate over Euthanasia has been all over the nation the past couple of years due to the
Aruna Shaunbaug case. The Supreme Court granted a small victory by legalizing Passive
Euthanasia “PE”. This, however, is only but a step towards the required future legislation
where Active Voluntary Euthanasia “AVE” should be legalized. The unanswered question of
whether Right to Diein a dignified mannercan be read into the provision of Article 21 of the
Indian Constitution, that provides the right to live a dignified life.still lingers in the air and
through this paper we would attempt to provide a detailed analysis of the issues regarding
Euthanasia and why AVE should be legalised.

1
M. Swathi & D. SrinivasaRao & M. Swapna & L. Jayasree, The Economics of Euthanasia, 1, A.R.S.S., 36,
36(2012).
2
A General History of Euthanasia, The Life Resource Charitable Trust (Aug. 19, 2018, 2:08
PM),http://www.life.org.nz/euthanasia/abouteuthanasia/history-euthanasia1.
3
Kusum R. Gandhi, Euthanasia; A Brief History and Perspectives in India, International Journal of Education
and Research in Health Sciences (Jul. 14, 2007, 9:00
PM),https://www.researchgate.net/publication/320829903_Euthanasia_A_Brief_History_and_Perspectives_in_I
ndia.
 I. THE DILLEMMA

Euthanasia isbroadly classified into two sub-categories, that is, Passive Euthanasia “PE” and
Active Euthanasia. The latter one involves the administering of a deadly drug directly into
one’s body while Passive Euthanasia means indirectly killing the person which may
involvewithholding the life support system or not providing the patient with antibiotics,
without which, the patient is likely to die.4Euthanasia when performed on the expressed
request of the patient is called Voluntary Euthanasia and when it is in the absence of such
approval it is called Non-Voluntary Euthanasia.

Though Active Euthanasia is illegal, a debate about the issue of benevolent taking of
another’s life has been developing over the ages. From Euthanasia being viewed as Murder to
Suicide, to the changing attitude towards compassionate crimes in which disease prompts the
taking of life by loved ones, the society has been seen to move towards a more liberal
perception of Active Euthanasia.

There has been a constant debate regarding the legalisation of AVE. The opponents and
supportersof the same hold strong beliefs regarding its (in) feasibility and (im) morality. But
the crucial question remains, “Till what extent is it necessary to respect the life of terminally
ill patients for whom the suffering eventually becomes so unbearable that the life being led is
just a farce?”

The hesitation to adopt a framework that legalises AVE is not due to the moral or ethical
dilemma that this issue seems to be riddled with, but the burdensome task of formulating a
legislation that accommodates all complications and risks associated with Euthanasia and
provides a guideline with a set criterion to ascertain cases for Euthanasia.

The primary concern that arises is the determination of the eligibility of a patient’s request for
AVE. The voluntariness of a patient cannot always be determined as there are situations
when the patient is in extreme pain or drug-infused state. Additionally, a patient’s mind may
change several times in a day and be dependent on their hormonal emotions. The proposal for
legalising AVE in most jurisdictions allows patients suffering from terminal and incurable
diseases. However, there are certain jurisdictions that allow a patient to request for AVE if
their condition is merely unbearable. This may bring in subjectivity and place the complete

4
Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454.
onus upon the patient. In cases of psychological suffering, a doctor’s opinion would be
rendered inadequate to gauge the un-bearableness of the condition. Certain other jurisdictions
also refer to pain as an additional requirement. This would further make the process
problematic. Since the presence or the extent of pain is not something that can be measured
objectively, this pre-condition would rule out a certain amount of terminally ill patients who
would have otherwise qualified. Another consideration is the inclusion of patients suffering
from mention disorders or psychological suffering. An apparent hurdle that would exist in
this scenario would be the validity of the patient’s request and the doubt upon the autonomy
used by the patient. Are such patients in the capacity to provide consent for AVE? Inclusion
of a foetus has also been treated differently in different jurisdictions. The United States
recognises the rights of a foetus once it becomes ‘viable’ and therefore, denies a pregnant
woman from being eligible to request for Euthanasia. However, in common law jurisdictions
like the United Kingdom and Australia, an unborn child is deemed to have no rights distinct
or unattached from those of the mother and therefore, there exists no impediment to permit a
pregnant woman.

From the medicinal and scientific point of view, the opponents argue that there is always a
chance of mistaken diagnosis or even the possibility of new medical discoveries or cures. The
biggest argument, however, has always been from the moral and ethical sense of view. ‘The
Wedge Argument’ or ‘The Slippery Slope Argument’ emphasise that there shall be
consequential effects upon the legalisation of AVE such as an undesirable chain reaction
leading inevitably to In-Voluntary Active Euthanasia. This right over attaining an easy death
would weaken the moral and psychological fabric of society. The concept of ‘Playing God’,
placing such a right in another person’s hand by interfering with thenatural progression of a
person’s life5 is the matter of concern for the opponents as they argue that this would
eventually lead to a similar era as that of Hitler’s regime.

The argument for AVE, contrarily, is anchored in the contention that there exists a
Constitutional Right to Die as held in the US Supreme Court's reasoning in Roe v. Wade6.
The Court had found that, in the presence of psychological harm, the impairment of mental
and physical health, and distress for all concerned, a right to an abortion springs from the
Constitutional Right of Privacy. When we can allow abortion in certain circumstances, we

5
Bernadette Spina, Ethical Justifications for VoluntaryActive Euthanasia, Hein Online (Sept. 11, 2018, 9:32
PM)),https://heinonline.org/HOL/Page?handle=hein.journals/richlapin3&div=8&start_page=71&collection=jou
rnals&set_as_cursor=0&men_tab=srchresults.
6
Roe v. Wade, 410 U.S. 113 (1973).
can also allow somebody to die in scenarios where no cure is available and the suffering has
become unbearable.

The opponents of AVE strongly believe in the sanctity of life but to rebut it the proponents
talk about the quality of life. When the patients suffer from terminal illness and the suffering
is unbearable, the opponents must be empathetic and should not prolong their period of pain
which would consequently degrade their quality of life.

Since AVE involves another person other than a patient, it is viewed as murder. On close
observation, however, it is nothing but ‘suicide with the help of other’ because the patient
intends to die regardless of who performs it. To fall under the definition of Suicide, there
must firstly, be an action with reasonable certainty that must cause the death of the actor
engaging in it. Secondly, the actor must have the knowledge of the act and lastly, the actor
must engage himself in the act that would lead to the death of the actor. AVE has all these
three elements and thus, qualifies for the definition of Suicide and therefore, must not be
viewed as Murder.7

The other crucial question that needs to be addressed here is the role of doctors in AVE, that
is, their liabilities and responsibilities if they choose to help the patient by shortening their
life span. The actions of a doctor can be justified by the principle called non-maleficence.
Non-maleficence asserts that a doctor must not bring any evil or harm to his patients and also
to not inflict any harm or evil on them.8The opponents would infer that saving the life of the
patient at all costs would mean not doing any evil to the patient. But if with the advancement
of technology, life prolonging treatments are provided to terminally ill patients who have no
hope of recovery; it would only reduce the quality of their life without ultimately having a
cure. It would not serve in the best interest of the patient or even the society and just prolong
the period of unbearable pain. When the patient has to ultimately die, this prolonged
treatment would only do more harm than good. If the patient decides to withdraw the
treatment later, it would only enhance the pain because of the illness and the past treatments.
Though the opponents of the principle would say that the doctors must preserve the life of the
patient regardless of the quality, the proponents argue that the medical interventions cause
more harm to the patients thus, violating the principle.

7
Bernadette ,Supra, at 5.
8
Id. at 7.
Another principle that justifies AVE is the principle of beneficence. This principle requires a
doctor to act in a way that promotes the welfare of the patient. The opponents would argue
that the doctors would promote welfare by preserving the life at all costs but the proponents
know that the welfare of the patient would be best served when the autonomy of patient is
respected. The autonomy is respected when his or her valued judgment is considered even if
the judgment is believed to be mistaken. The only thing that must be done is to fully inform
the patient that entails the risks, benefits and the probable results of the activity.9 The
proponents further argue that when the suffering is unbearable the doctor must be sensitive to
the pain of the patient and must be willing to take some action that ends their suffering. When
they know that the disease would take the life of the patient ultimately, the doctors must
provide the patient with an easy death fulfilling their obligation of beneficence. It has also
been seen that the legislation proposed by the Americans Against Human Suffering “AAHS”
society presents a well-reasoned approach that the choice of the individual must be cherished
above all others. Safeguards are included to guarantee that the patient gives an informed
consent with desires stated clearly. Under such a statute, which protects a physician from
criminal or civil liability for putting into effect the wishes of a competent patient, multiple
tragedies would be compassionately avoided.10

In the past we have seen few cases where the doctors who performed AVE were acquitted
from the offence of murder because the motive was to promote the welfare of the patient.
One such case was of a ninety four year old woman admitted in a nursing home of Holland.
She had her hip broken and refused any kind of treatment. She was unable to feed herself and
was bedridden. Due to this, she was in terrible agony and requested the doctors to end her life
and relieve her of all the pain. After several request made by the lady, the doctor agreed to
them after he came to know that it is the only way to ease the pain now. Thus at the end the
doctors were acquitted from the offence of murder. 11

Opponents’ argument that the doctors have pledged to preserve the life of their patients in
their Hippocratic Oath confines the ambit of the oath and use this oath as a weapon to not
legalise AVE and call the one committing it a murderer. But the oath nowhere obliges the
doctor to preserve life of the patient. If seen closely, one would find the principles of both

9
Euthanasia Examined: Ethical, Clinical and Legal Perspectives, 202 (John Keown, 1st ed., 1995).
10
Caplan, It's Time We Helped Patients Die, 64 Med. Eco. 214, 214(1987).
11
Francis A. Molenda, Active Euthanasia – Can it be Justified?,Hein Online(Sept. 8, 2018, 8:00 PM),
https://heinonline.org/HOL/Page?handle=hein.journals/tlj24&div=16&start_page=165&collection=journals&set
_as_cursor=0&men_tab=srchresults.
non-maleficence and beneficence in the oath. The oath states that ‘the doctors will treat the
patient in best of their abilities and never wrong or harm them’. The obligation that doctors
must preserve life at all costs is not the only inference that can be drawn. Rather one can say
that bringing the death of the patient and reducing his period of pain would be the best thing a
doctor could do to not harm their patients. The oath in this way is open to numerous
interpretations. We also see that there is inconsistency within the oath. The oath believes the
doctor to have the capability relieve the patient from suffering and also seeks to prohibit the
administering of drugs that would harm the patient. This oath does not register the change in
the times and the medicinal practice where medicines to reduce the pain are in most cases life
shortening in nature. With the change in time, the oath has been violated numerous times, beit
through the practice of abortion or the charging of fees for teaching the medical art.12

Another principle that justifies AVE and serves the patient’s interest is the principle of
‘Double Effect’. It states that if an act produces a bad effect, even if it was not intended,
rather, the act was done to achieve some other good effect. Therefore, we see that if a doctor
provides the patient with a drug which relieves him of the pain but also shorten the life span
of the patient is acceptable according to this principle.13

Opponents of AVE feel that doctor must not play the role of God and interfere with the
natural progression of their patient’s condition and decide about their life. But we forget that
while we treat the patient we still interfere in the natural progression of their life. When the
doctor saves the life of the patient and controls life, he has the same control as the doctor who
practises AVE and controls the death.

The case of Otto Wener14 depicts the melancholic scenario of euthanasia. Otton Wener was
charged with the offence of murder after suffocating his sixty-three year-old crippled,
bedridden wife. He was allowed to withdraw the plea after it was proved that he took care of
his wife, as well as the request to die was made by his wife. In consideration of these facts,
the judge stated that it is very hard for him to prosecute him for the offence of murder.

The existing laws against Euthanasia are said to be unjust as the patient who is suffering is
not allowed an easy death and the person helping the patient is called the murderer. These

12
Cheryl K. Smith; Yale Kamisar, Active Euthanasia- Should It Be Legalized,Hein Online(Aug. 8, 2018, 8:00
PM),https://heinonline.org/HOL/Page?handle=hein.journals/abaj79&div=84&start_page=42&collection=journa
ls&set_as_cursor=0&men_tab=srchresults.
13
Bernadette ,Supra, at 5.
14
Id. at 13.
laws prove to befinancially as well as psychologically burdensome for the family as well as
the patient. Even the doctors feel helpless as their primary duty is to relieve the patients from
pain and due to the existence of such laws they are refrained from doing the same. The views
of the family members must be considered and the best interest of the patient must be seen.15

II. ACTIVE VOLUNTARY EUTHANASIA IN RESPECT OF

ARTICLE 21 OF THE INDIAN CONSTITUTION

In India the crimes are based on the maxim “Actus non facitreumnimens sit rea.” The two
things that are required under criminal law are mensrea (guilty mind) and actusreus (guilty
act) to be roped in under any offence in Indian Penal Code. There exist serious complications
when it comes to active euthanasia as in these circumstances; the guilty mind is of the
informed patient who consents for it while the guilty act is performed by somebody apart
from him. Separation of essential requirements is confusing. AVE, however, is considered to
be a crime under Section 302 of IPC (Punishment for Murder) and 304 of IPC (Culpable
Homicide not amounting to Murder). Even Physician Assisted Suicide “PAS” is considered
to be a crime under Section 306 of IPC (Abetment of Suicide).

Article 21 enshrines the most important Fundamental Right of the Indian Constitution. It
states that “No person shall be deprived of his life or personal liberty except according to
procedure established by law.”16On interpretation of Article 21, we observe that Munn v.
Illnois held that “the term life (as appearing in the 5th and 14th Amendment to the United
States Constitution) means something more than mere animal existence”.17 This idea was
adopted by the court in Kharak Singh v. State of Uttar Pradesh.18The same principle was
observed in The Board of Trustees Port of Bombay v. Dilip Kumar19 and Ram Sharan v.
Union of India20. In all of these judgments, it was held that the very word ‘life’ means more
than mere existence or survival and includes the right to live a dignified life.

15
Airedale N.H.S. Trust v. Bland, 1 All ER 821,843(1993).
16
INDIA CONST. art. 21.
17
Munn v. Illnois, 94 U.S. 113 (1876).
18
Kharak Singh v. State of Uttar Pradesh, (1964) 1 SCR. 332.
19
Board of Trustees Port of Bombay v. Dilip Kumar, (1983) 1 SCR. 828.
20
Ram Sharan v. Union of India, 1989 AIR 549.
On addressing whether Article 21 of the Indian Constitution includes the Right to Die within
Right to Life, we observe in the State of Maharashtra v. Maruti Sripati Dubal21that the court
had invalidated Section 309 which makes attempt to suicide a penal offence. This was upheld
in P. Rathinam v. Union of India22 but later Gian Kaur v. Union of India23reversed the
previous holding and held that Right to Life does not include Right to Die in Article 21 of
Constitution. However, it also held that right to life includes right to live dignified life till
death. If a person is compelled to suffer pain all throughout his/her life with no recourse
available to make the life better, is it not against the human rights and the notion of ‘right to
live with dignity’? Sometimes the condition of a person becomes so cruel and degraded that it
does not even meet the least extent of the criteria of dignity. In such cases AVE must be
permitted to end the undignified and painful life of the sufferer.

If we look at the present scenario, taking one’s life is considered to be a crime. However,
what of lives taken by capital punishment and wars? Why is taking another’s life in such
scenarios more socially justified than when one voluntarily decides to end their life due to
their unbearable condition? Laws are made keeping in mind the welfare of the citizens.
Therefore, the principle enshrined under Article 21 needs to and must be broadened to
include in the scope the Right to Die.

III. THE NEED FOR SOME LEGISLATIVE ACTION IN INDIA

The interest of the State and the lethargic social attitude towards a reform due to the presence
of certain complications and prejudices should not be prioritized over one’s individual
choice. Though, under existing statutes AVE is considered to be Murder and no leniency is
shown in various cases of AVE, major discrepancies exist between the law and its practice.
Therefore, in order to bridge the gap between the overt culture as stated in the law and the
covert culture as being practiced in reality, certain changes in the existing system are required
and it can only be achieved through some legislative action.

A. DISSOLUTION OF PUNISHMENT FOR MERCY KILLING

21
State of Maharashtra v. Maruti Sripati Dubal, (1986) 88 BOMLR 589.
22
P. Rathinam v. Union of India, (1994) 3 SCC 394.
23
Gian Kaur v. Union of India, (1996)2 SCC 648.
Mercy Killing is defined as the intentional killing of the patient especially by their family
members in order to relieve him/her of all the unbearable pain caused due to some terminal
illness. There are few proposed measures that can be included in the present legislative
framework in order to reduce or absolve of the present punishment given to the mercy killer.

1. Sentencing discretion to judges in cases of mercy killing-In the Indian

Penal Code, cases of mercy killing fall within the bracket of exception 5 of S. 30024
that states that “Culpable Homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or takes the risk of death
with his own consent”. The punishment provided under this exception is life
imprisonment or minimum ten years of imprisonment. The problem that exists is that
even if AVE is culpable homicide not amounting to murder, this wouldn’t help the
mercy killer in recovering from the stigma that is created due to murder conviction.
Additionally, the punishment is not as less, that it can be thought to be served for the
benefit of the patient. If sentencing discretion be granted to judges in cases of mercy
killing, the courts shall have to take into consideration the motive of the accused to
reduce the punishment to minimal. However, in this option of reform there would be a
lot of ambiguity in determining the motive and the most crucial aspect would be to
determine the scope of discretion. This would let in a lot of arbitrariness since there
would be no set standard.

2. Creation of separate offence in IPC for compassionate murder - The

other viable option for reform would be to have certain provisions for cases of
compassionate murder thus, creating separate offence under IPC for these cases which
would have lower punishment than the offence of murder and homicide. For this
courts will need to take into consideration the motive of the accused and there are a
lot of difficulties in considering motive as an element of the offence.

The implementation of either of the above-mentioned reforms would be a step towards the
improvement of the present legal status of AVE and would improve the present
unsatisfactory state. However, numerous loopholes are present in the presented options of
reform. They do not seem like the most appropriate solution as even after either of these

24
PEN.CODE (1960), § 300.
reforms either person or the doctor shall still be criminally liable. The limited scope of the
presented reforms just diminishes the liability and does not provide complete immunity.

B. MERCY KILLING AS A COMPLETE DEFENCE

Another stronger suggested option of reform would be to have a defence that would
completely absolve the accused from the liability created under AVE if the compassionate
motive of the accused is proved. Just like Canadian law, the authorities must take into the
consideration the motive behind the act. And if it is proved that the motive is benevolent or
honourable it can result into total exculpation from the offence. Thus, the idea of benevolent
motive should also be included in our criminal procedure which does not take into
consideration the motive behind the act.25

One idea by Rachel says that this defence should be as acceptable as the defence of self-
defence. The only requirement is that the mercy killer has to prove beyond reasonable doubt
that the patient was terminally ill and has consented to the death. But in the presented reform,
the person, and in medically administered Euthanasia, the doctor’s act would still be prima
facie unlawful. They have to first raise the defence and then have to prove their innocence
before the court. They are not at the first place protected if they perform AVE.
Another proposal was presented by Williams that was specifically limited to AVE limited to
medical practitioner. It says it is lawful for doctors to perform AVE in good faith on patients
who have consented to death and are terminally ill. This proposal was different from one
presented by Rachel as in this one the act would be lawful and it would be the burden of the
prosecution to prove that the act was not performed in good faith etc. But the problem with
the proposal presented by William is that it provides too much discretion to doctors and has
no safeguards for the patient and is also limited to doctors.
Various objections would be raised against these options of reforms, such as, in establishing
the real motives of the mercy killer. Sometimes the person may have mixed motives, as to
apart from relieving the patient from the pain; he may also be driven by the desire to end his
difficult family situation. Comparatively doctors have fewer chances to have an ulterior

25
Cheryl ,Supra, at 12.
motive to hasten the death of the patient but still medically administered AVE has been
objected by people. 26

C. PHYSICIAN-ASSISTED DEATH

Assisted death can be defined as the act of a third person to help or assist a patient in the
voluntary termination of his or her life in response to that person’s request. The third person
does not administer the fatal treatment to the patient but merely provides the direct or indirect
assistance. When the third person involved is a doctor, it is termed as doctor-assisted suicide
or physician assisted suicide “PAS”. It could be said that the only distinction between AVE,
assisted death and PAS is merely of a matter of degree of involvement of a third person. 27 It
could be argued that the characteristics of the indirect and the active euthanasia are the same.
The intention is to provide relief to a patient; the motivation is to provide help to the best of
one’s ability resulting in the death of the patient suffering. Therefore, the difference may be
considered to be nothing more than an illusion.

In India, a five judge bench in the case of Gian Kaur v. State of Punjab had held PAS to be
unlawful and the law has not changed ever since. The position of PAS in the United States
has been held to be in dissonance with the American Constitution. This position has been
established through cases like Washington v. Glucksberg and Vacco v. Quill which made the
ban on assisted suicide clear and final. However, some states, namely, California, Colorado,
Montana, Oregon, Vermont, and Washington28have provisions for Euthanasia in their judicial
system where all these states allowed the practice of PAS. In the United Kingdom, the case of
Pretty v. Kingdom was the first time that the question of PAS arose and it was declared thatby
the European Court of Human Rights that the said prohibition does not violate the rights
enshrined under the European Convention of Human Rights “ECHR”. English law is one of
the most restrictive with respect to assisted suicide.29 Switzerland, contrastingly, has become
a hub for “death tourism” due to its liberal attitude towards euthanasia. The famous Life

26
Margaret Otlowski, Active Voluntary Euthanasia: Options for Reform, Hein Online (Aug. 20, 2018, 3:00 PM),
https://heinonline.org/HOL/Page?handle=hein.journals/medlr2&div=19&start_page=161&collection=journals&
set_as_cursor=0&men_tab=srchresults.
27
Suicide, Medicine net, (Sept. 3, 2018), https://www.medicinenet.com/suicide/article.htm#suicide_facts.
28
Christina Kavehrad, Criteria for Active Euthanasia and Physician Assisted Suicide, PDX Scholar (Sept. 12,
2018, 8:32 PM), https://pdxscholar.library.pdx.edu/cgi/viewcontent.cgi?article=1758&context=honorstheses.
29
Ben P. Slight, Could Physician-Assisted Suicide be Classified as a Service under Article 49 of the European
Community Treaty?,10 Med. L. Int. 130, 139 (2009).
Circle Clinic allows facilitation of administering death to even foreigners through medical
assistance.30

Netherlands provides a streamlined process for PAS, the mechanism of which could be
adopted in India. The physician who assists a patient shall not be prosecuted if due care has
been observed. This due care may be determined if certain factors have been taken into
account. The primary concern is that there needs to be voluntary, insistent and direct requests
by the patient, who should have attained the age of 16. The patient’s condition should be such
that there exists no prospect of improvement and the patient is aware of other recourses as
well as the consequences of his or her request. The physician should also consult one other
doctor who should submit a written report following which proper medical assistance should
31
be provided. The Tasmanian bill which had been introduced in Australia also provided an
additional condition that a medical practitioner may for any reason and at any point of time
withdraw from providing such assistance. This condition would ensure that no doctor is
compelled to provide help to a patient in committing suicide if it is against their own
conscience and will.

Allowing PAS would be a great step ahead as it would provide protection to the doctor
assisting the patient to commit suicide. This legislative measure would come with a lot of
benefits as this ensures that the liability does not fall upon a third party. Additionally, in these
scenarios where the patients are provided with the means to take their own lives, it is easier to
ascertain and guarantee the patients’ voluntariness. These patients would have the advantage
of suitable and reliable medical aid which would provide the best of means to prevent risks
associated with patient suicide. The limitation to this mechanism, however, is that it fails to
take into account patients who will be unable to perform the death inducing act due to their
disabled condition. Despite this shortcoming, legalising PAS would help fill the lacuna in law
and administer to those in need. It would be easier to implement this than the legalising of
AVE as it would not require heavy reform in the system.

D. LEGALISATION OF ACTIVE VOLUNTARY EUTHANASIA

30
Fears Switzerland is 'deathbed of world’ after famous scientist travels 9,000 miles to die, Daily Star (Sept. 1,
2018,4:20PM),https://www.dailystar.co.uk/news/latest-news/701589/euthanasia-assisted-suicide-clinic-david-
goodall-switzerland-death-tourism /.
31
Revisiting Euthanasia: A Comparative Analysis of Right to Die in Dignity, Research Gate (Sept. 4, 2018, 2:30
AM),https://www.researchgate.net/publication/255999749_Revisiting_Euthanasia_A_Comparative_Analysis_o
f_a_Right_to_Die_in_Dignity.
The most extensive and comprehensive legislative measure would be to legalise AVE to
ensure that the doctors are not held liable. This would provide a blanket protection to doctors
from prosecution.

Many jurisdictions have formulated proposals for such a mechanism.32 The English
Euthanasia Society proposal, for instance, involves an application requesting euthanasia to be
investigated through a judicial process. This is done to ensure the voluntariness of the patient
and to prevent the exploitation of such a mechanism. Certain requirements need to be
fulfilled such as that the patient should have attained the age of twenty one, and should be of
a sound mind. The condition of the patient should be incurable and terminal. All these
conditions should be ascertained by the ‘euthanasia referee’33 who shall be appointed by the
court and shall provide the authorisation if he agrees with the physician’s diagnosis. The
patient’s request can be revoked at any time and the authorisation is also valid for only a
limited period. A similar framework exists in the Netherlands and Belgium. There is a heavy
emphasis laid on the ‘persistence’ of the patient’s request due to the ‘un-bearableness’ of his
or her condition. However, this brings forth a heavy distinction as an unbearable condition
may not necessarily be terminal or incurable. The criteria of ‘un-bearableness’ puts the onus
of determination upon the patient and in cases of those like psychological suffering, it makes
a doctor’s assessment highly subjective and inadequate. Certain other problems faced with
such proposals and mechanism is the cumbersome and tedious process which would
unnecessarily bureaucratise the handling of such requests. The competency of the committee
formed to review the requests is also something to ponder upon as to whether this group of
people would be suitable to process and determine the eligibility of the requests.

However, if certain safeguards were put in place, it could be said that this mechanism would
deliver a perfect and unique blend of both one’s autonomy as well as the physician’s
judgement. The proponents of AVE submit to the complicatedness of the proposal but are
determined to put forth a framework which would be the best for the society. The first
safeguard to regulate the autonomy of a patient’s request, the requests should be persistent
and written over several instances. Additionally, when there would be a conflict between the
wishes of a patient and that of its family, the patient’s wish should govern. The entire process
should also be seen to not be very time consuming as that would defeat the purpose and

32
Id. at 31.
33
Lorana Bartels & Margaret Otlowski, A Right to Die? Euthanasia and the Law in Australia, 17 J. L. Med.
532,536 (2010).
objective of AVE. A minimum number of doctors should be employed in this entire process,
however, the prognosis should be based on the reports of at the least two independent doctor.
There should be proper reporting requirements to be adhered to and witnesses present
through every communication between the physician and the patient as well as at the time of
administering death.
 CONCLUSION

There seems to be a clear trend on the rise that respect should be given to the right of self-
determination of a person. Hypocrisy needs to be put to rest and an effective legislation
legalising the practice of AVE needs to be implemented. The avoidance of such is merely
been done in order to prevent social and political unrest because coming to terms with the
concept of life and dignity would mean dismissing the archaic notion of life. The hypocrisy
strikes where increasing the life span of individuals through unnatural means raises no
eyebrows but unnecessary prolonging of an unbearable life seems to become a matter of
everyone’s concern even when the only person whose approval should be sought is the
patient itself. Most of the requests for Euthanasia that emerge are from patients whose lives
have been prolonged due to the insistent technological advancements where the patients lie in
irreversible coma, a vegetative state or where chances of improvement for the patient’s
condition are non-existent. This has turned into a complex social game, where the legal and
the medical practices do not intersect and therefore, the law is manipulated and turned into a
farce. Therefore, in order to avoid this and to save the patients and the families from
unnecessary pain and anguish, either AVE should be legalised or PAS should be made free
from prosecution. The ultimate goal of medicine should not be forgotten; to heal the suffering
of the sufferer.