Euthanasia is one of those words that more often than not evokes extreme sentiments. Today the Supreme Court of India referred the matter concerning legalisation of euthanasia in India to a Constitution Bench reigniting the question of whether euthanasia should be legalised or not. It may be a while before a Bench is constituted and the judgment is pronounced. However, the debate is on and I, for one, believe that passive euthanasia should be legalised. Passive euthanasia must be distinguished from active euthanasia – the former implies switching off the ventilator or withdrawing the feeding tube whereas the latter implies a measure such as injecting the patient with a lethal dose of a drug to end his life. In this piece I intend to argue in favour of passive euthanasia – a right to refuse medical treatment. At no point in this piece am I arguing for physician assisted suicide.
There is no doubting that medicine has made unbelievable leaps and will continue to do so considering the amount of resources devoted to medical research across the world. However, there is also no doubting the fact that many people across the world spend their last few days on Earth in extreme pain and distress. The jurisprudence of ‘right to live, includes a right to a dignified life’ is also well settled. In such a circumstance why should an individual not be allowed to die with dignity if a medical opinion has been formed that the patient has crossed the point of return?
The Tony Bland case is a good place to begin this discussion. Tony Bland was one of the victims of the Hillsborough football disaster. Caught in the crush, Tony Bland was in a persistent vegetative state and the doctors were in agreement that he could not see, hear or feel and like most other patients in a persistent vegetative state he would never wake up. Tony Bland’s parents and doctors wanted to stop feeding him via a tube which would ultimately result in his death. The question was whether the doctors would be liable for homicide or manslaughter. The House of Lords answered the question in the negative. The ruling, however, did not affirm euthanasia but turned on the fact that homicide or manslaughter generally require acts and the doctors were omitting to do something – namely continuing to feed Tony Bland. The House of Lords’ judgment is a bad one because it fails to account for the intent – whether you inject Tony Bland with a lethal dose of a drug or whether you stop feeding him, both would ultimately lead to his death. In both cases, the intent would be to kill the patient. On a philosophical scale, the doctor who kills and the doctor who lets a patient die, would probably be equals.
Closer home we have the Aruna Shanbaug case. A victim of a gruesome rape, Shanbaug has been in a vegetative state for more than four decades. A medical board setup by the Supreme Court of India found that she is unaware of her surroundings and unable to respond coherently to verbal stimuli. Yet Shanbaug’s case is different from Tony Bland’s. Shanbaug could make sounds (incomprehensible), move her hand, and lick food off her lips. Another vital difference is that Shanbaug’s doctors did not support the withdrawal of feeding. When a writ petition was filed in the Supreme Court seeking a direction to KEM Hospital to stop feeding her, the Supreme Court dismissed the petition because the law as it stands does not include a right to die in the right to life. The Court did, however, hold that passive euthanasia is legal (Shanbaug’s case will be considered by the Constitution Bench mentioned above).
The question is whether life has so much sanctity and inviolability that one’s death has to be undignified? I believe not. The core of the right to life is essentially a right to be not intentionally deprived of life and not preservation of life at all costs. A person undeniably has autonomy and in fact this has become the basis in the United States of America for a person to end his life on his own terms by declaring that they do not wish their life to be prolonged through extreme measures. Of course the opponents of the autonomy argument ask questions such as “Is there a right to indulge in paedophilia?”. But the two are hardly the same. A person who indulges in paedophilia causes tangible harm to another individual as well as the society at large. That same interest is not violated when a person refuses (in advance or through his or her power of attorney) to be fed only through a tube and excrete only through a catheter and enemas.
The Netherlands is the only state (Oregon, USA (1994) and Northern Territory, Australia (1995) did legislate before Netherlands, however, Australia repealed the legislation in 1997) that has decriminalised euthanasia in certain defined circumstances – essentially ‘hopeless and unbearable suffering’. If we were to enact a similar law in India, would there be potential abuses? Probably. But potential for abuse is a secondary problem at the level of implementation. It does not justify doing away with the idea of euthanasia itself.
The road to legislation, however, is a long and hard one. Attempts at bringing about legislation have failed in the UK; Canada; and New York, USA. Legislators find it easier to hide behind ‘inviolability of life’ than to devise a law that minimises potential for abuse and respect the very life that is being touted as inviolable. While legislators may shirk, it is common knowledge that doctors across the world do provide palliative care that in fact hastens death. That doctors in fact pull the plug on the ventilator after seeking permission from the family if there are no chances of recovery. Why let something happen under the table, when bringing it above it is not only humane but would also reduce the potentiality for abuse?
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