Active Euthansia, An Unconventional Right To Life.docx

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, citizenswere 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 towardsa moreliberal 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 Dieas 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 cureis 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 actionwith 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 callednon-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 8

Bernadette ,Supra, at 5. 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 doctormust 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). 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. 10

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 theadministering 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 AVEand controls the death. The case of Otto Wener14 depicts the melancholic scenario of euthanasia. OttonWener 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 burdensomefor 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 TheBoard 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). 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. 16

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. MarutiSripatiDubal21that 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 GianKaur 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.Ifa 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 scenariosmore 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 broadenedto include in the scopethe 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 prejudicesshould 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 systemare required and it can only be achieved through some legislative action.

A.

21

DISSOLUTION OF PUNISHMENT FOR MERCY KILLING

State of Maharashtra v. Maruti Sripati Dubal, (1986) 88 BOMLR 589. P. Rathinam v. Union of India, (1994) 3 SCC 394. 23 Gian Kaur v. Union of India, (1996)2 SCC 648. 22

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 doctorshall 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 selfdefence. 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 be provided.

31

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

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-davidgoodall-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. 30

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 unnecessarilybureaucratise 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. Lorana Bartels & Margaret Otlowski, A Right to Die? Euthanasia and the Law in Australia, 17 J. L. Med. 532,536 (2010). 33

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 selfdetermination 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 orPAS should be made free from prosecution. The ultimate goal of medicine should not be forgotten; to heal the suffering of the sufferer.