Euthenesia PDF
Euthenesia PDF
Euthenesia PDF
2.1 INTRODUCTION:
59
means, the intentional administration of lethal drugs in order to terminate
painlessly the life of a patient suffering from an incurable condition
deemed unbearable by the patient at the patient’s request.1 The major
thrust of those concerned to legalise the termination of life on medical
grounds has always been concentrated on the basis of voluntary
euthanasia. The request for voluntary euthanasia must be made by
whoever is the subject to intolerable or intractable pain or is suffering
from terminal illness. Such a request has to be voluntary without any
coercion from the family member or from those looking after the patient.
1
Joris, Gielen, et.al., “Religion and Nursing attitudes to Euthanasia and Physician Assisted Suicide”
Nursing Ethics, vol.16, Iss. 3, May 2009, p. 304. http://www.porquest.umi.com/pqdweb, [accessed
on 18/8/2009].
2
Harris, J., “Euthanasia and the value of life” in Keown, J., (ed.), Euthanasia Examined 6, U.K:
Cambridge University Press, 1995.
60
more pleasure and avoid the pain. The doctor treating the patient has to
strike the balance of the pleasure over pain. Accordingly letting the
patient die peacefully would produce the greatest good for the greatest
number. At the same time the opponents of voluntary euthanasia argue
that if the patient’s autonomy is protected what about the autonomy of
others? Can the patient’s right to self-determination be translated into an
enforceable legal right to demand assistance to die? The proponents have
another strong argument, which is a cornerstone for the legalization of
active voluntary euthanasia- to prevent cruelty by alleviating the
unbearable pain. It is argued that to keep a human being suffering with
pain amounts to cruelty. And thus on grounds of mercy the patient must
be released from his prolonged suffering. The opponents undermine the
arguments as cruelty and mercy can be interpreted in any manner,
resulting in misuse of these terms, and leading to increase the number of
deaths by voluntary euthanasia. The promotion of human dignity is also a
part of the proponent’s arguments. The importance of human dignity has
been discussed in the first chapter. Human dignity is closely related to the
principle of self-determination. Proponents argue that the notion of
human dignity demands that individuals have control over significant life
decisions, including the choice to die, and that this control is
acknowledged and respected by others.3 This argument is well
encapsulated by Fletcher, he has stated that “to prolong life uselessly,
while the personal qualities of freedom, knowledge, self-possession and
control and responsibility are sacrificed, is to attack the moral status of
the person”.4
3
Otlowski, Margaret, Voluntary Euthanasia and the Common Law 204, New York: Oxford
University Press, 1997.
4
Ibid.
61
The proponents advance their argument on grounds of morality. As
opined by Professor Dworkin human life is sacred and thus human
dignity of individuals needs to be respected. It is a moral duty of
everyone to respect each individual. Allowing or aiding a terminally ill
patient to die is morally right but legally wrong. Every act which is
morally permissible may be legally impermissible. The proponents also
argue on the basis of growing public demand for voluntary euthanasia.
62
Self-autonomy and right to self-determination are the strongest
arguments for proponents of voluntary euthanasia. Can the same
argument advocate involuntary euthanasia? Euthanasia might be
extended on a utilitarian account even to persons who do not consent to it,
as theory of utility promotes overall social welfare. Only on grounds of
incapability of the patient to give consent, the question whether to permit
euthanasia cannot be easily dismissed.5 The American euthanasia
movement has long made all sorts of utilitarian arguments for involuntary
euthanasia, arguing that the “practice is justified by, say, the social
benefit of having to care for fewer “defective” persons… even recent
liberal advocates of autonomy-based right to [physician] assisted suicide
have sometimes argued for involuntary euthanasia on grounds of social
costs and utility.”6 The US Supreme Court gave hints of utilitarian
thinking in Glucksberg7 and Quill8. The major worry involved in
involuntary euthanasia is whether such a practice will bring more harm
than social benefits.
5
On one hand disclaining utilitarian-based arguments for legalization of euthanasia while on the
other endorsing autonomy-based arguments, see, supra note 3.
6
Gorsuch, Neil, M., The Future of Assisted Suicide and Euthanasia 102, New Jersey: Princeton
University Press, 2006.
7
Washington v. Glucksberg, 521 U.S. 702 (1997).
8
Vacca v.Quill, 138 L.Ed.2 d 834.
9
H Palmer ‘Dr Adams’ Trial for Murder’ (1957) Cri. L.R. 365.
63
Adams treated a patient who was suffering from incurable disease but not
terminally ill, with increasing doses of opiates. Followed by the death of
the patient, he was tried for murder and was acquitted. It was held by
Justice Devlin that “[t]he doctor is entitled to relieve pain and suffering
even if the measures he takes may incidentally shorten life”.10 Later in R.
v. Carr,11 a doctor was accused of attempted murder by injecting a
massive dose of phenobarbitone into a patient whose lung cancer had
been declared inoperable some seven months previously the doctor was
acquitted of the charge.12
However, in Dr. Cox15 and Dr. Shipman,16 the doctors were convicted of
attempted murder for giving medicine to hasten death. At the outset, in
Dr. Cox’s case, while summing up, Justice Ognall said, “If he injected her
10
Ibid.
11
Unreported , The Sunday Times, 30 November 1986, p. 1.
12
Mason, Smith, Lawice, Law and Medical Ethics 530, U.K: Butterworths, 2002.
13
Ibid. See, Dyer, C., “British GP declared of murder charge”, BM J, vol. 318, 1999, p. 1306.
14
Ibid.
15
(1992) 12 BMLR 38.
16
Kinnell, H. G., “Serial Homicide by Doctors: Shipman in Perspective” BMJ, vol. 321, 2000, p.
1594.
64
[patient] with potassium chloride with the primary purpose of killing her,
of hastening her death, he is guilty of the offence charged”.17
The best known example for active voluntary euthanasia is, Dr. Jack
Kevorkian,18 a Michigan physician, who had personally designed a
suicide machine. This machine was equipped to inject a lethal dose to a
person who wanted a quick, painless exit from life. Dr. Kevorkian was
found guilty of causing 1st and 2nd degree murder in 1999.19
17
Mason, J. K., et. al., Law and Medical Ethics 531,543, 6th edn., U.K: Butterworths, 2002.
18
People v. Kevorkian, 527 N.W 2d 714, 728,29 (Mich. 1994).
19
Basant, T., “Euthanasia- Why A Taboo?” in Menon, Anila, V., (ed.), Right to Life and Right to
Death 108, 1st edn., Hyderabad: The Icfai University Press, 2007.
20
Practiced by doctors in case of hopeless terminally ill patients and may bring about the death of the
patient.
65
Another common example is placing a critically ill patient on a
ventilator. If, in such a case, there is no hope of recovery and the doctor
switches the ventilator off, could he not be said to have acted to bring
about the patients death? Can this be termed as an omission rather than an
act? This is the normal practice in India. Is any doctor held liable for
passive euthanasia in India? The answer is no, there are many reasons to
this issue. The patient’s family may not be financially in a position to
keep him alive on a ventilator or any other medical aid which is
prolonging his death. There is no such reported case in any High Court
across India or even in the Apex Court.
In Bland’s23 case Lord Goff’s opined that why is it that the doctor who
gives the patient a lethal injection which kills him commits an unlawful
act and indeed is guilty of murder, whereas a doctor, who, by
discontinuing life support, allows his patient to die, may not act
unlawfully- and will not do so, if he commits no breach of duty to his
patient? Professor Glanville Williams has suggested that the reason is that
what the doctor does when he switches off a life support machine “is in
substance not an act but an omission to struggle”, and that “the omission
21
Cruzan v. Director, Missouri Department of Health 111 Led. 2d 224,225-156(1990).
22
Ibid.
23
Airedale NHS Trust v. Anthony Bland, (1993) 1 All ER 321 (HL) at 860.
66
is not a breach of duty by the doctor, because he is not obliged to
continue in a hopeless case.”24
Thus the question, when can a doctor be released from his duty to treat
the patient or when can a particular action of the doctor amounts to be an
omission, complicate passive euthanasia. The opposite form of passive
euthanasia is commonly known as the active euthanasia which is
considered as the most dangerous form of terminating life.
24
Williams, Glanville, Textbook of Criminal Laws 282, 2nd edn., London: Stevens, 1983.
25
Supra note 23. See, R. v. Gibbins (1918) 13 Cri. App. R. 134, R. v. Stone [1977] QB 354.
26
Stauch, M., et. al., (ed.), Source Book on Medical Law 650, U.K: Canvendish Publishing Ltd.,
1998.
67
Active euthanasia means a deliberate action to end the life of a dying
patient to avoid further suffering.27 It is always debated whether there is
any true distinction- such as- active and passive euthanasia. The
requirement of euthanasia is to accelerate the death or to terminate the
patient’s life- either actively or passively. The motive in such act is to
relieve the patient from his suffering for ever, but the intention remains
the same, to kill the patient. This is the reason why proponents have also
labelled euthanasia as ‘mercy killing’. Mercy killing is not legalized in
any country as it is recognised as an act equivalent to murder. The cases
where the near and dear ones care for the patient suffering due to a
incurable disease or is terminally ill, often do this act of mercy killing. It
is out of their love and devotion, the caretaker decides to release the
patient from misery.
68
considered lawful, either because the doctor intends to give effect to his
patient’s wishes by withholding the treatment or care, or even in certain
circumstances in which the patient is incapacitated from giving his
consent. However, it was not lawful for the doctor to administer a drug to
his patient to bring about his death, even though that course is prompted
by a humanitarian desire to end his suffering, even if the act of causing
death may avoid or end the patient’s suffering. It was held that under any
circumstances euthanasia was not lawful at common law.29
29
Ibid.
30
(1996 unreported) vol. 313, BMJ, 961.
31
Ibid.
32
(2001) 1 SCR 3.
33
Ibid.
69
Earlier in R. v. Taylor,34 a man who battered his autistic child to death
was placed on probation for 12 months.35
All the forms of euthanasia discussed above result in taking away the
life. Except a few countries any form of euthanasia is legally prohibited
world wide. At the same time one more concept which results in taking
34
(1976) CLY 570.
35
Ibid.
36
Russell, Ruth, O., Freedom to Die 21, Revised edn., New York: Human Sciences Press, 1977.
37
Ibid.
38
Ibid.
39
Hospice is a type of care which focuses on the palliation of terminally ill patients, infra, Chapter
III, p. 222 to p. 226
40
Palliative care is a therapy intended to relieve the pain of terminally ill patients until death occurs,
infra, Chapter IV, p. 227 to 232.
70
life- the right to refuse treatment is legally permitted as a liberty right. A
patient in terminal illness who refuses treatment will die and a patient in
terminal illness who requests euthanasia will also die, but the law allows
patient to refuse treatment and disallows to request for euthanasia.
Whereas the result of both the actions is exactly the same- a painless and
dignified death. On what ever justification law approves one action and
disapproves the other is not convincing to the researcher.
71
patient, and thus is different from suicide, physician assisted suicide or
euthanasia.
It is difficult and equally painful for the relatives of the patient and the
doctor to take a decision to discontinue the treatment. In certain cases the
dear ones request to discontinue the care because they are tired of the
invasive treatments, such as, feeding tube, urine tube and many other
modern methods of medical technology.
41
Singh, Jagdish and Bhusan, Vishwa, Medical Negligence and Compensation 195, 2nd edn., Jaipur:
Bharat Law Publications, 1999.
42
Supra note 3 at 36.
72
The right to refuse medical treatment has been protected by law in
several cases.43 The classic exposition of these principles is to be found in
the frequently cited judgment of Justice Cardozo in Scholoendorf v.
Society of New York Hospital,44 wherein it was observed that “[e]very
human being of adult years and sound mind has a right to determine what
shall be done with his own body …”45 The American common law
recognizes that every patient possesses the right of bodily self-
determination.
In 1985 Conroy case,46 the New Jersey Supreme Court described the
right of possession of and control over one’s body as the most ‘sacred
right’ guarded by common law.47 In 1990, in Cruzan v. Director,
Missouri Department of Health,48 the US Supreme Court had sanctioned
the removal of a gastronomy tube which was the precipitating cause of
Nancy Cruzan’s death.
43
Re T [1992] 4 All ER 649, (1992) 9 BMLR 46, CA, Re C [1994] 1 All ER 819, (1993)15 BMLR
77, Ms B and An NHS Hospital Trust [2000],EWHC 429 (Fam),[2002]2 All ER 449,(2002) 65
BMLR 149.
44
(1914), 105 NE 952 (N. Y. C. A).
45
Supra note 3 at 37.
46
486 A2d 1209 (1985).
47
Dunstan, G.R., and Lachmann, P.J., (ed.), “Euthanasia: Death, Dying and the Medical Duty”,
British Medical Bulletin, vol. 52, Number 2, April 1996, pp. 342, 343.
48
Ibid. See, supra note 21.
49
Ibid.
73
and refusal of treatment both result in death, it is therefore necessary to
consider whether the refusal of treatment by a patient can ever amount to
suicide. According to the traditional conception of suicide, there is a self-
initiated action with a specific intention to cause death. Whereas refusal
of treatment is aimed at avoiding unwanted treatment to end the
unbearable pain and suffering, the intention to die is absent.
This issue was also raised in Bouvia v. Superior Court53, where the
California Court of Appeal held that, “the removal of naso-gastric feeding
tube does not violate State’s interest to preserve life but ‘allows nature to
take its course.”54
Apart from the US and the UK, the right to refuse treatment is also
recognised in other countries. In Rodriguez v. British Columbia (Attorney
50
Supra note 46.
51
Supra note 3 at 66.
52
Ibid.
53
225 Cal. Rptr. 297 (1986).
54
Ibid.
74
General)55, Justice Sopinka, speaking for the Supreme Court of Canada,
held that the “Canadian Courts have recognised a common law right of
patients to refuse to consent to medical treatment or to demand that
treatment, once commenced, be withdrawn or discontinued. This right has
been specially recognised to exist even if the withdrawal from or refusal
of treatment may result in death.”56
55
(1994) 85 CCC (3d) 15.
56
Supra note 3 at 41.
57
[1992] 66 AJLR 300.
58
Ibid.
75
release from a painful and undignified death. The approach of Courts to
this issue is to a large extent, explicable on the basis of the patient’s right
of self-determination and the paramountcy which has been attached to
that principle.59
76
depression, frustration, etc., whereas euthanasia is an act of allowing a
person to die or helping a person to die only if the person is suffering
from terminal illness and is a victim of unbearable pain and agony.
Euthanasia and suicide cannot be equated under any circumstances as the
motive for termination of life is completely at variance.
60
Tony, Hope, et. al., Medical Ethics and Law 32, UK: Churchill Livingstone, 2003.
61
Dworkin, G., The Theory and Practice of Autonomy 6, Cambridge: Cambridge University Press,
1988.
62
Gillon, Rannon, Principles of Health Care Ethics xxii, Wiley: Chichester, 1994.
http://www.questia.com, [accessed on 21/12/2009].
77
one’s situation and pursue personal goals free of governing constraints.63
“Autonomy” means something like a capacity for independent decisions
and action.64 Autonomy is often linked to the philosophy of Mill.65
63
Beauchamp,T.L., and McCullough, L.B., Medical Ethics 42, Eaglewood, Cliffs: Prentice
Hall,1984.
64
O’Neil, O., Autonomy and Trust in Bioethics 23, Cambridge: Cambridge University Press, 2002.
65
Mill, John, S., On Liberty, Everyman edn., J. M. Dent, 1993. www.complete-
review.com/reviews/mills/onliberty.htm, [accessed on 22/12/2009].
66
Williams, Susan, H., Truth, Autonomy and Speech 164, New York: New York University Press,
2004.
67
Ibid.
68
Id., at 41.
69
Rawls, John, Political Liberalism 32, 33, New York: Columbia University Press, 1993.
70
(1999) 3 W.L.R. 363 at 368.
78
sovereign over himself and cannot be denied the right to certain kinds of
behaviour.71
The central and often sole concern for the medical well being of the
patient has given way to, or one could say has been modified to include,
concern for patients self-determination or autonomy in making medical
decisions. Individual autonomy in the medical text means that a person
has the right, in accordance with his own values, commitments and
beliefs, to determine whether and to what extent he shall submit himself
to any course of treatment recommended by the doctor.
71
Ibid.
72
Brock, Dan, Life and Death 27, Cambridge: Cambridge University Press, 1993. See, Jyotsna, A.
Gupta, New Reproductive Technology, Women’s Health and Autonomy 22, New Delhi: Sage
Publications, 2000.
79
recurrently quoted by subsequent court of law as stated in Schlcendrof’s
case. 73 In this case, patient autonomy was recognised as a patient’s right
to self-determination and signalled a shift away from medical
paternalism.
Anthony Bland’s76 case has dealt with this issue and articulated on it.
The patient in this case was in a PVS following the collapse of his lungs
at the disaster at Hillsborough Football Stadium and had not made
73
Supra note 44.
74
A living will is one of the forms of an advance directive. A living will enables the person to refuse
a life prolonging medical treatment if signed in advance by the individual, infra, Chapter IV, p.
234 to p. 239.
75
Dworkin, Ronald, Life’s Dominion: An Argument about Abortion and Euthanasia 226, U.K:
Harper Collins, 1993.
76
Supra note 23.
80
anything that could be construed as an advanced directive.77 The Court
made an obiter observation that had Anthony Bland made any advance
statement of what he would have contributed significantly to the
evaluation of what was or was not lawful. The appeal court also
concluded that , if Anthony Bland had made a living will covering non
treatment in the event of PVS, the doctors could not only lawfully comply
but would be acting unlawfully if they did not.78
77
Advance directive refers to medical treatment preferences in the event that an individual becomes
unable to make medical decisions on her or his own, infra, Chapter IV, p. 234 to p. 239.
78
Ibid.
79
In Re Quinlan 355 A.2d 647 (N.J. 1976).
80
Ibid.
81
(1996) 497 NE 2D 626.
81
a persistent vegetative state to refuse artificial hydration and nutrition
albeit that the right had to be exercised by proxy on the patient’s behalf.82
82
Ibid.
83
Supra note 21.
84
Ibid.
85
(1987) 108 N.J. 394.
86
Ibid.
87
Guardianship of Jane Doe (1992) 411 Mass 512.
88
Ibid.
82
In Europe one finds a rather strong voice asserting the right to refuse
medical treatment, as an essential facet of patient autonomy. It is averred
that, “[t]he right to refuse medical treatment is at the core of individual
autonomy [which] enables an individual to retain physical integrity of his
body and to determine whether there are considerations more important
than the preservation of his health or even life”.89
89
“The right to Refuse Medical Treatment under the European Convention on Human Rights” 9
Med. L. Rev.17. (2001).
90
N. L. P., “Constitutional Law: Physician Assisted Suicide & the Equal Protection Clause”, 21 Am.
J. L. & Med. 479. (1995). http://www.international.westlaw.com, [accessed on 20/3/2010].
91
Supra note 75 at 191.
83
requires government to abjure any interest in promoting particular moral
objectives or ends; the State must leave individuals to choose their own
values.92
As argued by George that “there are many and varied ways of living a
morally upright life, and that individuals should be free to choose from
these without State interference.”95 George further states that the
individual choice should be respected only when it leads towards a moral
good: “The value of autonomy is… conditional upon whether or not one
uses one’s autonomy for good or ill.”96 He further adds that, “[p]ersonal
choice, on this account, should be permitted only in so far as it is an
92
Supra note 6 at 87.
93
Rawls, John, A Theory of Justice 11, Oxford: Clarendon Press, 1989.
94
Mill, John, S., On Liberty 9, Harmondsworth: Penguin, 1978.
95
George, R., Making Men Moral 173-175, USA: Oxford University Press, 1995.
96
Id., at 177.
84
important means and condition to the realization of human goods and the
communities they form.” 97
85
despondent over lost love, financial worries, unemployment, failure in
examination, prisoners tired of their confined lives, disabled people
distressed by their disabilities- all would claim right to physician assisted
suicide on grounds of pain and suffering based on individual autonomy.
This apart, certain authors, for e.g., Margaret Otlowski, discusses the
promotion of mercy and human dignity as independent moral arguments
for legalizing euthanasia.100 Yet in the end, she admits the fact that such
arguments, tethered in no way to the patients choice, could lead to
allowing involuntary euthanasia based on the perception of doctors or
others that the patient’s life is no longer worth living and that killing
would be the best solution.101 As a solution for such problems, Otlowski
contends that the only true base for legalization of euthanasia has to be
the fundamental principle of self-determination and autonomy.
100
Supra note 3 at 189.
101
Ibid.
102
Campbell, Alastair, et. al., Medical Ethics 208, 3rd edn., Oxford: Oxford University Press, 2001
86
health care providers to negotiate an increasingly precarious line between
respect for patient autonomy and exercise of their best professional
judgment.103
The argument for personal autonomy and the ability to control ones
own life, both mental and physical, are predominant in the debate over
the individual's right to physician assisted suicide. If one applies Mill's
and Raz's ideas on personal autonomy, it would appear that the
competent, terminally-ill individual should have the right to choose
whether or not his/her life is worth the continued struggle through pain
103
“Medical Technology and the Law”, 103 Harv. L. Rev.1523. (1990).
104
Charlesworth, M., Bioethics in a Liberal Society 60, Melbourne: Cambridge University Press,
1993.
105
Supra note 94 at 56. See, Raz, Joseph, The Morality of Freedom 369, USA: Oxford University
Press, 1986.
87
and physical incapacity.106
One key issue in the analysis of autonomy is, what conditions need to
be met for a person’s decisions and actions to be autonomous? The
probable answer is, to be autonomous one must make evaluations about
life, such evaluations must be rational and certain desires higher in
hierarchy of life should be respected. Unfortunately, “today autonomy is
compromised by the fact of illness, hospitalization, and all the attendant
anxiety and stress of the medical environment and medical
interventions.”107
106
Ibid.
107
Callahan, Daniel, and Margot, White, “The Legalisation of Physician Assisted Suicide: Creating a
regulatory Potemkin Village” 30 U. Rich. L. Rev.43. (1996).
http://www.international.westlaw.com, [accessed on 20/3/2010].
108
Smith, Raymond, A., (ed.), Encyclopaedia of AIDS 363, New York: Penguin Books, 1998.
88
The doctrine requiring physicians to obtain a patient’s informed
consent before undertaking treatment is relatively young, having
first appeared in a recognizable, relatively robust form only in
1957.109 The consent norm had occupied a prominent and honoured
place in our legal thought for many centuries before the courts began
to develop the jurisprudence of informed consent in the health
care.110 Consent expresses the primacy of individualistic values in
our culture and such values that underlie the doctrine have an
ancient pedigree.
109
Peter, H. Schuck, “Rethinking Informed Consent”, 103 Yale L. J.900. (1994).
110
Ibid.
111
http://www.wma.net/en/30/publication, [accessed on 23/3/10].
112
Supra note 109 at 903.
89
his/her own, acting as the patient’s selfless, scrupulous, dutiful
agent.113
113
Id., at 921.
114
Ibid.
115
John, Mayberry, Postgraduate Med. J., vol. 80, No. 943 BMJ, UK, May 2004, p. 277.
116
Francis, C M., Medical Ethics 58, 2nd edn., New Delhi: Jaypee Brothers, 2004.
117
Skegg, P. D. G., Law, Ethics, and Medicine 29, Oxford: Clarendon Press, 1984.
118
Lindgren, James, “Death by Default”, 56 Law & Contemp. Probs. 299. (1993).
http://www.international.westlaw.com, [accessed on 20/3/2010].
90
to medical treatment proceeds from the principle of autonomy- the
notion that each mature individual has a right to make basic choices
that affect his/her life prospects.119 The autonomy principle is deeply
entrenched in our culture and law.120 What is the role of informed
consent within a clinical encounter viewed through the lens of
justice as empowerment? It may be summarised that the conditions
for a patients consent to be valid are competence, adequate
information and self approval.
119
Supra note 109 at 924.
120
Ibid.
121
Supra note 117 at 48.
122
Supra, Chapter I, p. 31 to p. 33.
123
Supra note 117 at 72.
91
The autonomous principle of informed consent was upheld in
Nancy Cruzan’s124 case. It was held that as per the common law
even the touching of one person without his consent and without any
lawful justification amounts to a battery. And that the notion of
bodily integrity has been embodied in the common law, and
according to this the right to informed consent has been firmly
enshrined in the American tort law.125
124
Supra note 21.
125
Supra note 6 at 83.
126
Ibid.
92
should be the “patient’s desires… not the type of treatment
involved.”127
The proponents of right to die argue that the right to die with
assistance protects an individual’s interest of self-determination. The
principle of self-determination demands that the State respect the
individual’s judgment about how much pain he wishes to tolerate
before death, unless there are overriding public policy interests.
Recognizing the right to die with assistance, based on informed
consent, also furthers the policy of giving patient’s control over the
course of their medical treatment. This right not only gives
terminally ill patients another option, but it also removes a
substantial disincentive for refusing life-saving care, that is, the fear
of lengthy, uncontrolled suffering prior to death. Although no one
contests its goals of patient autonomy and improved decision
making, its present effectiveness in achieving those goals is quite
limited.
93
various forms of euthanasia as discussed in the first segment of this
chapter. If one argues in favour of euthanasia, which form will
prove suitable for India would be the next issue to be dealt with? In
the researcher’s opinion, voluntary euthanasia practiced as
physician assisted suicide shall be the better option for India.
At present, the Indian law not only prohibits but also penalizes
euthanasia, suicide and physician assisted suicide. Euthanasia and
suicide both the concepts have two common elements- first is the
termination of life and second is voluntariness to terminate life. But
the main component which differentiates euthanasia and suicide is
the reason to terminate life. Hence there is a need for a comparative
analysis of euthanasia and suicide and physician assisted suicide.
The law, it is said, is in effect the codification of the will of the people,
and when there is tension between a legal verdict and the people’s
thinking then it is time to reconsider the law.129
129
Davies, J., “The Case for Legalizing Voluntary Euthanasia” in Keown, J., supra note 2 at 83.
130
Willaims, Stephens, P., “An opportunity slipping by: Why lawyers should speak up about
Physician assisted suicide”, S. C. Law., vol. 9, Nov-Dec, 1997, p. 35,
http://www.international.westlaw.com, [accessed on 20/3/2010].
94
life to relieve suffering and thereby to allow the patient to die in dignity
and peace.131 The concept of euthanasia has been debated for decades but
it has attracted public attention after a few landmark judgments delivered
by the US Supreme Court and the House of Lords, in the UK.132
131
William,Thomson, A.R., Dictionary of Medical Ethics & Practice 119, Bristol: John Wright &
Sons Ltd, 1977.
132
Cruzan v Director, Missouri Department of Health, 497 U.S. 261 (1980), Bush v. Schiavo, 885 So
2d 321(Fla 2004), Vacco v. Quill 138 L.Ed.2 d 834, Washington v. Glucksberg 521 U.S. 702
(1997), Airedale NHS Trust v. Anthony Bland (1993) 1 All ER 321 (HL) at 860.
133
Supra note 75 at 3. [Emphasis added].
134
Frances, Kamm, M., “Abortion and the Value of life: A Discussion of Life’s Dominion”, 95
Columbia L. Rev.180. (1995).
135
For e.g., In the United Kingdom attempt to suicide is decriminalized. See, The Suicide Act, 1961.
Suicide is also decriminalized in Canada since 1972, see, Criminal Code of Canada.
http:///www.thecanadaencyclopedia.com , [accessed on 10/1/2011].
136
For e. g., S. 309 IPC reads as, whoever attempts to commit suicide and does any act towards the
commission of such offence, shall be punished with simple imprisonment for a term which may
extend to one year, or with fine, or with both.
95
roots and may be expressed in a different manner, but whatever their
basis, they form a fundamental part of our moral lives. The religious view
frequently expresses that human life is a gift of God and no human being
has a right to take it away.
137
Supra, Chapter I, p. 17 to p. 20.
138
Supra note 27 at 71.
139
The discussion on the moral status of euthanasia and its legal implications is discussed in,
Dworkin, R., Life’s Dominion: An Argument about abortion and euthanasia (1993), Finnis, J., “A
Philosophical case against euthanasia” in Keown, J., (ed.), Euthanasia Examined (1995),
Otlowski, M., Voluntary Euthanasia and the Common Law (1995).
96
one’s own life as the person no more wishes to live his or her life and
while committing a suicide there is absolutely no involvement of a third
person. If anyone abets or instigates a person to commit suicide he shall
be punished as per the penal provisions.140 In cases of terminal illness the
patients have a right to refuse treatment as the law allows patients to
make their own decision regarding the medical treatment. No person can
be forced to undergo treatment if he or she is not willing to do so. But
that does not mean the patients have a right to request the doctor to kill
them or assist them in committing suicide. To ascertain whether a
meaningful moral line can be drawn between physician assisted suicide
and the right to refuse on the basis of intent, it is necessary to consider
whether such a moral line can be drawn between intended and unintended
consequences. Jeremy Bentham, the propounder of the utilitiranian
concept, distinguished between three different kinds of consequences:
those that we intend as our ends or goals, those that we intend as means to
our further ends and those that occur, even if foreseen, as unwanted side
effects of what we do intentionally.141
140
In India abetment to suicide is punishable under S. 306 IPC. S.306 reads: “If any person commits
suicide, whoever abets commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years and shall also be liable to fine.”
141
Jeremy, Bentham, Principles of Morals and Legislations 240, New York: Hafner Press Publishing
Co. Inc., 1948.
142
Morrisette v. United States, 342 US. 246, 250 (1952) (Jackson,J.)
97
Thus, it can be said that there is a rational, moral line to be drawn
between intended and foreseen consequences. The question that arises
here is, whether such distinction is applicable to physician assisted
suicide and euthanasia? It can be analysed by examining the actions by
discussing firstly bright line distinction between euthanasia and suicide,
and secondly euthanasia and physician assisted suicide.
143
Supra note 6 at 63.
98
from the First Intermediate Period of ancient Egypt.”144 The Greek and
Roman Stoics came to celebrate suicide as the act of wise man, while
Christian Church, from the time of Augustine through the time of Thomas
Aquinas, increasingly vigorously condemned suicide as a sin.145 In
Hinduism suicide has always been condemned but at the same time some
form of self-destruction such as sati146 or widow burning was glorified.
The sati system was abolished during the British rule in India.147
Buddhism and Islam also condemned all forms of self-destruction leading
to suicide. Thus, suicide is a very different act for one who believes in the
existence of an after life, than for one who believes only in the existence
of this world.148
144
Battin, Margaret, P., Ethics and The Way We Die 165, New York: Oxford University Press, 2005.
145
Ibid.
146
Sati was a practice of burning a widow alive forcibly with her deceased husband. This practice was
followed by Hindus in India and was abolished during the British rule in India.
147
The Sati Regulation Act, XVII of 1829, which later resulted in enacting, Commission of Sati
(Prevention) Act, 1987. This Act provides punishment for attempt to commit Sati, abetment of Sati
and for glorification of Sati under S. 3, S. 4 and S. 5 respectively.
148
Rosenn, Jonathan, R., “The Constitutionality of Statutes prohibiting and permitting Physician
Assisted Suicide”, 51 U. Miami L. Rev.875, 876. (1997). http://www.international.westlaw.com,
[accessed on 20/3/2010].
149
Whoever commits murder shall be punished with death, or life imprisonment for life, and shall
also be liable to fine, see, S. 302 IPC, read with Ss. 304, 354 (3) of Criminal Procedure Code,
1973.
99
punishment differs, as death penalty shall be awarded only in ‘rarest of
the rare’150 cases. The similar hypothesis can be applied for legalizing
euthanasia or allowing physician assisted suicide only in terminally ill
cases. At present in India any form of self-destruction resulting in suicide
is a punishable offence and so is euthanasia. In view of the interest of the
State to preserve life, suicide must be a punishable act, as there is no
specific reason why a person commits suicide. Every person has his or
her way of looking at life and at any point of time they may feel that the
life is not worth living, so just end it. Whereas in case of euthanasia, a
patient requests to die peacefully due to his terminal illness and when
there is no hope of recovery.
150
Doctrine propounded in Bachan Singh v. State of Punjab, AIR1980 SC 898.
151
Supra note 148 at 877.
100
is so restricting that the individual cannot, even after due consideration
and training, tolerate such limited existence.152 Even as per Kant suicide
in certain cases may be considered moral. Suicide for the purpose of
avoiding suffering is not as Kant has contended, contrary to moral law.153
But the Apex Court of India brackets suicide and euthanasia together and
treats them on the same footing.154 The core argument of the proponents
of euthanasia is that voluntary death in terminal illness should not be
compared to suicide.
The fear which bothers the opponents and the legislators is the
possibility of abuse and misuse of euthanasia by the relatives or by
medical professionals. Older people will be pushed into ending their lives
by their families to avoid being a burden and attitudes towards disabled
people will worsen as their lives remain devalued as well as their
contribution to the society.155 Does that mean we should not have laws
because they may be misused? The misuse can be controlled by drafting a
well crafted legislation and it’s effective interpretation and
implementation. There is need for a fresh look at this issue considering
152
Supra note 27 at 80.
153
Vong, G., ‘In defence of Kant’s moral prohibition on suicide solely to avoid suffering’, J. Med.
Ethics, London: Sep 2008, vol. 34, Iss.9: p. 655. http://www.proquest.umi.com, [accessed on
18/8/2009].
154
State of Maharashtra v. Maruti Sripati Dubal,1987 Cri. L. J. 549.
155
Stevens, Simon, “Suicide never the answer” Community Care, Sutton: Jan 15 2009, vol. 38, Iss.
1753, p. 10. http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].
101
the rise in number of patients requesting physician assisted suicide.156 Let
the law be as stringent as possible, but first let there be a law!157
156
Requests of Physician assisted suicide made in India- In November 2004, Mr. Saroj Singh from
Orissa had fractured his limbs and spinal cord, he was bedridden for months together in crucial
pain, sought permission for right to die. In December 2004, Chess Champion K. Venkatesh had
appealed to the Supreme Court for death with dignity as he was suffering from degenerative
muscular Duchenne’s muscular dystrophy for 20 years. In 2001, The Patna High Court dismissed
Tarakeshwar’s plea for euthanasia for his wife who was comatose for 16 months. 79 year old
Giriraj Prasad Gupta petitioned the Rajasthan High Court for death with dignity as he was
suffering from poor vision, high diabetes, heart disorders and complex prostate problems. See,
Sinha, Kounteya, “Is it okay to pull the plug” The Times of India, Mumbai, Friday, June 16, 2006,
p. 12. A few death petitions were put before the former President of India, Dr. A. P.J. Abdul
Kalam. An impoverished 70 year old Hakimuddin’s three sons were suffering from a rare genetic
ailment that weakens the limbs, he had requested for death with dignity for all his three sons who
were above 30 years of age. Mohammed Yunus from Orissa had pleaded for euthanasia for his
four children who were victims of limb girdle muscular disorder. Ashok Kumar had requested for
right to die for his 12 year old son who was suffering from aplastic anaemia. See also, Mumbai
Mirror, Sunday, May 6, 2007, p. 15.
157
Kamayani, Mahabal, “Dying with Dignity- A Human Right” in Menon, Anila, V. , supra note 19.
102
2.2.3.2. EUTHANASIA AND PHYSICIAN ASSISTED SUICIDE:
158
McIntire, Timothy, “Ouch! That really hurts, pain management in the elderly and terminally Ill: Is
this a legal or a Medical Problem?” 6 N. Y. City L. Rev.151. (2003).
http://www.international.westlaw.com, [accessed on 20/3/2010].
159
Emanuel, Ezekiel, J., “The history of euthanasia debates in the US and Britain”, Ann. Int. Med.
http://www.annals.org/content, [accessed on 1/4/2010].
160
http://www.associatedcontent.com, [accessed on 13/3/2010].
161
Supra note 159.
103
his or her own life and does so with means provided by another person.162
The purpose of physician assisted suicide is to allow seriously ill
individuals to avoid the prolonged pain and indignity that is associated
with their illness.163 Support for physician assisted suicide is reflected in
the results of 1996 Gallup polls,164 as a result, physician assisted suicide
is now legalised in a few countries,165 culturally tolerated and openly
practiced. The moral argument in favour of permitting physician
assistance in suicide is grounded on self-determination and mercy to
avoid suffering. The principle of self-determination protects the right of
individual to choose the way he lives his life including the way he intends
to end his life. If autonomy is a highly valued principle, it is logical that
patients, especially, and possibly family should have the right to
participate in all end-of-life decisions, why should the most crucial end-
of-life decision be arbitrarily barred?166 An additional argument for
physician assisted suicide asserts that the patient's interest in self-
determination outweighs all other interests in keeping him or her alive.
Because in today's medical industry it is acceptable to withhold treatment
and allow a patient to die slowly, proponents of physician assisted suicide
question why it is not more merciful and humane to let the patient end life
swiftly by taking a lethal dose of drugs. The moral argument on grounds
of mercy, to avoid the pain and suffering, underwrites the right of a dying
person to an easy death, and thus supports physician assisted suicide.
Increased individual exposure to the “lingering death of a loved one” as a
162
Mathews, Michele, M., “Assisted Suicide and Nursing Ethics”, Med. Surgical Nurs. J., vol. 13,
August 2004, p. 261. http://www.deathwithdignity.org, [accessed on 22/3/10].
163
Glym, Katherine, C., “Turning to State Legislatures to legalize Physician assisted suicide for
seriously ill, non-terminal patients after Vacco v Quill & Washington v. Glucksberg”, 6 J. L. &
Pol’y. 362. (1997). http://www.international.westlaw.com, [accessed on 20/3/2010].
164
Id., at 351.
165
The Netherlands, Switzerland, Luxembourg, Belgium and State Oregon and Washington in US.
166
Fraser, Sharon &Walter James, “Death- whose decision? Physician assisted dying and the
terminally ill” Western J. Med. San Francisco: vol. 176, Iss.2, March 2002, p. 120.
http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].
104
consequence of life-sustaining treatment that has fostered public support
for medically assisted death. Many people seek an earlier alternative to
refusing life-prolonging measures in a hospital setting.
167
Supra note 144 at 91.
168
Supra note 2 at 89.
105
expedites death by action or inaction does not affect the moral quality of
responding to that recognition.169
169
Ibid.
170
Pappas, Dementra, M., “Recent historical perspectives regarding medical euthanasia and physician
assisted suicide” in Dunstan, G.R., & Lachmann, P.J., supra note 47 at 387.
171
Kline, Robert, L., “The Right to assisted suicide in Washington and Oregon: The Courts won’t
allow a Northwest passage”, 5 B.U. Pub. Int. L. J. 214. (1996).
http://www.international.westlaw.com, [accessed on 20/3/2010].
172
Ibid.
173
Id., at 215.
106
matters of personal autonomy. As discussed earlier in chapter one,174 the
right to privacy including the right to self-determination and autonomy
indeed forms the base for the right to physician assisted suicide.
Certain judgments have protected the right to privacy but have not
allowed physician assisted suicide. Neither Quinlan case175 of 1976 nor
the Cruzan case176 of 1990, involving question of death, dying and right
to privacy established an absolute right to die. The only right recognized
in these judgments was the right to refuse or to reject life sustaining
medical treatment, in order to die a natural death.
174
Supra, Chapter I, p. 46 to p. 48.
175
Supra note 79.
176
Supra note 21.
177
The Suicide Act 1961 declares suicide or attempt to suicide is not an offence in England. See,
supra note 130.
178
All ER 1984 1: 277.
179
Ibid.
180
Tanday, Sanjay, “GP support for euthanasia growing”, GP, London: Feb 6, 2009, p. 3
http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].
107
favour of assisted suicide. 1/3 of nurses in the UK believe they should be
allowed to help patients commit suicide and intend to see euthanasia
legalized.181 The Hemlock Society founded by Derek Humphry has
published a number of books on euthanasia, reviving the issue and
making people more aware about it in the United States of America and
over the globe. In the US, the State of Oregon has legalized physician
assisted suicide, through enacting Death with Dignity Act, 1997. In
addition, Belgium (2002), Netherlands (2002), and Switzerland (1941)
have legalized physician assisted suicide. In India, attempt to suicide is
unlawful and so is any form of euthanasia. The Law Commission of
India has recommended legalization of euthanasia,182 but apprehending
the misuse of such a law, the legislators are silent on it. The Society for
the Right to Die, has also filed a writ petition in the Hon’ble Supreme
Court in 2008.183 In a survey conducted 2 years ago in Britain, 80% of the
respondents favoured assisted dying. In China too, legislation permitting
physician assisted dying is gaining increasing acceptance among doctors
and the people at large.184
181
Anonymous, “Nurses support euthanasia”, Australian Nurs. J. North Fitzory: Feb 2004, vol. 11,
Iss 7, p. 35. http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].
182
Law Commission of India, 156th Report on Medical Treatment of Terminally Ill Patients
(Protection of Patients and Medical Practitioners) (2006)
http://www.lawcommissionindia.nic.in/report/rep196.pdf, [accessed on 10/10/2009].
See, Dhananjay, Mahapatra, “Legalize euthanasia, says law panel” The Times of India, Mumbai,
Monday, June 30, 2008, p. 3.
183
The Society for Right to Die with Dignity and the All India Body of Medical Practitioners in
Critical Care Medicine filed a Writ Petition under article 32 of the Indian Constitution in the
Supreme Court through Senior Counsel, Adv. H. Mohta in 2008. Adv. Mohta is the former Chief
Justice of Orissa High Court. The petition for hearing was before the Bench headed by Justice B.
N. Agarwal and Justice G. S. Singhvi, who tagged the case as a pending petition. See,
http://www.legalservice.com , [accessed on 10/1/2011].
184
Raghavan, B. S., “Opinion: Is euthanasia the answer?” Businessline, Chennai, Feb 27, 2009, p. 6.
http://www.porquest.umi.com/pqdweb, [accessed on 18/8/2009].
185
Geo, Fenglin, “A concept analysis of voluntary active euthanasia” Nursing Forum, Philadelphia,
Oct- Dec 2006, vol. 41, Iss. 4, p. 167 http://www.porquest.umi.com/pqdweb, [accessed on
18/8/2009].
108
centuries ago, Sir William Blackstone observed that “[l]aw is the
embodiment of the moral sentiments of the people”.186 He further added
that, “[t]he law of physician assisted suicide blends ethics, philosophy,
and morality with the medicine and the law. It [also] touches our
fundamental beliefs about life, death, illness, religion, autonomy, and
dignity.”187
186
Sandy, Sanbar, S., Legal Medicine 319, 6th edn., USA, Mosby, 2004. www.infibeam.com,
[accessed on 20/8/2009].
187
Ibid.
188
Mckenny, Gerald, P., To Relieve the Human Condition 30, Albany: State University of New York
Press, 1997.
189
Supra note 148 at 904.
109
The physicians primary mission is to heal the sick. When a patient's
degenerative condition defies all efforts to heal, the physicians try to
medicate the pain and make the patient feel as comfortable as possible.
However, when a patient's pain proves to be unmanageable and the
patient makes the competent decision to die, his doctors if willing, should
be able to assist their patient in hastening death without the fear of
prosecution.
190
Tarnow, William, J., “Recognising a fundamental liberty protecting the right to die: An analysis of
Statutes which criminalize or legalize physician assisted suicide”, 4 Elder L. J. 446. (1996).
http://www.international.westlaw.com, [accessed on 20/3/2010].
110
2.3.1. EUTHANASIA AND MERCY KILLING:
111
has no special significance in English criminal law.193 Mercy killing in
itself is a wrong as it includes mercy for insane or handicap persons,
whose rights are well protected by the State.194
193
Ashworth, Andrew, Principles of Criminal Law 269, 6th edn., Oxford: Oxford University Press,
2009.
194
For e.g., The Persons with Disabilities (Equal opportunities, Protection of Rights and Full
Participation) Act, 1995, Mental Health Act, 1987, Rehabilitation Council of India Act, 1992,
National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities Act, 1999. All these legislations are enacted in India to protect the rights of
differently able people.
195
Windsor (N.Y.) Standard, May 18, 1939, Birmingham (Ala.) Age Herald, 13 May, 1939, People v.
Roberts (1920), 178, N.W. 690, 211 Mich. 187, 13 A.L.R. 1253, Commonwealth v. Noxon,391
Mass.495,66 N.E.2d 814 (1946), Braunsdorf Case, (1950).
196
Gilbert v. State 487 So. 2d 1185, 1990 Florida.
197
Supra note 27 at127.
198
Supra note 36 at 101.
199
Id., at 84-85.
200
Ibid.
112
PUBLIC OPINION ON MERCY KILLING
For Against
Men 49 51
Women 42 58
From the figures stated above it is evident that men and women generally
were against mercy killing. Persons under the age of 30 voted in favour of
mercy killing and those who were above 30 and above 50 years of age
voted against mercy killing. To sum the observation of this poll, overall
voting was against legalizing mercy killing.
113
b. Acquitted Cases:
c. Refused to indict:
Thus it is observed from the above instances that in cases of mercy killing
in which doctors were involved to bring about the death of the patient
have been awarded different punishments and some have also been
acquitted. The courts decision regarding mercy killing appears ambiguous
and inconsistent in determining its uniform legal status.
201
Id., at 260.
114
• Noxon from Massachusetts was awarded life imprisonment and
later on life parole for electrocuting his 6 months old mongoloid
son in 1943.
c. Acquitted Cases:
• Kirby from New York had drowned her two children. She was
acquitted on grounds of insanity in 1832.
115
• Reichert from New York had shot his 26 year old mental patient
brother. Reichert was also acquitted in 1942.
• Nagel from Arizona had shot his 28 year old invalid daughter
and was acquitted in 1950.
The above cases dealing with mercy killing by other than doctors lack in
uniformity in the judgments. It is observed that in cases of mercy killing
in which any family member ended the life of a loved one in order to end
the hopeless suffering, judges have shown great sympathy and
unwillingness to punish, when the act done indeed violated the criminal
law. The culprits in most of the cases mentioned in the above incidents
have been acquitted or awarded lesser punishment. But allowing mercy
killing on grounds of disability either mental or physical directly strikes
202
Id., at 258, 259.
116
at the root of human rights. In such cases the family member may feel
sympathetic but if the person wants to live, then what right the family
members have to kill that person?
The key for deciphering the phenomenon of mercy killing lies not in
the extraordinary suffering that the act is meant to relieve but rather in the
ordinary relationship of care between perpetrator and sufferer and the
relationship of kin.203
203
Supra note 192 at 152.
117
2.3.2. EUTHANASIA AND THE ROLE OF COURTS:
As aptly opined by Oliver Wendell Holmes, “[t]he life of law has not
been logic, it has been experience…”204 The law should not be static, it
has to change and evolve through experience for the welfare of people.
204
Knight, Alfred, H., The Life of Law 1, 1st edn., New York: Crown Publishers, Inc., 1996.
205
Supra note 8, 21 and 46.
206
Hart, H.L.A., The Concept of Law 200, 1st edn., London: Oxford University Press, 1961.
207
For e.g., Vishaka v. State of Rajasthan, AIR 1997 SC 3011, [ The Supreme Court of India laid
down a historic judgment on sexual harassment of women at workplace], Roe v. Wade 1973, [The
US Supreme Court gave a historic judgment allowing abortion as a right of women].
208
Soper, Philip, A Theory of Law 110, London: Harvard University Press, 1984.
209
Burton, Leiser, M., “Practical Reason and The Ethics Of The Media”, ISLJ., vol. XIX, No 2, 1993,
p. 19.
210
Irving, Ronald, The Law is an Ass 37, London: Gerald Duckworth & Co Ltd, 1999.
118
convinced that the facts of the past cases diverge from the present case.211
Since no rule can be so phrased as to be absolutely certain in its
application to all cases, it is essential to appoint judges with the power to
make a binding interpretation of the rules and to determine authoritatively
what their application should be in disputed cases.212 Every law should be
extensively interpreted so as to carry that object fairly in various
cases.213The courts by applying the balancing approach can categorize
rules to create objective decision making by using criteria such as
causation and act-omission distinctions to reach results. In reality, it is
difficult to categorize acts as ‘killing’ or ‘letting die’. Since five decades
there is a heated debate among physicians, ethicists and the public
regarding whether physician assisted suicide is medically proper, morally
right and socially desirable.214 It is believed by a number of people that
any form of euthanasia violates medical ethics, is immoral, and may lead
to killing of people against their will resulting into disrespect for sanctity
of life.
In cases involving the “right to die”, courts are faced with the
agonizing task of developing legal standards, governing termination of an
incompetent patient’s medical treatment.215 The rigidity of these legal
standards reflects court’s acceptance of the medical profession’s
presumption in favour of continued treatment, a presumption that places a
heavy burden on families seeking to terminate treatment.216 The courts
can consider all the arguments within the balancing approach considering
211
Ibid.
212
Fuller, Lon, L., Anatomy of Law 6, Westport, Connecticut: Greenwood Press publishers, 1968.
213
Thibaut, An Introduction: To the Study of Jurisprudence 51, Trans. by Nathaniel Lindly, Reprint,
Littleton, Colorado: Fred B. Rothman & Co., 1985.
214
See generally, Hilary, White, “British Moralist says Dementia Patients have a Duty to Die”
http://www.lifesitenews.com , [accessed on 4/1/2011]. For the view on roots of morality and its
acceptance by human beings, see also, Cooper, Neil, The Diversity of Moral Thinking 291,
Oxford: Clarendon Press, 1981.
215
Rhoden, Nancy, K., “Litigating Life and Death”, 102 Harv. L. Rev. 375. (1988).
216
Ibid.
119
that legality would depend solely on the decision maker’s classification of
a situation. The courts can set limits and define procedures to guide the
decision making of patients and doctors. The reasonableness of a choice
to stop treatment should be evaluated by considering the patient as a
whole, including her values, her physical and emotional interests, and her
ability to experience and enjoy life.217 It should be noted that even “[l]aw
courts, like hospitals and doctors, handle not the normal routine but
exceptional conflicts…”218 Thus, the complex undertaking which
universally known as “law” requires at every turn the exercise of
judgment, and that judgment must be exercised by human beings for
human beings.219
217
Id., at 379.
218
Meefendroff, A., “The Tragedy of Modern Jurisprudence”, Sayre, Paul, (ed.), Interpretations of
Modern Legal Philosophies 535, Reprint, Littleton, Colorado: Fred. B. Rothman & Co., 1981.
219
Supra note 212 at 40.
220
Clyde, W. Summer, “The Law of Union Discipline: What the Courts do in fact”, 70 Yale L. J.175.
(1960).
221
Cardozo, Benjamin, N., The Nature of Judicial Process 17, London: H.M. Hyman, 1965.
222
Mathew, K.K., Three Lectures 3, Lucknow: Eastern Book Company, 1983.
120
only in the orthodox sense of the term but also something much more
than that. Many judges have believed or profess to believe that
Constitutional law is a mystery revealing itself in terms of unmistakable
precision to those who had the key to it.223
Historically, the courts, the legislatures, and the medical boards have
been reluctant to extend the right to die to include the request of the
competent, terminally-ill adult to his/her treating physician for the
physician's active participation in ending his/her suffering.
It is not essential that the courts must decide cases only on the existing
laws, for there is always a need to modify laws and apply them as per
demands in the society. In Roe v. Wade,227 the US Supreme Court did of
course endorse a new right in the face of substantial contrary history. The
223
Id., at 5.
224
Henry, Hart, “Foreword: The Time Chart of Justices,” 84 Harv. L. Rev.73. (1959).
225
Supra note 6 at 77.
226
Ibid.
227
410 U.S 113 (1973).
121
last quarter of the twentieth century has viewed a change in the courts
approach world over towards rights of dying patients. In 1976 in Karen
Ann Quinlan,228 when the Supreme Court of New Jersey recognised for
the first time a constitutional right of patients to withdraw life-sustaining
machinery, and culminated in the similar 1990 Nancy Cruzan case,229 in
which a constitutional right to die with dignity was recognized by the
United States Supreme Court.230
In Glucksberg and Vacco,231 the Supreme Court has clarified that the
constitutional right to die with dignity is limited to withholding and
withdrawing life-sustaining machinery and does not include a right to
physician assisted suicide or euthanasia.232 The current court is even
more committed to a conservative reading of privacy and liberty interests
protected by the Constitution.233 However, can the Court recognize that
the State’s interest in preservation of life must comply to the individual’s
particularized interest in self-determination in exceptional cases in order
to avoid needless and prolonged suffering?234
228
Supra note 79.
229
Supra note 21.
230
Supra note 192 at 166.
231
Supra note 7 and 8.
232
Ibid.
233
Supra note 103 at 1530.
234
Tyde, Stephen, J., “Compassion in Dying v. Washington: A Resolution to the Jurisprudence of
Doubt, Enshrouding Physician Assisted Suicide?” 47 Mercer L. Rev. 1161. (1996).
http://www.international.westlaw.com, [accessed on 20/3/2010].
235
Breyer, Stephen, Active Liberty, Interpreting Our Democratic Constitution 66,1st edn., New York:
Alfred A. Knoff, 2005.
122
constitutionalisation of human rights increasingly implicates the courts in
a broad range of social policy issues.236 Another factor in the new social
policy role of judges cited by scholars is the perceived inability or
unwillingness of legislative bodies to deal with pressing social issues.237
Although the contents of rule of law may vary from country to country,
everywhere it is identified with the liberty of individuals.238 The problem
of reconciling human rights with the requirements of public interest and
of harmonising the two can be attained only by the existence of
independent courts which may hold the balance between the citizen and
the State and compel the government to conform the law.239
236
Beverley, Mclachlin, “The Role of Judges in Modern Common Wealth Society”, L. Q. Rev., vol.
110, April 1994, UK, p. 263.
237
Ibid.
238
Khanna, H. R., Liberty Democracy and Ethics 38-39, 1st edn., New Delhi: Radha Krishna
Prakashan 1979.
239
Id., at 39.
240
Supra note 222 at 15.
123
should be a determined agent in the creation of new norms, is one of the
recurrent themes of the history of legal thought.241 At the same time, it
cannot be denied that court ruling that creates a new constitutional right
to ‘self-preservation’ could spawn a host of legal and medical ethics
issues.242
241
Friedmann, W., Law in a changing society 3, London: Stevens & Sons Ltd, 1959.
242
McDonough, Molly, “A Right to Self-preservation?” 5 ABA J. E-Report. 2. (2006).
http://www.international.westlaw.com, [accessed on 20/3/2010].
243
Yale, Kamisar, “Physician-assisted suicide: the last bridge to active voluntary euthanasia” in John
Keown, supra note 2 at 237, 238.
244
Ibid.
124
justice”, nor simply to “apply law”, he seeks to “do justice according to
law”.245 Thus Judges not only interpret and apply law but they also make
law.246 Although judges necessarily make law their functions are not
typically those of legislators or policy makers but primarily those of
rationalisers and elaborators of doctrine in dispute cases or in relation to
claims brought before them.247
245
Viola, Francesco, “The Judicial Truth: The Conception of Truth in Judicial Decision”, ISLJ., supra
note 209 at 18.
246
Golding, Martin, P., Philosophy of Law 4, New Jersey: Prentice-Hall, Inc., Englewood Cliffs,
1975. See, supra note 207.
247
Cotterrell, Roger, The Sociology of Law 240, 2nd edn., New Delhi: Oxford University Press, 1992.
248
Spencer, J. R., “Jackson’s Machinery of Justice”, 49 Cambridge L. J. xvi, 510. (1990).
249
Fiesta, Jamine, “Legal aspects of physician assisted suicide”, Nursing Management, Chicago, vol.
28, Iss.5, May 1997, p.17. http://www.proquest.umi.com/pqdweb, [ accessed on 18/8/2009].
250
Dennis, M. Patterson, “Why Habermas’s Theory of Law Must Fail”, ISLJ., supra note 209 at 2.
125
prominence of public choice. Very logically he emphasises the judiciary’s
discretion to shape the legal policies for effective administration. 251
251
Id., at 3.
252
Hendrik, Kaptien, “The Morals of Post-Modern Human Rights”, ISLJ., supra note 209 at 44.
253
Walter, Gellhorn, American Rights 3-5, New York: Macmillan, 1961.
254
Notes, 68 Temple L. Rev.1076. (1995). Philadelphia.
255
William, A. Fischel, “Introduction: Utilitarian Balancing and formalism in Takings”, 88 Columbia
L. Rev.1590. (1988).
126
principles and deciding which deserve greater weight in the
circumstances of any given case.256
All the relevant concepts have been discussed except the balancing
approach. There is acute need of balancing individual interests and the
State’s duty. Individual interest to exercise their right to liberty, self
determination and autonomy contrasts with the State’s duty to uphold
sanctity of life and protect life. However arduous it is but it is inevitable
to have a legalised form of euthanasia in order to achieve the socio-legal
and medico-legal balance in the society.
127
meaningful moral line be drawn between individual interest and State’s
duty? The researcher proposes to answer these questions in this segment.
257
Supra note 210 at 3.
258
Ibid.
259
Giorgio, Del, Vechhio, Justice: An Historical & Philosophical Essay 1, New York: Philosophical
Library, 1953.
260
Potter, Harold, The Quest of Justice 1, London: Sweet and Maxwell Ltd, 1951.
261
Dhyani, S. N., Law, Morality and Justice 73, New Delhi: Metropolitan Book Co. Pvt. Ltd, 1984.
128
by State or other individuals. Rights are of various types- for e.g.,
‘natural’,262 ‘conventional’,263 ‘moral’264 and ‘legal’. A legal right is
defined as the interest recognised and protected by law.265
The struggle to gain rights has a long history which proves the
importance of rights. Declaration of the Rights of Man and of Citizens,
1789 provides the following rights:
Men are born, and always continue, free and equal in respect of
their rights. Civil distinctions, therefore, can be founded only on
public utility. The end of all political associations is the
preservation of natural and imprescriptible rights of man and these
rights are liberty, property, security, and resistance of
oppression.268
262
Natural rights are abstract version of claims, liberties and immunities and are akin to principles and
doctrines. Natural rights came into prominence in the period of individualism. Myneni, S. R.,
Jurisprudence 219, 2nd edn., Hyderabad: Asia Law House, 2005.
263
Conventional rights originate from conventional law. These rights are based on the rules or set of
rules which are the outcome of an agreement between persons or group of persons. Id., at 175.
264
According to Salmond, “[a] moral right is an interest recognised and protected by rule of morality-
the violation of which would be a moral wrong.” The moral rights and legal rights coincide in most
of the cases and rarely do they contradict each other. Id., at 217-218.
265
Fitzgerald, P. J., Salmond On Jurisprudence 217, 12th edn., Bombay: N. M. Tripathi Pvt. Ltd.,
2000.
266
Jethro, Brown,W., The Underlying Principles of Modern Legislation 240, 6th edn., London:
Sherratt & Hughes, 1920.
267
Ibid.
268
Declaration of the Rights of Man and of Citizen (1789) in Patricia, Smith, (ed.), The Nature And
Process Of Law 100, New York: Oxford University Press, 1993.
129
The Virginia Declaration of Rights, 1776 states, “[t]hat all men are by
nature equally free and independent, and have certain inherent rights, of
which, when they enter into a state of society, they cannot by any
compact deprive or divest their posterity.”269 Specially, the right to enjoy
life and liberty, with the means of acquiring and possessing property, and
pursuing and obtaining happiness and safety are of supreme
significance.270
269
Ibid.
270
Ibid.
271
Milton, Meltzer, The Bill of Rights 2,1st edn., New York: Thomas Y. Crowell,1990.
272
Durga, Das, Basu, Introduction to the Constitution of India 80, 19th edn., Nagpur: Wadhwa and
Company, 2001.
273
Dworkin, Ronald, Freedom’s Law: The Moral Reading of the American Constitution 347,
Cambrigde: Massachussetts, Harvard University Press, 1996.
274
Stone, Julius, Human Law & Human Justice 89, Sydney: Maitland Publications Pvt. Ltd., 1968.
275
John, Huston, “Human Rights enforcement issues of the United Nations conference on
International organization”, 53 IOWA L. Rev. 272. (1967).
276
Hendrik, Kaptein, “The Morals of Post-Modern Human Rights”, ISLJ., supra note 209 at 33.
130
worthwhile without enforceable guarantees, against the State and others,
to physical integrity, freedom of thought and action and minimal means
of subsistence, thus the Declaration of Independence of the United States
contains inalienable rights to life, liberty and the pursuit of happiness.277
277
Ibid.
278
Benn, S.L., “Human rights, in short, are statements of basic needs or interests”. See, Benn,
“Rights” in Edwards, P., (ed.), The Encyclopaedia of Philosophy 99, New York: 1967.
279
Supra note 266 at 245.
131
to stand up for them. The second is the general prosperity attains greater
height in proportion to the amount and variety of the personal energies
enlisted in promoting it.280
It can be stated from the above two propositions, that each individual
must have the power to self protection and such individual is the only
genuine guardian of his own rights and interests. Every individual being a
component of the society owes certain duties to obey the laws of the land.
The idea of society as a mere sum of individuals who are equal and
similar is superseded by the idea of society having a common life
organically related to the life of the individual.281 Some writers have
contended that a union of individual wills, however highly socialised they
may be, can never result in a true unity of will whether the will of the
individual be socialised or self-seeking, it is still an individual will.282 The
essence of the individualistic fallacy is that human rights are founded on,
or can be deduced from, the nature of human beings as individuals and
can therefore only be granted to, or recognised for individual human
persons.283
According to Jeremy Bentham the nature has placed man under the
empire of ‘pleasure and pain’, as per his utilitiranian concept every
individual is entitled to live a good life by gaining pleasure and avoiding
pain as a matter of his right and liberty.284 Socrates too supports
Bentham’s view by the principle of Eudainonism: Happiness is
everyone’s ultimate goal, and anything that is good is good only in so far
280
Mill, John, S., Considerations on Representative Governments, London: Parker, Son and Brown,
1940, passim. http://www.books.google.co.in , [accessed on 4/1/2011].
281
Supra note 266 at 240.
282
Id., at 133.
283
Caney, Simon & Jones, Peter, Human Rights and Global Diversity 78, 1st edn., Essex: Frank Cass
Publication, 2001.
284
Supra, Chapter I, p. 18.
132
as it contributes to this goal.285 Elaborating the meaning of happiness
Edmond Cahn says, “despite the most perfect equilibrium, a man cannot
be happy unless he also has material security [and] good health.”286
285
Brickhouse, Thomad, C, & Smith, Nicholos, D., The Philosophy of Socrates 128, U.S: West view
Press, 2000.
286
Edmond, Cahn, The Moral Decision 13, London: Stevens & Sons Ltd, 1959.
287
James, M.H., Bentham and Legal Theory 11, Belfast, Ireland: Northern Ireland Legal Quarterly,
Queens University, 1973.
288
Supra note 256 at 184.
289
Dumbauld, Edward, The Life and Legal Writings of Hugo Grotius 62, USA: Norman University of
Oklahoma Press, 1969.
290
Mahajan, V.D., Jurisprudence & Legal Theory 296, 5th edn., Lucknow: Eastern Book Company,
1996. See, Hohfled, W. N., Fundamental Legal Concepts 8, 11, Westport, Connecticut:
Greenwood Press Publishers, 1978.
291
Hohfled, W.N., Fundamental Legal Conceptions as Applied in Judicial Reasoning 36, New
Haven: Yale University Press, 1919. See, Lord Lloyd & M. D. A., Lloyd’s Introduction to
Jurisprudence 443-445, 5th edn., London: Stevens & Sons, 1985. See also, Sterba, James, P., The
Demands of Justice 128, Indiana: University of Notre Dame Press, 1980.
133
Indian Constitution.292 According to these provisions, it can be deduced
that right to life under Article 21 casts on the State a duty not to interfere
with the individual’s life or any bodily member. Consequently, any such
interference by the State or its agents violates this duty, which gives rise
to the individual’s claim to have that wrong remedied. So is the right to
life applicable to suicide? As per the judgment in Gian Kaur,293 Article
21 casts a positive duty on the State to protect and uphold human life in
all its sanctity and dignity. The Court expressly mentioned that the right
to die cannot be read into Article 21, because suicide is inconsistent with
the said sanctity and dignity. This leads to a strange inference, if suicide
is indeed inconsistent with the sanctity and dignity of human life, which
the State has a positive duty to protect and uphold, then surely it must
mean that any time a person successfully commits suicide the State fails
in its positive duty.294 In addition to this, there are several cases in which
the State has been held liable to pay monetary compensation for violation
of fundamental rights.295 Since the above argument indicates that suicide
violates the right to life, will the State be made liable to pay damages to
the next kin for a successful suicide? No State has yet paid damages for
suicide,296 therefore, it is clear that right to life cannot be termed as a
claim- right, it is only a liberty- right which can only be exercised under
the reasonable restrictions. Hence, there is constant competition in the
292
Seervai, H. M., Constitutional Law of India 1449, 1451, Vol. 2, 4th edn., Bombay, Tripathi Private
Ltd, 1993.
293
Gian Kaur v. State of Punjab AIR 1996 SC 1257.
294
Around one million people in the world commit suicide every year-
http://web4health.info/en/bipolar-suicide-statistics, [accessed on 25/3/2010].
http://www.siliconindia.com, [accessed on 25/3/2010]. See, Malathy, Iyer, “An epidemic of
suicides” The Times of India, May 9, 2007, p. 4. As per the report of the National Bureau of Crime
Records, 2005, 200 men commit suicide every day in India, 112 women commit suicide everyday,
and 69 suicides out of the total are committed everyday due to illness.
295
See, Rudal Shah v. State of Bihar AIR 1983 SC 1086, Khatri v. State of Bihar, AIR 1981 SC 928,
Nilabati Behera v. State of Orissa,(1993) 2 SCC 74, Sebastian M Hongary v. Union of India, AIR
1984 SC 1026, Bhim Singh v. State of Jammu & Kashmir, AIR 1986 SC 494.
296
Farmers suicides in India have been compensated by the Government of India, but here the
discussion at this point focuses on the suicides committed by people generally not only by farmers.
134
endeavour to satisfy the claims, demands and expectations involved in
life in a civilized society.297 The similar provision is applicable to the
abortion- right of women.
The United States Supreme Court has made it clear that a woman’s
legal right to abortion is at present a liberty-right, not a claim-right.
Women are simply at liberty to have abortions and States have no duty to
pay for them.298
297
Roscoe, Pound, The Ideal Element in Law 86, Calcutta: University of Calcutta, 1958.
298
Becker, Lawrence, C., “Individual Rights”, in Patricia, Smith, (ed.), supra note 268 at 57. See, Roe
v. Wade, supra note 227. See also, Schultz, David, (ed.), Encyclopaedia of the United States
Constitution 2, 3, vol. I, New York: Facts on File Inc., 2009.
299
[1978] 2 All E.R. 987.
300
Lyon, C. M., and Benett, G.J., “Abortion-The female, the foetus and the Father”, Current Legal
Problems, vol. 32, London: 1979, p. 218.
301
Manning, Christopher, N., “Live & Let Die? Physician-Assisted-Suicide & the right to die” 9
Harv. J. L. & Tech. 573. (1996). http://www.international.westlaw.com, [accessed on 20/3/2010].
302
[1988] 1 SCR 30.
303
Cook, Rebecca, J., “Abortion Laws”, Breslaw, Lester, (ed.), Encyclopaedia of Public Health 7,
vol. I, USA: Macmillan Reference, 2002.
135
desist from interfering with their enjoyment of this liberty. Rights make
their most important appearances at the stage when one is attempting to
back up claim.304
Thus the State becomes duty- bound not to restrict the holder’s liberty
under any circumstances. If we analyse the phrase ‘right to die’, we find
that it is also in the nature of liberty rather than a claim-right. In Dianne
Pretty’s305 case, her barrister argued before the Court of Appeal that, a
person’s right to life includes not only a co-relative right to die but also
the right to choose how and when to die.306 The case went in appeal to the
England’s House of Lords, and was pressed by reference to as many
human rights as possible under the United Kingdom’s new Human Rights
Act, which enshrined the European Convention on Human Rights in UK
law as Dianne Pretty was suffering from a terminal illness, motor neurone
disease, and her condition deteriorated rapidly.307 All five judges in the
House of Lords unanimously rejected her appeal, deciding that none of
her guaranteed rights under the law supported her claim.308
304
Benditt, Theodore, Law as Rule and Principle 174, California: Stanford University Press, 1978.
305
Pretty v. United Kingdom [2002] 35 EHRR1.
306
Horrigan, Bryan, Adventures in Law & Justice 150, 1st Indian Reprint, Delhi: Universal Law
Publishing Co. Pvt. Ltd., 2005.
307
Id., at 149,151.
308
Id., at 151.
309
Supra note 238 at 14.
310
Id., at 67.
136
by law from making certain choices should be described as having been
denied the liberty or freedom to make them. The loss of liberty in these
cases takes the form of deprivation of autonomy. Hence, it can be said
that the right to liberty embraces in part the right of persons to make
fundamentally important choices about their lives and therewith to
exercise significant control over different aspects of their behaviour.
Liberty has always cast a tremendous spell in all ages and for people it
has evoked the strongest emotions and touched the deepest chords of
human heart.311 Liberty can indeed be described as the sine qua non of a
decent life. It can be argued that it is the most basic condition of an
existence which is not lacking in honour or dignity.312 At the heart of
liberty is the right to define one’s own concept of existence, meaning of
universe, and of the mystery of human life, beliefs about these matters
could not define the attributes of personhood were they formed
compulsion of the State.313 A Constitutional right to liberty is usually
recognised to be an action right. It guarantees each citizen the right to act
in any manner that does not unjustifiably interfere with any other
citizen’s constitutional right.314 Now-a-days in a modern society or in
any form of government, which does not give a minimum guarantee of a
promise for the honour of liberty is not acceptable.315
But, does the right to liberty include the decision making power to end
one’s life in crucial circumstances? The constitutionally protected
‘liberty’ interest to refuse unwanted medical treatment does not include a
person’s right to commit suicide and to receive medical assistance in
311
Id., at 36.
312
Ibid.
313
Supra note 171 at 219. See, Compassion in Dying v. Washington, 850, 1454,1459, U.S 1995,
Planned Parenthood of South eastern Penn. V. Casey, 505, US. 833, 869 (1992).
314
Sterba, James, P., The Demands of Justice…supra note 291at 127,128.
315
Hansaria, B. L., and Thrity, Patel, Right to Life and Liberty under the Constitution 4, New Delhi:
B. Jain Publishers (P.) Ltd., 1993.
137
doing so, the second major constitutional principle is that personal
autonomy, privacy and related rights and liberties cannot be infringed
without the due process of law.316
Though the democracy in all the welfare States is based on liberty and
justice, granting various rights to individuals, all such rights are limited
316
Supra note 306 at 148.
317
Supra note 75 at 217.
318
James. P. Sterba, The Demands of Justice... supra note 291 at 143.
319
William, Sweet, “The Legitimacy of Law: From Contract to Community”, ISLJ., supra note 209 at
69.
320
Ibid.
138
with reasonable restrictions. If some activities must be restrained, on what
basis shall they be done?321 It cannot be ignored that restrictions on
individuals for purely bureaucratic or doctrinaire reasons can never be
justified, for in a free society the role of law should never be primarily to
restrict, but to protect, and it should restrict only in so far as this is
necessary for the protection of those who need it. 322
Law is, as Bentham saw, necessary to social order and good laws were
clearly necessary means to good government. But by its very nature, law
is a restriction of liberty and inherently painful to those whose liberty is
restricted.323 John Stuart Mill defines “liberty” in much the same way as
Hobbes and Bentham- as “doing what one desires”.324 Bentham and Mill
both share the same opinion that law even though necessary to social
order, is still “a restriction on the natural liberty of mankind”.325Article 21
of the Indian Constitution protects privacy and liberty but does not allow
liberty to take or give away one’s life.326 There is, however, a certain
tension underlying this account of individual liberty.
321
Stone, Julius, Human Law and Human Justice 103, 2nd edn., New Delhi: Universal Publishing Co.
Pvt. Ltd., 2004.
322
Sir, Norman, Anderson, Liberty, Law and Justice 6, London: Stevens & Sons, 1978.
323
Jeremy, Bentham, Principles of Morals and legislation 94, London: Oxford University Press,
1823.
324
Supra note 94 at 89.
325
Supra note 319 at 70.
326
Supra, Chapter I, pp. 42- 43.
327
Iyer, Krishna, V.R., Of Law and Life 5, Ghaziabad, India: Vikas Publishing House Pvt, Ltd, 1979.
139
this the human is to be preserved, even at a great cost and unbearable
pain. According to the opponents, preserving life supersedes living the
‘good life’.
Being individuals, patients have their own opinions and aims in life,
which require them to act intelligently in their own interest. These
capacities are basic in formulating a person’s own values and exercising
autonomy. However, even though they are not merely biological, the
functioning of such capacities depends on biological integrity and can be
destroyed, for instance, by a devastating brain injury. This means that the
special moral concern one normally has for a person may not apply to
what is no more than a living human body. The idea that there can be
kinds of life that a reasonable human being will not find worth living is
often used to drive a wedge between the sanctity of life and the quality of
life.
When a man considers a certain law to be bad, he has a right, and may
have a duty, to try to get it changed, but it is only in rare cases that he
does right to break it.329 A democratic society that honours justice and
liberty should acknowledge and permit divergent opinions and allow
dying people a degree of freedom in when and how the end comes.330
140
time and manner of their death.331 But there can be no synthesis of liberty
and law without justice as the last resort is only justice. Barely justice can
be the only arbiter of the circumstances and extent to which law may
encroach on liberty, particularly in an era characterised by a widespread
demand that everyone should be free to go his own way, on the one hand,
and by an unprecedented spate of legislative regulations, on the other.332
331
Kleinberg, Rachel, D., “The Final Freedom: Maintaining autonomy & valuing life in Physician
Assisted Suicide cases”, 32 Harv. C. R.- C. L. L. Rev.205. (1997).
http://www.international.west.com, [accessed on 20/3/2010].
332
Supra note 322 at 7.
333
Rawls, John, A Theory of Justice 3, Oxford: Clarendon Press, 1971. Contra, see, Edwin, Patterson,
W., “Pounds Theory of Social Interests” in Paul, Sayre, (ed.), Modern Legal Philosophies 560,
New York: Oxford University Press, 1947.
334
Chaskalson, Arthur, “Constitutions are shaped by History: An account of making of South Africa’s
new Constitution”, in Law and Justice 155, Soli, Sorabjee, (ed.), New Delhi: Universal Law
Publishing Co. Pvt. Ltd., 2003.
141
State can have a sympathetic approach towards terminally ill patients?
The researcher has made an attempt to find answers for these questions
by examining euthanasia and the State’s duty to protect life in the next
segment.
142
corner stones for the proponents of euthanasia. But when individuality is
in conflict with the society, what role does the individual interest, liberty
and right play? In fact when the focus is only on individual interests the
welfare of the society at large, or of collective interest, may be under
valued.
338
XXXIV B.U. L. Rev. 415. (1954).
339
Supra note 327 at 5.
340
See, generally, Bentham, Jeremy, The Limits of Jurisprudence Defined 59, 60, Westport,
Connecticut: Greenwood Press, 1970. See also, Stone, Julius, The Province and the Function of
Law 271, 278, New York: William S. Hein, Co, Inc., 1950. Hart, H.L.A., Essays on Bentham 242,
Oxford: Clarendon Press, 1982.
341
Morrison, Donald, The Cambridge Companion to Socrates 300, Cambridge: Cambridge University
Press, 2010.
342
Majumdar, A.K, and Bhanwar, Singh, Personal freedom and the civil Liberty 19, Jaipur: RBSA
Publishers, 1999.
143
rights and interests and the effect of such individual rights collectively in
the society at large.
The idea of society as a mere sum of individuals who are equal and
similar is superseded by the idea of society having a common life
organically related to the life of the individual.343 Rights impose moral
and legal constraints on collective social goals.344 The principle of
individual choice is to achieve one’s greatest good, to advance so far as
possible one’s own system of rational desires, so the principle of social
choice is to realize the greatest good summed over all the members of
society.345 The State has an interest and a duty to protect both “the value
of an individual’s life” and “the value of life to society as a whole.346
Granting of free permission to all to pursue their self-interest will broaden
the base of the pyramid of interests of those few who will be ruthless and
forgetful of interests of others in their outlook.347 The idea that human
society, on whatever level, could ever conceivably exist on the basis that
each man should simply do whatever he thinks right in the particular
circumstances is too fanciful to deserve serious consideration.348The
State’s duty to protect life also includes protecting the sanctity of life, as
it is a form of protecting public welfare. Just law is the condition of unity
in every social consideration and is the only thing that makes it possible
to conceive, by means of an absolutely valid method, of social existence
as a unitary whole.349 The proponents of euthanasia argue that, if a
competent terminally ill patient expresses a voluntary desire to die, the
343
Supra note 266 at 240.
344
Supra note 60 at 36.
345
F. A. Von, Hayek, “Social or Distributive Justice” Alan, Ryan, (ed.), Justice 74, New York:
Oxford University Press, 1993.
346
“Physician-Assisted Suicide And The Right To Die With Assistance”, 105 Harv. L. Rev. 2033.
(1992).
347
Supra note 342.
348
Lloyd, Dennis, The Idea of Law 24, 1st edn., London: Penguin Group, 1964.
349
Stammler, Rudolf, The Theory of Justice 471, New York: The Macmillan Company, 1925.
144
State’s duty to protect the individual’s life ceases to exist because the
case no longer involves actual or potential life that cannot protect itself.
At the same time, the opponents of euthanasia argue that permitting any
form of physician assisted suicide may lead to the killing of patients who
want to live. There is not sufficient reason to weaken society’s
prohibition of intentional killing which is the corner stone of law and
social relationships. Individual cases cannot reasonably establish the
foundation of a policy which would have such serious and widespread
repercussions. The issue of euthanasia is one in which the interests of the
individual cannot be separated from those of the society as a whole.’350
Such a situation may result in insecurity amongst the patients. It is often
said that privacy as an interest must be balanced against security.351 Each
individual must sacrifice something of privacy to promote the security of
all at large. The State ought to and largely did in fact define the rules of
law so as to guarantee the free exercise of individual will, subject to the
constraint that willing actors respect the like rights of other willing
actors.352 The State’s duty in preserving life is the most common
justification for intervention since it contains both a general notion of the
sanctity of life and an interest in maintaining individual lives.353
350
House of Lords Select Committee on Medical Ethics (1994). See, Robert, G. Twycross, “Where
there is hope, there is life: a view from hospice” in Keown, John, (ed.), supra note 2 at 165.
351
Hyman, Gross, “Privacy and Autonomy” in Patricia, Smith, (ed.), supra note 268 at 713.
352
Duncan, Kennedy, “From the will theory to the Principle of private autonomy: Lon Fuller’s
“Consideration and Form”, 100 Columbia L. Rev.96. (2000). (Centennial issue).
353
Supra note 47 at 342.
354
Ursekar, H.S., Law & Social Welfare 207, Bombay: Lalvani Publishing House, 1973.
145
good as reasonable restrictions are laid down in the interest of the
society.355 The State’s duty can rationalize its restriction on grounds of
interest to preserve life, prevent suicide, maintaining the integrity of the
medical profession, preserving faith of people in doctors and protecting
innocent third parties.
355
Ibid.
356
Zagrodzky, Mathew, G., “Constitutional Law- The development of liberty & the right to Physician
Assisted Suicide-Compassion in Dying v. Washington. 49 F. 3D 586” 38 S. Tex. L. Rev.355.
(1997). http://www.international.westlaw.com, [accessed on 20/3/2010].
357
Supra note 329 at 360.
358
Supra note 79.
359
Supra note 21.
360
Bush v. Schiavo, 885 So 2d 321(Fla 2004).
361
Green, Joshua, A., & Jarvis, Mathew, G., “The Right to Die” in Nathaniel Persily, et. al., (ed.),
Public Opinion and the Constitutional Controversy 267, New York: Oxford University Press,
2008.
362
Id., at 269.
146
divided the best legal minds.363 Since the society must take the interests
of all equally in to account, this led, in the tradition of Bentham and Mill,
to the view that society should ensure that, if the interests of all cannot be
satisfied, it should act so as to maximize the interests of the greatest
number.364
363
Epps, Garrett, “Judges who support the right to die”, US News & World Report, Washington: Jan
13, 1997, vol.122, Iss.1, p. 28. http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].
364
Supra note 319 at 72.
365
. Supra note 94 at 73, 77.
366
Ibid.
367
Lee, Guy, Carleton, Historical Jurisprudence 1, Reprint, Littleton, Colorado: Fred. B. Rothman &
Co., 1981.
147
equate right to abortion with right to euthanasia? In the researcher’s
opinion if this issue is considered on equivalence with the abortion right,
there should be an equivalent legislation allowing euthanasia in rarest of
the rare cases.
368
Roe v. Wade, supra note 227, decided by a Court majority of seven Judges which included three
who had been appointed by the President Nixon; namely Justice Blackmun, Justice Powell and
Justice Burger.
369
Konvitz, Milton, R., Fundamental Rights, History of Constitutional Doctrine 124, U.K:
Transaction Publishers, Rutgers University, 2001.
148
and what is not.370 Even if we develop a clearer concept of privacy, that
will not dictate how it should be balanced against other individual rights
or public concerns.371
Professor A. V. Dicey has aptly stated that, the law is based on public
opinion, and public opinion moulds the law to a certain extent.373 A
similar view is expressed by Professor Friedmann, in his more thought
provoking words that, “[i]n a democracy, the interplay between social
opinion and the law moulding activities of the state is a more obvious and
370
Douglas, O. Linder, “The other Right-to-life debate: When does Fourteenth Amendment “Life”,
End” 37 Ariz. L. Rev.1183. (1995). See, Gonzales v. Oregon 546 U.S. 243 (2006).
http://www.law.umkc.edu , [accessed on 4/1/2011].
371
Judith,Wagner, Decew, “The Scope of Privacy in Law and Ethics” in Patricia, Smith, (ed.) Supra
note 268 at 716.
372
S. 3, S. 3 (2) (b) (i) and (ii) of the Medical Termination of Pregnancy Act, 1971, allows
termination of pregnancy by a registered medical practitioner only under certain circumstances,
such as, where the length of pregnancy does not exceed 12 weeks or exceeds 12 weeks but does
not exceed 20 weeks, the pregnancy would involve a risk to the life of the pregnant woman, the
foetus suffers from physical or mental abnormalities, etc. Recently, the period of 12 to 20 weeks to
abort pregnancy has been objected in India. In case of Nikita Mehta, on 5th August 2008, the
Bombay High Court denied permission to abort pregnancy as it had crossed 20 weeks though the
foetus had two major heart abnormalities. An Appeal has now been filed in the Supreme Court to
enhance the period of aborting pregnancy in case of abnormalities of foetus. Dr. Nikhil Datar and
others v. Government of India, 2009 is the Appeal pending before the Court. Dr. H. N. Shivpuri
had also suggested a longer period to abort pregnancy in the Shantilal Shah Committee Report in
1967. See, Neha, Madhiwalla, “The Niketa Mehta case: Does the right to abortion threaten
disability rights?” Indian J. Med. Ethics, vol. 5, No. 4, Oct- Dec, 2008.
http://www.issuesinmedethics.com , [accessed on 11/1/2011].
373
Dicey, A.V., Law & Public Opinion In England 20, 21, 2nd edn., (1914), First Indian Reprint, New
Delhi: Universal Book Traders, 1996.
149
articulate one”.374
The proponents of euthanasia argue that like abortion the birth control
was also a result of a long struggle. Today people welcome decisions
taken in this regard for public welfare. The struggle for birth control
began in the United States in 1910 and was led by Margaret Sanger,378
who served a month in jail for conducting her crusade for the freedom of
every woman to determine the number of children she will have.379 In
spite of strong opposition, especially from the medical profession and
organised religion, she persisted in her efforts until today birth control is
accepted practice throughout much of the world.380
374
Supra note 241 at 24.
375
Euthanasia legalized in Albania in the year 1999, remains a controversial issue till date. Belgium
legalized euthanasia after a long struggle in the year 2002. The controversy over legalizing
euthanasia in Canada since 1992 finally resulted in the enactment of the Health Care Consent Act,
1996. Recently, the Federal Court of Germany legalized passive euthanasia on June 25, 2010. The
Indian Law Commission for the first time strongly recommended euthanasia for terminally ill
people in India. See, supra note 182.
376
Sen, Amartya, The Argumentative Indian 12, London: Allen Lane, Penguin Group, 2005.
377
Friedmann, Lawrence, M., Law & Society 168, New Jersey: Prentice-Hall, Inc., Englewood Cliffs,
1977.
378
Supra note 192 at 103.
379
Supra note 36 at 13.
380
Ibid.
150
In 1936, a New York Court, in United States v. One Package of
Japanese Pessaries,381 ruled that contraceptives could be sent through
post if they were to be intelligently employed by conscientious physicians
for the purpose of saving life or promoting the well-being of their
patients.382 Thereafter in all the countries birth control became a social
concern. In fact in China, the government allows only one child legally
and penalizes parents for having more than one child.383
381
13 F. Supp.334 (E.D.N.Y 1936), aff’d 86 F.2d.737 (2nd Cir.1936).
382
Ibid. See, Pedro F. Silva-Ruiz, “Artificial Reproduction techniques, Fertility, Regulation: The
Challenge of Contemporary Family Law”, Am. J. Comp. L. vol. 34 (Supplement), 1986, pp. 137-
140.
383
The National Family Planning Programme of China since 1979. www.unescap.org, [accessed on
6/11/2010]. There are a number of adverse effects of China’s one child policy, such as, there has
been a massive surge in the male to female ratio, and currently there are thirty-two million more
men than women in China. Apart from male to female ratio, there will be seventy-five per cent
increase of senior citizens in the year 2020. It is said that China will have the maximum number of
senior citizens in the world in 2020, which would have a direct effect on the national development,
employment etc. See, Michelle, Webber, Rethinking society in the 21st Century: Critical readings
in sociology 328, 2nd edn., Toranto: Canadian Scholars Press, 2008. See also, Sen, Amartya,
“Population Delusion and Reality” http://www.marathon.uwc.edu , [accessed on 4/1/2011].
“Exploding the myths”- ageing and Health programme- World Health Organisation.
http://www.whqlibdoc.who.int , [accessed on 4/1/2011]. http://www.travelname.com ,
http://www.medicalnewstoday.com , [accessed on 4/1/2011].
384
Supra note 171 at 550.
385
Ibid.
151
paternalistic intrusions of the State.386 The “right to die” is only a right
that vests in a terminally ill person-any right that a healthy person might
have to take his or her own life is outweighed by the State's compelling
interest and duty in the preservation of life.
386
Bussey, Reginald, “Physician Assisted Suicide: The Hippocratic Dilemma”, 22 T. Marshall L.
Rev.279. (1997). http://www.international.westlaw.com, [accessed on 20/3/2010].
152
ought to fall to their share, therefore, the social feeling rightly condemns
suicide as a crime against society.387
As stated by Wolf, “[t]he law is about human beings.” And the law
governing the termination of life-sustaining treatment is about a
particularly human matter. It is about choosing between a society that
honours our preferences, entrenched in relationships, and control of our
bodies, or a society that leaves us stranded, defenceless, and imprisoned
at the end.388 While it is doubtless that the emphasis of the law is, and
should be, to allow individuals to make free choices about their
healthcare, the law nevertheless has a legitimate and justifiable interest in
scrutinising and, if necessary, curtailing such freedom.389 Justice John
Paul Stevens observed that some individuals who no longer have the
option of deciding whether to live or to die because they are already on
the threshold of death have a constitutionally protected interest that may
outweigh the State’s interest in preserving life at all costs.390
387
Supra note 192 at 112.
388
Mclean, Sheila A. M., Contemporary Issues in Law, Medicine and Ethics 149, U.K: Dartmouth
Publishing Company Ltd., 1996.
389
Stuart, Hornett, “Advance Directives: a legal and ethical analysis” in Keown, J., supra note 2 at
307.
390
Supra note 7.
391
Gerrit Van Der Wal and P.J. Van Der Maas, “Empirical research on euthanasia and other Medical
end-of-life decisions and euthanasia notifications procedure” http://www.springerlink.com ,
[accessed on 4/1/2011]. See, Stephen, W. Smith, “Empirical research in the debate on Physician-
assisted-suicide and Voluntary Euthanasia” Clinical Ethics, vol.2, No. 3, 2007, p. 129, 132.
392
Sacred Congregation, “Declaration on euthanasia” Catholic Insight, vol. 2, No. 19, 1980, p. 1-14.
http://www.catholivinsight.com , [accessed on 4/1/2011]. See, “Political and moral debate on
euthanasia” http://www.echeat.com , [accessed on 4/1/2011].
153
birth control which is no longer considered the problem of an individual
mother but has become a social concern .393 There is a vast gap between
the two interests- the State and the individual interest. At the heart of the
quest for justice is a search for some measure of goodness in that
powerful and flexible instrument of social control, the law.394
393
Supra note 192 at 104, 110.
394
Supra note 222 at 25.
395
Dias, R. W. M., Jurisprudence 430-436, 5th edn., New Delhi: Butterworth Law publishers, 1994.
396
Supra note 319 at 82.
397
Supra note 134 at 160.
398
Kutz, Christopher, L., “Just Disagreement: Indeterminacy and Rationality in the Rule of Law”, 103
Yale L. J. 999, 1000. (1994).
399
Joga Rao, S.V., Medical Ethics 21, 1st edn., Bangalore: Legalaxy Publications, 2004.
400
Murthy, Narayan, N.R., Better India A Better World 47, New Delhi: Allen Lane, Penguin Group,
2009.
154
community is one of the most general expressions that can occur in the
phraseology of moral- no wonder that the meaning of it is often lost.401
But it cannot be denied that, the material content of a legal system has
always been seen to reflect in some sense the needs or demands of
societies.402 Though the State is bound to preserve and protect life, the
individual interests may be considered in rarest of the rare or exceptional
cases with a balancing approach.
The Quinlan Court found that the State’s interest in preserving the life
of a patient diminishes as the degree of bodily invasion increases and
there comes a point at which individual’s right overcome the State
interest.403 Thus the future of law in any State must remain an open
question.404 As the ultimate source of law is a social fact, such as the
human act of will.405
401
Supra note 141 at 3.
402
Sawer, Geoffrey, Law in Society 147, Oxford: Clarendon Press, 1965.
403
Surpa note 79. See, Kenneth, Thomas, “The Right to Die: Where do we go from here”, Federal
Lawyer, vol. 44, October 1997, p. 22. http://www.international.westlaw.com, [accessed on
20/3/2010].
404
Supra note 377 at 168.
405
Supra note 208 at 102.
406
Supra note 227.
407
Ibid.
155
privacy cases. Roe has been discussed as a liberty and right concept. The
researcher analyses the balancing approach taken by the court to maintain
the private interest and the State’s duty in cases of abortion. Brown v.
Board of Education408 and Roe v. Wade409, share an approach to rights
rooted fundamentally in an assessment of the effect of the State on
individuals.410
408
347, U.S. 483 (1954).
409
Supra note 227.
410
John, Valery, White, “Vindicating Rights in a Federal system: Rediscovering 42 U.S.C 1985 (3)’s
Equality Right”, 69 Temple L. Rev.207. (1996).
411
Ibid.
412
Id., at 208.
413
Ibid.
414
Id., at 209.
415
Id., at 210.
156
amendment’s concept of personal liberty and restrictions upon State
action…is broad enough to encompass a women’s decision whether or
not to terminate her pregnancy”.416 If ‘rights’ are to be taken seriously in
such a society, some means of vindication of rights must exist.417
416
Official Reports of the Supreme Court, vol. 462, U.S. Part 2, June 17, 1983, U.S. Government
Printing office, Washington D.C, p. 452.
417
Supra note 398 at 211.
418
Richard, Fallon, H., “The Rule of Law” as a concept in Constitutional Discourse”, 97 Columbia L.
Rev.24. (1997).
419
Id., at 1.
420
Supra note 7.
157
them alive at all costs, and the under treatment takes form of failing to
deal adequately with their pain and with their anxiety about death.421 The
difference between the operational acceptability of the woman's right to a
safe and legal abortion and the absence of operational acceptability of the
terminally ill person's right to make the choice to hasten inevitable death
is unexplainable.
421
Sedler, Robert, “Abortion, Physician Assisted Suicide and the Constitution: The view from
without & within”, 12 Notre Dame J. L. Ethics & Pub. Pol’y. 547. (1998).
http://international.westlaw.com, [accessed on 20/3/2010]. For discussion on the ethical issues of
abortion and euthanasia, see, Julie, Van, Camp, Ethical Issues in the Courts, USA: Wadsworth
Publishing Co, 2005, passim.
422
Supra note 322 at 7.
423
Dougherty, Charles, J., “The common good, terminal illness and euthanasia”, Issues in L. & Med.
Fall, 1993. http://findarticles.com, [accessed on 19/3/2010].
424
Simmonds, N. E., “Why Conventionalism Does not Collapse into Pragmatism”, Cambridge L. J.
vol. 49, Part I, (1990), C.L.J, March 1990, p. 72.
425
Whiting, Raymond, A Natural Right to Die: Twenty-Three Centuries of Debate 1, Westport:
Greenwood Press, 2002.
158
insuperable obstacle to legalize euthanasia. However, “the law’s refusal
to admit any exceptions to a general rule against killing reveals its
inability to respond to individual patients’ interest.”426 Courts have the
power and the duty to address these issues carefully and acknowledge the
inevitable uncertainty and complexity of decisions about life and death.
The reality of this debate is that the frequency of acts of euthanasia will
continue to increase, whether government recognizes such a right or
not.427
426
Jackson, Emily, “Whose Death is it Anyway? Euthanasia and the Medical Profession”, Jane,
Holder, et. al., (ed.), Current Legal Problems, vol. 57, 2004, p. 416.
427
Supra note 425.
159