Euthanasia: Legal Aspects In India And Around The World

Definition And Classification:

Euthanasia is defined as “active” or “passive.” Active euthanasia refers to a physician deliberately acting in a way to end a patient's life. Passive euthanasia pertains to withholding or withdrawing treatment necessary to maintain life. There are three categories of Active Euthanasia: voluntary euthanasia, non-voluntary euthanasia, and involuntary euthanasia. Voluntary euthanasia occurs when the patient, with their full mental capacity, makes a conscious and informed decision to end their own life. Non-voluntary euthanasia refers to the situation where the patient is not mentally competent to make decisions, and someone else makes the decision on their behalf. Involuntary euthanasia, on the other hand, occurs when the decision to end someone's life is made without their consent. In India, Active Euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide). The legal aspects are discussed below.

1. Legal Aspects In India – Statutes And Judgments:

The constitution of India does not mention anywhere about the Euthanasia. However, Article 21 states that every person has the right to live with dignity, but it does not explicitly mention about right to die as a fundamental right. Therefore, there were debates started seeking for “die with dignity” as a fundamental right, and knotted the doors of the Judiciary.

2.1 De-criminalization of section 309 IPC and the concept of right to die:

In India there is no law or statue which directly regulate Euthanasia. Section 309 of Indian Penal Code (IPC) deals with the act of assisting suicide, a criminal offence. It reads as follows:

"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."

The recognition for passive euthanasia in India began with the step taken to struck down section 309 of IPC. The Bombay High Court in the matter of Maruti Shripati Dubal vs State of Maharashtra 1987(1) BOMCR499, became the first instance which laid the seed for euthanasia. The case addresses the concept of the right to die. The court held that Section 309 IPC is violative of Article 14 and 21, and upheld that right to life includes Right to die. Whereas the Andhra Pradesh High court in Chenna Jagdeshwar V. State of Andhra Pradesh (1988) cr LJ 549 taken as reversal stand and held that right to die is not a fundamental right within the meaning of Article 21 of the Constitution and hence section 309 of the IPC is not unconstitutional.

This two contradictory view held by the High Courts were referred to, the Supreme Court in P.Rathinam v. Union of India (1994) 3 SCC 394, aligned its views with Maruti Shripati Dubal case (supra), whereby the apex court held that the right to life, as guaranteed under Article 21 of the Indian Constitution, includes the right to live with dignity and the right to die with dignity. The court also recognized that the right to die with dignity is inherent in the right to life, and that the criminalization of attempted suicide under Section 309 of the Indian Penal Code is unconstitutional and violates the fundamental right to life. The relevant portions are extracted herein below: -

“109. On the basis of what has been held and noted above, we state that Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again (doubly) who has suffered agony and would be undergoing ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the persons concerned is not called for.

110. We, therefore, hold that Section 309 violates Article 21, and so, it is void. May it be said that the view taken by us would advance not only the cause of humanisation, which is a need of the day, but of globalisation also, as by effacing Section 309, we would be attuning this part of our criminal law to the global wavelength.”

In Gian Kaur v. State of Punjab (1996) 2 SCC 648, the apex court overruled its own judgment in P.Rathinam's case and set aside the Bombay High Court order in State of Maharashtra V. Maruti Sripati Dubal (1986) 88 Bom LR 589. The court held that the right to life includes the right to live with human dignity, which embraces the quality of life, but does not extend to the right to terminate one's life. The relevant portions are extracted herein below: -

“For the reasons we have given, the decisions of the Bombay High Court in Maruti Shri Pati Dubal vs. State of Maharashtra, 1987 Crl. L.J. 743, and of a Division Bench of this Court in P. Rathinam vs. Union of India and Anr., 1994 (3) SCC 394, wherein Section 309 I.P.C. has been held to be unconstitutional, are not correct. The conclusion of the Andhra Pradesh High Court in Chenna Jagadeeswar and another vs. State of Andhra Pradesh, 1988 Crl.L.J. 549, that Section 309 I.P.C. is not violative of either Article 14 or Article 21 of the Constitution is approved for the reasons given herein. The questions of constitutional validity of Sections 306 and 309 I.P.C. are decided accordingly, by holding that neither of the two provisions is constitutionally invalid.”

So it is finally settled that Section 309 of the IPC is constitutional and it does not violate Article 14 and 21 of the Indian Constitution.

With the development in law with respect to Right to die, the new Act, Bharatiya Nyaya Sanhita 2023 (BNS) removes section 309 of the IPC entirely. This means attempted suicide will no longer be a criminal offence.

2.2. The clear roadmap to passive euthanasia.

In 2011, with improvements in the concept of 'Right to die', the Supreme Court in Aruna Ramchandra Shanbaug v. Union of India (2011) 4 SCC 454, case had allowed for passive euthanasia to patients in the condition of Permanent Vegetative State (PVS). The court decided the following:

1. The court drew the distinction between active and passive euthanasia, and allowed for passive euthanasia.
2. The High Court under Article 226 would be entitled to make decisions regarding the withdrawal of the life support system.
3. A bench must be constituted by the Chief Justice of the High Court when an application is received, before which a committee of three reputed doctors nominated must be referred. There should be a thorough examination of the patient and state and family members are provided with a notice issued by the bench.
4. The High Court should give its decision assigning specific reasons in accordance with the principle of 'best interest of the patient'.

In Common Cause Union of India (2018) 5 SCC 1, the Supreme Court of India further expanded upon the right to die with dignity. The case delves into various legal aspects surrounding euthanasia, particularly passive euthanasia, and the right to refuse treatment. It upheld the validity of living wills or advance directives. The court laid down guidelines and safeguards for implementing passive euthanasia, ensuring that it is carried out with proper consent and oversight.

Recently in 2023, a Miscellaneous Application No. 1699 of 2019 has been filed in Common Cause Union of India (2018) 5 SCC 1, whereby the Supreme Court has revised the guidelines into two-step process for allowing for passive euthanasia and simplified guidelines. The new guidelines in the case of Common Cause vs Union of India (UOI) order dated can be summarized as follows:

1. Modification of Advance Directive: An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.
2. Applicability of Advance Directive: An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.
3. Ambiguity in Advance Directive: If the Advance Directive is not clear and ambiguous, the Medical Boards concerned shall not give effect to the same and, in that event, the guidelines meant for patients without Advance Directive shall be made applicable.
4. Non-compliance with Advance Directive: Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.
5. Procedure for cases without Advance Directive: In cases where there is no Advance Directive, the procedure and safeguards are to be the same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:
6. In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital, which, in turn, shall constitute a Primary Medical Board in the manner indicated earlier.
7. The Primary Medical Board shall discuss with the family physician, if any, and the patient's next of kin/next friend/guardian and record the minutes of the discussion in writing.
8. During the discussion, the patient's next of kin/next friend/guardian shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Primary Medical Board may certify the course of action to be taken preferably within 48 hours of the case being referred to it. Their decision will be regarded as a preliminary opinion.
9. In the event the Primary Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall then constitute a Secondary Medical Board comprising in the manner indicated hereinbefore.
10. The Secondary Medical Board shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Primary Medical Board.
11. In that event, intimation shall be given by the hospital to the JMFC and the next of kin/next friend/guardian of the patient preferably within 48 hours of the case being referred to it.
12. The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally ill patient.
13. The life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. It shall be kept in a digital format by the Registry of the High Court apart from keeping the hard copy which shall be destroyed after the expiry of three years from the death of the patient.

Laws On Euthanasia Around The World:

In terms of legality, the stance on euthanasia varies from country to country. In Belgium, Luxembourg, the Netherlands, Switzerland, and certain states in the United States such as Oregon and Washington, some forms of voluntary euthanasia are legal. These jurisdictions have established clear guidelines and safeguards to ensure that euthanasia is carried out with the informed consent of the patient and under specific circumstances.

In Netherlands, is the first country to come up with a legalisation on euthanasia, which evolved predominately through various judgments. The Postma case (1973), is a milestone because, for the first time, judges considered the possibility of impunity for termination of life on request. The court observed certain requirements to be met for termination of treatment. These were as follows: -

• The patient is incurably ill because of a disease or an accident, or he is medically to be considered as such;
• The physical or mental suffering is subjectively unbearable or severe for the patient;
• The patient has expressed the wish to end his life or, in any case, to be relieved of his suffering, if need be in advance in writing;
• The euthanasia is performed by a physician: the attending physician or another in consultation with him.

Later in the case of Schoonheim (1984), the Supreme Court considered that a physician can invoke Force Majeure in the sense of emergency if he;

• has carefully weighed the relevant duties and interests at stake,
• according to medical ethics and according to the medical-professional standard,
• and in doing so, and in view of the particular circumstances of the case, made an objectively justifiable choice.

The Supreme Court in the case also observed certain factors could be considered important for assessment. It is as follows:

• Whether, according to professional medical judgment, it was to be feared that the person would suffer increasingly from loss of dignity or that his suffering, already experienced as unbearable, would worsen;
• Whether it was foreseeable that he would soon be unable to die with dignity;
• Whether there were still possibilities to alleviate the suffering.

It is tempting to associate the first two factors with the principle of self-determination. Yet that would amount to an incorrect reading of the ruling. The Supreme Court did not discuss patient self-determination; it considered the aforementioned factors primarily as elements of suffering. The solution found in this case is clearly testimony of the doctors' perspective on the issue of euthanasia.

In Chatbot (1994) case, the Supreme Court considered examination in person by a consultant essential. In addition, the Supreme Court also clarified the following points:

• The cause of suffering does not affect the degree to which it is experienced. In other words, the hopelessness and unbearability matter, not the cause (somatic, psychological or other);
• Suffering caused by a psychiatric illness or disorder can justify euthanasia as well;
• Psychiatric patients can also request euthanasia voluntarily and well-considered;
• In the event of such suffering, judges must assess the doctor's emergency with extra caution, because,
1. it must be ruled out that the patient's decision-making ability was influenced by the illness or disorder, and
2. both the severity and the hopelessness of suffering with such a cause are more difficult to establish;
• In principle, there is no hopeless suffering (i.e. without prospect of improvement) if the patient freely refuses realistic alternatives for relief.

Later, in Brongersma case (2002) Dr. A.H.J. Prins performed euthanasia on Senator Edward Brongersma, who was suffering from cancer. The court ruled that Prins was not guilty because he acted out of mercy. This case set a precedent for the decriminalization of euthanasia under certain conditions. Later the Brongersma Guidelines (1994) which was named after the aforementioned case, provided criteria for prosecuting physicians who performed euthanasia. They established that euthanasia would not be prosecuted if certain conditions were met, such as the presence of unbearable suffering and the involvement of a second physician. Further, the Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2001) legalized euthanasia and physician-assisted suicide under strict conditions, making the Netherlands one of the first countries to do so. Assisted dying involves individuals who are terminally ill seeking medical assistance to obtain lethal drugs, which they then administer themselves to end their own lives.

United Kingdom allows passive euthanasia for patients in the Permanent Vegetative State (PSV). In Airedale National Health Service Trust v. Bland (1993), the case was dealt with the removal of life supporting devices which can help in extension of life. The relevant points are mentioned below:-

• The court held that it was lawful to discontinue all life-sustaining treatment and medical support measures for the patient, Tony Bland, who was in a persistent vegetative state (PVS) with no hope of recovery.
• The decision was based on the best interests of the patient and the principle that the preservation of life is not an absolute value, especially when prolonging life would result in pain and suffering without any prospect of improvement.
• The court emphasized the importance of seeking the approval of the court in cases where there is a division of opinion among family members or responsible medical practitioners, ensuring a thorough investigation of all facts and circumstances.
• While recognizing the sanctity of human life, the court balanced this with the principle of self-determination and the quality of life, highlighting the need to consider wider factors beyond just pain when making end-of-life decisions.
• The judgment underscored the distinction between withholding or withdrawing treatment, which may be lawful in certain circumstances, and actively causing a patient's death, emphasizing the need for a legal framework that respects the dignity and humanity of patients in such critical situations.

Colombia legalized euthanasia in 1997 through a landmark court decision by the Constitutional Court. The court, in Carlos Gaviria Diaz. Judgment C-239, ruled that individuals have the right to a dignified death and may request euthanasia under specific circumstances, including unbearable suffering due to a terminal illness. The court observed the following;

1) Rigorous verification, by competent people, of the real situation of the patient, of the sickness he suffers, of the maturity of judgment and of his unequivocal will of dying.

2) A clear indication of the people (qualified individuals) that should take part in the process.

3) Circumstances under which the person who consents his death or asks for the end of his suffering should express his consent: how he should express it, individuals before who he should express it; verification of his sane judgment by a competent professional, etc.

4) Measures that should be taken by the qualified individual to obtain the philanthropical result.

5) Incorporation of topics such as life value and its relation to social responsibility, freedom and person's autonomy to the educational process, in such a way that criminal provision appears as the final instance in a process that may result in other solutions.

Belgium followed in the footsteps of the Netherlands and also legalized euthanasia in 2002. The Belgian law permits euthanasia for adults with unbearable suffering due to a serious and incurable condition. The Belgian Euthanasia Act of 2002 was enacted, allowing for both voluntary and non-voluntary euthanasia under strict conditions. The Act also allows foreigners to submit a request to end their life in the country. This uniqueness attracts patients from neighbouring countries such as France.

Luxembourg enacted Act on Euthanasia and Assisted Suicide in 2009. The law allows euthanasia for adults with irreversible suffering caused by a serious and incurable condition. Similar to Belgium and the Netherlands, there are stringent safeguards and requirements.

Further in Switzerland, while euthanasia is illegal, the country permits assisted suicide under certain conditions. Organizations like Dignitas and Exit Switzerland provide assisted suicide services to terminally ill patients who meet specific criteria, such as having decision-making capacity and suffering from unbearable physical or mental distress.

In Australia, the right to refuse medical treatment and advance medical directives have both been recognised as a part of common law and where the individual's best interest is the guiding principle for deciding whether to discontinue treatment or not. Also, the High Court of Australia in the case of Secretary, Department of Health and Community Services v. JWB and SMB (1992) held that an individual (major) of sound mind can take voluntary decisions regarding what should be done to his or her body.

Canada legalized medical assistance in dying (MAID) in 2016. The law allows eligible adults to request medical assistance to end their lives if they have a grievous and irremediable medical condition, are in an advanced state of irreversible decline, and experience enduring suffering that cannot be relieved in a manner acceptable to them. In Carter v. Canada (2015) SCC 5, where the Apex Court of Canada stated that Physician-assisted suicide shall be permitted in certain situations where the medical state of an individual is critical and irrecoverable. However, such consent should be provided by an adult in clear terms. The relevant para is extracted herein below: -

“[147] The appeal is allowed. We would issue the following declaration, which is suspended for 12 months:

Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

Several States in the United States have legalized euthanasia or assisted dying under specific conditions. For example, Oregon's Death with Dignity Act (1997), Washington's Death with Dignity Act (2008), California's End of Life Option Act (2015), and others allow terminally ill patients to request medication to end their lives under strict regulatory frameworks.

The Supreme Court of United States in Cruzan v. Director, MDH, 497 U.S. 261 (1990), upheld the individual autonomy of the patients by ruling that the state would need to provide “clear and convincing evidence” of the individual's wish to end life assistance in order to persuade the doctor to do so. The relevant points mentioned by the court are;

• The court held that incompetent individuals retain a right to refuse treatment, which can be exercised by a surrogate decision maker using a "subjective" standard when clear evidence of the incompetent person's intent is present
• The court established that treatment could be terminated under a "limited-objective" standard if trustworthy evidence existed that the individual would have wanted to terminate treatment, but not enough to clearly establish their wishes for the subjective standard
• If no trustworthy evidence existed and a person's suffering would make the administration of life-sustaining treatment inhumane, a "pure-objective" standard could be used to terminate treatment
• The court rejected certain categorical distinctions drawn in prior refusal-of-treatment cases, such as distinctions between actively hastening death and passively allowing a person to die, treating individuals initially versus withdrawing treatment afterwards, and between different types of life-sustaining medical procedures
• Ultimately, the court emphasized that the decision to withdraw life-sustaining treatment should be based on the patient's expressed intent, with every effort made to minimize the opportunity for error, and that the record in the case lacked the clear and convincing evidence of the patient's intent to withhold life-sustaining treatment

Spain passed a law in 2021 legalizing euthanasia and assisted suicide. The law allows adults with serious and incurable diseases causing unbearable suffering to request medical assistance to end their lives. It came into effect in June 2021.

France, recently in 2023, introduced a Bill, to consider legalizing Euthanasia. France is about to now legalise a form of assisted dying called "aid in dying". The legislation, set to be presented to the National Assembly in the month of May this year, has sparked intense debates, facing opposition from various quarters, including medical professionals, political opponents etc.

Way Forward – The Road For Active Euthanasia In India

In conclusion, the discourse surrounding euthanasia in India is multifaceted, encompassing ethical, moral, legal, and medical considerations. While passive euthanasia has been legalized through judicial intervention, the implementation of active euthanasia remains contentious and fraught with complexities.

The scope of implementing active euthanasia in India requires meticulous examination and rigorous legislative scrutiny. Any legislative framework must prioritize the protection of individual autonomy, respect for human dignity, and the alleviation of undue suffering. Moreover, comprehensive safeguards must be established to prevent abuse, coercion, or discriminatory practices. There is a grave likelihood of such law being misused in several ways.

Furthermore, the implementation of active euthanasia necessitates robust regulatory mechanisms, including stringent eligibility criteria, medical oversight, and procedural safeguards. Additionally, mechanisms for informed consent, consultation with medical professionals, and judicial review must be integral components of any legislative framework. It also requires public debate due to religious, cultural and societal diversities in the country.

In light of these considerations, the implementation of active euthanasia in India requires a balanced approach that upholds the principles of autonomy, beneficence, and justice while safeguarding against potential risks and ensuring the protection of vulnerable populations. As such, it is incumbent upon lawmakers, policymakers, and stakeholders to engage in thorough deliberation and enact legislation that reflects the values, aspirations, and ethical principles of Indian society.

The author is an Advocate and Views are personal.