The Price of Mercy : Legalizing Medical Euthanasia

This article is written by Sourya Banerjee.

"I will give no deadly medicine to any one if asked, nor suggest any such counsel"

                                                                                                            

-The Hippocratic Oath.

Pulling the plug: (Euthanasia)
Who is to decide

    Traditionally for over 700 years, the Anglo-American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide. That suicide remained a grievous, though nonfelonious, wrong is confirmed by the fact that colonial and early state legislatures and courts did not retreat from prohibiting assisting suicide. Swift, in his early 19th century treatise on the laws of Connecticut, stated that "if one counsels another to commit suicide, and the other by reason of the advice kills himself, the advisor is guilty of murder as principal." (From Z. Swift, A Digest ofthe Laws of the State of Connecticut 270 (1823). The right to life and to personal security is not only
sacred in the estimation of the common law, but it is inalienable. Basically killing a person is homicide and anyone who helped in the murder is punished as an abettor. Under the same reasoning if the murder of one's self is felony, the accessory is also equally guilty as if he had aided and abetted in the murder of self (suicide). And the prohibitions against assisting suicide never contained exceptions for those who were near death. Rather, "the life of those to whom life had become a burden--of those who were hopelessly diseased or fatally wounded--nay, even the lives of criminals condemned to death, were under the protection of law, equally as the lives of those who were in the full tide of life's enjoyment, and anxious to continue to live." (Blackburn v. State, 23 Ohio St. 146, 163 (1872)).So a prisoner who persuaded another to commit suicide could be tried for murder, even though victim was scheduled shortly to be executed. (Image taken from here.)

    The earliest American statute explicitly to outlaw assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828, and chapter. 20, section4, 1828 N. Y. Laws 19 (codified at 2 N. Y. Rev. Statute. pt. 4, chapter. 1, title. 2, article. 1, section7, Para. 661 (1829)), and many of the new States and Territories followed New York's example. Between 1857 and 1865, a New York commission led by Dudley Field drafted a criminal code that prohibited "aiding" a suicide and, specifically, "furnishing another person with any deadly weapon or poisonous drug, knowing that such person intends to use such weapon or drug in taking his own life."

   In 1920 a book “Permitting the Destruction of Life not Worthy of Life” was published. In this book, authors Alfred Hoche, M.D., a professor of psychiatry at the University of Freiburg, and Karl Binding, a professor of law from the University of Leipzig, argued that patients who ask for "death assistance" should, under very carefully controlled conditions, be able to obtain it from a physician.

     In October of 1939 amid the turmoil of the outbreak of war Hitler ordered widespread "mercy killing" of the sick and disabled. Code named "Aktion T 4," the Nazi euthanasia program to eliminate "life unworthy of life" at first focused on newborns and very young children. Midwives and doctors were required to register children up to age three who showed symptoms of mental retardation, physical deformity, or other symptoms included on a questionnaire from the Reich Health Ministry.

The Nazi euthanasia program quickly expanded to include older disabled children and adults. Hitler's decree of October, 1939, typed on his personal stationery and back dated to Sept. 1, enlarged 'the authority of certain physicians to be designated by name in such manner that persons who, according to human judgment, are incurable can, upon a most careful diagnosis of their condition of sickness, be accorded a mercy death.'

Aruna Shanbaug

Euthanasia, both active and passive was banned in India before 2011. Passive Euthanasia is the removal of vital life support mechanism. Active Euthanasia includes death by lethal injection. On 7 March 2011 the Supreme Court of India legalized passive euthanasia by means of the withdrawal of life support to patients in a permanent vegetative state. The decision was made as part of the verdict in a case involving Aruna Shanbaug, who has been in a vegetative state for 37 years at King Edward Memorial Hospital. The High court rejected active euthanasia by means of lethal injection. In the absence of a law regulating medical euthanasia in India, the court stated that its decision becomes the law of the land until the Indian parliament enacts a suitable law.

    Aruna Shanbaug was a nurse working at the KEM Hospital in Mumbai on 27 November 1973 when she was strangled and sodomized by Sohanlal Walmiki, a sweeper. During the attack she was strangled with a chain, and the deprivation of oxygen has left her in a vegetative state ever since. She has been treated at KEM since the incident and is kept alive by feeding tube. On behalf of Aruna, her friend Pinki Virani, a social activist, filed a petition in the Supreme Court arguing that the "continued existence of Aruna is in violation of her right to live in dignity". The Supreme Court made its decision on 7 March 2011.The court rejected the plea to discontinue Aruna's life support but issued a set of broad guidelines legalizing passive euthanasia in India. The Supreme Court's decision to reject the discontinuation of Aruna's life support was based on the fact the hospital staff that treat and take care of her did not support euthanizing her. But the Court disallowed the petition to legalize active Euthanasia.

Euthanasia troll (meme)

      In India, the religious community is generally against legalizing medical euthanasia. This is cause of the believe that, life is a gift of God and it should not and cannot be rejected by an individual. According to the Bible whosoever tries to take their own life shall suffer forever in Hell. Hindu’s and Muslims also have similar believes. The legal justification of this is that the Right to Life is an inalienable right. Various definitions of inalienability include non-relinquish-ability, non-salability, and non-transferability. That is, your Right to life belongs to you. You cannot revoke it. In simple words you cannot say that you do not want it. You do not have a choice about keeping it. Hence if you take your own life or try to take it would mean that you are revoking your Right to Life which is not allowed under the law.

      But the counter to this can be also found in Article 21 of the Constitution of India. The same Fundamental Right which gives us our Right to life also includes the Right to live with dignity. When a person is in a vegetative state or is mentally disabled and surviving in a pathetic condition, then would not forcibly keeping them alive against their and their families’ wishes is a violation of their right to live with dignity? Should not active euthanasia be allowed then?

     But alas this is a very controversial topic. In a vast country like India, both active and passive euthanasia can be easily misused by disgruntled relatives as a weapon. Hence the Supreme Court has rightly not allowed active euthanasia at the moment. But according to me it is best if a separate Medical Council is estabilished. Such that both passive and active (if allowed) euthanasia would be given only after their assent. This could keep all malpractices in check. But this is just a suggestion. As of things now, the price of mercy killing (unless authorized and passive) is to spend sometime in jail for murder. What will happen in the future? Who knows...But I shall say this….If active euthanasia is allowed without any strict rules and regulations in place to monitor it…then may God have mercy on all of us….

This article is written by Sourya Banerjee.

Sourya Banerjee is pursuing BBA-LLB, from IFHE Faculty Of Law, Hyderabad and has currently just completed his 2nd semester.He has very recently started writing blogs.So far he has written for the popular blogs "MOWING THE LAW" and "LEGALLY INDIA".He has taken part in the Jeevika Essay Writing Competition(Results yet to be announced) and few others.He has written on topics ranging from Adultery,Euthanasia and Intellectual property among some. Apart from writing his other interests include mooting, debating, reading, music and others.

Keywords: medical euthanasia, active euthanasia passive euthanasia India, Aruna Shanbaug, Blackburn v. State, cases, KEM hospital, mercy killing India, nazi euthanasia, Pinki Virani, sourya banerjee, Supreme Court India, vegetative state