Euthanasia is derived from the Greek word ‘eu’ which means good and ‘thanotos’ which means ‘death’. Hence, popularly called ‘mercy death’. Euthanasia refers to the deliberate and intentional act of ending a person’s life carried out by medical professionals with a compassionate motive to relieve the person from intractable and irreversible sufferings due to terminal illness. House of Lords Select Committee on ‘Medical Ethics in England defined Euthanasia as “a deliberate intervention undertaken with the express intention of ending a life to relieve the intractable sufferings”1
Passive Euthanasia is the withdrawal of life-support systems or medical treatment required for sustenance of life. Illustrations: withholding the clinically-assisted nutrition and hydration (CANH) in a person in permanent vegetative state, removing the heart lung machine from a person in coma, removing nasogastric tube for nourishment. Active Euthanasia is defined as the direct, intentional act of causing a patient’s death through the use of a lethal substance which causes the patient to slip into deep sleep in a few seconds resulting in instantaneous death. Illustration: A patient ‘Y’ is in PVS and supported by life-sustenance equipment. In active euthanasia, the patient is administered with lethal substance i.e. Sodium Pentothal which leads to unconsciousness in a few seconds eventually causing instantaneous and painless death.
DISTINCTION BETWEEN ACTIVE AND PASSIVE EUTHANAISA Legal perspective:
Active Euthanasia is illegal worldwide except Netherlands, Belgium, New Zealand, Canada and other countries permitted by legislation. In Indian stance, Dipak Misra, C.J. in the case Common Cause (A Regd. Society) vs. Union of India & Ors. (2018)2 stated that “active euthanasia would
be illegal unless there is valid legislation permitting it. The equivalent sections in Bharatiya Nyaya Sanhita (BNS), 2023 are section 103, section 105 and section 108 respectively. 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).”
Passive euthanasia is lawfully permitted in many countries where it is accepted by legislation, but under certain circumstances and medical safeguards are maintained. In India, the judicial pronouncement of Aruna Ramchandra Shanbaug vs. Union of India & Ors. (2011)3, Common Cause (supra) and Harish Rana vs. Union of India & Ors. (2026)4reviewed and permitted passive euthanasia under certain circumstances and broadened the purview of Article 21 of Constitution to Right to die with dignity.
Ethical viewpoint:
The major ethical difference between passive and active euthanasia is that in active euthanasia something is done to terminate the patient’s life whereas in passive euthanasia something is not done that would have preserved the patient’s life. As per Dr. D.Y. Chandrachud, J., “Active euthanasia refers to a positive contribution to the acceleration of death. Passive euthanasia refers to the omission of steps which might otherwise sustain life.”5
Moreover, the quality and conditioning of terminally ill patients becomes so miserable and painful that only death remains the only justifiable means of recovery and the dying patient would himself seek death as the only means to end sufferings.
The opponents of euthanasia raise ethical concerns against the doctors on the grounds of violating the promise of ‘do no harm’. But the deteriorated condition of terminally ill patients emphasizes the doctor to act in the best interest of the patient as a compassionate attempt to end unbearable pain. Moreover, in passive euthanasia, they are not actively killing anyone but rather they are not saving it. Thus we do not condemn anyone if he fails to do so.
In case of Harish Rana (supra), the constitutional bench stated “Active euthanasia as an act of involving positive or overt act…to either cause death or directly accelerate it. In contrast, passive euthanasia is defined by the absence of such overt acts…primarily encompasses the withdrawal or withholding of medical treatment that would otherwise sustain and/or preserve life”.
Strategic Utilization:
Both active and passive euthanasia constitute a matter of critical jurisprudence in the contemporary legal system profoundly impacting the laws globally. The request of euthanasia, either by patient or by his family, must be free, diligent and explicit. The patients must be examined by the board of doctors and must agree that the patient’s condition is irreversible and intolerable. Finally, all of these medical examinations must be adequately documented and reported to the governmental body for supervision of euthanasia.
In active euthanasia, a positive medical intervention i.e. lethal substance which tends to end the life before it is supposed to happen naturally, whereas in passive euthanasia, the doctors are not delaying the death beyond the natural point through artificial means.
PARADIGM STAND ON PASSIVE EUTHANASIA WORLDWIDE
1. Netherlands
The Netherlands is the 1st country to legalize the practice of passive euthanasia in 2002 by the statutory act ‘Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002’ which pioneered the end-of-life care. It states that passive euthanasia as well as physician-assisted suicide is criminal offence under article 293 & 294 of Dutch criminal court. The only exception is that on the patient’s request the procedure of passive euthanasia can be undertaken in the presence of a physician by fulfilling six ‘statutory due-care-criteria’ as laid down in the act. The act lays down the requirement of a review committee of which the physician shall be the part thereof. The former is also required to notify the Municipal Pathologist in order to demonstrate its compliance to the act.
At its core, the Dutch law prioritizes the patient’s will for dignified death rather than forcibly persuading him to endure unbearable pain of treatment, but at the same time, maintaining a stringent ‘statutory due-care-criteria’. It reflects the empirical balance between right to life as well as protection of life, but at the same time, maintaining the right to die a dignified and peaceful death.
Switzerland
According to ‘National library of medicine (National Centre of Biotechnology Information)’, “Switzerland has an unusual position on assisted suicide: it is legally condoned and can be performed by non-physician.” Article 115 of Swiss Penal Code, 1942 criminalizes the assistances of suicide, and only if, the motive is coercive and selfish. The code does not prescribe doctors a special status in assisting suicide as they have accessibility to unique and deadly drugs. Therefore, a physician is not an essential requirement in the practice of passive euthanasia. The Swiss law provides convenient statutory legislation: (1) Swiss nationality and citizenship is not mandatory. (2) As stated above physicians need not to be involved.
It conveys that Swiss law administers the autonomy and free will of the patient regarding his wish of either procuring medical assistance or choosing a peaceful and painless death. It establishes equilibrium between the right to dignified life and right to dignified death.
Australia
In the case of Hunter and New England Area Health Service vs. A (2009)6 The Supreme Court of New South Wales applied the common law principle and held that a person is entitled to direct an ‘advance-care directive’ i.e. a statement freely made by the patient refusing to receive medical treatment in any specified kind. It would lead to ‘battery’ against the patient to forcibly administer medical treatment to the person despite its refutation in ‘advance-care directive’. Later, in the case of Brightwater Care Group (Inc.) vs. Rossitor (2009)7 The court upheld the decision. But it raised the ethical concern regarding the ability to make an informed choice i.e. mental capacity and self-determination. Chief Justice Higgins undertook the detailed analysis in the case Auckland Area Health Board vs. Attorney-General (1993)8 holding that “…bound to apply the human right to life and prohibition on cruel and degradation treatment found that futile treatment could be withdrawn from the patient in a persistent vegetative state.” The same was accepted by Howie J. in Messiah v. South East Health (2004)9that ineffectiveness of treatment can only be determined on the basis of the best interest of the patient and not by the medical institution.
It reveals that the Australian law considers the critical circumstance of the patient as the major determinant of futile treatment and its withdrawal at direct or indirect request. The basis of withholding life-sustaining equipment from terminally ill patients is in their best interest represents the favor towards the right to die with dignity.
United Kingdom
English law considers both euthanasia and assisted suicide as criminal offence. Under the terms of ‘Suicide Act, 1961’, assisted-suicide is criminalized which is punishable up to 14 years imprisonment. The House of Lords established the legal framework for passive euthanasia in the case of Airedale NHS Trust vs. Bland (1993)10in which Lord Goff noted that while active action to end life is a crime, a doctor may lawfully decide not to provide or continue any medical treatment that merely extends a patient’s life only through a life-support system. Furthermore, the judgment distinguished medical treatment and medical care; that artificial nutrition and hydration are classified as treatment if it no longer provides benefit in recovery rather than prolonging painful life. Moreover, in case of incompetency of a patient or vagueness of the patient’s best interest, the Court of Protection shall determine based on the principle of ‘Parent Patriae’. The precedent was supported in the case of F vs. West Berkshire Health Authority (1989)11 where the ‘principle of necessity’ was laid down.
The UK Law establishes balance with a person’s will to refuse medical treatment for a dignified and natural death which is in the patient’s best interest with proportionate interference to protect the vulnerable as well as protecting the patient’s right to life.
INDIAN STANCE ON PASSIVE EUTHANASIA
Right to Die
It was 1st discussed in the case of P. Rathinam vs. Union of India (1994)12in which the Supreme Court used ‘negative-right analogy’ in Article 21 by drawing parallels with Article 19. They argued that just as Article 19 includes ‘Freedom of speech’ along with ‘Right to remain silent’; similarly, ‘Right to carry on business’ along with ‘Right to shut it down’. Likewise, ‘Right to life’ (Article 21) must logically include Right to die, thereby declaring section 309 IPC unconstitutional.
The rulings of the above aforementioned case were critically re-evaluated in case of Smt. Gian Kaur vs. State of Punjab (1996)13. The Court addressed the logic used in P. Rathinam vs. Union of India (1994) and found it to be inapposite and superficial, reasoning that ‘Freedom of speech’ and ‘Right to remain silent’ are still part of the same right and do not change the basic structure of the right whereas ‘Right to die’ is purely anti-thesis of ‘Right to life’; henceforth, they over ruled the precedent of P. Rathinam case. A clear distinction was drawn between ‘Right to die’ and ‘Right to live with dignity’ till natural death. It was stated that a person may refuse to take medical treatment and die a dignified death which is distinctive from ‘Right to die’ where a person takes one’s own life; thus, upholding the constitutionality of section 306 and 309 IPC which protects vulnerable people from attempting suicide or getting abetted to do suicide.
Right to die with dignity
Passive euthanasia was highly discussed in the case of Aruna Ramchandra (supra). The Apex Court laid down laws for passive euthanasia which were to be followed till parliament makes any law on it. The court also raised concerns regarding misuse of it which would be direct violation of Article 21; thus, stated that passive euthanasia needs approval from the high court enlisting division bench made by Chief Justice of the High Court. The decision should be bona fide in the best interest of the patient in the opinion of at least 3 doctors i.e., neurologist, physician and psychiatrist. The ‘Right to die with dignity’ was recognized as a fundamental right.
Subsequently, it was decided in Common Cause (supra) that a person of sound mind can execute an advanced medical directive in accordance with safeguards mentioned thus reiterating ‘Right to die with dignity.
Both of the judgments paved the way for the latest judgment of Harish Rana (supra) where the principles and directions mentioned in those judgments were used to relieve the person from long years of pain and agony; thus, granting him ‘Right to die with dignity’ through passive euthanasia.
CONCLUSION AND WAY FORWARD
The Judicial precedents took a step forward to maintain equilibrium between ‘sanctity-of-life’ and ‘quality-of-life’ seeking a humane approach towards patient autonomy regarding their own sufferings. In order to optimize the implementation of judicial pronouncement and streamline the legislative procedure in the withholding of end-of-life care in passive euthanasia, the recommendations proposed are:
Digital registration of living will:
The Ministry of Health should develop a secure and centralized portal where the patients can register for their ‘Living will’ provided that the patient’s will is free and diligent. The digital registration would ensure the instant access of patient’s wishes available to physicians in case of emergency and/or terminal scenarios. It’ll reduce the bureaucratic hurdles that often result in delay of decisions and distress among families.
District Medical boards: Government should constitute a board for authentication and investigation of patient’s condition and authorized to order passive euthanasia provided the guidelines are met; in order to overtake the burden of High courts and avoid any delay in decision.
Training of passive euthanasia: Concept of end-of-life care ethics and legalities of passive euthanasia should be included in the training and curricula of medical and nursing followed by comprehensive guidelines on ‘patient’s best interest protocol’. It’ll ensure ethical and legal immunity to the healthcare providers during termination of life.
Public awareness: Government should launch a national campaign to raise awareness of/for passive euthanasia and de-stigmatize the social view about end-of-life care. Raising education about legality & purpose of passive euthanasia.
The transition of Indian jurisprudence on passive euthanasia and end-of-life care from rigid and purely biological conservation of the patient to acknowledging the patient’s autonomy and dignity-centered interpretation of Article 21 broadening its scope to ‘Right to die with dignity’. The apex court affirmed that the right to life does not merely include the right to exist as animals, but also the right to dignified life. Extending to the patient in PVS to whom the continued administration of life-support, in conditions where recovery is impossible, is a gruesome suffering rather than any compassionate conservation. Thereby, the right to die with dignity becomes an inevitable expression of the patient’s wish.
The Indian judicial pronouncement from Aruna Shanbaug (supra) followed by Common cause (supra) emphasized the judiciary to strike a balance between delicate lines of ‘Right to life’ and ‘Right to die with dignity’. Allowing passive euthanasia, it has recognized a person’s autonomy regarding one’s own life and humane consideration, but at the same time it has laid down safeguarding measures to ensure the sanctity of Article 21 is maintained, in the recent case of Harish Rana (supra). The article concludes with the suggestion and recommendation not merely from legislative level but also from ethical, social and administrative level.
Author: Pranjali Shukla
2nd Semester Undergraduate Law Student
Faculty of Law, University of Allahabad
Reference
1 House of lord Select committee Medical Ethics HL Deb 09 May 1994 vol 554 cc1344-412
2MANU/SC/0232/2018
3 AIR 2011 SC 1290
4 MANU/SC/0222/2026; (2026) INSC 222
5 Common cause (A regd. Society) vs. Union of India MANU/SC/0232/2018
6[2009] NSWSC 761
7 BRIGHTWATER CARE GROUP (INC) VS ROSSITER [2009] WASC 229
8 1993(1) NZLR 235
9 [2004] NSWSC 1061
10[1993] 2 WLR 316, [1993] Fam Law 473, 12 BMLR 64, (1993) 12 BMLR 64, [1993] 4 Med LR 39, [1993] AC 789, [1993] UKHL 17, [1993] 1 All ER 821, [1994] 1 FCR 485, [1993] 1 FLR 1026
11[1991] UKHL 1, [1990] 2 AC 1 .
12 1994 AIR 1844, 1994 SCC (3) 394
13 1996 AIR 946, 1996 SCC (2) 648
