Euthanasia in India - International Position - Other Jurisdictions

In Aruna Shanbaug, the Court has in detail referred to the legislations in Netherlands, i.e., the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002 that regulates euthanasia.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 215 OF 2005

Common Cause (A Regd. Society) ...Petitioner(s)

Versus

Union of India and Another …Respondent(s)

J U D G M E N T

Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]

I N D E X

S. No. Heading A. Prologue B. Contentions in the Writ Petition C. Stand in the counter affidavit and the applications for intervention D. Background of the Writ Petition D.1 P. Rathinam’s case – The question of unconstitutionality of Section 309 of the Indian Penal Code D.2 Gian Kaur’s case – The question of unconstitutionality of Section 306 of the Indian Penal Code D.3 The approach in Aruna Shanbaug qua Passive Euthanasia vis-à-vis India D.4 The Reference E. Our analysis of Gian Kaur F. Our analysis of Aruna Shanbaug qua legislation G. The Distinction between Active and Passive Euthanasia H. Euthanasia : International Position H.1 U.K. Decisions: H.1.1 Airedale Case H.1.2 Later Cases H.2 The Legal position in the United States H.3 Australian Jurisdiction H.4 Legal position in Canada H.5 Other Jurisdictions H.6 International considerations and decisions of the European Court of Human Rights (ECHR) I The 241st Report of The Law Commission of India on Passive Euthanasia J. Right to refuse treatment K. Passive Euthanasia in the context of Article 21 of the Constitution. K.1 Individual Dignity as a facet of Article 21 L Right of self-determination and individual autonomy M. Social morality, medical ethicality and State interest N. Submissions of the States O. Submissions of the Intervenor (Society for the Right to Die with Diginity) P. Advance Directive/Advance Care Directive/ Advance Medical Directive (a) Who can execute the Advance Directive and how (b) What should it contain? (c) How should it be recorded and preserved (d) When and by whom can it be given effect to (e) What if permission is refused by the Medical Board (f) Revocation or inapplicability of Advance Directive Q. Conclusions in seriatim

H.5 Other Jurisdictions:

107. Presently, we think it appropriate to deal with certain legislations in other countries and the decisions in other jurisdictions. In Aruna Shanbaug, the Court has in detail referred to the legislations in Netherlands, i.e., the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002 that regulates euthanasia. The provisions of the said Act lay down that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. As the two-Judge Bench has summarized, this criteria concern the patient‘s request, the patient‘s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a Review Committee. It has been observed that the said Act legalizes euthanasia and physicianassisted suicide in very specific cases under three specific conditions and euthanasia remains a criminal offence in cases not meeting the laid down specific conditions with the exception of several situations that are not subject to restrictions of law at all because they are considered normal medical practice. The three conditions are : stopping or not starting a medically useless (futile) treatment, stopping or not starting a treatment at the patient‘s request and speeding up death as a side effect of treatment necessary for alleviating serious suffering.

108. Reference has been made to the Swiss Criminal Code where active euthanasia has been regarded as illegal. Belgium has legalized the practice of euthanasia with the enactment of the Belgium Act on Euthanasia of May 28th, 2002 and the patients can wish to end their life if they are under constant and unbearable physical or psychological pain resulting from an accident or an incurable illness. The Act allows adults who are in a ‗futile medical condition of constant and unbearable physical or mental suffering that cannot be alleviated‘ to request voluntary euthanasia. Doctors who practise euthanasia commit no offence if the prescribed conditions and procedure is followed and the patient has the legal capacity and the request is made voluntarily and repeatedly with no external pressure.

109. Luxembourg too has legalized euthanasia with the passing of the Law of 16th March, 2009 on Euthanasia and Assisted Suicide (Lux.). The law permits euthanasia and assisted suicide in relation to those with incurable conditions with the requirements including repeated requests and the consent of two doctors and an expert panel.

110. The position in Germany is that active assisted suicide is illegal. However, this is not the case for passive assisted suicide. Thus, in Germany, if doctors stop life-prolonging measures, for instance, on the written wishes of a patient, it is not considered as a criminal offence. That apart, it is legal for doctors in Germany to administer painkillers to a dying patient to ease pain. The said painkillers, in turn, cause low breathing that may lead to respiratory arrest and, ultimately, death.