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Report No. 241

9. Legalizing euthanasi.- the perspectives and views

9.1 The question of recognizing and legalizing euthanasia is being debated all over the world. The views pro and contra rest on philosophical, moral, ethical and legal perspectives. Different views have emerged, some of them being extreme.

In a comprehensive Dissertation on "Legislative Passive Euthanasia" presented by Mr. Sayan Das, 1 an LLM student at Symbosis Law School, Pune, who has been guided by Dr. Shashikala Gurupur, Director of Law School & Member(P.T.) of Law Commission; various view points have been discussed and vast literature on the subject including en.- o.- life care has 15 an LLM student at Symbosis Law School, Pune, who has been guided by Dr. Shashikala Gurupur, Director of Law School & Member(P.T.) of Law Commission; been referred to.

We are of the view that rational and humanitarian outlook should have primacy in such a complex matter. Now, passive euthanasia in the sense in which it has been described at the beginning of this report both in the case of competent and incompetent patients is being allowed in most of the countries, subject to the doctor acting in the best interests of the patient who is not in a position to express the will.

The broad principles of medical ethics which shall be observed by the doctor in taking the decision are the patient's autonomy (or the right to self determination) and beneficence, which means following a course of action that is best for the patient uninfluenced by personal convictions, motives or other considerations, See p. 482 of SCC in Aruna Shaunbaug's case, supra.

In Airedale's case, Lord Keith observed that the hospital / medical practitioner should apply to the Family Division of High Court for endorsing or reversing the decision taken by the medical practitioners in charge to discontinue the treatment of a PVS patient. Such a course should be taken till a body of experience and practice has been developed, as pointed out by Lord Keith in Airedale's case. The course suggested by Lord Keith has been approved by our Supreme Court in Aruna's case and this salutary safeguard has been implanted in our legal system now.

As far as active euthanasia is concerned, lot of debate is still going on and there are "many responsible members of our society who believe that euthanasia should be made lawful, but as the laws now stand, euthanasia (other than passive euthanasia) is a crime in common law and it can only be made lawful by means of legislation", as observed in Airedale's case and reiterated by Law Commission (196th report). In India too, many from the legal and medical profession and academia have expressed the view that euthanasia should be legalized.

9.2 V. R. Jayadevan pleads for ushering in an era of active euthanasia. The following pertinent observations made by him on the subject of legalizing active euthanasia may usefully be quoted, 1V. R. Jaydevan, "Right of the Alive [who] but has no Life at al.- Crossing the Rubicon from Suicide to Active Euthanasia" (2011) 53 JILI 437 at 471.:

"The trend of the decisions of both the US and English courts reveals that the common law systems continue to proscribe active euthanasia as an offence. At the same time, many realize that active euthanasia is gaining relevance in the modern world. The objections to legalizing active euthanasia are based on religious principles, professional and ethical aspects and the fear of misuse. But, it cannot be forgotten that it was by overruling similar objections that abortion was legalized and later raised as an ingredient of the right to privacy. It is submitted that just like abortion, the modern societies demand the right to assisted suicide."

He has cited many authorities in support of his view point.

9.3 Passive euthanasia, subject to the observance of certain restrictions and safeguards, has been endorsed and recognized by the Supreme Court in the latest case of Aruna Shanbaug and in Gian Kaur's case also, there is sufficient indication of its legality and propriety. The verdict in Airedale's case has given a quietus to this controversy not only in U.K., but also in other countries where the ratio of the Judgment has been followed.

9.4 It is relevant to mention in this context that the Law Commission of India in a more recent report, i.e. in 210th Report has recommended the repeal of Section 309 of Indian Penal Code so that the attempt to commit suicide could be decriminalized. As long back as 1971, the Law Commission in its 42nd report pleaded for obliterating Section 309 from the Statute Book. The moral and philosophical aspects were also considered in detail. In Aruna Shanbaug too, case the Supreme Court made a categorical observation:

"We are of the opinion that although Section 309 of the IPC has been held to be constitutionally valid in the Gian Kaur case, the time has come where it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in depression and hence he needs help rather than punishment."

9.5 The Supreme Court recommended to the parliament to consider the feasibility of deleting Section 309 from the Penal Code. If Parliament in its wisdom gives effect to this recommendation, the case for legalizing euthanasia, even active euthanasia, would logically get strengthened. There would then be no Section in any penal statute to regard it as a crime. However, we need not go thus far in the case of passive euthanasia. It is not a crime and there is no constitutional taboo. Rational and humane considerations fully justify the endorsement of passive euthanasia.

Moral or philosophical notions and attitude towards passive euthanasia may vary but it can be safely said that the preponderance of view is that such considerations do not come in the way of relieving the dying man of his intractable suffering, lingering pain, anguish and misery.

The principle of sanctity to human life which is an integral part of Art. 21, the right to self determination on a matter of life and death which is also an offshoot of Art. 21, the right to privacy which is another facet of Art. 21 and incidentally the duty of doctor in critical situation.- all these considerations which may seem to clash with each other if a disintegrated view of Art.21 is take.- do arise. A fair balance has to be struck and a holistic approach has to be taken.

That is what has been done by the Law Commission of India in its 196th Report and the Supreme Court of India in the very recent case of Aruna Shanbaug. The landmark decision of House of Lords in Airedale's case has charted out the course to recognize and legalise passive euthanasia even in the case of incompetent patient. In Airdale, as seen earlier, the principle of best interests of the patient was pressed into service to uphold passive euthanasia in relation to incompetent patients and this in turn opened the doors for judicial determination for granting approval.

"The best interest calculus generally involves an open-ended consideration of factors relating to the treatment decision, including the patient's current condition, degree of pain, loss of dignity, prognosis, and the risks, side effects, and benefits of each treatment."Development in La.- Medical Technology and the Law (1993) 103 HLR 1519 at 1651-25.

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