Concept of Euthanasia

The word “Euthanasia” comes from a Greek word “Euthanatos” [Eu i.e. Good+ Thanatos
i.e. Death] which means Easy Death.1
Euthanasia also known as “Mercy Killing” is the painless killing of the person suffering from
prolonged and incurable disease.
The word "euthanasia" was first used in a medical context by “Francis Bacon” in the 17th
century, to refer to an easy, painless, happy death, during which it was a physician's
responsibility to alleviate the 'physical sufferings' of the body.2
There are five types of euthanasia- Active Euthanasia, Passive Euthanasia, Voluntary
Euthanasia, Involuntary Euthanasia and Assisted Suicide.

Active Euthanasia
Active euthanasia means that the patient’s death has been caused directly and deliberately.
Active euthanasia is when death is brought by an act- for example when a person is killed by
giving an overdose of painkillers.

Passive Euthanasia
Passive Euthanasia is when death has been caused by an omission- i.e. when someone lets the
person die. This can be done by withdrawing the life support system on which a person is
surviving so that they die of their disease. Passive Euthanasia can also be done by
withholding of medical treatment for continuance of life e.g. withholding of antibiotics,
where without giving it, a patient is likely to die, or removing the heart lung machine, from a
patient in coma. The deliberate omission of life lengthening act is called Passive Euthanasia.
It involves not doing something to prevent death as when doctor refrain from using device
necessary to keep alive a terminally ill patient or a patient in a persistent vegetative state.
(PVS)

Voluntary Euthanasia
Voluntary Euthanasia is done at the request of the person who is suffering from an incurable
disease. Voluntary Euthanasia occurs with the consent of the person who dies. If the person
suffering from a prolonged disease wants to choose death over life full of sufferings and pain,
then only Euthanasia can be done. in the case of Voluntary Euthanasia, it is to be seen that the
consent to be given should be free from all sense of coercion, that is, the choice of Euthanasia
was an instance of unconstrained self-determination.

1
https://www.merriam-webster.com/dictionary/euthanasia Last visited 25/10/2018 at 2.48AM
2
https://en.wikipedia.org/wiki/Euthanasia last visited 25/10/2018 at 3.00 AM
Involuntary Euthanasia
Involuntary Euthanasia is generally done when a person is unable to make a choice between
living and dying then some other person on his behalf takes that decision. Suppose when a
person is in irreversible coma and cannot take that decision then some other person takes the
decision of Euthanasia on his behalf.

Assisted Suicide
Assisted suicide is the voluntary termination of one’s own life by the administration of a
lethal drug with the assistance of a physician. This kind of Euthanasia is also called
“Physician Assisted Suicide”.3

3
http://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml Last visited 26/10/18
Constitutionality of Euthanasia in India

Right to Life- A Fundamental right under Indian Constitution

In India, the sanctity of life has been placed on the highest pedestal.4 The right to life under
Article 21 of the Indian Constitution has received the widest possible interpretation by the
courts in India.
Article 21 of Indian Constitution provides- “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”5
The Right to life has been expressly mentioned in the Article 21 of Indian Constitution but
with the evolution of time and by the expanding horizons of Article 21, the question
emerged that whether Right to life also includes Right to Die?
The Answer to the question that whether Right to Life also includes Right to die can be
traced back with the chain of judicial pronouncements in India.

Attempt to Commit Suicide- An Offence in India

Section 309 of Indian penal code, 1860 provides that- 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.6
This provision of Indian Penal code has been challenged time and again before the courts in
India. This provision was challenged for the very first time before the Bombay High Court in
State of Maharashtra V. M.S. Dubal7. The Issue before the Court was that whether right to
die is included in Article 21 of the Constitution. The Court held that the right to life
includes the right to die. Consequently, the Court struck down section 309 of IPC, which
provides punishment for the attempt to commit suicide as unconstitutional. The judges
observed that the desire to die is not unnatural, but merely abnormal and uncommon.

Right to Die/ Right not to Die

The question of constitutionality of “Right to Die” once again came up before the Division
bench in P. Rathinam vs. Union of India8. The bench upheld the decision of State of
Maharashtra V. M.S. Dubal. The Court held in this case that Section 309, IPC is a cruel and

4
Concept of Euthanasia in India- A Socio Legal Analysis, International Journal of Law and Legal Jurisprudence
Studies: ISSN:2348-8212 Volume 2 Issue 3
5
Article 21- Right to life and personal liberty, Constitution of India 1950
6
Section 309, Indian Penal Code, 1860
7
AIR 1977 SC 411
8
AIR 1994 SC 1844
irrational provision and it should be effaced from the Statute.9 Therefore section 309, IPC
was held unconstitutional.
However, in the case of Gian Kaur vs. State of Punjab10 a five- Judge Constitution Bench
of the Court Overruled P. Rathinam’s case and held that right to life under Article 21 of the
Indian Constitution does not include the right to die or the right to be killed. The court
in this case held that Right to Life is a natural right and Suicide is inconsistent with the
concept of life because it is an unnatural termination of life. It was held that Article 21 of the
Constitution which gives right to life and personal liberty, by no stretch of imagination can be
said to impliedly include Right to death by committing suicide. The court while discussing
about Euthanasia in this case observed that the desirability of legalising Euthanasia is the
function of legislature by enacting proper law. The court did not pay much heed towards
Euthanasia in this case and deliberately kept silence on this issue. However, Court referred to
the 42nd Report of the Law Commission where the commission was of the view that Section
309 of IPC was “harsh and unjustifiable and should be repealed”11

9
P. Rathinam vs. Union of India AIR 1994 SC 1844
10
AIR 1994 SC 946
11
42nd Report [1971] of the Law Commission
Euthanasia-Changing Constitutional Paradigm
The question of legalizing and recognizing Euthanasia in India was a big debate till the
Supreme Court sanctioned “Passive Euthanasia” or withdrawal of life support systems
on patients who are in a permanent vegetative state(PVS) in the case of Aruna
Ramchandra Shanbaug vs. Union of India.12
Aruna Shanbaug was a former nurse working as a junior nurse at King Edward Memorial
Hospital, Mumbai in the year 1973. she was sexually assaulted by a ward boy and has been in
a vegetative state since the assault. On 24 January 2011, after she had been in this state for 37
years, the Supreme Court of India responded to the plea for Euthanasia filed by Aruna’s
journalist friend, Pinki Virani. The Court turned down the mercy killing petition. However, in
its landmark judgment, it allowed passive Euthanasia in India.13
The court also distinguished between “Active Euthanasia” and “Passive Euthanasia” and
observed the difference between “active” and “passive” euthanasia is that in Active
Euthanasia, something is done to end the patient’s life while in Passive Euthanasia,
something is not done that would have preserved the patient’s life.
While allowing “Passive Euthanasia”, the court also laid down some guidelines which should
be followed in every case to prevent the misuse of Euthanasia. The guidelines are as follows:
1. The decision to withdraw the life support system is to be taken only by the parents,
spouse or some other very close relative or in the absence of the above any person
acting as a next friend of victim can take such decision.
2. The decision even after taken by the relatives must be presented before the concerned
High Court.
3. The Court also prescribed the procedure to be adopted by the High Court when such
an application is filed. The High Court will constitute the bench of two sitting high
court judges and the bench will consult three expert and reputed doctors on the matter
and then only it will take a decision.
If the above process is not followed in any case, then such Passive Euthanasia will be illegal
and will be considered as an Offence.
Although, the Supreme Court dismissed the petition of Euthanasia and did not allow
Euthanasia in the present case because of the noble spirit, outstanding and unprecedented
dedication of Hospital staff in taking care of Aruna, but it cleared the way for many suffering
who want to die with dignity.14

12
(2011) 4 SCC 454
13
Ibid
14
Dr. Bhatia, Alka, “Law Relating to Euthanasia After Aruna Shanbaug’s verdict and need to legalize Euthanasia
by an appropriate legislation”, NYAYA DEEP, VOL. XIII, issue 2 & 3, April & July 2012.
Right to die with Dignity: Common Cause vs. Union of India
On 9th March 2018 a five- judge bench of the Supreme Court in the case of Common cause
[A registered society] vs. Union of India15 recognized and gave sanction to passive
euthanasia and living will/ advance directive.
In 2005, Common Cause knocked the doors of Supreme Court under Article 32 of the
Constitution with an objective to declare “Right to die with dignity” as a fundamental right
under Article 21. It also prayed before the court to allow terminally ill patients to execute
‘living wills’ for passive euthanasia.

Living will/ Advance Directive

Living will/ Advance Directive is a written document that allows a patient to give explicit
instructions in advance about the medical treatment to be administered when he or she is
terminally ill.16 By making a “Living will”, a person can authorise his family members to
make him undergo passive euthanasia i.e. to withdraw the life support system if that person
will ever go in a vegetative state.
The issues before the Court in this case were:
1. Whether passive euthanasia should be allowed or not?
2. Whether a person can make a living will?
The court held that a person has the right to life. Therefore, he also has a right to die with
dignity and it is a part of right to life. If a person is kept alive only because of advanced
medical facilities, then he does have a right to end his life by removing those facilities. It was
held that that when the state cannot guarantee in totality the right to health then how can it
deny the right to die with dignity. Life care facilities in such cases are unnecessarily kept
engaged wherein the other patients may need such facilities. If a person is unwilling, then a
prolonged existence due to medical intervention is against human dignity.
With regard to the second issue, the court held that a person of sound mind and health can
make a Living will that if for some reason he gets into a persistent and incurable vegetative
state[PVS] then he shall not be kept alive with support of medical facilities or he can even
authorise a relative or friend to decide the same in consultation with a doctor.
The court also observed that a person has “Right to self- determination and Individual
Autonomy”.17
It is a right against interference of others which gives a competent person who has come of
age to take decisions regarding his or her life and body without any interference of others. In
medical terms, it means that a person has a right to choose whether and to what extent he/she
is willing to submit himself/herself to the medical treatments or for that matter whether
he/she does not want any medical treatment at all. Therefore, it is a right to self-

15
Common Cause [ A registered society] vs. Union of India (9th March 2018) SC
16
https://www.livelaw.in/breaking-right-die-dignity-fundamental-right-sc-allows-passive-euthanasia-living-
will-issues-guidelines/last visited 27/10/18
17
Common cause vs. Union of India, judgement dated 9th March 2018
determination that the choice of a patient who is of sound mind must be respected if he
consents for no treatment and does not want to live in a persistent vegetative state.
Therefore, the court held that the right to live with dignity also includes the smoothening of
the process of dying in case of a terminally ill patient or a person in Persistent vegetative state
with no hope of recovery.18

18
Common cause vs. Union of India [9th march, 2018]
Constitutionality of Assisted Suicide in United States
Euthanasia in the form of Passive Euthanasia which is legal in India has been considered
illegal in the United States. “Assisted Suicide” has been made legal in the United States.
Assisted Suicide is a practice in which a terminally ill adult with less than six months to live
may request a lethal dose of drugs from her or his doctor for self-administration to bring
about death if he or she feels that the dying process has become unbearable.19 In other words,
it is a form of euthanasia (good death) where a physician provides the means (such as a lethal
drug prescription) for a patient to end his/her own life.20
Physician-assisted suicide is legal in United States but only in seven states and the District of
Columbia. The person opting for Physician- assisted Suicide must have a terminal illness as
well as a prognosis of six months or less to live. In these states, Physicians cannot be
prosecuted for prescribing medications to hasten death.
The states of USA which allows for physician assisted suicide are:
1. Oregon
2. Washington
3. Montana
4. Vermont
5. California
6. Colorado
7. Hawaii
These states have passed their own laws for legalising Physician Assisted Suicide. Some of
them have made separate Acts legalising Physician Assisted suicide and some of them
legalised it after a court’s ruling in a case.
Among these seven states of United States, Oregon was the first state which legalised
Physician Assisted Suicide in USA.

19
https://en.wikipedia.org/wiki/Assisted_death_in_the_United_States, last visited 28/10/2018
20
Article on Physician- Assisted Suicide: Why physician should oppose it by Joseph E marine, division of
cardiology
Oregon: Death with Dignity Act
The first state to legalize assisted suicide was Oregon in 1994 with the approval of the
“Death with Dignity Act” 
This Act allows competent (able to consciously express their will) adults (from the age of
18), residents in Oregon, with terminal illnesses and life expectancy of less than six months,
to receive medications in lethal doses, through voluntary self-administration, expressly
prescribed by a doctor for this purpose. According to the Act, the self-administration of these
lethal drugs is not considered suicide, but death with dignity.21
Under this Act, a person who is a resident of Oregon state is willing and wishes to die
because he/she is suffering from a terminal disease, can opt for death in a humane and
dignified manner.
The patient who is opting for death under this Act must fulfil some conditions which are as
follows:
 18 years of age or older
 Resident of Oregon
 Capable of making and communicating health care decisions for themselves
 Diagnosed with a terminal illness that will lead to death within six months
In Oregon, a physician must also be willing to participate in the act.22

Washington
In 2009, The Washington government also approved the Death with Dignity Act which was
identical to the law passed by the state of Oregon and provide that:
A person who is an adult and is living in the state of Washington, suffering from a permanent
disease, if he voluntarily wishes to die may require self-administration of lethal drug
prescribed by the doctor. However, that patient must have less than 6 months life
expectancy.23

21
Death with Dignity Act,1994
22
https://edition.cnn.com/2014/11/26/us/physician-assisted-suicide-fast-facts/index.html last visited
2/11/2018
23
DC Act 21-577, Death with Dignity Act
Montana: Baxter vs. Montana
In the state of Montana, The Assisted Suicide has been legalised in a case of Baxter vs.
Montana.
In this case, the plaintiffs (four Montana physicians, Compassion and Choices, and Robert
Baxter, a 76-year-old truck driver dying of lymphocytic leukaemia) asked the court to
establish a constitutional right "to receive and provide aid in dying."
Judge Dorothy McCarter ruled that a terminally ill, competent patient has a legal right
to die with dignity under Article II, Sections 4 and 10 of the Montana Constitution
which includes a right to "use the assistance of his physician to obtain a prescription for a
lethal dose of medication that the patient may take on his own if and when he decides to
terminate his life.
It further held that the patient's right to die with dignity includes protection of that patient's
physician from liability under the State's homicide statutes24
The Court in this case also held that "we find no indication in Montana law that physician aid
in dying provided to terminally ill, mentally competent adult patients is against public policy"
and therefore, the physician who assists is shielded from criminal liability by the patient’s
consent.
The state of Montana does not have a proper legislation in this regard therefore Law of
assisted suicide is not as regulated as they are in other states.

24
Baxter vs. Montana, decided on December 5, 2008
Vermont
In the state of Vermont, an Act relating to patients right and control at end of life was
passed on 20th may, 2013 to legalise assisted suicide.
Under this Act, a physician shall not be subject to any civil or criminal liability or
professional disciplinary action if the physician prescribes to a patient with a terminal
condition medication to be self-administered for the purpose of hastening the patient's death.
This Act also provides that a patient with a terminal condition who self-administers a lethal
dose of medication shall not be considered to be a person exposed to grave physical harm.25
In the State of Vermont, a person who wishes to end her/his life through assisted suicide must
fulfil an eligibility criterion which are as follows:

 18 years of age or older

 Resident of Vermont
 Capable of making and communicating health care decisions for themselves.
 Diagnosed with a terminal illness that will lead to death within six months.

25
Act No. 39. An Act Relating to Patient Choice and Control at End of Life
Colorado: “End of Life options Act”
In 2016, Colorado government legalised assisted suicide by passing “End of life options
Act”.
This Act allows an eligible terminally ill individual with a prognosis of six months or less to
live to request and self-administer medical aid-in-dying medication in order to voluntarily
end his or her life.
This Act also authorizes a physician to prescribe medical aid-in-dying medication to a
terminally ill individual under certain conditions and creates criminal penalties for tampering
with a person's request for medical aid-in-dying medication or knowingly coercing a person
with a terminal illness to request the medication.26
In Colorado, an adult resident of the state may make a request, in accordance with sections
25, 48, 102 and 112 to receive a medical aid for dying. However, like other states, this states
also prohibit involuntary assisted suicide. The patient must voluntarily consent for Assisted-
suicide.

California
Till 2016, there was no law in California which legalises Assisted Suicide.
Brittany Maynard, a resident of California suffering from terminal brain cancer ends her life
under Oregon's "Death with Dignity Act." She had moved to Oregon 2014 in order to take
advantage of the Death with Dignity law because there was no such law in her native state
California. She garnered a large following advocating for physician-assisted suicide laws
social media.27
Therefore, Californian government passed a law “End of life option Act” in 2016.
Under this Act, A person suffering from terminal illness having less than 6 months life
expectancy can opt for ending his/her life through the means of assisted suicide.
However, California's Riverside County Superior Court Judge Daniel Ottolia overturns the
2016 state law that allows doctors to prescribe lethal drugs to terminally ill adult patients. The
judgment ending physician-assisted suicide is stayed in appeals court, making it legal in
California again, pending further litigation.28

26
Proposition 106, End of Life options Act, 2016
27
http://edition.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/index.html last visited
2/11/2018
28
https://edition.cnn.com/2014/11/26/us/physician-assisted-suicide-fast-facts/index.html
Hawaii
The government of Hawaii passed a law “Hawaii our care, our choice Act” in 2018 and it is
yet to take effect. It will be in effect from 1st January 2019.
This Act provides that an adult resident of the State who is terminally ill can determine their
own medical treatment as they near the end of life and should have right to choose to avoid
an unnecessarily prolonged life of pain and suffering. The choice elected by an individual
must be fully informed, including about options for care that are presented and discussed with
health care providers in a values-neutral manner.
The purpose of this Act is to allow qualified patients in this State with a medically confirmed
terminal illness with less than six months to live and possessing decisional capacity to
determine their own medical care at the end of their lives.29

29
HB 2739, Hawaii our care our choice Act