Anoushka Singh (2017 009)
MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMABI
RIGHT TO DIE:
JURISPRUDENTIAL ANALYSIS OF
EUTHANASIA
Semester Project Towards Fulfilment of the Assessment in the Subject of Jurisprudence
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Jurisprudential Analysis of Euthanasia in India, Essays (university) of Law
Using John Finnis and Natural Law School
Typology: Essays (university)
2018/2019
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Anoushka Singh (2017 009)
MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMABI
RIGHT TO DIE:
JURISPRUDENTIAL ANALYSIS OF
EUTHANASIA
Semester Project Towards Fulfilment of the Assessment in the Subject of Jurisprudence
ABSTRACT
On March 8 , 201 8 , the Supreme Court of India delivered a progressive judgement with far- reaching implications for euthanasia in India. The over 500-page judgement of ‘Common Cause (A Regd. Society) v. Union of India’ carries the reader on the journey of the Indian judiciary deliberating in the battle of morality against mortality, and dignity against death. It includes a careful analysis of the Right to Life under Article 21 of the Constitution of India and what it means to live with dignity, before opining that passive euthanasia can be practiced legally in India. Passive euthanasia is the withdrawal of artificial medical support while active euthanasia is essentially physician- assisted suicide. Currently, debates on whether to legalise or criminalise euthanasia are ongoing across the world. This paper looks at the prevailing legal philosophies surrounding the recent legalisation of passive euthanasia in India and takes it one step further into identifying the jurisprudential aspects concerning active euthanasia. It offers views of John Finnis and Lon Fuller, from the Natural School of Law, with the aim of seeking answers to dilemmas that question the sanctity of life, the extent to which we can stretch the ambit of ‘life’ under Article 21, and whether it is justified to medically assist a miserable, critically ill patient in taking their own life. Keywords: Article 21, Constitution, Euthanasia, Jurisprudence
yourself, in the Indian Penal Code be considered unconstitutional after the recent Common Cause judgement, since laws authorising people to refuse treatment are simply laws for authorising suicide. Lon L. Fuller, another Natural Law School thinker gave two purposes of a legal system: the first being the substantive purpose of a legal system, and the second being the processual arrangements. Taking the latter into consideration, Fuller talks about the importance of a procedural standard when making a law. If these standards are not present, it becomes easier for the State to make arbitrary decisions and suppress and individual’s rights. The worst-case scenario in this case could be that the State mandates euthanasia for people it considers to be non- productive like people with disease or elderly people. In a similar fashion, Finnis too talks about practical reasonableness as a part of his seven basic goods, which includes making choices based on rational thinking. A person at the time of sickness cannot be said to be making rational choices which would dictate his own survival. Giving a person the option to end their own life when they are not in a good place simply encourages arbitrary decision making as the person cannot foresee when life will turn around for them. In addition, there is no rational basis for considering human dignity; for instance, how does one look at the reason to live in a terminally ill patient and a mentally ill patient? Further, doctors given the easy option of euthanasia would be disincentivised to present alternatives, especially if the treatment required intensive efforts by health care professionals. The second argument, is that, the proponents for euthanasia fail to consider the casualties to legalised physician assisted suicides. Our lives are often in the hands of doctors; if euthanasia was legalised, the only thing preventing doctors from taking decisions based on made up excuses of terminal disease (on let’s say the insistence of a crooked partner to get insurance money or inheritance) is a code of ethics. However, precedent shows that we simply cannot rely on just this. In Netherlands, where voluntary euthanasia was made legal in 1984, the guidelines provided that the procedure must only be performed at the explicit request of a person. However, within five years most of them were performed without explicit request. And although reporting was required by the guidelines and non- reporting is a crime, 84% were non- reported.^3 And this is in a western, supposedly law-abiding country. In a place like India, where crimes related to medicine are already prevalent, where money hungry doctors will perform unnecessary surgeries or tests on a patient to (^3) Keown, JOHN EUTHANASIA IN THE NETHERLANDS: SLIDING DOWN THE SLIPPERY SLOPE?, in EUTHANASIA EXAMINED: ETHICAL, CLINICAL AND LEGAL PERSPECTIVES pp.260-270 (John Keown ed., 1995)
get more money, or where quacks will perform unauthorised operations for the purposes of organ trafficking, the judgement delivered in the Common Cause case only opens up new avenues for people to commit crimes. Euthanasia, in this view is regarded as an exception to the law of homicide, more specifically, the law of murder. It is believed that doctors, by omitting to give life support to a terminally ill patient were being kind and humane by reducing the patient’s prolonged suffering. However, death by omission is also a way of committing murder. Killing a person by starving him is murder. One can see no difference between euthanasia and murder when one pits the former example against a situation where a doctor does not give diabetic medicine to a someone to inherit their fortune. The intent is present in both circumstances, and so is the foreseeable outcomes. In the cases of passive euthanasia done for the noblest of reasons, the doctor is certain and has the knowledge that the person concerned is going to die. Therefore, the separation of euthanasia and murder relies on an extremely utopian ideal of medicine ethics. If euthanasia were legalised, the right not to be killed would be catastrophically compromised and in worst cases, nullified. The third and final argument is that the legalisation of euthanasia rests on an inadmissible concept of human life and dignity. Finnis, in his article compares a person’s choice of taking euthanasia to a person’s choice to opt for euthanasia with a person’s choice to sell themselves into slavery. No matter the reasons behind their respective choices, both these choices are morally incorrect for the society to support. Morality is an important concept of Finnis, according to whom morality dictates laws in a society, or laws are a reflection of a society’s morals. If an act is morally incorrect, like murder or theft, the laws made will be aimed at dissuading people from committing the act. The comparison between euthanasia and slavery discussed earlier makes it easier to associate euthanasia with immorality, and hence, legalisation of euthanasia will not be a valid law as it encourages immorality in society. In conclusion, one must disassociate oneself from the confusion, most indulged by the advocates of euthanasia, between being in an undignified position, and lacking human dignity. The mere fact that one cannot effectively define dignity makes laws based on the concept, arbitrary and coloured by subjective interpretation. It also leaves considerable space for a distinction between a life ‘worth living’ and ‘not worth living’, which is a classification of the most sinister kind, based on a new structure of inequality which validates and even promotes death if a life is considered to be supposedly not worth living.