CHAPTER II

CONCEPT OF EUTHANASIA AND ITS VARIOUS FORMS VIS-À-

VIS STATE’S DUTY TO PROTECT LIFE : AN ANALYSIS

2.1 INTRODUCTION:

The first segment of this chapter incorporates the classification of

euthanasia. The word euthanasia triggers a spate of controversy
worldwide as there are different forms of practicing euthanasia, those are,
voluntary euthanasia, involuntary euthanasia, passive and active
euthanasia. Apart from the various types of euthanasia the refusal for
medical treatment which ultimately reaches the patient to the same goal is
also discussed. The second segment gives a comparative analysis of
euthanasia, suicide and physician assisted suicide. This analysis is
supported by the right to autonomy of individuals and the doctrine of
informed consent. The third segment elaborates the judicial approach in
relevant cases of mercy killing and euthanasia. The last segment
highlights the importance of maintaining a balance between the
individual rights and the State’s interest and duty to protect life.

2. 1.1 EUTHANASIA AND ITS VARIOUS FORMS:

The word euthanasia originated from the Greek language means a

peaceful death. It also means the intentional termination of life at the
explicit request of the person who dies. However, euthanasia includes
different forms in practice which can be broadly categorized as follows:

2.1.2 VOLUNTARY EUTHANASIA:

In voluntary euthanasia death is caused by the direct action done by a

person in response to a request from the patient. Voluntary euthanasia

59
means, the intentional administration of lethal drugs in order to terminate
painlessly the life of a patient suffering from an incurable condition
deemed unbearable by the patient at the patient’s request.1 The major
thrust of those concerned to legalise the termination of life on medical
grounds has always been concentrated on the basis of voluntary
euthanasia. The request for voluntary euthanasia must be made by
whoever is the subject to intolerable or intractable pain or is suffering
from terminal illness. Such a request has to be voluntary without any
coercion from the family member or from those looking after the patient.

The main argument in support of legalization of active voluntary

euthanasia is based on the principle of self-determination and right to
self-autonomy. According to these two principles each human being has
value and is worthy of respect, he has his basic rights, and freedom
including the final decision making capacity. The proponents argue that
as an individual has the decision making capacity, he has the right to
decide how and when he shall die. It is also alleged that the legal
prohibition on voluntary euthanasia is invasion of their liberty and
infringement of their basic freedom. It has been contented that to deny
voluntary euthanasia is a form of absolute tyranny. To repudiate an
attempt to control the life of a person, who has his or her own
autonomous view about how his life should end, constitutes an ultimate
denial of respect for the persons.2

The line for reasoning for the legalization of voluntary euthanasia is

based on pure utilitarian principle, that every individual has right to gain

1
Joris, Gielen, et.al., “Religion and Nursing attitudes to Euthanasia and Physician Assisted Suicide”
Nursing Ethics, vol.16, Iss. 3, May 2009, p. 304. http://www.porquest.umi.com/pqdweb, [accessed
on 18/8/2009].
2
Harris, J., “Euthanasia and the value of life” in Keown, J., (ed.), Euthanasia Examined 6, U.K:
Cambridge University Press, 1995.

60
more pleasure and avoid the pain. The doctor treating the patient has to
strike the balance of the pleasure over pain. Accordingly letting the
patient die peacefully would produce the greatest good for the greatest
number. At the same time the opponents of voluntary euthanasia argue
that if the patient’s autonomy is protected what about the autonomy of
others? Can the patient’s right to self-determination be translated into an
enforceable legal right to demand assistance to die? The proponents have
another strong argument, which is a cornerstone for the legalization of
active voluntary euthanasia- to prevent cruelty by alleviating the
unbearable pain. It is argued that to keep a human being suffering with
pain amounts to cruelty. And thus on grounds of mercy the patient must
be released from his prolonged suffering. The opponents undermine the
arguments as cruelty and mercy can be interpreted in any manner,
resulting in misuse of these terms, and leading to increase the number of
deaths by voluntary euthanasia. The promotion of human dignity is also a
part of the proponent’s arguments. The importance of human dignity has
been discussed in the first chapter. Human dignity is closely related to the
principle of self-determination. Proponents argue that the notion of
human dignity demands that individuals have control over significant life
decisions, including the choice to die, and that this control is
acknowledged and respected by others.3 This argument is well
encapsulated by Fletcher, he has stated that “to prolong life uselessly,
while the personal qualities of freedom, knowledge, self-possession and
control and responsibility are sacrificed, is to attack the moral status of
the person”.4

3
Otlowski, Margaret, Voluntary Euthanasia and the Common Law 204, New York: Oxford
University Press, 1997.
4
Ibid.

61
 The proponents advance their argument on grounds of morality. As
opined by Professor Dworkin human life is sacred and thus human
dignity of individuals needs to be respected. It is a moral duty of
everyone to respect each individual. Allowing or aiding a terminally ill
patient to die is morally right but legally wrong. Every act which is
morally permissible may be legally impermissible. The proponents also
argue on the basis of growing public demand for voluntary euthanasia.

Opinion polls conducted in different countries show the increase in

percentage of people in favour of euthanasia. However involuntary
euthanasia is not equally favoured either by the public or by the medical
professionals. As involuntary euthanasia involves more risk of abuse, it
stands at an inferior position as compared to voluntary euthanasia. But at
the same time, the necessity of allowing involuntary euthanasia cannot be
overlooked. The cases of patients collapsing in coma or PVS for a
terminal period put forth the urgency to discuss involuntary euthanasia.

2.1.3 INVOLUNTARY EUTHANASIA:

Involuntary euthanasia is completely a different concept, wherein the

patient is not in a condition to explicitly request for assistance in dying or
to permanently relieve himself from the intolerable pain. An act of
involuntary euthanasia involves ending the patient’s life without a
personal request. The motive in both voluntary and involuntary
euthanasia is the same- the release from suffering, but what differs is the
request to die or the decision to end the life. This is applicable for the
patients who are in a PVS, the state in which the patient becomes a
complete vegetable, looses all his physical and mental functions but is
biologically alive. In such state there is no hope of recovery or even
probably the person may never recover his consciousness.

62
 Self-autonomy and right to self-determination are the strongest
arguments for proponents of voluntary euthanasia. Can the same
argument advocate involuntary euthanasia? Euthanasia might be
extended on a utilitarian account even to persons who do not consent to it,
as theory of utility promotes overall social welfare. Only on grounds of
incapability of the patient to give consent, the question whether to permit
euthanasia cannot be easily dismissed.5 The American euthanasia
movement has long made all sorts of utilitarian arguments for involuntary
euthanasia, arguing that the “practice is justified by, say, the social
benefit of having to care for fewer “defective” persons… even recent
liberal advocates of autonomy-based right to [physician] assisted suicide
have sometimes argued for involuntary euthanasia on grounds of social
costs and utility.”6 The US Supreme Court gave hints of utilitarian
thinking in Glucksberg7 and Quill8. The major worry involved in
involuntary euthanasia is whether such a practice will bring more harm
than social benefits.

One fact of assisting a person to die whether voluntarily or

involuntarily, cannot be denied that legalizing physician assisted suicide
and euthanasia for those suffering with intolerable pain or are in a
terminal illness would gain tangible benefits. Persons in persistent
vegetative state, or quadruple injuries, who want to die but are unable to
do so, they would be able to do it with the assistance of a doctor.

A few cases of voluntary and involuntary euthanasia are discussed to

understand the legal effect of the doctor’s action. In R. v. Adams,9 Dr.

5
On one hand disclaining utilitarian-based arguments for legalization of euthanasia while on the
other endorsing autonomy-based arguments, see, supra note 3.
6
Gorsuch, Neil, M., The Future of Assisted Suicide and Euthanasia 102, New Jersey: Princeton
University Press, 2006.
7
Washington v. Glucksberg, 521 U.S. 702 (1997).
8
Vacca v.Quill, 138 L.Ed.2 d 834.
9
H Palmer ‘Dr Adams’ Trial for Murder’ (1957) Cri. L.R. 365.

63
Adams treated a patient who was suffering from incurable disease but not
terminally ill, with increasing doses of opiates. Followed by the death of
the patient, he was tried for murder and was acquitted. It was held by
Justice Devlin that “[t]he doctor is entitled to relieve pain and suffering
even if the measures he takes may incidentally shorten life”.10 Later in R.
v. Carr,11 a doctor was accused of attempted murder by injecting a
massive dose of phenobarbitone into a patient whose lung cancer had
been declared inoperable some seven months previously the doctor was
acquitted of the charge.12

Similar to the above two judgments, the sympathetic attitude of

the courts in United Kingdom was deeply entrenched and confirmed in
Dr. Moor’s case.13 This general practitioner, who admitted in the course
of public debate to having used painkillers to bring about the easy death
of patient, was charged with murder of terminally ill patient into whom
he was alleged to have injected a lethal dose of diamorphine. The jury
responded by acquitting Dr. Moor within an hour, by saying, “You may
consider it a great irony that a doctor who goes out of his way to care for
(the deceased) ends up facing the charge that he does”.14

However, in Dr. Cox15 and Dr. Shipman,16 the doctors were convicted of
attempted murder for giving medicine to hasten death. At the outset, in
Dr. Cox’s case, while summing up, Justice Ognall said, “If he injected her

10
Ibid.
11
Unreported , The Sunday Times, 30 November 1986, p. 1.
12
Mason, Smith, Lawice, Law and Medical Ethics 530, U.K: Butterworths, 2002.
13
Ibid. See, Dyer, C., “British GP declared of murder charge”, BM J, vol. 318, 1999, p. 1306.
14
Ibid.
15
(1992) 12 BMLR 38.
16
Kinnell, H. G., “Serial Homicide by Doctors: Shipman in Perspective” BMJ, vol. 321, 2000, p.
1594.

64
[patient] with potassium chloride with the primary purpose of killing her,
of hastening her death, he is guilty of the offence charged”.17

The best known example for active voluntary euthanasia is, Dr. Jack
Kevorkian,18 a Michigan physician, who had personally designed a
suicide machine. This machine was equipped to inject a lethal dose to a
person who wanted a quick, painless exit from life. Dr. Kevorkian was
found guilty of causing 1st and 2nd degree murder in 1999.19

Apart from voluntary and involuntary euthanasia, the most common

type of euthanasia practiced all over the world is the passive euthanasia.

There is no specific legislation allowing passive euthanasia but it is

practically followed by medical professionals in the best interest of the
patient. Let us find out how this differs from the two types of euthanasia
dealt with above.

2.1.4 PASSIVE EUTHANASIA:

Hastening the death of a person by altering some form of support and

letting nature take its course is passive euthanasia. For e.g., “removing
the life support equipment [turning off the respirator, removal of
ventilator] stopping medical procedures, medications, removal of feeding
tube, stopping food and water, allowing the patient to dehydrate”.20 These
examples are not unknown to common man, when the patient is declared
critical with no chance of recovery, a number of families request the
doctor to discharge the patient. The doctor on request of the family
member discharges the patient and the patient dies in a day or two.

17
Mason, J. K., et. al., Law and Medical Ethics 531,543, 6th edn., U.K: Butterworths, 2002.
18
People v. Kevorkian, 527 N.W 2d 714, 728,29 (Mich. 1994).
19
Basant, T., “Euthanasia- Why A Taboo?” in Menon, Anila, V., (ed.), Right to Life and Right to
Death 108, 1st edn., Hyderabad: The Icfai University Press, 2007.
20
Practiced by doctors in case of hopeless terminally ill patients and may bring about the death of the
patient.

65
 Another common example is placing a critically ill patient on a
ventilator. If, in such a case, there is no hope of recovery and the doctor
switches the ventilator off, could he not be said to have acted to bring
about the patients death? Can this be termed as an omission rather than an
act? This is the normal practice in India. Is any doctor held liable for
passive euthanasia in India? The answer is no, there are many reasons to
this issue. The patient’s family may not be financially in a position to
keep him alive on a ventilator or any other medical aid which is
prolonging his death. There is no such reported case in any High Court
across India or even in the Apex Court.

Another common example is over dose of morphine, which is

normally given to control pain, the over dose may suppress respiration
and cause death.

Nancy Cruzan’s21 case is an example of ‘passive euthanasia’-

allowing someone to die by disconnecting life-support equipment. The
US Supreme Court allowed the removal of the feeding tube not with an
intention to kill her but to allow her to die a natural death.22

In Bland’s23 case Lord Goff’s opined that why is it that the doctor who
gives the patient a lethal injection which kills him commits an unlawful
act and indeed is guilty of murder, whereas a doctor, who, by
discontinuing life support, allows his patient to die, may not act
unlawfully- and will not do so, if he commits no breach of duty to his
patient? Professor Glanville Williams has suggested that the reason is that
what the doctor does when he switches off a life support machine “is in
substance not an act but an omission to struggle”, and that “the omission

21
Cruzan v. Director, Missouri Department of Health 111 Led. 2d 224,225-156(1990).
22
Ibid.
23
Airedale NHS Trust v. Anthony Bland, (1993) 1 All ER 321 (HL) at 860.

66
is not a breach of duty by the doctor, because he is not obliged to
continue in a hopeless case.”24

Lord Goff in Bland endorsed Professor Williams’s view that a doctor

shall not be liable for the omission as it does not constitute any wrong.
Lord Browne- Wilkinson while expressing his opinion observed that, the
element of intention or mens rea plays a major role in the criminal law to
decide the guilty act. In Bland, it was beyond doubt that the doctor
discontinued artificial feeding to bring about the patient’s death.
However, the distinction between the commission of a positive act which
causes death and the omission to do an act in order to prevent death was
considered in the light of the criminal law. The doctor in Bland’s case
was under a duty to the deceased to do the act which the doctor omitted to
do, and such omission constituted the actus reus of homicide.25

Thus the question, when can a doctor be released from his duty to treat
the patient or when can a particular action of the doctor amounts to be an
omission, complicate passive euthanasia. The opposite form of passive
euthanasia is commonly known as the active euthanasia which is
considered as the most dangerous form of terminating life.

2.1.5 ACTIVE EUTHANASIA:

A. H. Clough, a Victorian poet, in one sentence describes passive and

active euthanasia. According to him, “[t]hou shall not kill, but need not
strive officiously to keep alive”26 i.e., no one shall intentionally kill a
person, at the same time no one shall be forced to be alive. The former
targets active euthanasia and the latter favours passive euthanasia.

24
Williams, Glanville, Textbook of Criminal Laws 282, 2nd edn., London: Stevens, 1983.
25
Supra note 23. See, R. v. Gibbins (1918) 13 Cri. App. R. 134, R. v. Stone [1977] QB 354.
26
Stauch, M., et. al., (ed.), Source Book on Medical Law 650, U.K: Canvendish Publishing Ltd.,
1998.

67
 Active euthanasia means a deliberate action to end the life of a dying
patient to avoid further suffering.27 It is always debated whether there is
any true distinction- such as- active and passive euthanasia. The
requirement of euthanasia is to accelerate the death or to terminate the
patient’s life- either actively or passively. The motive in such act is to
relieve the patient from his suffering for ever, but the intention remains
the same, to kill the patient. This is the reason why proponents have also
labelled euthanasia as ‘mercy killing’. Mercy killing is not legalized in
any country as it is recognised as an act equivalent to murder. The cases
where the near and dear ones care for the patient suffering due to a
incurable disease or is terminally ill, often do this act of mercy killing. It
is out of their love and devotion, the caretaker decides to release the
patient from misery.

As discussed earlier, the law, in holding to its ‘qualified sanctity of

life’ position draws a fundamental distinction between a positive act
which is intended to kill a person amounts to active euthanasia and an
omission to act which also is equally intentional, allows the patient to die,
amounts to passive euthanasia. The former is legally prohibited and the
latter is permissible in some form depending on the circumstances of the
case.

In Airedale NHS Trust v. Bland28, Lord Goff, while drawing such

differentiating line has stated that the law draws a crucial distinction
between cases in which a doctor decides not to provide, or to continue to
provide, for his patient treatment or care which could prolong his life, and
those in which he decides, for example, by administering a lethal drug,
actively to bring his patient’s life to an end. The former act may be
27
Humphry, Derek, Dying with Dignity Understanding Euthanasia 68, New York: Carol Publishing
Group, 1992.
28
Supra note 23.

68
considered lawful, either because the doctor intends to give effect to his
patient’s wishes by withholding the treatment or care, or even in certain
circumstances in which the patient is incapacitated from giving his
consent. However, it was not lawful for the doctor to administer a drug to
his patient to bring about his death, even though that course is prompted
by a humanitarian desire to end his suffering, even if the act of causing
death may avoid or end the patient’s suffering. It was held that under any
circumstances euthanasia was not lawful at common law.29

Later, in H. M. Advocate v. Brady30 a man smothered his brother who

was suffering from Huntington’s disease. He was found guilty of culpable
homicide and was admonished.31

At the beginning of this century in R. v Latimer,32 the Supreme Court

of Canada upheld the murder conviction of a father who had killed his
12-year-old daughter who suffered from a severe form of cerebral palsy.
The father invoked a defence of necessity, that the killing was a lesser of
the two evils. The Court rejecting this contention held that killing a
person- in order to relieve the suffering produced by a medically
manageable physical or mental condition-is not a proportionate response
to the harm represented by the non-life-threatening suffering resulting
from that condition.33

29
Ibid.
30
(1996 unreported) vol. 313, BMJ, 961.
31
Ibid.
32
(2001) 1 SCR 3.
33
Ibid.

69
 Earlier in R. v. Taylor,34 a man who battered his autistic child to death
was placed on probation for 12 months.35

A common factor in active and passive euthanasia is death of the

patient by providing assistance either actively by giving medicine or
passively by allowing the patient to die. The difference between active
and passive euthanasia is often less real than is generally assumed though
some persons strongly condemn the former and approve the latter.36 It
should be recognised that to refrain from or discontinue life-sustaining
measure requires a conscious decision and deliberate act of negative
kind.37 To argue that it should be acceptable in some cases to terminate
treatment but that any intentional hastening of death should be prohibited
and condemned seems difficult to justify on moral or compassionate
grounds, though under present law the latter is murder while the legal
status of the former is less clear.38

Recently the developments in palliative care39 and the hospice40

movement aimed to decrease the demand for medical assistance in dying.
However, it has been observed that despite these things the demand for
euthanasia has been increasing as the hospice or the palliative care is not
the practical solution for the public demand.

All the forms of euthanasia discussed above result in taking away the
life. Except a few countries any form of euthanasia is legally prohibited
world wide. At the same time one more concept which results in taking

34
(1976) CLY 570.
35
Ibid.
36
Russell, Ruth, O., Freedom to Die 21, Revised edn., New York: Human Sciences Press, 1977.
37
Ibid.
38
Ibid.
39
Hospice is a type of care which focuses on the palliation of terminally ill patients, infra, Chapter
III, p. 222 to p. 226
40
Palliative care is a therapy intended to relieve the pain of terminally ill patients until death occurs,
infra, Chapter IV, p. 227 to 232.

70
life- the right to refuse treatment is legally permitted as a liberty right. A
patient in terminal illness who refuses treatment will die and a patient in
terminal illness who requests euthanasia will also die, but the law allows
patient to refuse treatment and disallows to request for euthanasia.
Whereas the result of both the actions is exactly the same- a painless and
dignified death. On what ever justification law approves one action and
disapproves the other is not convincing to the researcher.

2.1.6 EUTHANASIA AND RIGHT TO REFUSE TREATMENT:

So far, the different forms of euthanasia have been discussed which

have some basis in moral theory and legal doctrine for distinguishing
between the intentional conduct and foreseen but unintended effects. We
have also discussed that assisted suicide and euthanasia both are acts
intended to help a person to die. But in certain cases the patients refuse
the life-sustaining treatments, in such situation do the physicians and
nurses help the patient? Can this be termed as intentionally helping to
kill? As per the researcher the answer needs to be in the negative. And
this fact draws a rational moral line between assisted suicide and
euthanasia and the right to refuse treatment.

As in the 21st century the modern medical technology is so advanced

that it may prolong death of a person for months and years, if kept alive
on a life support system. Every person wishes that the patient--- the
mother, father, daughter, son, brother, sister, or other loved ones- could
be alive forever. But at the same time, the treatment of life support
system becomes unfairly burdensome, and a request to remove the
machine is put forth. The reality of accepting death in its natural course
remains a fact. The decision to withdraw treatment in certain cases may
cause death, but that does not involve intention of the doctor to kill the

71
patient, and thus is different from suicide, physician assisted suicide or
euthanasia.

It is difficult and equally painful for the relatives of the patient and the
doctor to take a decision to discontinue the treatment. In certain cases the
dear ones request to discontinue the care because they are tired of the
invasive treatments, such as, feeding tube, urine tube and many other
modern methods of medical technology.

Thus, the patient has a right to refuse reasonable treatment, even if it is

unreasonable to do so.41 The patient and the family members may just
want to be free from the suffering and allow the patient die peacefully at
home. Accepting death is an inevitable part of life and a patient’s right to
refuse treatment is simply, and ordinarily, carried out without any
deliberate plan to bring about his death. Many people agree to the notion
that right to refuse treatment, allows the nature to take its course because
in such cases doctors know that there is no hope of recovery and the
treatment is just prolonging the patient’s death and in fact imposes undue
burden.

The right to refuse treatment in common law is based on self-

determination and self-autonomy. The common law doctrine of ‘informed
consent’ has evolved from these fundamental principles and provides a
firm basis for legal recognition of the right of a patient with decision
making capacity to refuse treatment.42

41
Singh, Jagdish and Bhusan, Vishwa, Medical Negligence and Compensation 195, 2nd edn., Jaipur:
Bharat Law Publications, 1999.
42
Supra note 3 at 36.

72
 The right to refuse medical treatment has been protected by law in
several cases.43 The classic exposition of these principles is to be found in
the frequently cited judgment of Justice Cardozo in Scholoendorf v.
Society of New York Hospital,44 wherein it was observed that “[e]very
human being of adult years and sound mind has a right to determine what
shall be done with his own body …”45 The American common law
recognizes that every patient possesses the right of bodily self-
determination.

In 1985 Conroy case,46 the New Jersey Supreme Court described the
right of possession of and control over one’s body as the most ‘sacred
right’ guarded by common law.47 In 1990, in Cruzan v. Director,
Missouri Department of Health,48 the US Supreme Court had sanctioned
the removal of a gastronomy tube which was the precipitating cause of
Nancy Cruzan’s death.

The right to refuse treatment is based on a constitutional guarantee of

right to liberty. Though the State has interest in preserving life, but in
cases of terminal illness the force to preserve life becomes a bodily
invasion. Patients terminally or incurably ill have a right to refuse
medical treatment as the treatment provided is not for recovery but just to
keep the patient alive. In 1993, a quadriplegic prisoner’s right to refuse
feeding and medical treatment was also recognised by the California
Supreme Court, even though the patient was not terminally ill.49 Suicide

43
Re T [1992] 4 All ER 649, (1992) 9 BMLR 46, CA, Re C [1994] 1 All ER 819, (1993)15 BMLR
77, Ms B and An NHS Hospital Trust [2000],EWHC 429 (Fam),[2002]2 All ER 449,(2002) 65
BMLR 149.
44
(1914), 105 NE 952 (N. Y. C. A).
45
Supra note 3 at 37.
46
486 A2d 1209 (1985).
47
Dunstan, G.R., and Lachmann, P.J., (ed.), “Euthanasia: Death, Dying and the Medical Duty”,
British Medical Bulletin, vol. 52, Number 2, April 1996, pp. 342, 343.
48
Ibid. See, supra note 21.
49
Ibid.

73
and refusal of treatment both result in death, it is therefore necessary to
consider whether the refusal of treatment by a patient can ever amount to
suicide. According to the traditional conception of suicide, there is a self-
initiated action with a specific intention to cause death. Whereas refusal
of treatment is aimed at avoiding unwanted treatment to end the
unbearable pain and suffering, the intention to die is absent.

In Re Conroy50, the Supreme Court of New Jersey specifically rejected

the analogy between refusal of treatment and suicide and held that a
refusal of medical treatment may not properly be viewed as an attempt to
commit suicide.51 It was also ruled that refusing medical intervention
merely allows the disease to take its natural course. If death were
eventually to occur it would be the result, primarily, of the underlying
disease, and not the result of self-inflicted injury. In addition, people who
refuse life-sustaining medical treatment may not harbour a specific intent
to die rather they may fervently wish to live, but to do so free of
unwanted medical technology, surgery, or drugs and without protracted
suffering52.

This issue was also raised in Bouvia v. Superior Court53, where the
California Court of Appeal held that, “the removal of naso-gastric feeding
tube does not violate State’s interest to preserve life but ‘allows nature to
take its course.”54

Apart from the US and the UK, the right to refuse treatment is also
recognised in other countries. In Rodriguez v. British Columbia (Attorney

50
Supra note 46.
51
Supra note 3 at 66.
52
Ibid.
53
225 Cal. Rptr. 297 (1986).
54
Ibid.

74
General)55, Justice Sopinka, speaking for the Supreme Court of Canada,
held that the “Canadian Courts have recognised a common law right of
patients to refuse to consent to medical treatment or to demand that
treatment, once commenced, be withdrawn or discontinued. This right has
been specially recognised to exist even if the withdrawal from or refusal
of treatment may result in death.”56

Similarly, the High Court of Australia, in Secretary, Department of

Health and Community Services (NT) v. JWB and SMB,57 has endorsed
the fundamental right to personal inviolability. Justice McHugh observed
that the voluntary choices and decisions of an adult person of sound mind
concerning what should be done to his or her body must be respected and
accepted. Under the doctrine of trespass the common law respects and
protects the autonomy of adult persons and also accepts the right to self-
determination in respect of his or her control over the body. Such rights
can be altered only with the consent of the concerned person. Thus, the
legal requirement of consent to bodily interference not only protects the
autonomy and dignity of individual but also limits the power of others to
interfere with the person’s body.58

From the above discussed cases an intent-based distinction can be

drawn between the right to refuse and the right to physician assisted
suicide and euthanasia. Some commentators argue that a right to refuse
treatment is similar to a right to suicide. Every State has an interest and
duty to preserve life and thus prohibit suicide. As a general proposition,
State intervention to prevent suicide is justifiable. However, certain
exceptional rules must be framed for the terminal patients, offering a

55
(1994) 85 CCC (3d) 15.
56
Supra note 3 at 41.
57
[1992] 66 AJLR 300.
58
Ibid.

75
release from a painful and undignified death. The approach of Courts to
this issue is to a large extent, explicable on the basis of the patient’s right
of self-determination and the paramountcy which has been attached to
that principle.59

This discussion indicates how the right to withhold or withdraw

treatment is unquestionably accepted by several Courts. Problems still
arise when this right has to be exercised on behalf of incompetent
patients.

Along with the right to refuse treatment, the proponents of euthanasia

emphasize the need to legalize euthanasia as individuals have right to
self-autonomy and right of informed consent. The question which arises
is what exactly would respect for self-autonomy mean in the debate over
euthanasia or physician assisted suicide? Does it mean a right to
extinguish life? Or can there be any exceptional circumstances to exercise
the right to self-autonomy? The researcher has made an attempt to answer
these questions by drawing a clear distinction between euthanasia and
suicide. The next segment features this discussion and then puts forth
why right to self-autonomy should be protected in exceptional cases.

2.2 EUTHANASIA, SUICIDE, PHYSICIAN ASSISTED SUICIDE:

RIGHT TO AUTONOMY

Euthanasia means a good death and suicide means an act of taking

one’s own life. There is one common element in both euthanasia and
suicide, i.e., termination of life. However the reason for terminating life
in both the cases may completely defer. Suicide is an act of terminating
life for any reason such as, poor financial condition, unemployment,
failure in examinations, break-up in relationships, property disputes,
59
Supra note 3 at 68.

76
depression, frustration, etc., whereas euthanasia is an act of allowing a
person to die or helping a person to die only if the person is suffering
from terminal illness and is a victim of unbearable pain and agony.
Euthanasia and suicide cannot be equated under any circumstances as the
motive for termination of life is completely at variance.

The proponents of euthanasia advocate right to die a peaceful and easy

death as an implicit right within the right to self-autonomy.

2.2.1 RIGHT TO SELF-AUTONOMY:

To be autonomous means to rule one’s-self, and not be ruled by anyone

else.60 Self-autonomy is equivalent to liberty. It also reflects sovereignty,
freedom of will, complete independence and self-assertion. Self-
autonomy is closely related to the freedom of will, actions, thoughts and
beliefs of individuals.61

Autonomy has been variously described as free, independent, self-rule,

self-governing and sovereign, in different situations and different
contexts. Raanan Gillon, an eminent commentator, states that, autonomy
literally means self-rule but probably better summarily described as
deliberated self- rule is a special attribute of all moral agents, including
ourselves. 62

A key feature of the principle of autonomy has been developed in

legal contexts, where ‘self-determination’ has vulnerable history and is
taken to be synonymous with autonomy- that is the ability to understand

60
Tony, Hope, et. al., Medical Ethics and Law 32, UK: Churchill Livingstone, 2003.
61
Dworkin, G., The Theory and Practice of Autonomy 6, Cambridge: Cambridge University Press,
1988.
62
Gillon, Rannon, Principles of Health Care Ethics xxii, Wiley: Chichester, 1994.
http://www.questia.com, [accessed on 21/12/2009].

77
 one’s situation and pursue personal goals free of governing constraints.63
“Autonomy” means something like a capacity for independent decisions
and action.64 Autonomy is often linked to the philosophy of Mill.65

‘ “Autonomy” and “respect for autonomy” are terms loosely associated

with several ideas, such as, privacy, voluntariness, choosing freely and
accepting responsibility for ones choices. Autonomy is basically reflected
in the following- the freedom to live, to believe, to speak, to be free from
torture, and so on, may be regarded as characteristic of a general right to
self-determination- essentially the freedom to decide how to live ones
life. A sense of active agency and self-direction is necessary to ground
the orientations of self-respect, self-esteem and self-trust.66 One of the
most important functions of autonomy is to allow us access to this
perspective on ourselves.67 The traditional conception of autonomy is
deeply embedded in liberal, moral and political theory, with foundations
in the work of Immanuel Kant, John Locke and John Stuart Mill.68 This
liberal conception of autonomy focuses on choice, likewise, self-
determination is understood as exercised through the process of
choosing.69

In Reeves v. Commissioner of Police,70 Lord Hoffman has coined a lucid

definition for the word ‘autonomy’ which means that every individual is

63
Beauchamp,T.L., and McCullough, L.B., Medical Ethics 42, Eaglewood, Cliffs: Prentice
Hall,1984.
64
O’Neil, O., Autonomy and Trust in Bioethics 23, Cambridge: Cambridge University Press, 2002.
65
Mill, John, S., On Liberty, Everyman edn., J. M. Dent, 1993. www.complete-
review.com/reviews/mills/onliberty.htm, [accessed on 22/12/2009].
66
Williams, Susan, H., Truth, Autonomy and Speech 164, New York: New York University Press,
2004.
67
Ibid.
68
Id., at 41.
69
Rawls, John, Political Liberalism 32, 33, New York: Columbia University Press, 1993.
70
(1999) 3 W.L.R. 363 at 368.

78
sovereign over himself and cannot be denied the right to certain kinds of
behaviour.71

It has been well recognised from time immemorial that “autonomy” is

one of the guiding principles in medical ethics, the other being
“beneficence”, “non-malfecence” and the last being “justice”. Good
medical practice requires that equilibrium ought to be struck among these
four principles.

The central and often sole concern for the medical well being of the
patient has given way to, or one could say has been modified to include,
concern for patients self-determination or autonomy in making medical
decisions. Individual autonomy in the medical text means that a person
has the right, in accordance with his own values, commitments and
beliefs, to determine whether and to what extent he shall submit himself
to any course of treatment recommended by the doctor.

Based on autonomous view, Dan Brock on self-determination, stated

that “[a] person’s interest in self-determination reflects the common
desire to make decisions about one’s life oneself, according to one’s own
aims and values. Patient’s exercise of self-determination in context of
health care involves deciding which alternative treatment will best
promote their particular goals and values”.72

Autonomy has been legally respected when invoked for protective

purposes. The modern tendency has been for courts legislatures to
promote the individual autonomy of competent persons. The celebrated
judicial statement made by Justice Cardozo way back in 1914 has been

71
Ibid.
72
Brock, Dan, Life and Death 27, Cambridge: Cambridge University Press, 1993. See, Jyotsna, A.
Gupta, New Reproductive Technology, Women’s Health and Autonomy 22, New Delhi: Sage
Publications, 2000.

79
recurrently quoted by subsequent court of law as stated in Schlcendrof’s
case. 73 In this case, patient autonomy was recognised as a patient’s right
to self-determination and signalled a shift away from medical
paternalism.

Factors, such as, the proliferation of the state of art medical

technologies, the bureaucratic and the financial complexities of health
care systems and the growing awareness and sophistication of general
public regarding medical limitations and possibilities have heralded and
continue to support an appreciation of the importance of patient
autonomy and a demand for its safeguard through informed consent.

The scope of autonomy has been further expanded, consequently to

include within its ambit anticipatory directives and honouring the wishes
of an incompetent individual which are made while he is competent.

As observed by Ronald Dworkin, “[a] competent person making a

living will74 provides for his treatment if he becomes demented is making
exactly the kind of judgment that autonomy, on the integrity view, most
respects. A Judgment about the overall shape of the kind of life he wants
to have led”.75 Dworkin’s view appears to be given recognition by
various Courts of law to a certain extent.

Anthony Bland’s76 case has dealt with this issue and articulated on it.
The patient in this case was in a PVS following the collapse of his lungs
at the disaster at Hillsborough Football Stadium and had not made

73
Supra note 44.
74
A living will is one of the forms of an advance directive. A living will enables the person to refuse
a life prolonging medical treatment if signed in advance by the individual, infra, Chapter IV, p.
234 to p. 239.
75
Dworkin, Ronald, Life’s Dominion: An Argument about Abortion and Euthanasia 226, U.K:
Harper Collins, 1993.
76
Supra note 23.

80
anything that could be construed as an advanced directive.77 The Court
made an obiter observation that had Anthony Bland made any advance
statement of what he would have contributed significantly to the
evaluation of what was or was not lawful. The appeal court also
concluded that , if Anthony Bland had made a living will covering non
treatment in the event of PVS, the doctors could not only lawfully comply
but would be acting unlawfully if they did not.78

In the United States of America, this aspect of autonomy in the

medical context is very well couched in the law, to the extent that all fifty
States and the District of Columbia have passed legislation upholding
advanced directives in some form or the other. At this juncture, it is
pertinent to deal with a few cases which have formed the genesis of the
law and helped shape the overwhelming right to autonomy as it exists
today in America. In Re Quinlan79 a 21 year old girl who was in chronic
persistent vegetative state existed on ventilator support. Given a hopeless
prognosis, her parents sought to remove from intensive care against the
advice of the health care team. The Supreme Court of New Jersey opined
that Quinlan’s right to privacy would allow her to refuse further ventilator
therapy if she was competent and that this right persisted when she was
incompetent. It concluded that evidence from her friends was
insufficiently probative to establish what her actual feelings would be,
but, interestingly rescinded this assessment a decade later.80

In Brophy v. New England Sinai Hospital,81 the Supreme Judicial

Court of Massachusetts recognized the right of an incompetent patient in

77
Advance directive refers to medical treatment preferences in the event that an individual becomes
unable to make medical decisions on her or his own, infra, Chapter IV, p. 234 to p. 239.
78
Ibid.
79
In Re Quinlan 355 A.2d 647 (N.J. 1976).
80
Ibid.
81
(1996) 497 NE 2D 626.

81
a persistent vegetative state to refuse artificial hydration and nutrition
albeit that the right had to be exercised by proxy on the patient’s behalf.82

Subsequently, in Cruzan v. Director, Missouri Department of Health,83

after 3 years in PVS, the patient’s parents requested that feeding and
hydration be discontinued- this being justified on the basis of their
interpretation of her wishes when competent. One of the observations
made by the Supreme Court, though obiter may be regarded significant-
the majority opinion held that a competent person had a constitutionally
protected liberty interest in refusing unwanted medical treatment.
O’Conner J., in her concurrence entrusted the task of crafting appropriate
procedures for safeguarding incompetent liberty interests to the
laboratory of the States in the first instance.84 Re Jobes85 case also
concerned with a PVS patient wherein the Court while following the
decision in Quinlan upheld the principle of self-determination and
autonomy of the incompetent patient.86

Guardianship of Jane Doe87 is about a patient in PVS, who had always

been incompetent. The Supreme Judicial Court of Massachusetts held that
incompetent individuals have the same rights as competent individuals to
refuse and terminate the medical treatment. Justice Abrams giving the
majority opinion accepted the rights of the patient to bodily integrity and
privacy and upheld the decision to terminate Nasoduodenal feeding and
hydration.88

82
Ibid.
83
Supra note 21.
84
Ibid.
85
(1987) 108 N.J. 394.
86
Ibid.
87
Guardianship of Jane Doe (1992) 411 Mass 512.
88
Ibid.

82
 In Europe one finds a rather strong voice asserting the right to refuse
medical treatment, as an essential facet of patient autonomy. It is averred
that, “[t]he right to refuse medical treatment is at the core of individual
autonomy [which] enables an individual to retain physical integrity of his
body and to determine whether there are considerations more important
than the preservation of his health or even life”.89

This principle of autonomy is appealed by the people who believe that

competent patients should be permitted to arrange their own deaths in
exceptional cases. At the same time the opponents of euthanasia think
that if euthanasia is legalized based on the principle of autonomy, many
people would be killed even if they wanted to stay alive. The ethical
complications surrounding personal autonomy and lack of benefit of self-
destruction, however, may prove a tougher debate to resolve.90 Many of
the people who voted against the Washington and California referendums
were worried about putting sick people in that position and some critics
of the Dutch scheme claim that in that country the elderly are beginning
to look upon doctors as their enemies.91 Though many moral philosophers
have suggested that the concepts of autonomy and self-determination
provide the strongest argument for legalization of euthanasia, but the
question arises whether the Constitution protects an interest in self
determination and autonomy and if such broad personal autonomy
interests are protected by the legal doctrine, what kind of right to
assistance in euthanasia follows?

In the present Chapter, the researcher seeks to evaluate the strength of

these questions. Neutralists argue that respect for personal autonomy

89
“The right to Refuse Medical Treatment under the European Convention on Human Rights” 9
Med. L. Rev.17. (2001).
90
N. L. P., “Constitutional Law: Physician Assisted Suicide & the Equal Protection Clause”, 21 Am.
J. L. & Med. 479. (1995). http://www.international.westlaw.com, [accessed on 20/3/2010].
91
Supra note 75 at 191.

83
requires government to abjure any interest in promoting particular moral
objectives or ends; the State must leave individuals to choose their own
values.92

Even John Rawl argues that, rationally self-interested persons would

demand the freedom to define and pursue their own views of what
constitutes a good life without State interference.93

As classically expressed by John Stuart Mill, the harm principle holds

that each person must be afforded the right to exercise self-control
“[o]ver himself, over his body and mind,[ and that the] only purpose for
which power can rightfully be exercised over any member of a civilized
community, against his will, is to prevent harm to others.”94

As per the above statement it is important to understand what

constitutes the harm principle? The harm principle allows individuals all
the freedom they want to pursue their own views of the good life- up to
the point where an unwilling person could be harmed. It has basic
principle similar to the theory of utility which emphasises that every
individual must gain pleasure and avoid pain.

As argued by George that “there are many and varied ways of living a
morally upright life, and that individuals should be free to choose from
these without State interference.”95 George further states that the
individual choice should be respected only when it leads towards a moral
good: “The value of autonomy is… conditional upon whether or not one
uses one’s autonomy for good or ill.”96 He further adds that, “[p]ersonal
choice, on this account, should be permitted only in so far as it is an

92
Supra note 6 at 87.
93
Rawls, John, A Theory of Justice 11, Oxford: Clarendon Press, 1989.
94
Mill, John, S., On Liberty 9, Harmondsworth: Penguin, 1978.
95
George, R., Making Men Moral 173-175, USA: Oxford University Press, 1995.
96
Id., at 177.

84
important means and condition to the realization of human goods and the
communities they form.” 97

Evaluating whether persons should have the right to receive assistance

in suicide or euthanasia collapses into an inquiry into the moral
uprightness of the acts themselves.98 Autonomy, to certain authors is
entirely instrumental good, but autonomy simply does not do anything to
recognize a right to physician assisted suicide. Opponents of euthanasia
argue that if on the basis of autonomy, legalizing the practice of physician
assisted suicide and euthanasia may also create an incrementally greater
risk that a certain number of persons might be killed without their consent
due to abuse, mistake, or coercion. The proponents of euthanasia make a
distinction between the terminally ill or those suffering intractable pain
and a person who demands physician assisted suicide without reasonable
cause. As the Oregon’s Death with Dignity Act, focuses only on physician
assistance for terminally ill patients who make unrelenting requests and
are suffering from immense pain. The World Federation of Right-to-Die
Societies similarly has lobbied for a right available only to the “incurably
ill and/or intolerably suffering person who persistently requests that
help.”99

Though the proponents argue on grounds of terminal illness, it is a

difficult task to define terms, such as, “terminal illness” or “intractable
pain”. At the same time, a right limited only to terminally ill patients
seems incompatible with the full respect for the sanctity of life principle.
And the right to physician assisted suicide to the terminally ill or those
suffering grave pain would advance the autonomy interests of others. A
few examples may be considered, such as, a girl being raped, romeos
97
Id., at 215.
98
Supra note 6 at 93.
99
Id., at 95.

85
despondent over lost love, financial worries, unemployment, failure in
examination, prisoners tired of their confined lives, disabled people
distressed by their disabilities- all would claim right to physician assisted
suicide on grounds of pain and suffering based on individual autonomy.

In contrast to this, the proponents emphasize the right to physician

assisted suicide or euthanasia only for patients suffering from unbearable
pain in terminal illness and not for the persons referred to the above
examples.

This apart, certain authors, for e.g., Margaret Otlowski, discusses the
promotion of mercy and human dignity as independent moral arguments
for legalizing euthanasia.100 Yet in the end, she admits the fact that such
arguments, tethered in no way to the patients choice, could lead to
allowing involuntary euthanasia based on the perception of doctors or
others that the patient’s life is no longer worth living and that killing
would be the best solution.101 As a solution for such problems, Otlowski
contends that the only true base for legalization of euthanasia has to be
the fundamental principle of self-determination and autonomy.

It may be stated that the moral principle that distinguishes physician-

assisted suicide from murder is a respect for autonomy of the individual.
The most straight forward and compelling argument here is the argument
for patient autonomy. If human beings are allowed to make other major
decisions about their medical care, even where those decisions concern
their living or dying, why should they not be able to request that a doctor
help them to die if living becomes so burdensome that their situation is
intolerable?102 These potentially conflicting expectations have forced

100
Supra note 3 at 189.
101
Ibid.
102
Campbell, Alastair, et. al., Medical Ethics 208, 3rd edn., Oxford: Oxford University Press, 2001

86
health care providers to negotiate an increasingly precarious line between
respect for patient autonomy and exercise of their best professional
judgment.103

Even liberals like Dan Brock, Norman Cantor, Margaret Battin,

Ronald Dworkin, John Mill, Margaret Otlowski argue that respect for
personal autonomy and individual liberty are consistent with certain
forms of euthanasia. Modern hospital or any health care institution must,
as far as is compatible with delivering genuinely beneficial treatment,
strive to become sensitive to the autonomy of the individual patient,
particularly in the delicate but momentous area of patients making
decisions about the manner of their dying.104

If a goal of society is to promote both societal and individual well-

being, the government must allow a person his/her individuality if he/she
is to be happy. The ideal of personal autonomy encompasses individuals
fashioning their own destiny through successive decisions throughout
their lives,105 and hence individuals should be allowed the same
autonomy during the last phase of life.

The argument for personal autonomy and the ability to control ones
own life, both mental and physical, are predominant in the debate over
the individual's right to physician assisted suicide. If one applies Mill's
and Raz's ideas on personal autonomy, it would appear that the
competent, terminally-ill individual should have the right to choose
whether or not his/her life is worth the continued struggle through pain

103
“Medical Technology and the Law”, 103 Harv. L. Rev.1523. (1990).
104
Charlesworth, M., Bioethics in a Liberal Society 60, Melbourne: Cambridge University Press,
1993.
105
Supra note 94 at 56. See, Raz, Joseph, The Morality of Freedom 369, USA: Oxford University
Press, 1986.

87
and physical incapacity.106

One key issue in the analysis of autonomy is, what conditions need to
be met for a person’s decisions and actions to be autonomous? The
probable answer is, to be autonomous one must make evaluations about
life, such evaluations must be rational and certain desires higher in
hierarchy of life should be respected. Unfortunately, “today autonomy is
compromised by the fact of illness, hospitalization, and all the attendant
anxiety and stress of the medical environment and medical
interventions.”107

Akin to the concept of personal autonomy is the doctrine of

informed consent. The patient’s consent in his or her treatment is the
most important condition in the legal and medical perspective.
Similar to autonomy, the doctrine of “informed consent” supports
legalization of euthanasia. Let us find out what exactly we mean by
“informed consent”.

2.2.2 INFORMED CONSENT:

In the debate surrounding euthanasia the expression “informed

consent” has never been used with sufficient precision. Basically
this doctrine means that a patient should be treated with his consent,
as many judgments uphold the importance of informed consent, it is
an integral part of discussion for euthanasia. Informed consent has
been a central part of biomedical ethics since the trials of Nazi
physicians at Nuremberg, Germany, after World War II.108

106
Ibid.
107
Callahan, Daniel, and Margot, White, “The Legalisation of Physician Assisted Suicide: Creating a
regulatory Potemkin Village” 30 U. Rich. L. Rev.43. (1996).
http://www.international.westlaw.com, [accessed on 20/3/2010].
108
Smith, Raymond, A., (ed.), Encyclopaedia of AIDS 363, New York: Penguin Books, 1998.

88
 The doctrine requiring physicians to obtain a patient’s informed
consent before undertaking treatment is relatively young, having
first appeared in a recognizable, relatively robust form only in
1957.109 The consent norm had occupied a prominent and honoured
place in our legal thought for many centuries before the courts began
to develop the jurisprudence of informed consent in the health
care.110 Consent expresses the primacy of individualistic values in
our culture and such values that underlie the doctrine have an
ancient pedigree.

Earlier, the importance of informed consent was upheld at the

Declaration of Helsinki, in 1964 at the World Medical Association.
It was established that if at all possible, consistent with patient
psychology, the doctor should obtain the patient’s freely given
consent after the patient has been given a full explanation. 111

The historical evidence is somewhat ambiguous in this respect.

Informed consent in the sense in which it is understood and practised
today appears to be relatively recent arrival in medical ethics and
also the legal judgments enshrining an informed consent
requirement have been built up since 20th century. Informed consent
idealists- primarily some judges and medical ethicists- advocate a
relatively expansive conception of the physician’s obligation to
disclose and elicit information about risks and alternatives.112 Indeed
the physician must go so far as to prefer the patient’s interests to

109
Peter, H. Schuck, “Rethinking Informed Consent”, 103 Yale L. J.900. (1994).
110
Ibid.
111
http://www.wma.net/en/30/publication, [accessed on 23/3/10].
112
Supra note 109 at 903.

89
his/her own, acting as the patient’s selfless, scrupulous, dutiful
agent.113

This duty underscores the purpose of proper informed consent,

which is not simply to provide information to empower the patient to
protect his/her own interests, but also, to further the physician’s
responsibility to place the patient’s interest above his/her own.114
The standard justification of informed consent is that it is an
essential safeguard of patient’s autonomy.

As William F. May argued some years ago, a contractual model

of professional-patient relationship has obvious advantages over
paternalistic models, but nonetheless has significant flaws and
dangers.115

The importance of informed consent is that it safeguards patient’s

autonomy. At the same time, it is also understood in terms of patient
empowerment as it is a requirement of justice. It has acquired
momentum in parallel with the ideas of individual liberty and
freedom of choice.116 In the absence of legally effective consent or
some other legal justification, a doctor will normally incur criminal
and civil liability if he carries out any medical procedure involving a
bodily touching.117 Medical care is supposed to be based on the
informed consent of the patient.118

The most fundamental normative argument in favour of

requiring health care providers to obtain patient’s informed consent

113
Id., at 921.
114
Ibid.
115
John, Mayberry, Postgraduate Med. J., vol. 80, No. 943 BMJ, UK, May 2004, p. 277.
116
Francis, C M., Medical Ethics 58, 2nd edn., New Delhi: Jaypee Brothers, 2004.
117
Skegg, P. D. G., Law, Ethics, and Medicine 29, Oxford: Clarendon Press, 1984.
118
Lindgren, James, “Death by Default”, 56 Law & Contemp. Probs. 299. (1993).
http://www.international.westlaw.com, [accessed on 20/3/2010].

90
to medical treatment proceeds from the principle of autonomy- the
notion that each mature individual has a right to make basic choices
that affect his/her life prospects.119 The autonomy principle is deeply
entrenched in our culture and law.120 What is the role of informed
consent within a clinical encounter viewed through the lens of
justice as empowerment? It may be summarised that the conditions
for a patients consent to be valid are competence, adequate
information and self approval.

“Competence” is both a medical and legal issue. A distinction is

sometimes made between the medical judgment of the patient’s
capacity to consent and the legal judgment of his competence.
However, in practice both are closely related. The capacity to give a
legally effective consent depends upon capacity to understand and
come to a decision on what is involved, and the capacity to
communicate that decision.121

The law distinguishes between competent and incompetent

patients, and thus the legal term for competency is capacity. In case
of an adult patient, he may refuse any, even life-saving treatment.
Whereas the incompetent patients are treated whatever way serves
their best interests.122 It is sometimes stated or assumed that, where a
patient is incapable of consenting, an effective consent may be given
by his spouse, or by some near relative, unfortunately those who
hold this view do not indicate the grounds on which it is based.123

119
Supra note 109 at 924.
120
Ibid.
121
Supra note 117 at 48.
122
Supra, Chapter I, p. 31 to p. 33.
123
Supra note 117 at 72.

91
 The autonomous principle of informed consent was upheld in
Nancy Cruzan’s124 case. It was held that as per the common law
even the touching of one person without his consent and without any
lawful justification amounts to a battery. And that the notion of
bodily integrity has been embodied in the common law, and
according to this the right to informed consent has been firmly
enshrined in the American tort law.125

The Court, further, noted that “a ‘logical corollary’ has arisen to

the common law doctrine of informed consent in the form of a ‘right
not to consent, that is, to refuse treatment”.126

The seriousness with which the law views any invasion of

physical integrity is based on the strong moral conviction that
everyone has the right to self-determination with regard to his body.

Unless there is consent to an act of touching another, such an act

will- subject to the principle de minimis non curat lex – constitute a
battery for which damages may be awarded. It is the patient’s
consent- either implied or express- which makes the touching legally
valid. Since two decades much jurisprudence in welfare States has
focused on the consent issue and hence the doctrine of informed
consent has assumed a significant role in the medical negligence and
the right to die with dignity debate. Informed consent is based on the
respect that the law accords to one’s body, respect that coincides
with the concern for negative freedom—freedom from interference.
Many courts and commentators now believe that the primary focus

124
Supra note 21.
125
Supra note 6 at 83.
126
Ibid.

92
should be the “patient’s desires… not the type of treatment
involved.”127

The doctrine of informed consent is most often cited as the basis

of the current right to die debate. The foundation of informed
consent doctrine is the concept of individual autonomy. The
principal goals underlying informed consent doctrine are to protect
and promote patient autonomy and to improve the quality of both
patients and physicians treatment decisions.128 This doctrine seeks to
vindicate the right of every person to determine what shall be done
to his body.

The proponents of right to die argue that the right to die with
assistance protects an individual’s interest of self-determination. The
principle of self-determination demands that the State respect the
individual’s judgment about how much pain he wishes to tolerate
before death, unless there are overriding public policy interests.
Recognizing the right to die with assistance, based on informed
consent, also furthers the policy of giving patient’s control over the
course of their medical treatment. This right not only gives
terminally ill patients another option, but it also removes a
substantial disincentive for refusing life-saving care, that is, the fear
of lengthy, uncontrolled suffering prior to death. Although no one
contests its goals of patient autonomy and improved decision
making, its present effectiveness in achieving those goals is quite
limited.

The discussion of personal autonomy and informed consent leads

to compelling arguments in favour of euthanasia. But there are
127
Supra note 46. See, 105 Harv, L. Rev. 2027. (1992.).
128
Supra note 109 at 948.

93
various forms of euthanasia as discussed in the first segment of this
chapter. If one argues in favour of euthanasia, which form will
prove suitable for India would be the next issue to be dealt with? In
the researcher’s opinion, voluntary euthanasia practiced as
physician assisted suicide shall be the better option for India.

At present, the Indian law not only prohibits but also penalizes
euthanasia, suicide and physician assisted suicide. Euthanasia and
suicide both the concepts have two common elements- first is the
termination of life and second is voluntariness to terminate life. But
the main component which differentiates euthanasia and suicide is
the reason to terminate life. Hence there is a need for a comparative
analysis of euthanasia and suicide and physician assisted suicide.

2.2.3 EUTHANASIA, SUICIDE, AND PHYSICIAN ASSISTED

SUICIDE: A COMPARATIVE STUDY:

The law, it is said, is in effect the codification of the will of the people,
and when there is tension between a legal verdict and the people’s
thinking then it is time to reconsider the law.129

This is exactly the situation which has arisen in a number of countries

including India for the most debated controversial issue- ‘Euthanasia’.
Euthanasia refers to the situation where a person requests to die but
personally does nothing to bring about his own death other than to make
the request.130

Euthanasia means a ‘good death’ or ‘easing the passing’ or a ‘peaceful

death’. The modern interpretation of the term is the deliberate ending of

129
Davies, J., “The Case for Legalizing Voluntary Euthanasia” in Keown, J., supra note 2 at 83.
130
Willaims, Stephens, P., “An opportunity slipping by: Why lawyers should speak up about
Physician assisted suicide”, S. C. Law., vol. 9, Nov-Dec, 1997, p. 35,
http://www.international.westlaw.com, [accessed on 20/3/2010].

94
life to relieve suffering and thereby to allow the patient to die in dignity
and peace.131 The concept of euthanasia has been debated for decades but
it has attracted public attention after a few landmark judgments delivered
by the US Supreme Court and the House of Lords, in the UK.132

Dworkin observes, “[t]he argument over euthanasia has suddenly

exploded into front- page news. Doctors are now beginning openly to
admit what the profession once kept secret: that doctors sometimes kill
patients who ask to die, or help such patients to kill themselves.”133

People think death is bad because it deprives us of the goods of life,

but a state of patient in permanent coma, that deprives him of life is worst
than being dead. While discussing on the deprivation thesis of life,
Dworkin adds to the deprivation thesis by suggesting both that
deprivation of more goods is not all that makes death bad.134 At this point,
it is pertinent to consider the occasions when the premature termination
of life is the intended aim- suicide and euthanasia.

Whether it is suicide or euthanasia in both the cases life is taken away.

Attempt to suicide is no longer a criminal offence in a few countries,135
whereas in some countries it is still an offence punishable by law136. The
prohibition on taking of human life is based on fundamental and deeply
held ethical convictions. Such ethical convictions may have different

131
William,Thomson, A.R., Dictionary of Medical Ethics & Practice 119, Bristol: John Wright &
Sons Ltd, 1977.
132
Cruzan v Director, Missouri Department of Health, 497 U.S. 261 (1980), Bush v. Schiavo, 885 So
2d 321(Fla 2004), Vacco v. Quill 138 L.Ed.2 d 834, Washington v. Glucksberg 521 U.S. 702
(1997), Airedale NHS Trust v. Anthony Bland (1993) 1 All ER 321 (HL) at 860.
133
Supra note 75 at 3. [Emphasis added].
134
Frances, Kamm, M., “Abortion and the Value of life: A Discussion of Life’s Dominion”, 95
Columbia L. Rev.180. (1995).
135
For e.g., In the United Kingdom attempt to suicide is decriminalized. See, The Suicide Act, 1961.
Suicide is also decriminalized in Canada since 1972, see, Criminal Code of Canada.
http:///www.thecanadaencyclopedia.com , [accessed on 10/1/2011].
136
For e. g., S. 309 IPC reads as, 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.

95
roots and may be expressed in a different manner, but whatever their
basis, they form a fundamental part of our moral lives. The religious view
frequently expresses that human life is a gift of God and no human being
has a right to take it away.

The law is also very clear in terms of protection of life as a positive

right.137 The concept of euthanasia is debated on grounds of allowing a
person to die peacefully who is living a life full of pain and suffering and
there is no hope of recovery. As stated earlier self-determination and
autonomy is the base for the proponents of euthanasia. Euthanasia is
often compared to the concept of abortion. Opponents of euthanasia
condemn it as allowing to kill the person is an unlawful act may be in any
circumstances. The opponents may accept the legitimacy of abortion- a
process which, by any standards, involves the taking of some form of life.
Abortion is legalised in all the countries, provided it falls under the legal
purview. As compared with abortion rights, the right to choose to die is a
so-called “pro choice” controversy. Abortion and the right to die differ in
the aspect that, in case of abortion the mother is deciding for the unborn
foetus, while in euthanasia, individuals decide for themselves- a much
stronger argument.138 The door is thereby opened to a debate on whether
euthanasia in some forms might be a morally acceptable practice.139

Euthanasia though means a peaceful death, it is discussed under

different heads, today the peaceful death concept demands assistance in
dying for getting a speedy and painless death. Inclusion of the word
assistance carries a controversy within itself. Suicide is an act of taking

137
Supra, Chapter I, p. 17 to p. 20.
138
Supra note 27 at 71.
139
The discussion on the moral status of euthanasia and its legal implications is discussed in,
Dworkin, R., Life’s Dominion: An Argument about abortion and euthanasia (1993), Finnis, J., “A
Philosophical case against euthanasia” in Keown, J., (ed.), Euthanasia Examined (1995),
Otlowski, M., Voluntary Euthanasia and the Common Law (1995).

96
one’s own life as the person no more wishes to live his or her life and
while committing a suicide there is absolutely no involvement of a third
person. If anyone abets or instigates a person to commit suicide he shall
be punished as per the penal provisions.140 In cases of terminal illness the
patients have a right to refuse treatment as the law allows patients to
make their own decision regarding the medical treatment. No person can
be forced to undergo treatment if he or she is not willing to do so. But
that does not mean the patients have a right to request the doctor to kill
them or assist them in committing suicide. To ascertain whether a
meaningful moral line can be drawn between physician assisted suicide
and the right to refuse on the basis of intent, it is necessary to consider
whether such a moral line can be drawn between intended and unintended
consequences. Jeremy Bentham, the propounder of the utilitiranian
concept, distinguished between three different kinds of consequences:
those that we intend as our ends or goals, those that we intend as means to
our further ends and those that occur, even if foreseen, as unwanted side
effects of what we do intentionally.141

The US Supreme Court has identified this critical nexus among

respect for intention, individualism, and human free will. Justice Jackson
held that the distinction between intended from unintended consequences
is not provincial or transient notion. In fact it is universal and persistent in
mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between
good and evil.142

140
In India abetment to suicide is punishable under S. 306 IPC. S.306 reads: “If any person commits
suicide, whoever abets commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years and shall also be liable to fine.”
141
Jeremy, Bentham, Principles of Morals and Legislations 240, New York: Hafner Press Publishing
Co. Inc., 1948.
142
Morrisette v. United States, 342 US. 246, 250 (1952) (Jackson,J.)

97
 Thus, it can be said that there is a rational, moral line to be drawn
between intended and foreseen consequences. The question that arises
here is, whether such distinction is applicable to physician assisted
suicide and euthanasia? It can be analysed by examining the actions by
discussing firstly bright line distinction between euthanasia and suicide,
and secondly euthanasia and physician assisted suicide.

2.2.3.1. EUTHANASIA AND SUICIDE:

Suicide is defined as “self-destruction with an intention to die”. It is

both moral and legal wrong. Why do people commit suicide? Is it a
matter of mental illness? Or is it a private or a social act? Is suicide
completely a personal matter- a matter of right based on individual
liberties or even fundamental human rights? Or is suicide something that
the person’s family, community or society could ever expect of a person?
Though suicide is a private matter it is viewed largely as a social concern.
It is very often a tragedy or a result of depression.

A brief historical review sheds light on the position of this self-

destructive phenomenon in various parts of the world. Suicide is an act
condemned in the history of most of the countries. Augustine and
Aquinas condemned suicide precisely because “it represents an
intentional rejection of human life.” Aristotle intimated that “suicide is
wrong because it involves an intentional act against the principle of
life.”143 The Western record of discussion and dispute about the morality
of suicide begins some “three millennia [years] ago… a dialogue dating

143
Supra note 6 at 63.

98
from the First Intermediate Period of ancient Egypt.”144 The Greek and
Roman Stoics came to celebrate suicide as the act of wise man, while
Christian Church, from the time of Augustine through the time of Thomas
Aquinas, increasingly vigorously condemned suicide as a sin.145 In
Hinduism suicide has always been condemned but at the same time some
form of self-destruction such as sati146 or widow burning was glorified.
The sati system was abolished during the British rule in India.147
Buddhism and Islam also condemned all forms of self-destruction leading
to suicide. Thus, suicide is a very different act for one who believes in the
existence of an after life, than for one who believes only in the existence
of this world.148

It is clear from the above discussion that suicide is an act of taking

one’s life thus is considered a wrong act. In this comparison euthanasia is
definitely a legal and a moral wrong as a third person is involved in the
dying process. But the most important fact to be considered is the reason
to allow a person to die. Let us consider an example to be more specific,
Mr. X, a habitual criminal commits a culpable homicide amounting to
murder, is awarded a death penalty. Mr. B, a person who has no criminal
record, in sudden provocation commits a culpable homicide amounting to
murder and Mr. B is awarded life imprisonment as per the penal laws in
India.149 In both the cases the offence committed is same but the

144
Battin, Margaret, P., Ethics and The Way We Die 165, New York: Oxford University Press, 2005.
145
Ibid.
146
Sati was a practice of burning a widow alive forcibly with her deceased husband. This practice was
followed by Hindus in India and was abolished during the British rule in India.
147
The Sati Regulation Act, XVII of 1829, which later resulted in enacting, Commission of Sati
(Prevention) Act, 1987. This Act provides punishment for attempt to commit Sati, abetment of Sati
and for glorification of Sati under S. 3, S. 4 and S. 5 respectively.
148
Rosenn, Jonathan, R., “The Constitutionality of Statutes prohibiting and permitting Physician
Assisted Suicide”, 51 U. Miami L. Rev.875, 876. (1997). http://www.international.westlaw.com,
[accessed on 20/3/2010].
149
Whoever commits murder shall be punished with death, or life imprisonment for life, and shall
also be liable to fine, see, S. 302 IPC, read with Ss. 304, 354 (3) of Criminal Procedure Code,
1973.

99
punishment differs, as death penalty shall be awarded only in ‘rarest of
the rare’150 cases. The similar hypothesis can be applied for legalizing
euthanasia or allowing physician assisted suicide only in terminally ill
cases. At present in India any form of self-destruction resulting in suicide
is a punishable offence and so is euthanasia. In view of the interest of the
State to preserve life, suicide must be a punishable act, as there is no
specific reason why a person commits suicide. Every person has his or
her way of looking at life and at any point of time they may feel that the
life is not worth living, so just end it. Whereas in case of euthanasia, a
patient requests to die peacefully due to his terminal illness and when
there is no hope of recovery.

Many countries like Netherlands, United States, England, Canada,

Switzerland, Belgium, Germany and Australia have focused on the need
to have physician assisted suicide in terminal illness. These countries
have advanced high tech medical technology yet they have legalized
euthanasia in some form. The shifting of the problem of suicide from the
realm of religion to medicine has produced a change in its treatment by
legislatures.151

The crux of the argument is to draw the distinction between suicide

and euthanasia. That is, suicide and euthanasia may co-exist under law.
Suicide is an impulsive act done under severe emotional stress, whereas
euthanasia is the consequence of a well-considered decision taken by an
individual in full possession of his or her faculties. As per the Hemlock
Society, a suicide can be justified ethically on grounds of euthanasia for
certain reasons, such as, advanced terminal illness which is causing
unbearable suffering to that individual and grave physical handicap which

150
Doctrine propounded in Bachan Singh v. State of Punjab, AIR1980 SC 898.
151
Supra note 148 at 877.

100
is so restricting that the individual cannot, even after due consideration
and training, tolerate such limited existence.152 Even as per Kant suicide
in certain cases may be considered moral. Suicide for the purpose of
avoiding suffering is not as Kant has contended, contrary to moral law.153
But the Apex Court of India brackets suicide and euthanasia together and
treats them on the same footing.154 The core argument of the proponents
of euthanasia is that voluntary death in terminal illness should not be
compared to suicide.

There are two legislative approaches to euthanasia. The first is general

prohibition of physician assisted suicide subject to exceptions where the
patient expresses his wish unequivocally. The second approach is to
establish criteria which will justify euthanasia and to appoint a committee
of experts to decide whether the individual meets the criteria.

The fear which bothers the opponents and the legislators is the
possibility of abuse and misuse of euthanasia by the relatives or by
medical professionals. Older people will be pushed into ending their lives
by their families to avoid being a burden and attitudes towards disabled
people will worsen as their lives remain devalued as well as their
contribution to the society.155 Does that mean we should not have laws
because they may be misused? The misuse can be controlled by drafting a
well crafted legislation and it’s effective interpretation and
implementation. There is need for a fresh look at this issue considering

152
Supra note 27 at 80.
153
Vong, G., ‘In defence of Kant’s moral prohibition on suicide solely to avoid suffering’, J. Med.
Ethics, London: Sep 2008, vol. 34, Iss.9: p. 655. http://www.proquest.umi.com, [accessed on
18/8/2009].
154
State of Maharashtra v. Maruti Sripati Dubal,1987 Cri. L. J. 549.
155
Stevens, Simon, “Suicide never the answer” Community Care, Sutton: Jan 15 2009, vol. 38, Iss.
1753, p. 10. http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].

101
the rise in number of patients requesting physician assisted suicide.156 Let
the law be as stringent as possible, but first let there be a law!157

The opponents of euthanasia who equate suicide with euthanasia are

right in their opinion of opposing suicide, as whatever justification for
suicide it cannot be legalised. Taking one’s life voluntarily for
whatsoever reason is against the human rights. The Constitutional law
provides and protects right to liberty as a fundamental right but the liberty
granted by law cannot be misused to take away life. However, in case of
euthanasia the opponents, probably, have failed to understand the
exceptional reason of taking away life in terminal illness. In rarest of the
rare cases euthanasia should be allowed.

Euthanasia has another element- physician assisted suicide. This

element includes a physician’s assistance in committing suicide only in
case of incurable terminal illness.

156
Requests of Physician assisted suicide made in India- In November 2004, Mr. Saroj Singh from
Orissa had fractured his limbs and spinal cord, he was bedridden for months together in crucial
pain, sought permission for right to die. In December 2004, Chess Champion K. Venkatesh had
appealed to the Supreme Court for death with dignity as he was suffering from degenerative
muscular Duchenne’s muscular dystrophy for 20 years. In 2001, The Patna High Court dismissed
Tarakeshwar’s plea for euthanasia for his wife who was comatose for 16 months. 79 year old
Giriraj Prasad Gupta petitioned the Rajasthan High Court for death with dignity as he was
suffering from poor vision, high diabetes, heart disorders and complex prostate problems. See,
Sinha, Kounteya, “Is it okay to pull the plug” The Times of India, Mumbai, Friday, June 16, 2006,
p. 12. A few death petitions were put before the former President of India, Dr. A. P.J. Abdul
Kalam. An impoverished 70 year old Hakimuddin’s three sons were suffering from a rare genetic
ailment that weakens the limbs, he had requested for death with dignity for all his three sons who
were above 30 years of age. Mohammed Yunus from Orissa had pleaded for euthanasia for his
four children who were victims of limb girdle muscular disorder. Ashok Kumar had requested for
right to die for his 12 year old son who was suffering from aplastic anaemia. See also, Mumbai
Mirror, Sunday, May 6, 2007, p. 15.
157
Kamayani, Mahabal, “Dying with Dignity- A Human Right” in Menon, Anila, V. , supra note 19.

102
2.2.3.2. EUTHANASIA AND PHYSICIAN ASSISTED SUICIDE:

In recent years, debate in the societies, concerning physician assisted

suicide has exposed the problem of inadequate pain management for the
elderly and terminally ill. On one hand, the paradox of a dying patient
suffering from excruciating pain despite the latest technology modern
medicine offers raises both ethical and legal issues for today’s
physicians.158 And on the other hand, if the physician helps the patient to
relieve his pain by accelerating his death, he commits a crime, so is
relenting from pain a physician’s duty or a crime, where is the balance?
Let us identify by analysing the pros and cons of physician assisted
suicide in the light of euthanasia debate.

Debates about the ethics of euthanasia and physician assisted suicide

date from ancient Greece and Rome.159 As far back as the 16th century,
people have been arguing for the terminally ill to be aided in ending life
by physicians who should not be held morally or legally to blame for
assisting the individual.160 In 1870, Samuel Williams first proposed using
anaesthetics (ether) and morphine to intentionally end a patient’s life.161

Any effort to explore and assess the ethics of physician assisted

suicide necessarily begins with an examination of beliefs about the moral
permissibility of an individual’s taking his or her own life in the first
place. Physician assisted suicide is a peaceful death by the assistance of
the doctor. Physician assisted suicide is distinguished from euthanasia as
it necessarily involves an individual who is capable physically of taking

158
McIntire, Timothy, “Ouch! That really hurts, pain management in the elderly and terminally Ill: Is
this a legal or a Medical Problem?” 6 N. Y. City L. Rev.151. (2003).
http://www.international.westlaw.com, [accessed on 20/3/2010].
159
Emanuel, Ezekiel, J., “The history of euthanasia debates in the US and Britain”, Ann. Int. Med.
http://www.annals.org/content, [accessed on 1/4/2010].
160
http://www.associatedcontent.com, [accessed on 13/3/2010].
161
Supra note 159.

103
his or her own life and does so with means provided by another person.162
The purpose of physician assisted suicide is to allow seriously ill
individuals to avoid the prolonged pain and indignity that is associated
with their illness.163 Support for physician assisted suicide is reflected in
the results of 1996 Gallup polls,164 as a result, physician assisted suicide
is now legalised in a few countries,165 culturally tolerated and openly
practiced. The moral argument in favour of permitting physician
assistance in suicide is grounded on self-determination and mercy to
avoid suffering. The principle of self-determination protects the right of
individual to choose the way he lives his life including the way he intends
to end his life. If autonomy is a highly valued principle, it is logical that
patients, especially, and possibly family should have the right to
participate in all end-of-life decisions, why should the most crucial end-
of-life decision be arbitrarily barred?166 An additional argument for
physician assisted suicide asserts that the patient's interest in self-
determination outweighs all other interests in keeping him or her alive.
Because in today's medical industry it is acceptable to withhold treatment
and allow a patient to die slowly, proponents of physician assisted suicide
question why it is not more merciful and humane to let the patient end life
swiftly by taking a lethal dose of drugs. The moral argument on grounds
of mercy, to avoid the pain and suffering, underwrites the right of a dying
person to an easy death, and thus supports physician assisted suicide.
Increased individual exposure to the “lingering death of a loved one” as a

162
Mathews, Michele, M., “Assisted Suicide and Nursing Ethics”, Med. Surgical Nurs. J., vol. 13,
August 2004, p. 261. http://www.deathwithdignity.org, [accessed on 22/3/10].
163
Glym, Katherine, C., “Turning to State Legislatures to legalize Physician assisted suicide for
seriously ill, non-terminal patients after Vacco v Quill & Washington v. Glucksberg”, 6 J. L. &
Pol’y. 362. (1997). http://www.international.westlaw.com, [accessed on 20/3/2010].
164
Id., at 351.
165
The Netherlands, Switzerland, Luxembourg, Belgium and State Oregon and Washington in US.
166
Fraser, Sharon &Walter James, “Death- whose decision? Physician assisted dying and the
terminally ill” Western J. Med. San Francisco: vol. 176, Iss.2, March 2002, p. 120.
http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].

104
consequence of life-sustaining treatment that has fostered public support
for medically assisted death. Many people seek an earlier alternative to
refusing life-prolonging measures in a hospital setting.

It can be stated that the right of self-determination leading to the right

to suicide in terminal illness is initially a negative right. This negative
right is sometimes called a liberty right, may become a positive right
when it involves a request or a demand to somebody. Such a
transformation can occur in terminally ill patients, dying of degenerative
lung disease, muscular dystrophy or debilitating illness may not be able to
exercise their rights without assistance from another person. In such cases
the physician is the only person who can provide assistance. It is only the
physician who has access to drugs, who has specialized knowledge of
appropriate dosages to be administered to the patient.167A physician is the
most trustworthy person for the patient and his family members.
Opponents of physician assisted suicide fear that legalization of such act
may authorize doctors to take life of the patient on a mere request to die.
But a mere request by a healthy person to get assistance does not justify
the principles of self-determination and dignity. Physician assisted
suicide shall be applicable only for the patients who are terminally ill.

Those favouring physician assisted suicide, thus, argue on the grounds

of moral principles of self-determination and dignity to establish the right
to direct assistance in dying. Majority of the philosophers agree that
allowing dying and helping to die are morally equivalent behaviour for
the doctor, in that both recognise that a gentle death is the only remaining
good thing that can happen to this patient.168 Whether the doctor then

167
Supra note 144 at 91.
168
Supra note 2 at 89.

105
expedites death by action or inaction does not affect the moral quality of
responding to that recognition.169

Consider, for e.g., how doctors were involved in hastening death of

George Washington, the first President of the US. In 1799, President
Washington developed a sore throat and doctors took 5 pints of blood
from him which caused a shock for him. This may well have been the
first publicised (though not prosecuted) ‘assisted suicide’ by a Physician
in America.170 But today a number of diseases are defeated by the
advance in medical research, yet the degenerative illness, which has come
into prominence at the end of the 19th and the beginning of the 20th
centuries, fuelled the modern euthanasia controversy.

The right to physician assisted suicide is generally premised on two

different Constitutional rights, the first is a privacy right referred to as
“decisional privacy”- the right to make decisions of a highly personal
nature without interference from the State.171 Advocates of the right to
physician assisted suicide argue that a terminally ill, competent
individual’s decision regarding the manner of his or her death in this type
of personal decision and worthy Constitutional protection.172 A second
Constitutional basis for establishing the right to physician assisted suicide
is found in cases addressing medical decision-making regarding bodily
integrity, autonomy and liberty.173 We are talking about a Constitutional
right of choice, the right to make the choice whether or not to hasten
inevitable death. What is protected by the Constitution is choice in

169
Ibid.
170
Pappas, Dementra, M., “Recent historical perspectives regarding medical euthanasia and physician
assisted suicide” in Dunstan, G.R., & Lachmann, P.J., supra note 47 at 387.
171
Kline, Robert, L., “The Right to assisted suicide in Washington and Oregon: The Courts won’t
allow a Northwest passage”, 5 B.U. Pub. Int. L. J. 214. (1996).
http://www.international.westlaw.com, [accessed on 20/3/2010].
172
Ibid.
173
Id., at 215.

106
matters of personal autonomy. As discussed earlier in chapter one,174 the
right to privacy including the right to self-determination and autonomy
indeed forms the base for the right to physician assisted suicide.

Certain judgments have protected the right to privacy but have not
allowed physician assisted suicide. Neither Quinlan case175 of 1976 nor
the Cruzan case176 of 1990, involving question of death, dying and right
to privacy established an absolute right to die. The only right recognized
in these judgments was the right to refuse or to reject life sustaining
medical treatment, in order to die a natural death.

In England attempt to suicide is decriminalised177 but retained the

criminal prohibition of aiding and abetting suicide. As per this even a
doctor who advices his patient how to commit suicide shall be
committing an offence under the statute. This matter was considered in
Attorney-General v. Able178, in which the court expressed the view that
the provision of such advice could constitute aiding and abetting suicide
if it was sufficiently closely linked to the act of self-destruction.179

Right to die organisations have chosen physician assisted suicide as

the first station on the road to legalizing euthanasia. General
Practitioner’s survey reveals two-fifths of General Practitioner’s would
like to see physician assisted suicide legalized and would be prepared to
help a terminally ill patients end their life.180 Not only the doctors but
even the nurses who witness the agony of terminally ill patients are in

174
Supra, Chapter I, p. 46 to p. 48.
175
Supra note 79.
176
Supra note 21.
177
The Suicide Act 1961 declares suicide or attempt to suicide is not an offence in England. See,
supra note 130.
178
All ER 1984 1: 277.
179
Ibid.
180
Tanday, Sanjay, “GP support for euthanasia growing”, GP, London: Feb 6, 2009, p. 3
http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].

107
favour of assisted suicide. 1/3 of nurses in the UK believe they should be
allowed to help patients commit suicide and intend to see euthanasia
legalized.181 The Hemlock Society founded by Derek Humphry has
published a number of books on euthanasia, reviving the issue and
making people more aware about it in the United States of America and
over the globe. In the US, the State of Oregon has legalized physician
assisted suicide, through enacting Death with Dignity Act, 1997. In
addition, Belgium (2002), Netherlands (2002), and Switzerland (1941)
have legalized physician assisted suicide. In India, attempt to suicide is
unlawful and so is any form of euthanasia. The Law Commission of
India has recommended legalization of euthanasia,182 but apprehending
the misuse of such a law, the legislators are silent on it. The Society for
the Right to Die, has also filed a writ petition in the Hon’ble Supreme
Court in 2008.183 In a survey conducted 2 years ago in Britain, 80% of the
respondents favoured assisted dying. In China too, legislation permitting
physician assisted dying is gaining increasing acceptance among doctors
and the people at large.184

Euthanasia has a wide range of classifications. Confusion exists in the

application of specific concepts to various studies.185 More than two

181
Anonymous, “Nurses support euthanasia”, Australian Nurs. J. North Fitzory: Feb 2004, vol. 11,
Iss 7, p. 35. http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].
182
Law Commission of India, 156th Report on Medical Treatment of Terminally Ill Patients
(Protection of Patients and Medical Practitioners) (2006)
http://www.lawcommissionindia.nic.in/report/rep196.pdf, [accessed on 10/10/2009].
See, Dhananjay, Mahapatra, “Legalize euthanasia, says law panel” The Times of India, Mumbai,
Monday, June 30, 2008, p. 3.
183
The Society for Right to Die with Dignity and the All India Body of Medical Practitioners in
Critical Care Medicine filed a Writ Petition under article 32 of the Indian Constitution in the
Supreme Court through Senior Counsel, Adv. H. Mohta in 2008. Adv. Mohta is the former Chief
Justice of Orissa High Court. The petition for hearing was before the Bench headed by Justice B.
N. Agarwal and Justice G. S. Singhvi, who tagged the case as a pending petition. See,
http://www.legalservice.com , [accessed on 10/1/2011].
184
Raghavan, B. S., “Opinion: Is euthanasia the answer?” Businessline, Chennai, Feb 27, 2009, p. 6.
http://www.porquest.umi.com/pqdweb, [accessed on 18/8/2009].
185
Geo, Fenglin, “A concept analysis of voluntary active euthanasia” Nursing Forum, Philadelphia,
Oct- Dec 2006, vol. 41, Iss. 4, p. 167 http://www.porquest.umi.com/pqdweb, [accessed on
18/8/2009].

108
centuries ago, Sir William Blackstone observed that “[l]aw is the
embodiment of the moral sentiments of the people”.186 He further added
that, “[t]he law of physician assisted suicide blends ethics, philosophy,
and morality with the medicine and the law. It [also] touches our
fundamental beliefs about life, death, illness, religion, autonomy, and
dignity.”187

One’s dying is subjected to the full range of medical control:

technological devices, bureaucratic monitoring, and the pressures on both
patients and caregivers to subject dying to rationalized decision-making
procedures and imperatives of expediency.188 The physician-assisted
death could free the terminally ill patients from the life prolonging
devices is possible even if not certain.

The difficulty in legalizing physician assisted suicide is based on the

different forms of euthanasia leading to innumerable questions to be
tackled. It can be stated that, ‘the recognition of a fundamental
constitutionally protected interest in physician assisted suicide, while not
wholly untenable, is fraught with difficulties.’189

The concept of legalizing physician assisted suicide runs counter to

the basic ideal of modern health care, which operates to extend life as
long as possible. Nevertheless, some people afflicted with protracted,
irreversible and terminal illnesses shall be allowed to seek assistance
through medication in order to die peacefully and without pain when they
can no longer endure the suffering associated with the natural course of
dying.

186
Sandy, Sanbar, S., Legal Medicine 319, 6th edn., USA, Mosby, 2004. www.infibeam.com,
[accessed on 20/8/2009].
187
Ibid.
188
Mckenny, Gerald, P., To Relieve the Human Condition 30, Albany: State University of New York
Press, 1997.
189
Supra note 148 at 904.

109
 The physicians primary mission is to heal the sick. When a patient's
degenerative condition defies all efforts to heal, the physicians try to
medicate the pain and make the patient feel as comfortable as possible.
However, when a patient's pain proves to be unmanageable and the
patient makes the competent decision to die, his doctors if willing, should
be able to assist their patient in hastening death without the fear of
prosecution.

The debate over the propriety of physician assisted suicide rages

stronger today than ever before. It is a fact that this debate has moved
from its infancy in philosophical circles, through the Houses of State
legislatures, and into the halls of injustice.190 Therefore, the Indian
legislators should think on the similar lines of Oregon’s Death with
Dignity Act, 1997 and provide the ailing and suffering terminally ill
patients a law to die a peaceful death.

Euthanasia or physician assisted suicide has a common element of

mercy in deciding whether to provide a peaceful death or not. Hence it is
inevitable to compare euthanasia and mercy killing.

2.3. MERCY KILLING VIS –A- VIS EUTHANASIA AND THE

JUDICIARY:

Mercy killing is most of the times considered similar to euthanasia.

However, both the terms vary in practice. The judiciary has established
the assorted elements of mercy killing and euthanasia through its various
judgments.

190
Tarnow, William, J., “Recognising a fundamental liberty protecting the right to die: An analysis of
Statutes which criminalize or legalize physician assisted suicide”, 4 Elder L. J. 446. (1996).
http://www.international.westlaw.com, [accessed on 20/3/2010].

110
2.3.1. EUTHANASIA AND MERCY KILLING:

Mercy killing has engaged the attention of Philosophers and Lawyers,

since the time of Greek thinkers (in the West) and the Mahabharata (in
the East). The subject has several dimensions- ethical, social and legal.191

Many times mercy killing is confused with euthanasia, but in practice

both the terms differ in application. The result of both is the same: death
of a person, but in mercy killing the death is a result of sympathy due to
various reasons, whereas in euthanasia the reason is unbearable pain due
to terminal illness which has reached the stage of ‘no hope of recovery’.
Both the concepts include sympathy, but the risk of misuse is more in
mercy killing than euthanasia. The former can be performed by a lay
person whereas the latter is performed only by a doctor. Mercy killing
involves taking of life of some member of the family afflicted with
insanity or some incurable malady. The basic difference is that mercy
killing is performed on a person, who may not be a patient for e.g.,
physically or mentally challenged, whereas, euthanasia is demanded
always in case of a person who is a patient. Mercy killing is motivated by
an inalienable duty to care. As a one-sided duty, it does not depend on the
expressed death wish of the suffering person. Unlike euthanasia, mercy
killing does not require consent. Mercy killing embodies a tragic collision
between the goodwill of the perpetrator and the horrifying prospects of
the deed, between the unwavering prohibition of the legal system and the
merciful compassion of the bystander, the most significantly between two
normative orders, that of the State and that of the family.192 The concept
of mercy killing is not in support of euthanasia as it is a criminal act
liable for punishment as per State laws. It is to be noted that, this concept
191
Bakshi, P. M., “Mercy Killing or Euthanasia”, Indian J. Crim. & Criminalistics, vol. 21, Jan- Dec
2000, p. 1.
192
Lavi, Shai, J., The Modern Art of Dying 157, New Jersey: Princeton University Press, 2005.

111
has no special significance in English criminal law.193 Mercy killing in
itself is a wrong as it includes mercy for insane or handicap persons,
whose rights are well protected by the State.194

There is a plethora of cases from western countries dealing with mercy

killing in the past.195 In 1920 Frank Roberts, in Michigan, received life
imprisonment for aiding his wife’s suicide, since then many “mercy
killers” until the Gilbert’s196 case have received probationary sentences in
the US.197 At the same time, legal history shows that in the United States
most “mercy killers” have been acquitted, been given a suspended
sentence, or been sent to a mental hospital, or the charges have been
dropped.198

In one of the reported survey on public opinion regarding mercy

killing, it is stated that the public was almost equally divided, showing
forty-six per cent in favour, and fifty-four per cent opposed.199 As part of
the 1937 poll, doctors were polled separately and 53 per cent of them
were in favour and 47 percent were opposed, according to the New York
Times.200

193
Ashworth, Andrew, Principles of Criminal Law 269, 6th edn., Oxford: Oxford University Press,
2009.
194
For e.g., The Persons with Disabilities (Equal opportunities, Protection of Rights and Full
Participation) Act, 1995, Mental Health Act, 1987, Rehabilitation Council of India Act, 1992,
National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities Act, 1999. All these legislations are enacted in India to protect the rights of
differently able people.
195
Windsor (N.Y.) Standard, May 18, 1939, Birmingham (Ala.) Age Herald, 13 May, 1939, People v.
Roberts (1920), 178, N.W. 690, 211 Mich. 187, 13 A.L.R. 1253, Commonwealth v. Noxon,391
Mass.495,66 N.E.2d 814 (1946), Braunsdorf Case, (1950).
196
Gilbert v. State 487 So. 2d 1185, 1990 Florida.
197
Supra note 27 at127.
198
Supra note 36 at 101.
199
Id., at 84-85.
200
Ibid.

112
PUBLIC OPINION ON MERCY KILLING

For Against

Men 49 51

Women 42 58

Persons under 30 [years of age] 52 48

Persons [in the age group of] 30 to 49 44 56

Persons [of] 50[years] and above 41 59

From the figures stated above it is evident that men and women generally
were against mercy killing. Persons under the age of 30 voted in favour of
mercy killing and those who were above 30 and above 50 years of age
voted against mercy killing. To sum the observation of this poll, overall
voting was against legalizing mercy killing.

Following are the widely publicized “Mercy Killing” Court cases

against doctors:

a. Cases of Lesser Homicide:

• A Dutch doctor drugged his brother to death. He was

awarded one year suspended sentence in 1950.

• In Holland a 79 year old mother was drugged in 1971. The

accused was awarded 1 week suspended sentence and 1 year
probation.

113
 b. Acquitted Cases:

• Haiseldon from Illinois was indicted for allowing defective

babies die in 1915 and 1917.

• In New Hampshire, Sander was indicted for injecting air in the

vein of a dying cancer patient in 1950.

• Caster from Belgium was acquitted as an abettor in the case of

Van de Put in 1962.

c. Refused to indict:

• A Swedish doctor who stopped intravenous feeding of aged

patient was refused to indict in 1964. 201

Thus it is observed from the above instances that in cases of mercy killing
in which doctors were involved to bring about the death of the patient
have been awarded different punishments and some have also been
acquitted. The courts decision regarding mercy killing appears ambiguous
and inconsistent in determining its uniform legal status.

The U.S. Court decisions in some widely publicized “Mercy-Killings”

by other person than doctors are listed below:

a. Cases of First Degree Murder:

• Roberts from Michigan was awarded life imprisonment for

poisoning his wife in 1920.

201
Id., at 260.

114
 • Noxon from Massachusetts was awarded life imprisonment and
later on life parole for electrocuting his 6 months old mongoloid
son in 1943.

b. Cases of lesser homicide:

• Repouille from New York was awarded a 5-10 year suspended

sentence in 1939. He had chloroformed his 13 year old
mongoloid son.

• Mohr form Pennsylvania was awarded 3-6 years sentence and $

500 fine in 1950. He was indicted for killing blind and cancer
stricken brother.

c. Acquitted Cases:

• Greenfield from New York was acquitted from the charge of

chloroforming his 17 year old imbecile son in 1939.

• Haug from Pennsylvania was acquitted from the charge. He

was indicted for drugging his mother in 1947.

• Werner from Illinois was also acquitted from charge of

suffocating bedridden wife to death.

• Zygmaniak from New Jersey was acquitted from charge of

shooting paralysed brother in 1973.

d. Cases of Acquittal on grounds of Temporary insanity:

• Kirby from New York had drowned her two children. She was
acquitted on grounds of insanity in 1832.

115
 • Reichert from New York had shot his 26 year old mental patient
brother. Reichert was also acquitted in 1942.

• Paight from Connecticut had shot his cancer stricken father. He

was acquitted in 1949.

• Braunsdrof from Michigan had shot his 29 year old daughter.

He was acquitted in 1950.

• Nagel from Arizona had shot his 28 year old invalid daughter
and was acquitted in 1950.

• Waskin from Illinois had shot his cancer-stricken mother and

was acquitted in 1969.

e. Cases of refusal to indict:

• Johnson from New York was accused of suffocating cancer

stricken wife in 1938.

• Reinecke from Illinois was accused of strangling his 74 year old

cancer stricken wife in 1967. 202

The above cases dealing with mercy killing by other than doctors lack in
uniformity in the judgments. It is observed that in cases of mercy killing
in which any family member ended the life of a loved one in order to end
the hopeless suffering, judges have shown great sympathy and
unwillingness to punish, when the act done indeed violated the criminal
law. The culprits in most of the cases mentioned in the above incidents
have been acquitted or awarded lesser punishment. But allowing mercy
killing on grounds of disability either mental or physical directly strikes

202
Id., at 258, 259.

116
at the root of human rights. In such cases the family member may feel
sympathetic but if the person wants to live, then what right the family
members have to kill that person?

The key for deciphering the phenomenon of mercy killing lies not in
the extraordinary suffering that the act is meant to relieve but rather in the
ordinary relationship of care between perpetrator and sufferer and the
relationship of kin.203

The modern society, whether as an opponent or proponent of

euthanasia, has become increasingly attracted to the idea that treatment
of dying and more specifically, the ending of life should be carefully
regulated by State law and medical practice. Mercy killing is not only
unregulated but even the very thought of regulating the act of taking life
by a family member is offensive to our moral conscience. Euthanasia
should not be misunderstood as mercy killing. In any form of euthanasia,
the patients desire and right to self-determination including right to
autonomy are of paramount consideration and not only sympathy for the
patient.

In the researcher’s opinion there is a considerable difference between

mercy killing and euthanasia. Though the components of sympathy and
suffering are common in both, by no stretch of imagination they can be
equated. Euthanasia is recommended only in cases of incurable terminal
illness and not for differently abled people who have a right to live a
dignified life. Based on this relevant condition it is urged that the
judiciary should play a determinative role while deciding such cases.

203
Supra note 192 at 152.

117
 2.3.2. EUTHANASIA AND THE ROLE OF COURTS:

As aptly opined by Oliver Wendell Holmes, “[t]he life of law has not
been logic, it has been experience…”204 The law should not be static, it
has to change and evolve through experience for the welfare of people.

Every case of euthanasia differs from the other, depending on the

nature of illness, hope of recovery, mental and physical health of the
patient and the desire expressed by the patient. How does the law deal
with such cases? Undoubtedly, the courts play a vital role in balancing
the interests by a developed and redefined balancing approach.205 Laws
require proper interpretation if they are to be applied to concrete cases.206
The courts have a minimum discretion in the countries which legally
prohibit euthanasia as a criminal offence, but as history is evident that
judges do not only declare law but they also make law.207 Hence, it can be
said that courts in name were really acting as legislators in concept.208
One would think that the canons of practical reason would provide
guidance to legislators and judges as they go about their business of
fashioning laws and decisions designed to do justice and protect the rights
and interests of the parties who fall under their jurisdiction, but in
practice, it seldom turns out that way.209 In practice judges have tried to
resolve this perennial conflict between rigidity in the law and need to
bend when it is manifestly unjust.210 It is permitted for a judge to
disregard or ‘distinguish’ an earlier decision of the court in case he is

204
Knight, Alfred, H., The Life of Law 1, 1st edn., New York: Crown Publishers, Inc., 1996.
205
Supra note 8, 21 and 46.
206
Hart, H.L.A., The Concept of Law 200, 1st edn., London: Oxford University Press, 1961.
207
For e.g., Vishaka v. State of Rajasthan, AIR 1997 SC 3011, [ The Supreme Court of India laid
down a historic judgment on sexual harassment of women at workplace], Roe v. Wade 1973, [The
US Supreme Court gave a historic judgment allowing abortion as a right of women].
208
Soper, Philip, A Theory of Law 110, London: Harvard University Press, 1984.
209
Burton, Leiser, M., “Practical Reason and The Ethics Of The Media”, ISLJ., vol. XIX, No 2, 1993,
p. 19.
210
Irving, Ronald, The Law is an Ass 37, London: Gerald Duckworth & Co Ltd, 1999.

118
convinced that the facts of the past cases diverge from the present case.211
Since no rule can be so phrased as to be absolutely certain in its
application to all cases, it is essential to appoint judges with the power to
make a binding interpretation of the rules and to determine authoritatively
what their application should be in disputed cases.212 Every law should be
extensively interpreted so as to carry that object fairly in various
cases.213The courts by applying the balancing approach can categorize
rules to create objective decision making by using criteria such as
causation and act-omission distinctions to reach results. In reality, it is
difficult to categorize acts as ‘killing’ or ‘letting die’. Since five decades
there is a heated debate among physicians, ethicists and the public
regarding whether physician assisted suicide is medically proper, morally
right and socially desirable.214 It is believed by a number of people that
any form of euthanasia violates medical ethics, is immoral, and may lead
to killing of people against their will resulting into disrespect for sanctity
of life.

In cases involving the “right to die”, courts are faced with the
agonizing task of developing legal standards, governing termination of an
incompetent patient’s medical treatment.215 The rigidity of these legal
standards reflects court’s acceptance of the medical profession’s
presumption in favour of continued treatment, a presumption that places a
heavy burden on families seeking to terminate treatment.216 The courts
can consider all the arguments within the balancing approach considering

211
Ibid.
212
Fuller, Lon, L., Anatomy of Law 6, Westport, Connecticut: Greenwood Press publishers, 1968.
213
Thibaut, An Introduction: To the Study of Jurisprudence 51, Trans. by Nathaniel Lindly, Reprint,
Littleton, Colorado: Fred B. Rothman & Co., 1985.
214
See generally, Hilary, White, “British Moralist says Dementia Patients have a Duty to Die”
http://www.lifesitenews.com , [accessed on 4/1/2011]. For the view on roots of morality and its
acceptance by human beings, see also, Cooper, Neil, The Diversity of Moral Thinking 291,
Oxford: Clarendon Press, 1981.
215
Rhoden, Nancy, K., “Litigating Life and Death”, 102 Harv. L. Rev. 375. (1988).
216
Ibid.

119
that legality would depend solely on the decision maker’s classification of
a situation. The courts can set limits and define procedures to guide the
decision making of patients and doctors. The reasonableness of a choice
to stop treatment should be evaluated by considering the patient as a
whole, including her values, her physical and emotional interests, and her
ability to experience and enjoy life.217 It should be noted that even “[l]aw
courts, like hospitals and doctors, handle not the normal routine but
exceptional conflicts…”218 Thus, the complex undertaking which
universally known as “law” requires at every turn the exercise of
judgment, and that judgment must be exercised by human beings for
human beings.219

As per Justice Cardozo, the judges should intelligently create law to

satisfy the needs of a changing society. The transformation in time has
placed on the courts the responsibility of giving body and life to those
rights. The rights guaranteed by the Bill of Rights, are stated in broad
terms and the courts must give content to those rights and devise
remedies to make them meaningful.220 Justice Cardozo emphasises, that
the content of constitutional immunities is not constant but varies from
age to age.221 It is expected that courts should give alternative and more
expansive view to serve the expected goal. Similarly Kholer has observed
that “the interpretation of a statute must by no means of necessity remain
the same forever. To speak of an exclusive correct interpretation, one
which would be true from the beginning to the end of its day is altogether
erroneous.”222 The nation expects the Supreme Court to be a court not

217
Id., at 379.
218
Meefendroff, A., “The Tragedy of Modern Jurisprudence”, Sayre, Paul, (ed.), Interpretations of
Modern Legal Philosophies 535, Reprint, Littleton, Colorado: Fred. B. Rothman & Co., 1981.
219
Supra note 212 at 40.
220
Clyde, W. Summer, “The Law of Union Discipline: What the Courts do in fact”, 70 Yale L. J.175.
(1960).
221
Cardozo, Benjamin, N., The Nature of Judicial Process 17, London: H.M. Hyman, 1965.
222
Mathew, K.K., Three Lectures 3, Lucknow: Eastern Book Company, 1983.

120
only in the orthodox sense of the term but also something much more
than that. Many judges have believed or profess to believe that
Constitutional law is a mystery revealing itself in terms of unmistakable
precision to those who had the key to it.223

In Henry Hart’s words, the “voice of reason, [ought to be] charged

with creative function of discerning afresh, … articulating … developing
impersonal and durable principles”.224

In Ronald Dworkin’s view, the courts role is to define our

“Constitutional morality”, which in turn requires the court to elucidate
“the political morality presupposed by law and institutions of the
community”.225 Charles Curtis similarly sought to convince members of
Supreme Court that it should “articulate a creed for the era,” by becoming
the nation’s philosopher”.226 The courts must assume their proper role,
not as policy makers ready to provide instant moral judgment, but as the
legal body vested with the power to ensure that these rights are not
abused.

Historically, the courts, the legislatures, and the medical boards have
been reluctant to extend the right to die to include the request of the
competent, terminally-ill adult to his/her treating physician for the
physician's active participation in ending his/her suffering.

It is not essential that the courts must decide cases only on the existing
laws, for there is always a need to modify laws and apply them as per
demands in the society. In Roe v. Wade,227 the US Supreme Court did of
course endorse a new right in the face of substantial contrary history. The

223
Id., at 5.
224
Henry, Hart, “Foreword: The Time Chart of Justices,” 84 Harv. L. Rev.73. (1959).
225
Supra note 6 at 77.
226
Ibid.
227
410 U.S 113 (1973).

121
last quarter of the twentieth century has viewed a change in the courts
approach world over towards rights of dying patients. In 1976 in Karen
Ann Quinlan,228 when the Supreme Court of New Jersey recognised for
the first time a constitutional right of patients to withdraw life-sustaining
machinery, and culminated in the similar 1990 Nancy Cruzan case,229 in
which a constitutional right to die with dignity was recognized by the
United States Supreme Court.230

In Glucksberg and Vacco,231 the Supreme Court has clarified that the
constitutional right to die with dignity is limited to withholding and
withdrawing life-sustaining machinery and does not include a right to
physician assisted suicide or euthanasia.232 The current court is even
more committed to a conservative reading of privacy and liberty interests
protected by the Constitution.233 However, can the Court recognize that
the State’s interest in preservation of life must comply to the individual’s
particularized interest in self-determination in exceptional cases in order
to avoid needless and prolonged suffering?234

A dilemma arises out of three factors: the variety of values implicated

by our concern for privacy, the need for already complicated legal
regimes to accommodate new technologies and the difficulty of balancing
competing (sometimes conflicting) concerns in this complex area of
law.235 Which ever country it may be, the legal discourse increasingly
centres on individual rights and liberties. As a result, the trend to the

228
Supra note 79.
229
Supra note 21.
230
Supra note 192 at 166.
231
Supra note 7 and 8.
232
Ibid.
233
Supra note 103 at 1530.
234
Tyde, Stephen, J., “Compassion in Dying v. Washington: A Resolution to the Jurisprudence of
Doubt, Enshrouding Physician Assisted Suicide?” 47 Mercer L. Rev. 1161. (1996).
http://www.international.westlaw.com, [accessed on 20/3/2010].
235
Breyer, Stephen, Active Liberty, Interpreting Our Democratic Constitution 66,1st edn., New York:
Alfred A. Knoff, 2005.

122
constitutionalisation of human rights increasingly implicates the courts in
a broad range of social policy issues.236 Another factor in the new social
policy role of judges cited by scholars is the perceived inability or
unwillingness of legislative bodies to deal with pressing social issues.237
Although the contents of rule of law may vary from country to country,
everywhere it is identified with the liberty of individuals.238 The problem
of reconciling human rights with the requirements of public interest and
of harmonising the two can be attained only by the existence of
independent courts which may hold the balance between the citizen and
the State and compel the government to conform the law.239

In the present scenario, majority countries are against legalizing

euthanasia, as from a legal perspective, euthanasia is nothing but a
culpable homicide amounting to murder. The problem for the courts to
pronounce a judgment on legalizing euthanasia is the gap between the
medical understanding of the practice and its legal status. To bridge this
gap, there should be a fundamental change in the law and its relation to
the medical practice of euthanasia. Law as regulation could determine
under what conditions euthanasia should be practiced and could also
guard the practice of euthanasia from possible abuses. As one who has to
evolve values or make choice between values, the judge is inevitably
concerned with policy, since law is a means to social ends and not an end
in itself.240 The controversy between those who believe that law should
essentially follow, not lead, and that it should do so slowly, in response to
clearly formulated social sentiment and those who believe that the law

236
Beverley, Mclachlin, “The Role of Judges in Modern Common Wealth Society”, L. Q. Rev., vol.
110, April 1994, UK, p. 263.
237
Ibid.
238
Khanna, H. R., Liberty Democracy and Ethics 38-39, 1st edn., New Delhi: Radha Krishna
Prakashan 1979.
239
Id., at 39.
240
Supra note 222 at 15.

123
should be a determined agent in the creation of new norms, is one of the
recurrent themes of the history of legal thought.241 At the same time, it
cannot be denied that court ruling that creates a new constitutional right
to ‘self-preservation’ could spawn a host of legal and medical ethics
issues.242

Herbert Wechsler, a eminent Constitutional Law Professor, has

felicitously spelt out, “[t]he main constituent of judicial process is
precisely that it must be genuinely principled, resting with respect to
every step that is involved in reaching judgment on analysis and reasons
243
quite transcending the immediate result that is achieved.” Wechsler
has accentuated the fact that court cases should not be decided on grounds
of adequate neutrality and generality, tested not only by the instant
application but by others that the principles imply.

The proponents of euthanasia emphasize that the courts must think

only about the rights of a terminally ill patients, where as the courts
decide such cases from individual as well as social point of view. Every
judgment should be based on principles of significance which can be
consistently applied for present and future cases. Justice Frankfurter was
of the opinion that a judge must decide the case before them and not some
other case. But that does not mean that a case is disassociated from the
past and unrelated to the future. Judges must decide the present case with
due regard for what went before and no less regard for what may come
after.244 The judges are bound not only by legal provisions but also the
moral and social responsibility. A judge does not seek simply to “do

241
Friedmann, W., Law in a changing society 3, London: Stevens & Sons Ltd, 1959.
242
McDonough, Molly, “A Right to Self-preservation?” 5 ABA J. E-Report. 2. (2006).
http://www.international.westlaw.com, [accessed on 20/3/2010].
243
Yale, Kamisar, “Physician-assisted suicide: the last bridge to active voluntary euthanasia” in John
Keown, supra note 2 at 237, 238.
244
Ibid.

124
justice”, nor simply to “apply law”, he seeks to “do justice according to
law”.245 Thus Judges not only interpret and apply law but they also make
law.246 Although judges necessarily make law their functions are not
typically those of legislators or policy makers but primarily those of
rationalisers and elaborators of doctrine in dispute cases or in relation to
claims brought before them.247

The attempt to treat law as a pure science, isolated from society it

serves, is succumbing to a more sociological approach. To some extent
this means that the judge must come down from his high perch and look
at law in the light of its effects upon individuals and society.248 If court
decisions find physician assisted suicide to be permissible, the limitations
and regulations of such activity will need to follow. Physicians
considering suicide assistance must be allowed to take into account the
patients ‘psychological and spiritual suffering’ not just physical
symptoms.249 The opponents of euthanasia argue that the right to die is a
controversial and politically divisive issue that involves medical, ethical,
and philosophical questions that should be answered only by the
legislature not by the judiciary. Although the complexity of life and
death cases calls for legislative participation, the legislature has failed to
provide guidance on such sensitive issue. The legislature, instead of
making difficult social choices, leaves matter to “experiment” in the
courts.250 Habermas explains the role of judiciary in the recent rise to

245
Viola, Francesco, “The Judicial Truth: The Conception of Truth in Judicial Decision”, ISLJ., supra
note 209 at 18.
246
Golding, Martin, P., Philosophy of Law 4, New Jersey: Prentice-Hall, Inc., Englewood Cliffs,
1975. See, supra note 207.
247
Cotterrell, Roger, The Sociology of Law 240, 2nd edn., New Delhi: Oxford University Press, 1992.
248
Spencer, J. R., “Jackson’s Machinery of Justice”, 49 Cambridge L. J. xvi, 510. (1990).
249
Fiesta, Jamine, “Legal aspects of physician assisted suicide”, Nursing Management, Chicago, vol.
28, Iss.5, May 1997, p.17. http://www.proquest.umi.com/pqdweb, [ accessed on 18/8/2009].
250
Dennis, M. Patterson, “Why Habermas’s Theory of Law Must Fail”, ISLJ., supra note 209 at 2.

125
prominence of public choice. Very logically he emphasises the judiciary’s
discretion to shape the legal policies for effective administration. 251

When judges or other officials make decisions, within their legal

competence, they can create legal qualities or competence, or regulate the
behaviour of the members of society.252 In such circumstances the
judiciary cannot simply refuse to deal with cases allowing euthanasia as
it is the demand of the hour. Beyond doubt judges do constantly strive to
strike a balance between their own personal intention of public policy and
the sentiment prevailing in the surrounding society. It is precedent not
accident that courts love liberty most when it is under pressure least.253
The proponents of euthanasia state that court should help articulate in
broad principle the goal of our society considering the individual interest
in exceptional cases. And in the attainment of these goals the judiciary
has an important role to play as any other organ of Government.

Thus, it may be averred that the role of the courts in deciding

euthanasia cases is undoubtedly very important at the same time equally
difficult as the final outcome must be a ‘reasoned judgment’. An
independent judiciary is virtuous, without it fair and principled
administration of justice is difficult, if not impossible254 Gripped by the
idea that justice is better served by adherence to rules than the situated
practical judgment that balancing requires. Part of the problem may be
that balancing requires an ideological consensus that currently escapes
the court.255 With reference to abortion and euthanasia, Professor
Dworkin says, ‘hard cases’ should be reached by balancing competing

251
Id., at 3.
252
Hendrik, Kaptien, “The Morals of Post-Modern Human Rights”, ISLJ., supra note 209 at 44.
253
Walter, Gellhorn, American Rights 3-5, New York: Macmillan, 1961.
254
Notes, 68 Temple L. Rev.1076. (1995). Philadelphia.
255
William, A. Fischel, “Introduction: Utilitarian Balancing and formalism in Takings”, 88 Columbia
L. Rev.1590. (1988).

126
principles and deciding which deserve greater weight in the
circumstances of any given case.256

It should never be forgotten that at the back of the Supreme Court,

however, providing ethical current that animates the decisions, is the
massive, though somewhat formless, body of public sentiments.

All the relevant concepts have been discussed except the balancing
approach. There is acute need of balancing individual interests and the
State’s duty. Individual interest to exercise their right to liberty, self
determination and autonomy contrasts with the State’s duty to uphold
sanctity of life and protect life. However arduous it is but it is inevitable
to have a legalised form of euthanasia in order to achieve the socio-legal
and medico-legal balance in the society.

2.4. EUTHANASIA: A NEED FOR BALANCING APPROACH

BETWEEN THE INDIVIDUAL INTEREST AND THE STATE’S
DUTY:

The concept of euthanasia basically originates from the human choice

and desire. Certain desires in the democratic States are termed as interests
of individual. Categorized interests which are recognised and protected
by the State are the rights. And these rights are the result of having
liberty. Now the questions which arise about the extent of individual
liberty, right and interest with reference to euthanasia, are, whether
individuals are at liberty to choose their death in terminal illness? Does
the law protect the interest to die a peaceful and painless death? Is there
any right available for individuals to exercise control over their body
during the last phase? Should the liberty of individuals be regulated by
the State? What is the State’s role in protecting life of individual? Can a
256
Ronald, Dworkin, Taking Rights Seriously 81,130, London: Duckworth, 1977.

127
meaningful moral line be drawn between individual interest and State’s
duty? The researcher proposes to answer these questions in this segment.

2.4.1. EUTHANASIA AND INDIVIDUAL LIBERTY, RIGHTS AND

INTEREST:

This segment of the thesis focuses on the origin of individual rights,

importance of liberty and need to protect the individual interest and gain
justice.

According to Emperor Justinian (A. D. 482-565), justice is the

constant and perpetual wish to render to everyone his due, that is,
“Iustitia est constans et perpetua voluntas ius suum cuique tribunes”.257
‘Justice’ in other words means “nothing more (and nothing less) than
being fair.”258 Justice is sometimes taken to be “synonymous with or
equivalent to law, sometimes to be distinct from law and superior to
it.”259 Furthermore, justice is not one and indivisible but can differ in
varying circumstances.260 Rather what is considered just at a particular
given time may not be considered at another time.261

The proponents of euthanasia think it is gross injustice to legally

compel a person to live when the life has become miserable and is not
worth living due to a terminal illness. As per the expectations of the
proponents’, justice is based on rights, liberty and individual interests.
Why does an individual claim certain rights in a civilized society? What
is the meaning of ‘right’? The answer to the first question is individual
claims certain rights in order to protect himself against the encroachment

257
Supra note 210 at 3.
258
Ibid.
259
Giorgio, Del, Vechhio, Justice: An Historical & Philosophical Essay 1, New York: Philosophical
Library, 1953.
260
Potter, Harold, The Quest of Justice 1, London: Sweet and Maxwell Ltd, 1951.
261
Dhyani, S. N., Law, Morality and Justice 73, New Delhi: Metropolitan Book Co. Pvt. Ltd, 1984.

128
by State or other individuals. Rights are of various types- for e.g.,
‘natural’,262 ‘conventional’,263 ‘moral’264 and ‘legal’. A legal right is
defined as the interest recognised and protected by law.265

The proof of existence of a right is held to depend, not upon a priori

conceptions of justice, but upon such practical considerations as the
consequences that may be anticipated to follow from the recognition of
right.266 The static idea of a right immutable in nature and scope
substituted the dynamic idea of a right as the claim of the citizen in
communities at varying stages of development.267

The struggle to gain rights has a long history which proves the
importance of rights. Declaration of the Rights of Man and of Citizens,
1789 provides the following rights:

Men are born, and always continue, free and equal in respect of
their rights. Civil distinctions, therefore, can be founded only on
public utility. The end of all political associations is the
preservation of natural and imprescriptible rights of man and these
rights are liberty, property, security, and resistance of
oppression.268

262
Natural rights are abstract version of claims, liberties and immunities and are akin to principles and
doctrines. Natural rights came into prominence in the period of individualism. Myneni, S. R.,
Jurisprudence 219, 2nd edn., Hyderabad: Asia Law House, 2005.
263
Conventional rights originate from conventional law. These rights are based on the rules or set of
rules which are the outcome of an agreement between persons or group of persons. Id., at 175.
264
According to Salmond, “[a] moral right is an interest recognised and protected by rule of morality-
the violation of which would be a moral wrong.” The moral rights and legal rights coincide in most
of the cases and rarely do they contradict each other. Id., at 217-218.
265
Fitzgerald, P. J., Salmond On Jurisprudence 217, 12th edn., Bombay: N. M. Tripathi Pvt. Ltd.,
2000.
266
Jethro, Brown,W., The Underlying Principles of Modern Legislation 240, 6th edn., London:
Sherratt & Hughes, 1920.
267
Ibid.
268
Declaration of the Rights of Man and of Citizen (1789) in Patricia, Smith, (ed.), The Nature And
Process Of Law 100, New York: Oxford University Press, 1993.

129
 The Virginia Declaration of Rights, 1776 states, “[t]hat all men are by
nature equally free and independent, and have certain inherent rights, of
which, when they enter into a state of society, they cannot by any
compact deprive or divest their posterity.”269 Specially, the right to enjoy
life and liberty, with the means of acquiring and possessing property, and
pursuing and obtaining happiness and safety are of supreme
significance.270

The US Bill of Fundamental Rights, 1791 also gives paramount

importance to liberty, rights and freedom of individuals. It is based on,
the Constitution written in Philadelphia in the summer of 1787. 271

The Constitution of India has embodied a list of Fundamental Rights

in Part III for protection of individuals.272 The Constitutional provisions
that protect individual rights also embody moral principles.273

When Declarations of Independence recited as self-evident men’s

endowment with the rights of life, liberty and the pursuit of happiness
through these rights of human beings thus occupied pole positions. 274 The
fundamental rights of man have the central concern to the United Nations
since its inception is clear.275 Constitutions containing the rights of men
are the foundations of the rule of law in modern societies.276

Most fundamental is the idea of human rights as presuppositions of a

human life worth living, in whatever minimal sense. No life can be

269
Ibid.
270
Ibid.
271
Milton, Meltzer, The Bill of Rights 2,1st edn., New York: Thomas Y. Crowell,1990.
272
Durga, Das, Basu, Introduction to the Constitution of India 80, 19th edn., Nagpur: Wadhwa and
Company, 2001.
273
Dworkin, Ronald, Freedom’s Law: The Moral Reading of the American Constitution 347,
Cambrigde: Massachussetts, Harvard University Press, 1996.
274
Stone, Julius, Human Law & Human Justice 89, Sydney: Maitland Publications Pvt. Ltd., 1968.
275
John, Huston, “Human Rights enforcement issues of the United Nations conference on
International organization”, 53 IOWA L. Rev. 272. (1967).
276
Hendrik, Kaptein, “The Morals of Post-Modern Human Rights”, ISLJ., supra note 209 at 33.

130
worthwhile without enforceable guarantees, against the State and others,
to physical integrity, freedom of thought and action and minimal means
of subsistence, thus the Declaration of Independence of the United States
contains inalienable rights to life, liberty and the pursuit of happiness.277

Rights of men are expression of what is a life minimally worth living.

Rights of men are based upon primary material and immaterial necessities
of life.278 Of course there can be differences of opinion about qualities of
a life minimally worth living, about primary necessities of life and thus
about the rights of man. Still, some rights must be regarded as
fundamental, like the right to physical integrity and the right to freedom
of conscience.

The concept of ‘Right’ involves multiple ambiguities. It is a similar

sort of moral consideration which simply justifies a course of action. The
definition of rights may be stated as powers which it is for the general
well-being that the individual (or association) should possess.279 It may be
stated, that the basic feature of democracy is commitment to an ideal
representation or participation of individuals with certain rights in the
State. Now what is just or right is to be interpreted with reference to the
advantage and common good of individuals and the State. Ethically,
rights are the base of a happy life and happy life is the life according to
the virtue lived without impediments.

John Stuart Mill, a pioneer of individual liberty, in his book

Considerations on Representative Government, discusses two
propositions respecting human affairs: The first is that the rights and
interests of every person are secure only when the person himself is able

277
Ibid.
278
Benn, S.L., “Human rights, in short, are statements of basic needs or interests”. See, Benn,
“Rights” in Edwards, P., (ed.), The Encyclopaedia of Philosophy 99, New York: 1967.
279
Supra note 266 at 245.

131
to stand up for them. The second is the general prosperity attains greater
height in proportion to the amount and variety of the personal energies
enlisted in promoting it.280

It can be stated from the above two propositions, that each individual
must have the power to self protection and such individual is the only
genuine guardian of his own rights and interests. Every individual being a
component of the society owes certain duties to obey the laws of the land.
The idea of society as a mere sum of individuals who are equal and
similar is superseded by the idea of society having a common life
organically related to the life of the individual.281 Some writers have
contended that a union of individual wills, however highly socialised they
may be, can never result in a true unity of will whether the will of the
individual be socialised or self-seeking, it is still an individual will.282 The
essence of the individualistic fallacy is that human rights are founded on,
or can be deduced from, the nature of human beings as individuals and
can therefore only be granted to, or recognised for individual human
persons.283

According to Jeremy Bentham the nature has placed man under the
empire of ‘pleasure and pain’, as per his utilitiranian concept every
individual is entitled to live a good life by gaining pleasure and avoiding
pain as a matter of his right and liberty.284 Socrates too supports
Bentham’s view by the principle of Eudainonism: Happiness is
everyone’s ultimate goal, and anything that is good is good only in so far

280
Mill, John, S., Considerations on Representative Governments, London: Parker, Son and Brown,
1940, passim. http://www.books.google.co.in , [accessed on 4/1/2011].
281
Supra note 266 at 240.
282
Id., at 133.
283
Caney, Simon & Jones, Peter, Human Rights and Global Diversity 78, 1st edn., Essex: Frank Cass
Publication, 2001.
284
Supra, Chapter I, p. 18.

132
as it contributes to this goal.285 Elaborating the meaning of happiness
Edmond Cahn says, “despite the most perfect equilibrium, a man cannot
be happy unless he also has material security [and] good health.”286

Human happiness, right, liberty and health are interwoven concepts

and actions which oppose happiness or cause unhappiness are to be
disapproved because they promote what is intrinsically bad.287 Some
philosophers, of course, reject the idea that citizens have rights apart from
what law happens to give them.288 Law (jus) is analysed as meaning
“what is just”, namely, what is not contrary to the nature of a society of
rational creatures.289

Wesley Hohfeld, an American legal theorist, in his theory of wider

sense of right analyzes the inter-relation between right, liberty and
interest.290 According to the wider sense of right there are claim-rights
and liberty- rights, duty is a correlative of right, but sometimes right is in
the strict sense, i.e., without duty. In light of Hohfledian claim-right, the
right to life is characterised by the imposition of a corresponding duty on
the party against whom the right is given.291 Moreover, it has been
established beyond doubt that fundamental rights listed in Articles 12 to
35 are available only against State and not private persons, as per the

285
Brickhouse, Thomad, C, & Smith, Nicholos, D., The Philosophy of Socrates 128, U.S: West view
Press, 2000.
286
Edmond, Cahn, The Moral Decision 13, London: Stevens & Sons Ltd, 1959.
287
James, M.H., Bentham and Legal Theory 11, Belfast, Ireland: Northern Ireland Legal Quarterly,
Queens University, 1973.
288
Supra note 256 at 184.
289
Dumbauld, Edward, The Life and Legal Writings of Hugo Grotius 62, USA: Norman University of
Oklahoma Press, 1969.
290
Mahajan, V.D., Jurisprudence & Legal Theory 296, 5th edn., Lucknow: Eastern Book Company,
1996. See, Hohfled, W. N., Fundamental Legal Concepts 8, 11, Westport, Connecticut:
Greenwood Press Publishers, 1978.
291
Hohfled, W.N., Fundamental Legal Conceptions as Applied in Judicial Reasoning 36, New
Haven: Yale University Press, 1919. See, Lord Lloyd & M. D. A., Lloyd’s Introduction to
Jurisprudence 443-445, 5th edn., London: Stevens & Sons, 1985. See also, Sterba, James, P., The
Demands of Justice 128, Indiana: University of Notre Dame Press, 1980.

133
Indian Constitution.292 According to these provisions, it can be deduced
that right to life under Article 21 casts on the State a duty not to interfere
with the individual’s life or any bodily member. Consequently, any such
interference by the State or its agents violates this duty, which gives rise
to the individual’s claim to have that wrong remedied. So is the right to
life applicable to suicide? As per the judgment in Gian Kaur,293 Article
21 casts a positive duty on the State to protect and uphold human life in
all its sanctity and dignity. The Court expressly mentioned that the right
to die cannot be read into Article 21, because suicide is inconsistent with
the said sanctity and dignity. This leads to a strange inference, if suicide
is indeed inconsistent with the sanctity and dignity of human life, which
the State has a positive duty to protect and uphold, then surely it must
mean that any time a person successfully commits suicide the State fails
in its positive duty.294 In addition to this, there are several cases in which
the State has been held liable to pay monetary compensation for violation
of fundamental rights.295 Since the above argument indicates that suicide
violates the right to life, will the State be made liable to pay damages to
the next kin for a successful suicide? No State has yet paid damages for
suicide,296 therefore, it is clear that right to life cannot be termed as a
claim- right, it is only a liberty- right which can only be exercised under
the reasonable restrictions. Hence, there is constant competition in the

292
Seervai, H. M., Constitutional Law of India 1449, 1451, Vol. 2, 4th edn., Bombay, Tripathi Private
Ltd, 1993.
293
Gian Kaur v. State of Punjab AIR 1996 SC 1257.
294
Around one million people in the world commit suicide every year-
http://web4health.info/en/bipolar-suicide-statistics, [accessed on 25/3/2010].
http://www.siliconindia.com, [accessed on 25/3/2010]. See, Malathy, Iyer, “An epidemic of
suicides” The Times of India, May 9, 2007, p. 4. As per the report of the National Bureau of Crime
Records, 2005, 200 men commit suicide every day in India, 112 women commit suicide everyday,
and 69 suicides out of the total are committed everyday due to illness.
295
See, Rudal Shah v. State of Bihar AIR 1983 SC 1086, Khatri v. State of Bihar, AIR 1981 SC 928,
Nilabati Behera v. State of Orissa,(1993) 2 SCC 74, Sebastian M Hongary v. Union of India, AIR
1984 SC 1026, Bhim Singh v. State of Jammu & Kashmir, AIR 1986 SC 494.
296
Farmers suicides in India have been compensated by the Government of India, but here the
discussion at this point focuses on the suicides committed by people generally not only by farmers.

134
endeavour to satisfy the claims, demands and expectations involved in
life in a civilized society.297 The similar provision is applicable to the
abortion- right of women.

The United States Supreme Court has made it clear that a woman’s
legal right to abortion is at present a liberty-right, not a claim-right.
Women are simply at liberty to have abortions and States have no duty to
pay for them.298

The decision in Paton v. Trustees of B. P.A. S.,299 effectively supports

the view that the 1967 Act gives the woman “the right to choose” whether
or not to proceed with the abortion.300Therefore, the terminally ill possess
a liberty interest in physician assisted suicide just as pregnant women
possess a liberty interest in abortion.301 Not only the liberty right but also
the Human Rights support the abortion right of a woman. In 1988, the
Supreme Court of Canada, in R. v. Morgentaler,302 held the country’s
restrictive abortion law unconstitutional as the Human Rights law are
increasingly giving priority to women’s health, dignity and capacity as
the principle decision makers.303

Article 21 of the Indian Constitution incorporates two separate rights,

the right to life and the right to personal liberty. This liberty is backed by
a right. It can be stated that individuals can actually claim non-
interference from the State, as a corollary, they can demand that the State

297
Roscoe, Pound, The Ideal Element in Law 86, Calcutta: University of Calcutta, 1958.
298
Becker, Lawrence, C., “Individual Rights”, in Patricia, Smith, (ed.), supra note 268 at 57. See, Roe
v. Wade, supra note 227. See also, Schultz, David, (ed.), Encyclopaedia of the United States
Constitution 2, 3, vol. I, New York: Facts on File Inc., 2009.
299
[1978] 2 All E.R. 987.
300
Lyon, C. M., and Benett, G.J., “Abortion-The female, the foetus and the Father”, Current Legal
Problems, vol. 32, London: 1979, p. 218.
301
Manning, Christopher, N., “Live & Let Die? Physician-Assisted-Suicide & the right to die” 9
Harv. J. L. & Tech. 573. (1996). http://www.international.westlaw.com, [accessed on 20/3/2010].
302
[1988] 1 SCR 30.
303
Cook, Rebecca, J., “Abortion Laws”, Breslaw, Lester, (ed.), Encyclopaedia of Public Health 7,
vol. I, USA: Macmillan Reference, 2002.

135
desist from interfering with their enjoyment of this liberty. Rights make
their most important appearances at the stage when one is attempting to
back up claim.304

Thus the State becomes duty- bound not to restrict the holder’s liberty
under any circumstances. If we analyse the phrase ‘right to die’, we find
that it is also in the nature of liberty rather than a claim-right. In Dianne
Pretty’s305 case, her barrister argued before the Court of Appeal that, a
person’s right to life includes not only a co-relative right to die but also
the right to choose how and when to die.306 The case went in appeal to the
England’s House of Lords, and was pressed by reference to as many
human rights as possible under the United Kingdom’s new Human Rights
Act, which enshrined the European Convention on Human Rights in UK
law as Dianne Pretty was suffering from a terminal illness, motor neurone
disease, and her condition deteriorated rapidly.307 All five judges in the
House of Lords unanimously rejected her appeal, deciding that none of
her guaranteed rights under the law supported her claim.308

As every right is co-related with liberty, can the right to liberty

provide a strong pedestal to argue in favour of euthanasia? Liberty is the
absence of external restraints and coercion. No word in human history has
evoked such strong emotions as liberty.309 Liberty visualises the freedom
of thought, unhindered by the cramps of the past, liberty postulates
absence of fear.310 A person who is confined in a room or is physically
pinned to the ground is restrained, similarly, a person who is prohibited

304
Benditt, Theodore, Law as Rule and Principle 174, California: Stanford University Press, 1978.
305
Pretty v. United Kingdom [2002] 35 EHRR1.
306
Horrigan, Bryan, Adventures in Law & Justice 150, 1st Indian Reprint, Delhi: Universal Law
Publishing Co. Pvt. Ltd., 2005.
307
Id., at 149,151.
308
Id., at 151.
309
Supra note 238 at 14.
310
Id., at 67.

136
by law from making certain choices should be described as having been
denied the liberty or freedom to make them. The loss of liberty in these
cases takes the form of deprivation of autonomy. Hence, it can be said
that the right to liberty embraces in part the right of persons to make
fundamentally important choices about their lives and therewith to
exercise significant control over different aspects of their behaviour.
Liberty has always cast a tremendous spell in all ages and for people it
has evoked the strongest emotions and touched the deepest chords of
human heart.311 Liberty can indeed be described as the sine qua non of a
decent life. It can be argued that it is the most basic condition of an
existence which is not lacking in honour or dignity.312 At the heart of
liberty is the right to define one’s own concept of existence, meaning of
universe, and of the mystery of human life, beliefs about these matters
could not define the attributes of personhood were they formed
compulsion of the State.313 A Constitutional right to liberty is usually
recognised to be an action right. It guarantees each citizen the right to act
in any manner that does not unjustifiably interfere with any other
citizen’s constitutional right.314 Now-a-days in a modern society or in
any form of government, which does not give a minimum guarantee of a
promise for the honour of liberty is not acceptable.315

But, does the right to liberty include the decision making power to end
one’s life in crucial circumstances? The constitutionally protected
‘liberty’ interest to refuse unwanted medical treatment does not include a
person’s right to commit suicide and to receive medical assistance in

311
Id., at 36.
312
Ibid.
313
Supra note 171 at 219. See, Compassion in Dying v. Washington, 850, 1454,1459, U.S 1995,
Planned Parenthood of South eastern Penn. V. Casey, 505, US. 833, 869 (1992).
314
Sterba, James, P., The Demands of Justice…supra note 291at 127,128.
315
Hansaria, B. L., and Thrity, Patel, Right to Life and Liberty under the Constitution 4, New Delhi:
B. Jain Publishers (P.) Ltd., 1993.

137
doing so, the second major constitutional principle is that personal
autonomy, privacy and related rights and liberties cannot be infringed
without the due process of law.316

The proponents of euthanasia argue on the same basis, that autonomy

as a part of right and liberty should be protected by law. Consider, for
example, a patient suffering from degenerative muscular dystrophy, is
completely dependant on someone for all daily courses. Such patient is
undergoing immense pain, having no sign of improvement rather the
situation worsens day by day. The life of such patient is suffocating
between life and death, only because law does not allow a peaceful and
easy passage as it follows the principle of sanctity of life. The appeal to
the sanctity of life raises here the same crucial political and constitutional
issue that it raises about abortion. The great moral issues of abortion and
euthanasia, which bracket life in earnest, have similar structure. Each
involves decisions not just about the rights and interests of particular
people, but about intrinsic, cosmic importance of human life itself.317 In
the course of argument for euthanasia, it is the non-fulfilment of a
person’s basic interests that is said to provide the legitimate basis for the
person’s right to have his life terminated.318 Bernard Bosanquet, a British
philosopher, claims that there is no contradiction between law and liberty,
and that liberty, in fact, is dependent upon law.319 Indeed, he insists that
there can never be a right to disobey the law.320

Though the democracy in all the welfare States is based on liberty and
justice, granting various rights to individuals, all such rights are limited

316
Supra note 306 at 148.
317
Supra note 75 at 217.
318
James. P. Sterba, The Demands of Justice... supra note 291 at 143.
319
William, Sweet, “The Legitimacy of Law: From Contract to Community”, ISLJ., supra note 209 at
69.
320
Ibid.

138
with reasonable restrictions. If some activities must be restrained, on what
basis shall they be done?321 It cannot be ignored that restrictions on
individuals for purely bureaucratic or doctrinaire reasons can never be
justified, for in a free society the role of law should never be primarily to
restrict, but to protect, and it should restrict only in so far as this is
necessary for the protection of those who need it. 322

Law is, as Bentham saw, necessary to social order and good laws were
clearly necessary means to good government. But by its very nature, law
is a restriction of liberty and inherently painful to those whose liberty is
restricted.323 John Stuart Mill defines “liberty” in much the same way as
Hobbes and Bentham- as “doing what one desires”.324 Bentham and Mill
both share the same opinion that law even though necessary to social
order, is still “a restriction on the natural liberty of mankind”.325Article 21
of the Indian Constitution protects privacy and liberty but does not allow
liberty to take or give away one’s life.326 There is, however, a certain
tension underlying this account of individual liberty.

In the above context, allowing individuals to pursue their interests is,

undoubtedly important. As said by Judge Learned Hand, “[l]iberty lies in
the hearts of men and women. When it dies there, no Constitution, no
law, no court can ever do much to help it.”327

The opponents of euthanasia argue, it is universally accepted that each

moment of human life is considered to be intrinsically sacred, based on

321
Stone, Julius, Human Law and Human Justice 103, 2nd edn., New Delhi: Universal Publishing Co.
Pvt. Ltd., 2004.
322
Sir, Norman, Anderson, Liberty, Law and Justice 6, London: Stevens & Sons, 1978.
323
Jeremy, Bentham, Principles of Morals and legislation 94, London: Oxford University Press,
1823.
324
Supra note 94 at 89.
325
Supra note 319 at 70.
326
Supra, Chapter I, pp. 42- 43.
327
Iyer, Krishna, V.R., Of Law and Life 5, Ghaziabad, India: Vikas Publishing House Pvt, Ltd, 1979.

139
this the human is to be preserved, even at a great cost and unbearable
pain. According to the opponents, preserving life supersedes living the
‘good life’.

Being individuals, patients have their own opinions and aims in life,
which require them to act intelligently in their own interest. These
capacities are basic in formulating a person’s own values and exercising
autonomy. However, even though they are not merely biological, the
functioning of such capacities depends on biological integrity and can be
destroyed, for instance, by a devastating brain injury. This means that the
special moral concern one normally has for a person may not apply to
what is no more than a living human body. The idea that there can be
kinds of life that a reasonable human being will not find worth living is
often used to drive a wedge between the sanctity of life and the quality of
life.

The proponents of euthanasia intend to bring a change in the

legislation, as matter of their rights and fair action from the State.
Everyone has at least a moral right to the basic goods of agency and
others in the society have a duty to provide those goods to all.328

When a man considers a certain law to be bad, he has a right, and may
have a duty, to try to get it changed, but it is only in rare cases that he
does right to break it.329 A democratic society that honours justice and
liberty should acknowledge and permit divergent opinions and allow
dying people a degree of freedom in when and how the end comes.330

Protecting this liberty interest, thus, involves more than allowing

people to die- it entails respecting all individual’s preferences about the
328
Boylan, Michael, A Just Society 164, USA: Rowman & Littlefield Publishers, Inc., 2004.
329
Bertrand, Russell, The Basic Writings of Bertrand Russell 358, London: Routledge, 1961.
330
Supra note 166 at 120.

140
time and manner of their death.331 But there can be no synthesis of liberty
and law without justice as the last resort is only justice. Barely justice can
be the only arbiter of the circumstances and extent to which law may
encroach on liberty, particularly in an era characterised by a widespread
demand that everyone should be free to go his own way, on the one hand,
and by an unprecedented spate of legislative regulations, on the other.332

As John Rawls puts it “[j]ustice is the first virtue of social institutions,

as truth is of systems of thought…each person possesses an inviolability
founded on justice that even the welfare of society as a whole cannot
override…”333 It is argued that the genius of Constitutional law of a
country rests not only in any static meaning it might have had in the past
which is dead and gone, but “in the adaptation of its great principles to
cope with current problems; which results in the fact that Constitutions
are shaped by history.”334

Considering the persuasive thoughts and facts about individual liberty,

rights and individual interest, it is pertinent to examine the euthanasia
debate in light of a balancing approach between the individual interest
and the State’s duty to protect life. The fact that every State is under the
obligation to protect human life cannot be refuted. However, should life
be protected when the quality of life diminishes? Should law force
terminally ill patients to bear the pain and agony, only because it is duty
bound to protect life? Can there be any exceptional case, in which the

331
Kleinberg, Rachel, D., “The Final Freedom: Maintaining autonomy & valuing life in Physician
Assisted Suicide cases”, 32 Harv. C. R.- C. L. L. Rev.205. (1997).
http://www.international.west.com, [accessed on 20/3/2010].
332
Supra note 322 at 7.
333
Rawls, John, A Theory of Justice 3, Oxford: Clarendon Press, 1971. Contra, see, Edwin, Patterson,
W., “Pounds Theory of Social Interests” in Paul, Sayre, (ed.), Modern Legal Philosophies 560,
New York: Oxford University Press, 1947.
334
Chaskalson, Arthur, “Constitutions are shaped by History: An account of making of South Africa’s
new Constitution”, in Law and Justice 155, Soli, Sorabjee, (ed.), New Delhi: Universal Law
Publishing Co. Pvt. Ltd., 2003.

141
State can have a sympathetic approach towards terminally ill patients?
The researcher has made an attempt to find answers for these questions
by examining euthanasia and the State’s duty to protect life in the next
segment.

2.4.2. EUTHANASIA AND THE STATE’S DUTY TO PROTECT

LIFE:

A death-denying society is what the influential French historian

Phillipe Aries claimed ours to be, in his famous book The Hour of Our
Death.335

Death is treated as a serious subject in all cultures and historical

periods by theologians and philosophers336, while poets and novelists find
it an irresistible theme.337 The medical literature, nursing, psychology,
sociology, ethics and history also reflect the reality about death. Of all
these subjects, death cannot be owned by any one area/ discipline of
study.

It cannot belong only to science, medicine, law, philosophy, religion

or theology. In the 21st century the high technology medicine has
complicated death, bringing an uneasy partnership of law and ethics into
picture by prolonging death by artificial means. As discussed in the
earlier part of this Chapter individual interest, liberty and rights are the
335
Donna, Dickenson & Malcolm, Johnson, Death, Dying & Bereavement xi, London: SAGE
Publications, 1993.
336
Dowbiggen, Ian, A concise history of euthanasia: Life, Death, God and Medicine 19, Maryland:
Rowman and Littlefield Publishers, 2007. See, Moreland, J. P., “The Euthanasia Debate:
Understanding the issues” J. Christian Research Ins. DE 1, 97 -1. http://www.euip.org/pdf/DE197-
1.pdf , [accessed on 4/1/2011]. See also, Cristina, L. H., “Religious perspectives on assisted
suicide” J. Crim. L. & Criminology, spring 1998. http://www.findartciles.com , [accessed on
4/1/2011]. Alloy. S. Ihuah, “Abortion and Euthanasia: Philosophical studies in Bioethics”
http://www.authorsden.com , [accessed on 4/1/2011]. Nickolay, Omelchenko, “The Pragmatic
effect of secular Theology” The Int’l J. for Field Being, vol. 2 (3), Article No. 5, 2005,
http://www.iifb.org , [accessed on 4/1/2011].
337
Kennedy, Ludovic, “Euthanasia: The Good Death” J. Med. Ethics, vol. 16, Iss. 4, 1990, p. 218,
223. See, Lord, Byron, “Euthanasia” http://www.famouspoetsandpoems.com , [accessed on
4/1/2011].

142
corner stones for the proponents of euthanasia. But when individuality is
in conflict with the society, what role does the individual interest, liberty
and right play? In fact when the focus is only on individual interests the
welfare of the society at large, or of collective interest, may be under
valued.

It can be said that a human society is as a more or less self-sufficient

association regulated by a common conception of justice and aimed at
advancing the good of its members. Law also is “created or stated in
terms of protections for the individual- individual rights, liberties or
freedoms as we say- and these protections may then act indirectly as legal
limitations…”338 Because “society cannot surrender its collective freedom
to saboteurs wearing the label of fundamental right.”339

As a co-operative venture for mutual advantage, it is characterized by

a conflict as well as identity of interests. How far can Bentham’s
principle of utility based on individual interest340 or Socrate’s principle of
Eudaimonism341 based on ultimate goal of happiness, succeed in a
welfare State? This Benthamite view is now-a-days rejected and it is
everywhere recognised that society being an organic conglomeration of
individuals, is a collection of centres of happiness which are at the same
time centres of universal happiness.342 When one talks about a society, it
is important to consider not only individual rights but also collective

338
XXXIV B.U. L. Rev. 415. (1954).
339
Supra note 327 at 5.
340
See, generally, Bentham, Jeremy, The Limits of Jurisprudence Defined 59, 60, Westport,
Connecticut: Greenwood Press, 1970. See also, Stone, Julius, The Province and the Function of
Law 271, 278, New York: William S. Hein, Co, Inc., 1950. Hart, H.L.A., Essays on Bentham 242,
Oxford: Clarendon Press, 1982.
341
Morrison, Donald, The Cambridge Companion to Socrates 300, Cambridge: Cambridge University
Press, 2010.
342
Majumdar, A.K, and Bhanwar, Singh, Personal freedom and the civil Liberty 19, Jaipur: RBSA
Publishers, 1999.

143
rights and interests and the effect of such individual rights collectively in
the society at large.

The idea of society as a mere sum of individuals who are equal and
similar is superseded by the idea of society having a common life
organically related to the life of the individual.343 Rights impose moral
and legal constraints on collective social goals.344 The principle of
individual choice is to achieve one’s greatest good, to advance so far as
possible one’s own system of rational desires, so the principle of social
choice is to realize the greatest good summed over all the members of
society.345 The State has an interest and a duty to protect both “the value
of an individual’s life” and “the value of life to society as a whole.346
Granting of free permission to all to pursue their self-interest will broaden
the base of the pyramid of interests of those few who will be ruthless and
forgetful of interests of others in their outlook.347 The idea that human
society, on whatever level, could ever conceivably exist on the basis that
each man should simply do whatever he thinks right in the particular
circumstances is too fanciful to deserve serious consideration.348The
State’s duty to protect life also includes protecting the sanctity of life, as
it is a form of protecting public welfare. Just law is the condition of unity
in every social consideration and is the only thing that makes it possible
to conceive, by means of an absolutely valid method, of social existence
as a unitary whole.349 The proponents of euthanasia argue that, if a
competent terminally ill patient expresses a voluntary desire to die, the

343
Supra note 266 at 240.
344
Supra note 60 at 36.
345
F. A. Von, Hayek, “Social or Distributive Justice” Alan, Ryan, (ed.), Justice 74, New York:
Oxford University Press, 1993.
346
“Physician-Assisted Suicide And The Right To Die With Assistance”, 105 Harv. L. Rev. 2033.
(1992).
347
Supra note 342.
348
Lloyd, Dennis, The Idea of Law 24, 1st edn., London: Penguin Group, 1964.
349
Stammler, Rudolf, The Theory of Justice 471, New York: The Macmillan Company, 1925.

144
State’s duty to protect the individual’s life ceases to exist because the
case no longer involves actual or potential life that cannot protect itself.
At the same time, the opponents of euthanasia argue that permitting any
form of physician assisted suicide may lead to the killing of patients who
want to live. There is not sufficient reason to weaken society’s
prohibition of intentional killing which is the corner stone of law and
social relationships. Individual cases cannot reasonably establish the
foundation of a policy which would have such serious and widespread
repercussions. The issue of euthanasia is one in which the interests of the
individual cannot be separated from those of the society as a whole.’350
Such a situation may result in insecurity amongst the patients. It is often
said that privacy as an interest must be balanced against security.351 Each
individual must sacrifice something of privacy to promote the security of
all at large. The State ought to and largely did in fact define the rules of
law so as to guarantee the free exercise of individual will, subject to the
constraint that willing actors respect the like rights of other willing
actors.352 The State’s duty in preserving life is the most common
justification for intervention since it contains both a general notion of the
sanctity of life and an interest in maintaining individual lives.353

Though the euthanasia argument projects the liberty interest of

individuals, it is not an absolute right granted by State. In a welfare State,
if an individual has to play a second fiddle to the good of the people, it is
a sort of the greatest good of the greatest number.354 Lord Goddard’s
phrase “protection of the liberty of the subject” is delimited for public

350
House of Lords Select Committee on Medical Ethics (1994). See, Robert, G. Twycross, “Where
there is hope, there is life: a view from hospice” in Keown, John, (ed.), supra note 2 at 165.
351
Hyman, Gross, “Privacy and Autonomy” in Patricia, Smith, (ed.), supra note 268 at 713.
352
Duncan, Kennedy, “From the will theory to the Principle of private autonomy: Lon Fuller’s
“Consideration and Form”, 100 Columbia L. Rev.96. (2000). (Centennial issue).
353
Supra note 47 at 342.
354
Ursekar, H.S., Law & Social Welfare 207, Bombay: Lalvani Publishing House, 1973.

145
good as reasonable restrictions are laid down in the interest of the
society.355 The State’s duty can rationalize its restriction on grounds of
interest to preserve life, prevent suicide, maintaining the integrity of the
medical profession, preserving faith of people in doctors and protecting
innocent third parties.

Depending on each case the Courts must balance between the

individual interest and the State duty. But balancing compelling interests
of the State in the face of prolonging an individual’s suffering simply
does not justify a complete prohibition of Constitutional right.356 To strike
the balance between ends and means is both difficult and important.357

A Few cases such as Karen Ann Quinlan358, Nancy Cruzan359, and

Terri Schiavo360, have challenged the public continually to revaluate their
own beliefs about the relationship between the State and the individual
concerning the apportionment of authority to make heartrending end-of-
life determinations.361 The Courts were called on to adjudicate various
conflicts between the rights of patients, the rights of patient’s family, the
ethics of medical practitioners, the policies and practices of hospitals, and
the State’s interest and duty in protecting life.362 Legally the issue of the
right to die pits ‘the right to be left alone’ against State’s duty in
maintaining a climate in which all life is cherished, and the issue has

355
Ibid.
356
Zagrodzky, Mathew, G., “Constitutional Law- The development of liberty & the right to Physician
Assisted Suicide-Compassion in Dying v. Washington. 49 F. 3D 586” 38 S. Tex. L. Rev.355.
(1997). http://www.international.westlaw.com, [accessed on 20/3/2010].
357
Supra note 329 at 360.
358
Supra note 79.
359
Supra note 21.
360
Bush v. Schiavo, 885 So 2d 321(Fla 2004).
361
Green, Joshua, A., & Jarvis, Mathew, G., “The Right to Die” in Nathaniel Persily, et. al., (ed.),
Public Opinion and the Constitutional Controversy 267, New York: Oxford University Press,
2008.
362
Id., at 269.

146
divided the best legal minds.363 Since the society must take the interests
of all equally in to account, this led, in the tradition of Bentham and Mill,
to the view that society should ensure that, if the interests of all cannot be
satisfied, it should act so as to maximize the interests of the greatest
number.364

Then, according to Bentham, Mill and Spencer, law is necessary for

security and maintenance of conditions for good life. But while the law is
required for the existence of one’s moral and legal rights, it also implies a
sacrifice of one’s natural liberty to do as he wishes.365 In short, law is
seen as the product of compromise, and one’s liberty- whether it be
intrinsically valuable or a means to the “greatest happiness of the greatest
number” can be assured only by sacrificing a certain amount of it.366 The
moral authority of law rests on the fact that it favours the moral
development of the individual and contributes to the realization of the
common good. As Law is an outgrowth of the needs of man in society.367

Since law has been instrumental in protecting individual rights even

on par with the State’s duty to protect life. The best exemplar is the
abortion right which is accepted universally. Is abortion legally
permissible in every case? Is abortion allowed without any restriction?
The answers to these questions are certainly in the negative. Though
abortion is lawfully permissible across the globe, it is allowed only in
certain exceptional cases for e.g., abnormalities in pregnancy, abnormal
foetus, and pregnancy endangering mother’s life. Similarly can there be a
right to euthanasia only in exceptional cases of terminal illness? Can we

363
Epps, Garrett, “Judges who support the right to die”, US News & World Report, Washington: Jan
13, 1997, vol.122, Iss.1, p. 28. http://www.proquest.umi.com/pqdweb, [accessed on 18/8/2009].
364
Supra note 319 at 72.
365
. Supra note 94 at 73, 77.
366
Ibid.
367
Lee, Guy, Carleton, Historical Jurisprudence 1, Reprint, Littleton, Colorado: Fred. B. Rothman &
Co., 1981.

147
equate right to abortion with right to euthanasia? In the researcher’s
opinion if this issue is considered on equivalence with the abortion right,
there should be an equivalent legislation allowing euthanasia in rarest of
the rare cases.

The main argument in support of euthanasia flows from the right to

abortion of a woman. As abortion too involves taking of life, in fact it
involves more risk as the decision is taken by the mother. The State’s
duty to protect life is not considered for those cases of abortion which fall
within the legal purview. All such issues regarding abortion were
discussed in detail in the historic judgment of Roe v. Wade.368 Justice
Rehnquist opined that, “essentially woman’s right to abortion is not a
fundamental right. It is a right that is subject to regulation by the State,
and such regulation falls into the area of social legislation, which is
presumed to be constitutional.”369 The observation made by Justice
Rehnquist is of great relevance for the issue of euthanasia. Abortion
right though is not a fundamental right can be regulated by the State,
comparing the same situation if euthanasia is legalised undoubtedly it can
be regulated by the State to avoid the misuse.

A woman’s ability to choose an abortion is a species of ‘liberty’. It is

subject to the reasonable restrictions prescribed by law to protect the
State’s duty. It is clear that right to privacy, liberty and individual interest
may be curtailed by the law to secure public welfare. The notion of
privacy has been so poorly articulated that it is not clear what is protected

368
Roe v. Wade, supra note 227, decided by a Court majority of seven Judges which included three
who had been appointed by the President Nixon; namely Justice Blackmun, Justice Powell and
Justice Burger.
369
Konvitz, Milton, R., Fundamental Rights, History of Constitutional Doctrine 124, U.K:
Transaction Publishers, Rutgers University, 2001.

148
and what is not.370 Even if we develop a clearer concept of privacy, that
will not dictate how it should be balanced against other individual rights
or public concerns.371

In case of abortion the State’s duty and general obligation to protect

life extends to the prenatal life. Abortion is allowed only when the life of
the pregnant mother herself is at stake, balanced against the life she
carries within her, the interest of the foetus should not prevail. The State
also has the power to regulate the abortion procedure to the extent that the
regulation reasonably relates to preservation and protection of maternal
health.372 The woman’s liberty is not unlimited as the State’s duty to
protect life has sufficient force so that the right of woman to terminate the
pregnancy can be restricted.

Professor A. V. Dicey has aptly stated that, the law is based on public
opinion, and public opinion moulds the law to a certain extent.373 A
similar view is expressed by Professor Friedmann, in his more thought
provoking words that, “[i]n a democracy, the interplay between social
opinion and the law moulding activities of the state is a more obvious and

370
Douglas, O. Linder, “The other Right-to-life debate: When does Fourteenth Amendment “Life”,
End” 37 Ariz. L. Rev.1183. (1995). See, Gonzales v. Oregon 546 U.S. 243 (2006).
http://www.law.umkc.edu , [accessed on 4/1/2011].
371
Judith,Wagner, Decew, “The Scope of Privacy in Law and Ethics” in Patricia, Smith, (ed.) Supra
note 268 at 716.
372
S. 3, S. 3 (2) (b) (i) and (ii) of the Medical Termination of Pregnancy Act, 1971, allows
termination of pregnancy by a registered medical practitioner only under certain circumstances,
such as, where the length of pregnancy does not exceed 12 weeks or exceeds 12 weeks but does
not exceed 20 weeks, the pregnancy would involve a risk to the life of the pregnant woman, the
foetus suffers from physical or mental abnormalities, etc. Recently, the period of 12 to 20 weeks to
abort pregnancy has been objected in India. In case of Nikita Mehta, on 5th August 2008, the
Bombay High Court denied permission to abort pregnancy as it had crossed 20 weeks though the
foetus had two major heart abnormalities. An Appeal has now been filed in the Supreme Court to
enhance the period of aborting pregnancy in case of abnormalities of foetus. Dr. Nikhil Datar and
others v. Government of India, 2009 is the Appeal pending before the Court. Dr. H. N. Shivpuri
had also suggested a longer period to abort pregnancy in the Shantilal Shah Committee Report in
1967. See, Neha, Madhiwalla, “The Niketa Mehta case: Does the right to abortion threaten
disability rights?” Indian J. Med. Ethics, vol. 5, No. 4, Oct- Dec, 2008.
http://www.issuesinmedethics.com , [accessed on 11/1/2011].
373
Dicey, A.V., Law & Public Opinion In England 20, 21, 2nd edn., (1914), First Indian Reprint, New
Delhi: Universal Book Traders, 1996.

149
articulate one”.374

The debate on euthanasia is day by day increasing with a demand to

legalize it, as a few countries375 have already legalized some form of
euthanasia. This is approved by Amartya Sen’s view that “the tradition of
public reasoning is closely related to the roots of democracy across the
globe”.376 It is no more a religious, medical or a legal problem, but now
the rise of euthanasia debate has a social concern. And whenever any
issue has a social concern law is the most influential medium to guide the
society in the precise direction as the utility of law depends on legal
culture and social attitudes towards law in the society.377

The proponents of euthanasia argue that like abortion the birth control
was also a result of a long struggle. Today people welcome decisions
taken in this regard for public welfare. The struggle for birth control
began in the United States in 1910 and was led by Margaret Sanger,378
who served a month in jail for conducting her crusade for the freedom of
every woman to determine the number of children she will have.379 In
spite of strong opposition, especially from the medical profession and
organised religion, she persisted in her efforts until today birth control is
accepted practice throughout much of the world.380

374
Supra note 241 at 24.
375
Euthanasia legalized in Albania in the year 1999, remains a controversial issue till date. Belgium
legalized euthanasia after a long struggle in the year 2002. The controversy over legalizing
euthanasia in Canada since 1992 finally resulted in the enactment of the Health Care Consent Act,
1996. Recently, the Federal Court of Germany legalized passive euthanasia on June 25, 2010. The
Indian Law Commission for the first time strongly recommended euthanasia for terminally ill
people in India. See, supra note 182.
376
Sen, Amartya, The Argumentative Indian 12, London: Allen Lane, Penguin Group, 2005.
377
Friedmann, Lawrence, M., Law & Society 168, New Jersey: Prentice-Hall, Inc., Englewood Cliffs,
1977.
378
Supra note 192 at 103.
379
Supra note 36 at 13.
380
Ibid.

150
 In 1936, a New York Court, in United States v. One Package of
Japanese Pessaries,381 ruled that contraceptives could be sent through
post if they were to be intelligently employed by conscientious physicians
for the purpose of saving life or promoting the well-being of their
patients.382 Thereafter in all the countries birth control became a social
concern. In fact in China, the government allows only one child legally
and penalizes parents for having more than one child.383

The proponent’s emphasis is on the State to consider the humanitarian

concern of individual suffering and pain not as an individual problem but
as a social problem and to provide a relieving solution. The State should
not require individuals faced with terminal illness to serve sentences of
prolonged suffering before dying.384 The State should provide a more
humane option to those who choose to end their suffering, while
preserving their dignity.385 It is accepted that the State must aim to
preserve and protect life in cases of suicide but in cases of terminal illness
State increases the agony of the patient by compelling him to live and
await death. The rights of the dying to retain some control over the time
and manner of their deaths should certainly take precedence over the

381
13 F. Supp.334 (E.D.N.Y 1936), aff’d 86 F.2d.737 (2nd Cir.1936).
382
Ibid. See, Pedro F. Silva-Ruiz, “Artificial Reproduction techniques, Fertility, Regulation: The
Challenge of Contemporary Family Law”, Am. J. Comp. L. vol. 34 (Supplement), 1986, pp. 137-
140.
383
The National Family Planning Programme of China since 1979. www.unescap.org, [accessed on
6/11/2010]. There are a number of adverse effects of China’s one child policy, such as, there has
been a massive surge in the male to female ratio, and currently there are thirty-two million more
men than women in China. Apart from male to female ratio, there will be seventy-five per cent
increase of senior citizens in the year 2020. It is said that China will have the maximum number of
senior citizens in the world in 2020, which would have a direct effect on the national development,
employment etc. See, Michelle, Webber, Rethinking society in the 21st Century: Critical readings
in sociology 328, 2nd edn., Toranto: Canadian Scholars Press, 2008. See also, Sen, Amartya,
“Population Delusion and Reality” http://www.marathon.uwc.edu , [accessed on 4/1/2011].
“Exploding the myths”- ageing and Health programme- World Health Organisation.
http://www.whqlibdoc.who.int , [accessed on 4/1/2011]. http://www.travelname.com ,
http://www.medicalnewstoday.com , [accessed on 4/1/2011].
384
Supra note 171 at 550.
385
Ibid.

151
paternalistic intrusions of the State.386 The “right to die” is only a right
that vests in a terminally ill person-any right that a healthy person might
have to take his or her own life is outweighed by the State's compelling
interest and duty in the preservation of life.

Thus, any legitimate rights encompassed by the “right to die” would

arise because of the reduced State duty in preserving the remaining life of
a terminally ill person and the increased justification of the terminally ill
person to exercise the right in order to avoid further suffering and
indignity. Healthy people can, and do, commit suicide without regard to
whether there is a right to do so. Incidences of suicide take place in the
society though there is no right to commit suicide. However, this cannot
be the justification to demand a right to commit suicide.

Therefore, the existence of a right to take one's life is not rational in

case of suicide. But, a right to die in case of terminally ill patient can be
validated. Often terminally ill patients do not have access to the
instrumentalities required to hasten their own death and require assistance
to do so. If assistance is required for the terminally ill person who wishes
to hasten his or her death, the existence of a “right to die” is crucial to the
realization of that wish.

It is important to point out the wide line of demarcation which

separates euthanasia from what is ordinarily called suicide. Euthanasia,
like suicide, is a voluntary chosen death but there is a radical difference
between the motives which prompt the similar act. Those who commit
suicide thereby render themselves useless to society of the future. They
deprive society of their service, and selfishly evade the duties which

386
Bussey, Reginald, “Physician Assisted Suicide: The Hippocratic Dilemma”, 22 T. Marshall L.
Rev.279. (1997). http://www.international.westlaw.com, [accessed on 20/3/2010].

152
ought to fall to their share, therefore, the social feeling rightly condemns
suicide as a crime against society.387

As stated by Wolf, “[t]he law is about human beings.” And the law
governing the termination of life-sustaining treatment is about a
particularly human matter. It is about choosing between a society that
honours our preferences, entrenched in relationships, and control of our
bodies, or a society that leaves us stranded, defenceless, and imprisoned
at the end.388 While it is doubtless that the emphasis of the law is, and
should be, to allow individuals to make free choices about their
healthcare, the law nevertheless has a legitimate and justifiable interest in
scrutinising and, if necessary, curtailing such freedom.389 Justice John
Paul Stevens observed that some individuals who no longer have the
option of deciding whether to live or to die because they are already on
the threshold of death have a constitutionally protected interest that may
outweigh the State’s interest in preserving life at all costs.390

From a moral point of view, the present situation is confusing.

Empirical research391 and political debate392 show that in daily practice
two moral considerations compete with each other: respect for autonomy,
relief from suffering and duty to preserve life. The proponents insist that
to understand the problem of pain in dying, dying in pain should not be
considered as an individual suffering but social suffering similar to the

387
Supra note 192 at 112.
388
Mclean, Sheila A. M., Contemporary Issues in Law, Medicine and Ethics 149, U.K: Dartmouth
Publishing Company Ltd., 1996.
389
Stuart, Hornett, “Advance Directives: a legal and ethical analysis” in Keown, J., supra note 2 at
307.
390
Supra note 7.
391
Gerrit Van Der Wal and P.J. Van Der Maas, “Empirical research on euthanasia and other Medical
end-of-life decisions and euthanasia notifications procedure” http://www.springerlink.com ,
[accessed on 4/1/2011]. See, Stephen, W. Smith, “Empirical research in the debate on Physician-
assisted-suicide and Voluntary Euthanasia” Clinical Ethics, vol.2, No. 3, 2007, p. 129, 132.
392
Sacred Congregation, “Declaration on euthanasia” Catholic Insight, vol. 2, No. 19, 1980, p. 1-14.
http://www.catholivinsight.com , [accessed on 4/1/2011]. See, “Political and moral debate on
euthanasia” http://www.echeat.com , [accessed on 4/1/2011].

153
birth control which is no longer considered the problem of an individual
mother but has become a social concern .393 There is a vast gap between
the two interests- the State and the individual interest. At the heart of the
quest for justice is a search for some measure of goodness in that
powerful and flexible instrument of social control, the law.394

The function of law in a society is to gain maximum good with

minimum friction.395 Presumably the value of individual liberty and of
moral right is determined by their utility, just as utility is also the basis
for moral authority of the State and law. When the State restricts
individual liberty, it aims to gain the common good in the society. As per
Hobbes, law and liberty are “inconsistent”.396 One of the State’s functions
is to protect the interests of persons and the rights that protect those
interests.397 The core idea is that in a democratic legal order, those
standards must flow from collective decisions made by citizens of the
regime, such that the connection between the exercise of authority and the
will of the majority is relatively tight.398 It is essential to note that in a
democratic polity, the underlying objective of the legal system is to
ensure and promote protection of public and private interest.399

The conflict of interests should be balanced in order to secure public

welfare. Man can live individually but can survive only collectively,
hence, the challenge is to form a progressive community by balancing the
interests of the individual and that of the society.400 The interest of the

393
Supra note 192 at 104, 110.
394
Supra note 222 at 25.
395
Dias, R. W. M., Jurisprudence 430-436, 5th edn., New Delhi: Butterworth Law publishers, 1994.
396
Supra note 319 at 82.
397
Supra note 134 at 160.
398
Kutz, Christopher, L., “Just Disagreement: Indeterminacy and Rationality in the Rule of Law”, 103
Yale L. J. 999, 1000. (1994).
399
Joga Rao, S.V., Medical Ethics 21, 1st edn., Bangalore: Legalaxy Publications, 2004.
400
Murthy, Narayan, N.R., Better India A Better World 47, New Delhi: Allen Lane, Penguin Group,
2009.

154
community is one of the most general expressions that can occur in the
phraseology of moral- no wonder that the meaning of it is often lost.401

But it cannot be denied that, the material content of a legal system has
always been seen to reflect in some sense the needs or demands of
societies.402 Though the State is bound to preserve and protect life, the
individual interests may be considered in rarest of the rare or exceptional
cases with a balancing approach.

The Quinlan Court found that the State’s interest in preserving the life
of a patient diminishes as the degree of bodily invasion increases and
there comes a point at which individual’s right overcome the State
interest.403 Thus the future of law in any State must remain an open
question.404 As the ultimate source of law is a social fact, such as the
human act of will.405

The researcher strongly relies on the historic precedent laid down in

Roe v. Wade,406 to justify that the competing interests can be balanced in
the euthanasia debate as the equilibrium is maintained in the abortion
debate.

2.4.3. RIGHT TO EUTHANASIA VIS-A-VIS RIGHT TO

ABORTION: A BALANCING APPROACH:

Roe v. Wade,407 the historic judgment from the US Supreme Court,

stands as a landmark precedent for legalizing abortion and right to

401
Supra note 141 at 3.
402
Sawer, Geoffrey, Law in Society 147, Oxford: Clarendon Press, 1965.
403
Surpa note 79. See, Kenneth, Thomas, “The Right to Die: Where do we go from here”, Federal
Lawyer, vol. 44, October 1997, p. 22. http://www.international.westlaw.com, [accessed on
20/3/2010].
404
Supra note 377 at 168.
405
Supra note 208 at 102.
406
Supra note 227.
407
Ibid.

155
privacy cases. Roe has been discussed as a liberty and right concept. The
researcher analyses the balancing approach taken by the court to maintain
the private interest and the State’s duty in cases of abortion. Brown v.
Board of Education408 and Roe v. Wade409, share an approach to rights
rooted fundamentally in an assessment of the effect of the State on
individuals.410

In Brown, the court invoked social science data to explain the

undesirable effect of segregation, concluding that separate could never be
constitutionally equal. Roe also citing scientific understanding, sought to
estimate the proper bounds of individuals autonomy and State’s duty.411

Roe v. Wade has replaced Brown v. Board of Education as the central

organizing precedent of jurisprudence, and it has commonly been taken to
affirm the value of individual autonomy.412 Roe states about inviolable
human rights and a State whose power derives from an agreement to
preserve the inviolable – that agreement sometimes understood as
advancing the public good.413 Roe most clearly juxtaposes the State and
individual on a matter and in a manner that suggests that the State has no
business. Roe involves the allocation of authority between the State and
individual, an allocation fundamental to any theory supporting rights in
liberal theory.414 Roe identified the individual’s interest in privacy,
defining the parameters of the individual’s inviolable autonomy and
declaring prohibitions which infringed on those interests invalid.415 In
Roe v. Wade, the Court held that the “right of privacy founded in the 14th

408
347, U.S. 483 (1954).
409
Supra note 227.
410
John, Valery, White, “Vindicating Rights in a Federal system: Rediscovering 42 U.S.C 1985 (3)’s
Equality Right”, 69 Temple L. Rev.207. (1996).
411
Ibid.
412
Id., at 208.
413
Ibid.
414
Id., at 209.
415
Id., at 210.

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amendment’s concept of personal liberty and restrictions upon State
action…is broad enough to encompass a women’s decision whether or
not to terminate her pregnancy”.416 If ‘rights’ are to be taken seriously in
such a society, some means of vindication of rights must exist.417

As abortion is an act of killing or taking life of the foetus, criminal as

well as constitutional issues were debated at length in Roe v. Wade. Rule
of law is the backbone of every democratic State, so can abortions be
justified under the Rule of law? Contemporary disagreements about the
Rule of law frequently are reflected in substantive debates involving
constitutional interpretation, a bare five to four Supreme Court majority
surprised many observers by, purporting to uphold the central abortion
right first recognised in Roe v. Wade.418 The Rule of law is a historic ideal
and appeals to the Rule of law remain rhetorically powerful. Yet the
precise meaning of the Rule of law is perhaps less clear than ever
before.419 Thus, in the context of individual rights, in at least some
incomparable cases, the receipt of a benefit to which someone has no
constitutional entitlement does not justify making that person abandon
some right guaranteed under the Constitution.

Constitutional challenges to legal prohibition on abortion that

culminated in Roe v. Wade, similarly the Constitutional challenge to legal
prohibition on physician assisted suicide culminated in Glucksberg420 is
best understood in terms of legal social and political context. The
terminally ill too often suffer from both, over treatment and under
treatment, the over treatment takes the form of medical efforts to keep

416
Official Reports of the Supreme Court, vol. 462, U.S. Part 2, June 17, 1983, U.S. Government
Printing office, Washington D.C, p. 452.
417
Supra note 398 at 211.
418
Richard, Fallon, H., “The Rule of Law” as a concept in Constitutional Discourse”, 97 Columbia L.
Rev.24. (1997).
419
Id., at 1.
420
Supra note 7.

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them alive at all costs, and the under treatment takes form of failing to
deal adequately with their pain and with their anxiety about death.421 The
difference between the operational acceptability of the woman's right to a
safe and legal abortion and the absence of operational acceptability of the
terminally ill person's right to make the choice to hasten inevitable death
is unexplainable.

The competing interests of contemporary life are, moreover, so diverse

and interdependent that an ever increasing intervention by the law seems
to be inevitable. The basic problem is where to draw the line, or how to
maintain a proper balance between individual liberty and legal control.422

The legislators intend to secure common good for individuals, because

the common good presumes a social realism and moral concern for
relationships and institutional arrangements beyond the individual. Such
claims about the common good will inevitably create tensions in a culture
marked by ethical relativism and extreme individualism.423 For social life
to exhibit the degree of predictability required by the exercise of
projective autonomy, human conduct must be governed by rules.424

However, “Right to die” controversy is related to basic questions

about the proper role of the society, as well as the proper position of the
individual within the society.425 Euthanasia or right to die is not always
intrinsically wrong, and regulatory difficulties do not necessarily pose an

421
Sedler, Robert, “Abortion, Physician Assisted Suicide and the Constitution: The view from
without & within”, 12 Notre Dame J. L. Ethics & Pub. Pol’y. 547. (1998).
http://international.westlaw.com, [accessed on 20/3/2010]. For discussion on the ethical issues of
abortion and euthanasia, see, Julie, Van, Camp, Ethical Issues in the Courts, USA: Wadsworth
Publishing Co, 2005, passim.
422
Supra note 322 at 7.
423
Dougherty, Charles, J., “The common good, terminal illness and euthanasia”, Issues in L. & Med.
Fall, 1993. http://findarticles.com, [accessed on 19/3/2010].
424
Simmonds, N. E., “Why Conventionalism Does not Collapse into Pragmatism”, Cambridge L. J.
vol. 49, Part I, (1990), C.L.J, March 1990, p. 72.
425
Whiting, Raymond, A Natural Right to Die: Twenty-Three Centuries of Debate 1, Westport:
Greenwood Press, 2002.

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insuperable obstacle to legalize euthanasia. However, “the law’s refusal
to admit any exceptions to a general rule against killing reveals its
inability to respond to individual patients’ interest.”426 Courts have the
power and the duty to address these issues carefully and acknowledge the
inevitable uncertainty and complexity of decisions about life and death.
The reality of this debate is that the frequency of acts of euthanasia will
continue to increase, whether government recognizes such a right or
not.427

In order to avoid illegal acts of euthanasia there is a need to have a

fresh look at the legal provisions for terminally incurable patients.
Though the State is duty bound to protect and preserve life of individuals
in a society, there can be exceptions to law.

The need to have an appropriate legislation for terminally ill patients

in India cannot be overlooked. The next chapter deals with the reasons
why euthanasia is demanded by the proponents. The change in concept of
death, the artificial life support techniques, various diseases leading to
terminal illness, the agony faced by the patients and emergence of
advance directives are some important areas of concern which compel to
have euthanasia legalized in any acceptable form.

426
Jackson, Emily, “Whose Death is it Anyway? Euthanasia and the Medical Profession”, Jane,
Holder, et. al., (ed.), Current Legal Problems, vol. 57, 2004, p. 416.
427
Supra note 425.

159