CHAPTER – III

HUMAN RIGHTS AND EUTHANASIA

Human rights are those rights which are conferred upon the human beings just because of the
fact that they are „human beings‟. These rights are also known as inherent rights bestowed upon
mankind by the nature. The concept of human rights, derived from considerations of the nature
of mankind, originated within a political context called natural rights, they developed as a
proclamation of liberty, to be used to guarantee freedom from attacks on one‟s life, dignity or
property. They were considered to apply equally to each individual, or to equivalent groups, they
were unconditional and they imposed on others a duty to respect them.1
Human rights, in simple term, mean rights of humans. Human rights are also taken as the
fundamental rights, basic rights or natural rights. Human rights are inalienable without which we
cannot survive as human beings. In 1948, the Universal Declaration of Human rights proclaimed
that „the foundation of freedom, justice and peace in the world‟ is the recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family. Further,
everyone has the right to life and all are equal before the law and are entitled without any
discrimination to equal protection of the law, This Declaration was supplemented by more
specific proclamations, including the 1966 International Covenant on Civil and political Rights,
Article 6 of which states- “Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life”.2It means right to life has been
given a prominent place in this unique international human rights instrument.
The common law has also long recognized the principle that every person has the right to
have his bodily integrity protected invasion by others. International human rights law and the
national laws of many countries, including India, recognize the right of a patient not to be treated
in the complete absence of consent. Since the inception of the (English) Human rights Act, 1998
many campaigners have claimed that the denial of right to release yourself from serious and
often unbearable pain amounts to inhuman and degrading treatment which is forbidden by

1
Ritika Bansal, Euthanasia: Appeal and plea for mercy killing, Universal law publishing co, New Delhi, Edition
2013, p-53.
2
Pradnya pahurkar, Mercy killing: A Gruesome or a compassionate Act, Legamax solutions, Pune (India), p-159.

1
Article 3 of the European Convention on Human Rights3 and is also violation of privacy and
family life which is protected by Article 8 of the convention4. The Human Rights Act and The
European convention on Human Rights may recognize an individual‟s right to life but does not
recognize their concurrent right to death.5
Euthanasia continues to draw much attention and debate. However, in the last two decades
the focus of the discussion has shifted from the political to the legal and judicial arena,
particularly in countries with a common law legal tradition where the issue has been taken up by
„cause lawyers‟. Through a number of high profile court cases which will be discussed in the
upcoming pages of this chapter, „right to die‟ proponents have challenged laws prohibiting
euthanasia and have asked the courts to define the circumstances in which a patient may receive
assistance to die. The efforts of these proponents could not achieved large success but such
activities on their part have brought the concept of euthanasia in to limelight and now it has
become most hotly debated topic around the world. Such actions at international level has
resulted in legalization of euthanasia in the Netherlands, Belgium, Australia‟s Northern Territory
etc.6 Despite these developments at global level the controversy relating to the concept has not
been resolved till today and it seems that it would continue in future also.
It is argued that any law that allows Euthanasia and assisted suicide constitutes a serious
violation of a government‟s responsibility to protect the lives of all its citizens, without
exception. The law is in violation of the United Nations Universal Declaration of Human Rights,
where the most fundamental Human Right is declared to be the right of every innocent person to
the integrity of his/her life, a right that should be protected by law. That right is declared to be
equal, inherent, inviolable and inalienable. Its integrity is not to be made dependent on its quality
at a particular time, and the right should neither be taken away nor given away.7
In this chapter an attempt has been made to examine various International Human
Rights instruments which are containing the principle of sanctity of life as the mother of all other

3
It deals with a provision to forbid torture or inhuman or degrading treatment to any human being.
4
Right to respect for private and family life -1. Everyone has the right to respect for his private and family life, his
home and his correspondence. 2.There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms of others.
5
Subhash Chandra Singh “Euthanasia and Assisted suicide: Revisiting the sanctity of life principle”, Journal of the
Indian law institute, vol. 54, 2012 , p-211.
6
For detail see chapter 2.
7
Supra 5, p-213.

2
human rights in contrast with the exact opposite of it i.e., right to die with dignity and the right to
euthanasia and assisted suicide. The unrestrained advocacy of the principle of sanctity of life
should be reevaluated from the perspectives of patient‟s autonomy, self-determination and
human rights. In fact, the total denial of the right to autonomy and self-determination of
terminally ill patients to choose their mode of dying is a clear violation of human rights. The
right to human dignity requires that the physician gives assistance to his patient to avoid
unbearable physical and spiritual suffering. Although it is unlawful for a doctor to do a positive
act to bring about a patient‟s death, the discontinuance of life support treatment is lawful when
such treatment is futile and discontinuance is in accordance with responsible public opinion and
after fulfilling all the requirements of foolproof mechanism i.e., the established legal and judicial
guidelines.

1. Right to life as a Human Right under International Instruments

Since the declaration of 1948, the respect exists for the preservation and fulfillment of
human life as worthwhile value at international level. That is the reason why suicide, euthanasia
and abortion are generally considered not only immoral but also criminal wrongs.
The right to one‟s life is declared to be the fundamental natural right, on which every
other right depends for its existence and its validity. When an effort is made to support
euthanasia by offering the cause of human rights, it becomes problematic when the focus is only
on a single right i.e. right to life.
The right to life has very wider aspects. It includes in it numerous other rights for
example – Right to food, Right to health, Right to live with human dignity and so on. Very few
people dispute the above said rights. But some people claim another right which is simply the
opposite, for example, the right to die. What exactly does this mean? Death is inevitable for
everyone, so it doesn‟t make sense for death to be a right that can be violated. What the „right to
die‟ really means is a demand for a right to choose the time and method of death. The first point
about this „right to die‟ is that it is in direct conflict with the right to life. The right to life is so
central to all other rights that it is both inviolable and inalienable. This means that no one can
take it from you, besides you also cannot give it away. So, a person who chooses to die is
essentially violating his own right to life.8

8
Rajesh Kumar Pathak, “Right to die: International perspective”, Criminal law journal, vol.2, 2009, p-92.

3
 Hence, right to die can never be considered as a human right because it can be
considered as contrary to another human right i.e. right to life. By no stretch of imagination, right
to life can be interpreted so widely, as to include right to die in itself because in simple sense
both are destructors of each other.
From the moment of birth, a human being is blessed with basic human rights. Right to
life is one of the basic fundamental right without which all other rights would be meaningless.
Therefore, it has been protected and guaranteed under all major international human rights
instruments. For instance, the Universal Declaration of Human Rights, 1948 under Article 3
proclaims that “Everyone has right to life, liberty and security of person.”
As such, the „International Covenant on Civil and Political Rights‟, under Article 6(1) provides:
“Every human being has inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life”
The wider connotations have been given to right to life under the above discussed provision. A
brief analysis of the said provision can be made as under:-
The first line of the said provision is containing the fact that right to life is the
most significant and valuable among all human rights. The origin, survival and
operation of other human rights depend on the efficient surety and prosperity of
the right to life. In the absence of right to life, there is no chance of existence for
the other human rights. It has been conferred upon the status of non-derogable
under Article 4(2) of the said covenant. It means that the right to life cannot be
suspended even during the sensitive time of national emergency. This fact
underlines the significance and utility of this right.
The next line is imposing upon the state parties to the covenant an obligation to
legally protect the right to life of the citizens. This has been construed as an
obligation by state parties to initiate positive steps to ensure the right to life of
their citizens. However a few number of states have taken such an obligation as
limited to forbearance of interference by the state in the personal matters of
citizens but a large number states parties have appreciated it as an enthusiastic
and active approach which extended the said duty to protect life on the horizontal
level. This significant right is acknowledged as all rounder i.e. that touch upon
all other rights for their fullest realization.

4
 It is clear that if no right in this world is absolute then no duty can be considered as
absolute too. It is the discretion of the state as to how such duty is carried out. In the formal
sense, protection of rights means protection through proper law. Non- availability of protection
in totality is easy to ascertain as violation. But it is really difficult to ascertain that whether a
particular legal measure is evidently insufficient or not. Such protection measure is
disproportionate to the threat to the right to life is an implied assumption. The Human Rights
Committee has emphasizes on the fact that a law which grant police officers a wide self-defence
tool with regard to certain offences would amount to a violation of Article 6(1). The width of
legal protection to a right depends upon the scope of such right.
The last line of the said Article is putting limits on the scope of right to life.
However, according to the opinion of the Human Rights Committee protection
against arbitrary deprivation of life is a significant factor. Under Article 6 (1) it is
implied that each deprivation of life does not amount to a violation of the legal
provisions. The „arbitrary‟ deprivations only can constitute infringements. The
literal meaning of the word “arbitrary” may mean:- “subject to individual will or
judgment”; “discretionary”; “not attributable to any rule or law”;
“accidental”; “capricious”; “uncertain”; “unreasonable”; “uncontrolled by
law”; “using or abusing unlimited power”; “despotic”; “tyrannical”; “selected
at random”.

The use of the term “arbitrarily” was severely criticized at the time of drafting of the
covenant. The fear was expressed that the word is ambiguous and can be molded and severally
interpretated.
„Ramcharan‟ has emphasizes upon the fact that:- “the word “arbitrary” admits of exceptions
to the right to life but that the history of the debates indicates that the word “arbitrary” was
chosen “with the intention of providing the highest possible level of protection of the right to life
and to confine permissible deprivations there from to the narrowest of limits.”
There are so many factors which provide help in arriving at a conclusion whether a deprivation
of the right to life is an arbitrary one or not i.e. foolproof controls through legal provisions and
rule of proportionality. The vagueness of the term “arbitrarily” has been criticized by many
philosophers including Nowak but it is an important thing that the Human Rights Commission

5
adopted the term irrespective of the knowledge about problem and after a lengthy discussion.
According to Human Rights Commission, arbitrary deprivation of life means something more
than just instances of intentional killing. On the other side, usually not all cases of intentional
killing can be taken as arbitrary e.g. excusable homicides in relation to which self-defence,
duress or coercion could be employed. Such killings are although clearly intentional but are
somehow justified or excused under municipal laws of various countries. It can be remembered
here that the said Article allows the state parties where death penalty exists as a mode of
punishment to impose death sentence for serious crimes. Further, „Nowak‟ has put forward his
comments in following words:

“Despite strong criticism of the word “arbitrarily” and a Dutch proposal that
Article 6 be formulated in reliance on Article 2 of the European Convention on
Human Rights9, the majority insisted on the formulation adopted by the Human
Rights Commission, even though its meaning had not been clarified”.

A few delegates opined that the term “arbitrarily” is synonymous to the phrase of Anglo-
American jurisprudence i.e. “without due process of law”. The Committee of Experts also
supported the conclusion that the arbitrary deprivations of life “contained elements of
unlawfulness and injustice, as well as those of capriciousness and unreasonableness”.
There is a common argument that the permissible instances in which deprivation of life is
allowed as enumerated under Article 2(2) of the European Convention on Human Rights
necessarily put them out of the ambit of arbitrary within the meaning of Article 6(1) of
International Covenant on Civil and Political Rights (ICCPR).
Nowak recognizes this approach in the following way:- “that the preliminary criterion in
Article 2(2) ECHR of “absolutely necessary use of force” introduces the elements “essential for

9
Right to Life-1. Everyone‟s right to life shall be protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided
by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of
force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

6
the prohibition of arbitrariness, namely, reasonableness (proportionality) and justice; the listed
cases, on the other hand, have to do with lawfulness and predictability”.
It is clear from the above discussion that the term “arbitrarily” has a very wide room for
interpretation. Many alternative words can be used in its alternative like capricious, unreasonable
and so on.
In a similar way, Article 2(1) of European Convention of Human Rights, 1950 states:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his
life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
Almost similar provisions may be traced in the American Convention on Human Rights
and African Charter of Human and Peoples‟ Right.10
A very obvious feature of all Human Rights Instruments is that they recognize at least
implicitly, that some human rights are deserving of a higher degree of protection than others. But
the formulation of human rights at the terms they are expressed reflects a fundamental
assumption in all of conventions namely that subjects to certain limited exceptions, individual
rights cannot be demanded in absolute terms. In other words, the rights protected may be
fundamental, but they are not in general “absolute”.11
„Right to Life‟ with all its features has been given an upper hand over rest of all the human
rights. However, it cannot be considered as an absolute one. The right to life of a person can be
curtailed in certain situations. Article 2(1) of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, 1950 which proclaims that “everyone‟s right to life
shall be protected by law”, is the best example of it. It provides the situations in which a person
may be deprived of his life.12

10
Article 4(1) American Convention on Human Rights states-“Every person has the right to have his life respected.
This right shall be protected by law, and, in general from the moment of conception. No one shall be arbitrarily
deprived of life.”
Article 4 of African Charter of Human and Peoples‟ Right provides-“Human beings are inviolable. Every human
being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of
this right.”
11
J.N. Sharma, “Right To Die in Terminally Ill State: A Plea To Legalise Euthanasia”, M.D.U.Law
Journal, 2004, p-203.
12
Supra 9.

7
 As such Article 4 of the American Convention on Human Rights, 1969 which protects
right to life from the moment of conception also makes provision with certain circumstances.13
„Right to life‟ though protected by International Human Rights Instruments, but not absolute
right in contrast with such other human rights as the right to freedom from torture or cruelty
inhuman or degrading treatment or punishment and the right to freedom from slavery and
servitude, which are absolute in their nature in the sense that these are subject to no exceptions of
any kind. Thus „right to life‟ as pointed out by Paul Sieghart, the Convention does not grant a
right to life but merely recognizes its existence and requires its protection and it may clearly be
established that “international human rights law assigns a higher value to the quality of living as
a process, than to the existence of life as a state.” But it is clear that no state is permitted to
legalize mercy killing, to which the „victim‟ does not consent, but does the victim‟s consent have
any force? It has been argued by Jacobs that any purported waiver of the right to life should be
ignored for legal purposes, because of the rights‟ fundamental nature and on public policy
grounds. Nevertheless, it seems clear that euthanasia requires an intentional taking of life and
does not fall within the exception in Article 2. The victim‟s consent is, therefore, irrelevant and
permitting euthanasia would appear to breach Article 2.14
On the other hand, it would not necessarily breach Article 6(1) of the International
Covenant on Civil and Political Rights, which provides that the „right to life‟ shall be protected
by law. No one shall be arbitrarily deprived of his life. As the Covenant speaks of arbitrary rather
than intentional deprivation, it is strongly arguable that intentional deprivation, it is strongly
arguable that euthanasia would not breach Article 6(1) if performed with the victim‟s consent or
at his request and after considering the victim‟s medical circumstances and any other relevant

13
Article 4: Right to Life
1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the
moment of conception. No one shall be arbitrarily deprived of his life.
2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and
pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such
punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended
to crimes to which it does not presently apply.
3. The death penalty shall not be reestablished in states that have abolished it.
4. In no case shall capital punishment be inflicted for political offenses or related common crimes.
5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18
years of age or over 70 years of age; nor shall it be applied to pregnant women.
6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence,
which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending
decision by the competent authority.
14
Supra 11, p- 204.

8
circumstances. The Covenant is therefore less restrictive and more forward looking and either
more or less civilized, than the Convention.15
The growth and raise in standard of living of an individual is the main goal of modern
democratic governments. As a result of it, the aspirations of citizens have acquired a great value
and are frequently put forward by them. The standard of health has been acknowledged as one of
the most significant right of every human being under the Preamble of World Health
Organization. No discrimination is allowed on the basis of race, religion, political belief,
economic and social condition of an individual while conferring upon such right on him.16
A Similar provision has been enunciated in Universal Declaration of Human Rights
which explicitly co-relates health with the standard of living of an individual in the following
wording- “everyone has the right to standard of living adequate for the health and well being of
himself and of his family, including food, clothing, housing and medical care and necessary
social services…”17
Some other human rights instruments treat health as an independent right. For instance,
International Covenant on Economic, Social and Cultural Rights states as under: “The states

15
Ibid.
16
Retrieved from http://apps.who.int/gb/bd/PDF/bd48/basic-documents-48th Edition.en.pdf visited on 15.6.2016.
The Preamble to the constitution of World Health Organisation-The States Parties to this Constitution declare, in
conformity with the Charter of the United Nations, that the following principles are basic to the happiness,
harmonious relations and security of all peoples:
Health is a state of complete physical, mental and social well-being and not merely the absence of disease or
infirmity.
The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being
without distinction of race, religion, political belief, economic or social condition.
The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-
operation of individuals and States.
The achievement of any State in the promotion and protection of health is of value to all. Unequal development in
different countries in the promotion of health and control of disease, especially communicable disease, is a common
danger.
Healthy development of the child is of basic importance; the ability to live harmoniously in a changing total
environment is essential to such development.
The extension to all peoples of the benefits of medical, psychological and related knowledge is essential to the
fullest attainment of health. Informed opinion and active co-operation on the part of the public are of the utmost
importance in the improvement of the health of the people.
Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of
adequate health and social measures.
ACCEPTING THESE PRINCIPLES, and for the purpose of co-operation among themselves and with others to
promote and protect the health of all peoples, the Contracting Parties agree to the present Constitution and hereby
establish the World Health Organization as a specialized agency within the terms of Article 57 of the Charter of the
United Nations.
17
See Article 25(1) of Universal Declaration of Human Rights.

9
parties to the present covenant recognize the right to everyone to the enjoyment of the highest
attainable standard of physical and mental health.”18
As such American Declaration of the Rights and Duties of Man provides: “Every person
has the right to the preservation of his health through sanitary and social measure relating to
food, clothing, housing and medical care, to the extent permitted by public and community
resources.”19
African Charter on Human and People‟s Rights says: “Every individual shall have the
right to enjoy the best attainable state of physical and mental health.”20And the European Social
Charter provides: “Everyone has the right to benefit from any measure enabling him to enjoy the
highest possible standard of health attainable.”21
The above enumerated provisions appearing in various international human rights
instruments are showing concern for the health of people during their entire lifetime. It can be
ascertained that everyone has right to basic and advance level care so that a suitable environment
could be created to support a person‟s health. However in today‟s world, dreadful diseases are
spreading very fast due to poor environmental and dietary conditions. The health services are
proving inefficient to combat with these serious diseases and the patients who are suffering from
said diseases are bound to suffer. Due to these reasons, the pro-euthanasia people are advocating
the practice of euthanasia or physician assisted suicide through which such patients can avail an
easy and painless death especially in those cases where death will be the inevitable result.
So far as Indian Constitution is concerned, Article 21 is guaranteeing right to life against
arbitrary deprivation. It means a person can be deprived of his life and personal liberty but
according to a just, fair and reasonable procedure.22It is generally argued by the people
supporting euthanasia that a law providing for voluntary euthanasia in case where a patient is
terminally ill, will obviously prove to be a just and reasonable law. Such deprivation of life in the
circumstances as above said cannot be taken as arbitrary. It can be concluded from the above
discussed lines that right to live with dignity includes within its ambit a right to die with dignity
and without pain in those cases where a person is in persistent vegetative state or otherwise
terminally ill and further treatment has become futile.
18
See Article 12(1) of International Covenant on Economic, Social and Cultural Rights.
19
See Article XI of American Declaration of the Rights and Duties of Man.
20
See Article 16(1) of African Charter on Human and People‟s Rights.
21
See Article 1(II) of European Social Charter.
22
Maneka Gandhi vs. Union of India, AIR 1978 SC 597.

10
 No doubt that the right to life has been treated as the most fundamental right but it is in
a way equally problematic. The legal provisions, whether national or international, are providing
foolproof protection to this right against any arbitrary encroachment. But if a law is containing a
just and reasonable procedure to put an encroachment on the life of a person, such procedure is
considered as just. Hence, conditions can be levied on right to life also.
The Human Rights Committee has urged that the right to life should not be given narrow
interpretations. Another relevant issue arises as to the nature of right to life. Whether the right
should be considered as discretionary or is this right a mandatory one? The obvious answer is
that it is mandatory and inalienable. As a result it cannot be waived even and accordingly
incapable of waiver irrespective of the wishes of the beneficiary of the right. If it is discretionary,
the right holder is capable of waiving the right.
The right to a dignified death has been recognized under Universal Declaration of Human
Rights23. Further, the right against inhumane treatment has also got recognition under The
International Covenant on Civil and Political Rights, 196624 and the Convention Against Torture.
These rights, as discussed above, are proclaiming that the any terminally ill Patient cannot be
forced to undergo inhumane treatment and degradation which he never wished for. Every patient
possesses the right to self-determination which facilitates him to decide what is good for him.
Right to liberty is justifying the right to dignified death. The supporters of personal liberty
generally put forward an argument that all human beings should be entitled to end their lives at
any time whenever they consider it appropriate. The personal liberty can be limited in the U.S.A.
only through due process of law.25
The persons who claim euthanasia are generally the terminally ill persons suffering
unbearably and those with incurable diseases of irreversible nature. Such patients are in agony
from physical and mental torture they are subjected to due to the disease, which probably does
not have a permanent cure. For most of these, death is the only way for freedom from the
excruciating life. Traditionally, persons suffering from terminal illness were allowed to die
naturally. But today, medical science has acquired life supporting systems and medications to

23
Article 5 of Universal Declaration of Human Rights states: “No one shall be subjected to cruel inhumane and
degrading treatment…”
24
Article 7 of International Covenant on Civil and Political Rights states: “No one shall be subjected to cruel
inhumane treatment…”
25
Article IX of the U.S.A. Constitution states: “No person shall be deprived of his life, liberty and property without
due process of law”.

11
extend life artificially for long periods even after the loss of brain activities and control of bodily
functions. This has greatly affected the terminally ill‟s rights to dignity and against inhumane
and degrading treatment.26
Terminal illness is usually accompanied by pain. The membranes become dry and sore and
infections may be caused by pathogenic organisms and oral secretions. All these cause acute pain
and suffering to the patient. Thus, such persons fear the indignity of being hooked onto life
support machines and other forms of treatment when such treatment is futile and death is
inevitable. Thus more people urge for a death in peace or a dignified death. Terminally ill opt for
a dignified death because under such circumstances, they wish to exercise their right to die with
dignity when pain, mental anguish and suffering are only prolonged by such measures and all
sensuous existence may have ceased with a loss of personhood. If saving a life does not provide
for the life to be meaningful one, what efforts should be made to save it? If death is inevitable
should not we concern ourselves with making the patient as comfortable as possible rather than
prolonging life?27

Generally, the most common reasons behind the demand of legalized euthanasia are as under:-

seeking the compassionate relief from pain and suffering;

providing protection to the doctors who behave compassionately;

showing respect for human rights;

helping in the containment of health costs.

Right to autonomy and self-determination are supporting the notion that there exists a right to die
with dignity. If someone appeals for the right to die with dignity that would itself be a sufficient
ground for legalizing euthanasia. Ethically, though not legally, there exists a right to die, in the
sense that when the natural process of death has already commenced, a right to be allowed to die
and it is in one‟s interest to die, by withholding or withdrawing unwanted, burdensome and futile
medical treatment, and by providing all required comfort and care.

There are certain implied claims to some new and different grounds which are going
beyond the desires of an individual. Those claims include the claims like requesting anyone else

26
Rini M.V., “Euthanasia and Rights of the terminally ill: An Indian Perspective”, The Academy Law Review, Vol.
34: 1&2, P-175.
27
Id. P-175-176.

12
to put an end to one‟s life and further an expectation from that another to respond to that request
by intentionally taking that life. There will be a justification from that another person also for
such killing because it was requested by the patient. Through this interpretation, the concept of
personal autonomy as generally known to the people has been given a vastly different
construction. However, such liberal construction is rarely made explicit.

There are certain questions which can generally be entertained by the intelligent minds with
regard to „right to die‟. For example:-

Could this highly claimed „right to die‟ be considered as justified by virtue of competent
and reasonable request of a person expressing his free choice to end his life?

For answering this question one can observe that if the right to life is really inherent,
inviolable and inalienable then the reply to the same would surely be in negative. But for the
sake of discussion only it can be said that if there were a natural right to be killed on request, it
ought to be able to be validated by reasoned argument. Such a right should always have an
existence and it must be made available to all without any discrimination whenever they ask for
it and it must be given due respect.

However, the proponents of euthanasia do not offer any argument regarding the existence
of such right either at present or in the past. Rather they deny that it has universal application
because of the limitations of its application on society. Further, they have disclaimed the fact that
such requests are binding on others.

Another question which can be considered is:-

Could euthanasia be justified as a genuine welfare right, autonomously requested?

There are certain genuine welfare rights which require compliance from others even without
a request from the right holder. To illustrate there is a welfare right of a patient to be reasonably
informed about the probable risks involved in the proposed medical treatment. Such right does
exist even if the patient has not asked for the information. The responsibility has been posed on
the doctor to provide the said information irrespective of the fact that patient has requested it or
not.

Even if one imagines that the „right to euthanasia‟ on request was genuine and as a result
the physician was allowed to end the life of a patient who asked for it, such doctor would also be

13
justified. Perhaps, he would be obliged out of compassion in ending the lives of others in similar
unfortunate situations. This situation may come into picture specifically when the patient is
unable to express his wish. It would amount to discrimination if a physician is withholding such
a benefit just because no request was made with regard to that. The doctor is thereby violating
the right of the patient to the said benefit.

It is a popular notion that the common good is a good for all living in a society. It is not a
good for each or everyone. Hence, the proposal for the legalization of euthanasia must at least,
ensures a sincere attempt to strike a balance between individual interests and the community‟s
interests and especially the safety of its vulnerable members. However, it is really very difficult
to find that balance in a society which gives equal value to the persons and their autonomy.
Ethically speaking, the common good carries a presumption that there must appear certain moral
concerns for societal betterment beyond the individual interests. But these are undermined when
over- emphasis is placed on individual autonomy and will.

2. Applicability of Article 6 of International Covenant on Civil and Political Rights to

Euthanasia

2.1 Definition of life

As discussed above Article 6 guarantees right to life in an exhaustive way. The first sentence
contained in Article 6 (1) is given as- „every human being has inherent right to life‟. As such it
has no direct dealing with the definition of human life. The implied notion behind the word „life‟
is actually governing the State‟s duty to guarantee the „right to life‟. At what point of time the
duty of the state regarding protection of human life starts, is a controversial issue. So is the case
of end of life issue. The old definition of death has gone a considerable change due to the latest
advancements in technology and modern medicine. Through these developments in medicine, it
is possible now that a patient‟s life is considerably prolonged with the help of artificial means.
Such patient‟s life is meaningless but he is clinically alive so it is difficult to determine at what
point of time he should be declared dead by the attending physicians. This has become important
so far as the question of organ transplantation is concerned.
In the present context, the practice of euthanasia will only apply to ending of the life. If, in
accordance with the accepted legal definitions, this has happened already, then there will be no

14
relevancy of the law allowing euthanasia. Moreover, the protection offered by Article 6(1) will
also face the same fate. Suppose, the local law of a country is defining the term „death‟ in an
immoral manner that would give rise to certain interesting issues like- Whether the local law of a
country through its own legal definition of death oust the invocation of Article 6(1) on the basis
that the local law provision is not as such amounting to a deprivation of life? On the other hand
there would be a situation like- Whether this can be taken as a subterfuge resulting in the
substitution of an „acceptable‟ definition of death? With Surety, it can be said that the latter view
would prevail in such a situation.
2.2 Euthanasia

Moreover, Article 6(1) is not addressing the issue of euthanasia in particular. Under what
circumstances it can be said that the local law of a country, which contains a rule of assistance to
end the life of a person who is suffering from incurable disease, is violating Article 6 (1). In
order to get an answer to the above said question one has to see the definitions of euthanasia
adopted by the country. It seems that the experts are agreeing on a point that involuntary
euthanasia is prohibited under Article 6(1).
The right to life does not depend on the status of a human being. It is equally available to all
irrespective of caste, nationality, sex or any other factor of personality of a human being. Article
6 protects human life till death so if the state is depriving of an incurably ill or a mentally
diseased etc., such action on the part of state will amount to violation of this right as such.
However, if a patient is being lawfully provided with a medicine to give him a relief from
pain but such medication may ultimately result in his death then it would not amount to the
violation as above discussed. Further, passive euthanasia would also be taken as permissible
under Article 6(1). Take an example of a case in which a patient is declared by physicians to be
in permanent vegetative state (PVS) in which his cardio-pulmonary actions are artificially
sustained through technological interventions, such artificial life support may be withdrawn and
it would not amount to an infringement of Article 6(1).
Dinstein, an expert, has opined that the test developed by the Supreme Court of New Jersey
in the Quinlan case28 (1976) is a source of guidance for the interpretation of Article 6(1) so far as
passive euthanasia is concerned. He expressed his views as following:-

28
It was held that “if there is no reasonable possibility of a person ever emerging from a comatose condition to a
cognitive state, life-preserving systems may be withdrawn”. For details see Chapter II.

15
 “It is a plausible interpretation of the Covenant, too, that when life becomes an
indignity endured without autonomy or awareness, death may be permitted to take its
natural course”.
Another argument which can be advocated is that non-voluntary euthanasia amounts to an
infringement of Article 6(1). This argument will get support where termination of life is
happening on a large scale while considering that certain human beings are „worthless‟. The said
cases are different from the category of involuntary euthanasia cases. In the latter category
ending of life is caused against the wishes of a patient. The „lack of consent‟ in non-voluntary
cases is due to the inability of the patient to express his wish. Even then, such cases would
appear as the cases in which arbitrary deprivations of life has been occurred.
The concept of non-voluntary euthanasia is not that problematic but becomes so when many
other considerations accompany it. For example, a patient who is in permanent vegetative state
and living on artificial life support systems with competent hospice care, the discussions with the
family members to arrive at a definite conclusion are relevant considerations contributing to the
complexity of non-voluntary euthanasia. It can be argued that the withdrawal of such life-
prolonging machines is non-arbitrary and it does not violate Article 6 (1).
Another important issue which demands consideration is active voluntary euthanasia. This
kind of euthanasia involves an intentional killing and a positive step to terminate the life of a
patient, though with his consent, with the help of a lethal injection or a drug. Here lies a
question- Does Article 6(1) covers laws which allow this form of euthanasia? The consent of the
patient is an important factor in these cases. Whether consent of the patient can validate a law
which is otherwise violative of the provision under Article 6(1)?
To put it other way, is it possible for a human being to waive his or her right to life
voluntarily? Two possible answers can be proposed in such a situation:-
The first is- the right to life is inherent and inalienable right.
The other is- the situation under common law can be considered with regard to the effect
of consent. Under common law principles consent becomes in effective where the
consenting party has allowed infliction of grave harm on himself/herself.

It can be concluded from the above discussion that there is a possibility of voluntary
euthanasia even without violating Article 6 (1) but only in strict parametric limits. There is a
great risk of abuse of such an authority especially in case of its exercise by the state officials.

16
Certain strict foolproof safeguards are required to oversee and control the chances of such abuse.
Further, if a patient is himself waiving his right to life voluntarily, he can be allowed in certain
circumstances to do that but the level of precaution for ensuring the validity of a waiver must be
based on authenticity and reliability.

3. Application of Article 6(1) to Rights of the Terminally Ill Act 1995 (ROTTIA)
The Australian government passed a law named „Rights of the Terminally Ill Act 1995’
(NT) (hereinafter ROTTIA) on 1st July 1996. The issue of euthanasia became a hotly debated and
controversial concept in Australia after this legal development. As it has been discussed in
chapter two of this thesis that the Australian government had already repealed it in earlier 1997
upon certain reasons, so here, the validity of ROTTIA can be discussed with reference to human
rights laws.
International law has placed right to life on a very high pedestal. It is considered as a
fundamental right of every human being. The question of its inalienability or absoluteness with
regard to the provision under Article 6 (1) has become a matter of controversy because of various
interpretations given to it by authoritative commentators. The last two sentences of the said
Article which talks about the legal protection and a prohibition against arbitrary deprivation of
life respectively are guaranteeing the absolute nature of the right as indicated in the first
sentence.
It is possible that any municipal law which is authorizing waiver of right as indicated under
the said Article ought to be regarded as an arbitrary deprivation of that right. But as above
discussed, such waiver would be possible in certain special circumstances. The conditions would
be like its reliability and adequate measures to give guarantee that it is so. However, it is an
implied principle that even such foolproof waiver would not work in certain circumstances and
in order to assess the validity of a law authorizing arbitrary deprivation of life there should be a
proper scrutiny of that law. The State has been conferred a blatant power to fix the limits on what
should be considered as the arbitrary deprivation of life. The ethics and morals will also be given
a clear weightage here in order to arrive at a conclusion. Above all, the legal protection against
such arbitrary deprivation of life should be ensured at the first hand.

17
 Applying the above discussed analysis on the ROTTIA, it can be argued that the Northern
Territory law cannot be taken as infringing the provisions of Article 6 (1). The main features of
the said law are as under:-
The ROTTIA was not dealing with either involuntary or non-voluntary euthanasia. It was
containing the provisions only in relation to active voluntary euthanasia.
There existed rigorous statutory safeguards to guarantee the authenticity of the consent of
the patient before availing the benefit of the provision of euthanasia under the law. The
consent of the patient has been made very crucial in voluntary euthanasia cases. Further,
a time period has also been specified for reconsidering the decision.
It can be pointed out that there was no absolute authority under the law free from checks
for seeking medical assistance for the termination of life. The benefit of the law can be
availed of only by a person who is suffering from terminal illness.
Moreover, there were a number of statutory preconditions enumerated before the use of
the provision of assistance in dying.

It can be summarized from the above discussion that this legislation cannot be regarded as an
arbitrary deprivation of life. The voluntary euthanasia was allowed but only in a very limited
form with foolproof statutory checks and balances. However, it can be observed that it not
necessary that if a law is allowing voluntary euthanasia then it would also be consistent with the
provision contained under Article 6(1) ICCPR. If there is a legal authorization to deprive a
person from his life in specific circumstances, it does not mean that such deprivation of life is not
an arbitrary one. So far as the Australian law was concerned, it was not in any way abridging the
right to life of a person in normal circumstances but it was conferring on the terminally ill
patients a right to die with dignity which has become an established right through a plethora of
national as well as international adjudications.

4. Some Other provisions of the ICCPR concerning ROTTIA, 1995

4.1 Article 7 of ICCPR

18
 The provision under this Article states that it is not permissible to subject anyone to
inhuman or degrading treatment. Besides that, another prohibition has been mentioned here
which states that no human being can be compelled to undergo medical or scientific
experimentation without his/her consent.
It can be argued that ROTTIA was in no way inconsistent with the above discussed
provision because it made a provision to emancipate the suffering patient from the unwanted
medical intervention which in a way itself is degrading and inhuman treatment. Further right to
autonomy of the patient has been kept intact under the said law and a doctor cannot start or finish
the treatment without the consent of the patient.

4.2 Article 17 of ICCPR

It contains a provision regarding right to privacy of a human being. Two possible
situations can be carved out of this which can be stated as under:-
(i) Whether right to privacy implies a right to decide to put an end to one‟s own life?
(ii) Whether it further includes a right not to be restrained by the state or third parties
from terminating one‟s own life?
Both the situations can be handled in a practicable manner. The right to self- determination
of a patient (as a facet of right to privacy) is needed to be balanced towards medical
paternalism. The state is expected to act in a vigilant manner and ensure safety through
adequate procedures that such a right is properly exercised and is not violating either directly
or indirectly any corresponding right of others.

5. The Death with Dignity Bill 2003 Vis a Vis New Zealand Bill of Rights Act 1990
In New Zealand, euthanasia debate came into limelight with the introduction of the Death
with Dignity Bill. The Bill was introduced and debated by Parliament in July 2003.29 When the
discussions were going on, the Attorney General expressed an opinion before the Parliament that
certain provisions under the Bill are not in consonance with the provisions made under New

29
Retrieved from http://www.victoria.ac.nz/law/centres/nzcpc/publications/humanrights-research-
journal/publications/vol-3/Beresford.pdf. visited on 15.6.1016.

19
Zealand Bill of Rights Act, 1990.30A detailed discussion regarding this bill has already been
mentioned in chapter II of this thesis so here in this chapter, a brief discussion is provided to
throw light on legality of The Death with Dignity Bill 2003 in contrast with human rights
enshrined under New Zealand Bill of Rights Act 1990.
The Death with Dignity Bill was narrowly defeated by the Parliament. It indicates that the
issue of euthanasia will continue to gain the public‟s attention. There is a strong probability that
in future also such attempts will be put forward by the supporters of the cause of euthanasia. In
the light of these developments it becomes significant to determine the possibility of „right to
die‟ to become a constitutional right. If right to die will be given a status of a constitutional right
the state will be restricted to interfere in that right automatically. But generally the state control
certain aspects- like capability of a patient to take an informed decision regarding withdrawal of
treatment and the manner of death opted by such a patient etc. Such controls are needed in a way
to preserve the personal dignity of a dying man. The supporters of euthanasia has always raised
the issue in the form of right to die with dignity and by calling it a right they have brought
euthanasia within the periphery of human rights although such right is never considered as a
constitutional right.
On the same lines, there is no provision existing under the Bill of Rights Act for such a
right. Till date, no such case has been filed before the courts of the country in which implications
of the Bill of Rights Act on the issue of euthanasia could demand a direct consideration.
The case law on this point is available as R v Martin. In this case, the defendant was
prosecuted for committing an attempt to murder her terminally ill mother. The Crown
forwarded an argument that physician- assisted suicide intrudes on the sanctity of life. Wild J
responded to the argument in following words:-
“… a patient has no legal right to insist upon medical intervention that would end
the patient’s life. Medical care may be refused by a patient, but the patient cannot
insist upon medical steps that end life.”31
There is a strong probability that in future, a case may be filed to question the restrictions under
criminal law on assistance in dying on the basis that these restricting provisions are not in
consonance with the rights proclaimed under the Bill of Rights Act.

30
Report of the AttorneyGeneral under the New Zealand Bill of Rights Act 1990 on the Death with Dignity Bill
2003 (30 July 2003) [AttorneyGeneral‟s Report].
31
R v Martin (No 3) [2004] 3 NZLR 69, at para 15.

20
 The right to life has been enshrined under section 8 of the Bill of Rights Act.32 On this right
all other right depends. It has been given a place of prominence under the Act so as to protect it
in abundance. The language of the right has been drafted in a negative way i.e. it is not talking
about a positive right to die but it right not to be deprived of life but the distinction should not be
stressed upon much.33 From the plain reading of the provision it can be understood that a claim
for euthanasia would be inconsistent with the right to life. However, a „meaningful‟ right to life
should carry with it a possibility of waiver also.34
This view has found support from the decision in Rodriguez v British Columbia (Attorney
General).35 From the facts of this case the issue arose that whether unlawfulness of assisted
suicide is due its inconsistency with provisions of the Canadian Charter of Rights and Freedoms.
The judges with a large majority of four out of five answered the issue negatively and rejected
the contention that the legislation in question abridges the Canadian Charter.
Cory J gave a separate judgment in which he opined that life and death are two sides of the
same coin. The right to die also deserves same protection and respect like its counterpart i.e.,
right to life.36
The decision in this case is an interesting example of a liberal and extended construction to
the „right to life‟. But the argument that this right includes within its ambit right not to be forced
to live has been rejected universally.
For example, in Pretty v United Kingdom37, the European Court of Human Rights held:-

“Article 2 cannot, without a distortion of language, be interpreted as conferring the

diametrically opposite right, namely a right to die; nor can it create a right to self
determination in the sense of conferring on an individual the entitlement to choose
death rather than life.”38

32
Life and security of the person - Right not to be deprived of life -No one shall be deprived of life except on such
grounds as are established by law and are consistent with the principles of fundamental justice.
33
P Rishworth et. al., The New Zealand Bill of Right (Oxford University Press 2003), p-220.
34
M Otlowski, Voluntary Euthanasia and the Common Law (Clarendon Press, 15 Oxford 1997),p- 196.
35
Rodriguez v BC (AG) [1993] 3 S C R 519.
36
Ibid, pp-630-631.
37
Application no 2346/02 (29 April 2002) at 31.
38
Supra note 29.

21
 There are certain rights which carry their negative aspect along with. For example, freedom
to speak implies freedom to remain silent. It means one cannot be compelled to exercise a
particular human right just because it has been conferred upon him under the law.
The idea of a freedom expects some liberty of choice as to its exercise.39 By conferring a
right on the individual the state cannot be said to control the exercise of such a right. The person
can put into action his rights in any way he likes but of course without harming others.
A plausible argument in support of euthanasia is that any decision to put an end to one‟s
own life is implicit in the right to human dignity which in an integral part of the right to personal
autonomy. This concept as discussed earlier also is protected by almost all international human
rights instruments. Although the right to liberty and security of the person has been given a
narrow construction as it has been restricted to freedom from arbitrary arrest and detention, but
in future, the concept of personal autonomy may influence the development of overseas human
rights jurisprudence in this area. But this argument is not tenable in the context of section 8 or
elsewhere in the Bill of Rights Act because of the absence of a right to liberty and security of the
person.40
Furthermore, the approach of human rights recognition of euthanasia can gain support from
might right to privacy. This right has been ensued from the right to life itself. This right has been
exercised generally to allow withdrawal of life-prolonging machines in beyond recovery cases of
capable as well as incapable patients. It has been suggested that Article 8 of the European
Convention which contains a provision that „everyone has the right to respect for his private life‟
may be used for supporting the patient‟s right to seek assistance to die. The manner and timing of
death of a human being is the most intimated question relating to his/her way of life. 41 Through
its various decisions, the European Court has approved that laws which prevents a patient to use
their right by denying undignified death would amount to an interference with his/her right to
respect for private life.42
But the protection afforded by this provision is not absolute. The right to privacy under the
European Convention is subject to a provision that allows interference with this right in certain
specified circumstances. Those circumstances are like- if the law is guaranteeing such

39
Dr. A Brown, “What Can We Learn From the Pretty Cases?” Human Rights & UKP 3.3(8) (2002).
40
Supra note 32, p- 236.
41
C de Than, “No Convention Right to Die” 66 JOCL 312 (2002).
42
Supra note 36, p- 67.

22
interference with a view to protect the interests of a democratic society and for protecting health,
morals and the rights and freedoms of others.
Likewise, the provision enumerated under International Covenant on Civil and Political
Rights regarding right to privacy grants protection against arbitrary or unlawful interference by
the state in the life of a person.43 The main question arises from the situation is whether the
prohibition on the state is necessary and proportional answer to save human life and its
protection against abuse. The European Court explained the situation in following words:-

“The law in issue in this case was designed to safeguard life by protecting the weak
and vulnerable and especially those who are not in a condition to take informed
decisions against acts intended to end life or assist in ending life. Doubtless the
condition of terminally ill individuals will vary. But many will be vulnerable and it is
the vulnerability of the class which provides that rationale for the law in question. It
is primarily for States to assess the risk and the likely incidence of abuse if the
general prohibition on assisted suicides were relaxed or if exceptions were to be
created. Clear risks of abuse do exist, notwithstanding arguments as to the
possibility of safeguards and protective procedures.”44

This discussion is debatable no doubt. The rights and freedoms contained in the Bill of
Rights Act i.e., the right to refuse medical treatment and right against search and seizure,
safeguards privacy of a human being up to certain extent, the drafters of the Bill were against the
insertion of a general right to private life and they recommended the same.
In their own words the situation can be explained as under:-

…although privacy was protected to a limited degree by specific rules of laws and
legislation “it would be inappropriate to attempt to entrench a right that is not by
any means fully recognised now, which is in the course of development, and whose
boundaries would be uncertain and contentious.”45

43
Supra note 33, p- 199.
44
Supra note 40, p- 74.
45
White Paper, A Bill of Rights for New Zealand (1985) AJHR A6, para10, P-144.

23
 Another possible argument in support of an individual‟s right to seek assistance to die can be
put forward on the basis of a provision contained under section 19(1) of the Bill of Rights Act.
The said provision provides for the right to freedom from discrimination on the grounds
mentioned in section 21 of the Human Rights Act 1993.46 The grounds as above said relates to
disability either physical or mental. It can be argued that the prohibition on physician- assisted
suicide violates a patient‟s right not to be discriminated on any ground whatsoever. It forbids
persons who are physically unable to kill themselves without assistance from choosing to do so
when such an option in principle is available to other members of the public without
contravening the law.
This line of argument was supported by Lamer CJ and Cory J (dissenting) in the Rodriguez
case in the following words:-
“Persons with disabilities who are or will become unable to end their lives without
assistance are discriminated against since, unlike persons capable of causing their
own deaths, they are deprived of the option of choosing suicide”.47

This argument appeared in the Pretty’s case as well. The European Court held in this case
that any such discrimination would be justified as the State was entitled to regulate the activities
of a person with the help of criminal law which are detrimental to the life and safety of other
individuals.48
Another controversial argument can be put forward which is based on the right to thought,
conscience, religion and belief, which is protected by section 13 of the Bill of Rights Act. It has
been claimed that this right covers a patient‟s belief in assisted suicide. The courts have rejected
this argument. For example, in R(on the Application of Dianne Pretty) v DPP and Secretary of
State for the Home Department, Lord Steyn opined that the right:-
“…was never intended to give individuals a right to perform any acts in pursuance
of whatever beliefs they may hold.”49
This view was recognized by the European Court who commented that “not all opinions or
convictions constitute beliefs in the sense protected by the right.”50

46
Supra note 38.
47
Supra note 34, p- 54.
48
Supra note 42, p- 89.
49
R (on the Application of Dianne Pretty) v DPP and Secretary of State for the Home Department [2002] 1 All ER1.

24
 At the last, a less persuasive argument appears which states that the criminalization of
euthanasia has put restrictions on a patient‟s right- not to be subjected to cruel or degrading
treatment. It has been suggested that the unbearable pain and sufferings through which a
terminally ill patient undergoes amounts to a degrading treatment. Although the state is not
straightly responsible for such treatment it is under a duty to protect its citizens from such
treatment.
From there it emerges that whether a positive duty on the part of state does exist to provide
protection against cruel or degrading treatment? When the state is forbidding assistance in dying
can this act of the state amounts to „treatment‟? If the answer to the second question is in
affirmation whether through such an act State is subjecting a person to degrading treatment? In
order to answer the above posed questions it can be said that even in Pretty’s case, it was
unanimously held that the right imposes a positive obligation on the State to provide protection
against cruel or inhuman treatment.
The European Court further commented in this case that the suffering due to the naturally
occurring illness may fall under this right. But it will only cover those instances of such illness
where it has been enhanced by the treatment which is being provided from measures for which
the authorities can be held responsible. On the basis of this requirement only the decision was
given in this case. There was general agreement that the State had not subjected her to any ill
treatment or denied her medical care. Hence, the court held that the right did not impose a
positive obligation on the State to allow or provide assistance in assisted- suicide.51
From this discussion, it is clear that a number of arguments can be put forward in support of
the view that the interests which are in jeopardy because of non-recognition of euthanasia should
be recognized as a right. However, in the absence of any case law in support, it is doubtful that
such recognition will be given on the basis of the Bill of Rights Act or other human rights
instruments. These documents have moral sanctions behind them but in order to convert these
moral principles into legal one strong judicial precedents are needed.
At the end, it can be said that the New Zealand Bill of rights Act, 1990 has proved to be a
hurdle in the way of implementation of Death with Dignity Bill, 2003 in the country.

50
Supra note 45, p- 82.
51
Ibid.

25
 6. International Judicial Response towards the Sanctity of Right to Life under Human
Rights Instruments
Besides the above discussed cases, certain other cases are also notable which have been
decided by European Court of Human Rights with reference to various facets of Right to Life
touching upon the issues relating to euthanasia. Some of these are discussed as under:-

(1) Haas v. Switzerland52

This case involved an interesting question i.e., whether the right to respect for private
life of a human being casts upon the State a duty to facilitate a patient seeking death through a
lethal substance even without a prescription? Whether by providing such facilitation the state is
derogating from the law prohibiting suicide? The applicant was suffering from a serious bipolar
affective disorder since last twenty years. He considered his life as worthless and he wanted to
end it in a dignified manner. He argued that his right to die with dignity had been violated in
Switzerland as a result of the pre-conditions that had to be met by a patient before taking such a
decision. He did not fulfill the said conditions.
The Court held that there had been no violation of Article 8 of the Convention.53 It
concluded that even under the assumption that States had a positive obligation to take steps to
provide assistance to voluntary death with dignity, it had not violated that obligation in the
applicant‟s case.
The Court further considered that the requirement under Swiss law for a medical
prescription in order to obtain sodium pentobarbital had a legitimate aim. It aims to protect
people from taking decisions rashly and to prevent the abuse. These are the risks which should
not be underestimated in a system which has facilitated access to assisted- suicide. The Court
considered that such requirement of a prescription is a measure of satisfying the obligation on
States to ensure a person‟s has decided to end his life free from any influence.
(2) Koch v. Germany54
In this case a husband applied before the court in 2004, to permit assisted suicide to his wife.
She was suffering from terminal illness. Earlier, she applied to the Federal Institute for

52
Application no. 31322/07, 20 January 2011 (Chamber judgment).
53
European Convention on Human Rights.
54
Application no. 497/09,19 July 2012 (Chamber judgment)

26
Pharmaceutical and Medical Products for permission to get a lethal dose of medicine for
committing suicide at home in Germany. An administrative appeal filed by the applicant and his
wife was dismissed.
In February, 2005 they both went to Switzerland, where the wife committed suicide with
the help of an association. In April, 2005 the applicant filed a case before the Court to obtain a
declaration that the Federal Institute‟s decisions was unlawful. His appeals to the administrative
court, administrative court of appeal and Federal Constitutional Court were declared
inadmissible. The applicant claim before the present court is that the domestic courts‟ refusal to
examine the merits of his complaint had infringed his right to respect for private and family life.
The court held in this case that because of the close relationship between the applicant and
his wife it can be said that the said refusal to her amounts to violation of his rights also. The
German courts‟ refusal to examine the merits of his complaint amounts to a violation of the
applicant‟s procedural rights under Article 8 (right to respect for private and family life) of the
Convention.55
However, regarding the substance of the applicant‟s complaint, the Court considered that it
was primarily up to the German courts to examine its merits. This is so because there was no
consensus among the Member States of the Council of Europe as to the question of whether or
not to permit any form of assisted- suicide.
(3) Gross v. Switzerland56
This case is somehow similar to the above discussed case. It consisted of a complaint by
an elderly woman to put an end to her life. She was not suffering from clinical illness still she
filed the present suit because she could not get the Swiss authorities‟ permission to be provided
with a lethal dose of medicine to commit suicide. The applicant complained such action o the
part of the said authorities amounts to violation of her rights under Article 8 (right to respect for
private and family life) of the Convention. In its Chamber judgment, the Court held with a
majority, that there had been a violation of Article 8 of the Convention. It found in particular
that Swiss law is ambiguous as to when assisted suicide was permitted.
The case was subsequently forwarded to the Grand Chamber at the instance of the Swiss
Government. In the meanwhile, she died during the pendency of the suit.

55
Supra 5.
56
Application no. 67810/10,30 September 2014 (Grand Chamber judgment)

27
 In its Grand Chamber judgment of 30th September, 2014, the Court has on a majority basis
declared the application inadmissible. The court concluded that she had intended to mislead the
court on the substance of the matter involved in her complaint. Above all, she specifically took
special precautions to prevent information about her death from being disclosed to her counsel
and to the Court also, in order to prevent the latter from discontinuing the proceedings in her
case. Her conduct had amounted to an abuse of the right of individual application.57
(4) Lambert and Others v. France58
The applicants were the parents of Vincent Lambert, an accident victim who received a
head injury in a road-traffic accident in 2008 as a result of which he went to coma. They
complained against the judgment delivered on 24th June, 2014, by the French Conseil d’État. The
Conseil d’Etat while relying on a medical report prepared by a panel of three doctors, declared
lawful the decision taken by the physician treating Vincent Lambert, to withhold his artificial
nutrition and hydration. The applicants contended that such an act on the part of the doctor
would be contrary to the State‟s obligations under Article 2 (right to life) of the European
Convention on Human Rights.
The Court held that there would be no violation of Article 2 (right to life) of the European
Convention on Human Rights in the event of implementation of the Conseil d’État above
discussed judgment.
The court observed specifically that there was a lack of consent among the member nations
of Council of Europe regarding the permission of the withdrawal of life-sustaining treatment.
The Court further considered that the provisions of the Act of 22, April 2005, as constructed by
the Conseil d’Etat, constituted a legal framework which was sufficiently clear to regulate with
precision the decisions taken by doctors in situations such as that in the present case. The Court
also observed that the Act of 22, April 2005 on patients‟ rights and end of life issues did not
allow either euthanasia or assisted suicide. It simply allowed doctors to withhold treatment from
a patient whose recovery has already become impossible, but of course after following a
prescribed procedure.
Further, the Court was aware of the significance of the issues raised by the present case,
which concerned extremely complex medical, legal and ethical matters. In this case, the Court

57
Article 35- 3.(a) and 4. of the Convention.
58
(2015) ECHR 545.

28
stated that it was the primary duty of the national governments to verify whether the decision to
withdraw treatment was in consonance with the rules of domestic legislation and the Convention.
Another duty of the state is to establish the fact that desires of the patient is in accordance with
the national law. The role of the Court is to examine the State‟s compliance with its positive
obligations flowing from Article 2 of the Convention.
It can be concluded from the above discussion that almost all the international instruments
containing a list of human rights have put the right to life on a highest pedestal. But on the other
hand right to die is not considered as a human right under any such instrument. With the growing
incidents of terminal -disease deaths in all over the world, the principle of sanctity of life has
been relaxed in favour of the principle of autonomy and self-determination of a human being.
The new right has been created out of such relaxation i.e. right to die with dignity. Now right to
die with dignity is also a human right. When the natural process of death has already been
commenced then it is unreasonable to put hindrances in its way with the help of life-prolonging
machines is itself a violation of human rights.
It is argued that any law that allows Euthanasia and assisted suicide constitutes a serious
violation of a government‟s responsibility to protect the lives of all its citizens, without
exception. The law is in violation of the United Nations Universal Declaration of Human Rights,
where the most fundamental Human Right is declared to be the right of every innocent person to
the integrity of his/her life, a right that should be protected by law. That right is declared to be
equal, inherent, inviolable and inalienable. Its integrity is not to be made dependent on its quality
at a particular time, and the right should neither be taken away nor given away.

The European Court on Human Rights through its various decisions has given mixed
reactions regarding the relaxation of rule of sanctity of life principle in favour of right of
autonomy and self-determination of the terminally ill patient depending on the peculiar
circumstances of each case having due regard to the best interests of the patient if further
treatment has become futile, without violating the corresponding duty of the state to preserve the
lives of its subjects. There is a need to balance the two i.e. the principle of sanctity of life and the
right of autonomy and self-determination of the terminally ill patient. One out of the two should
not be too stretched to abolish the effect of the other. This would be the more practical approach
towards the protection of human rights of a dying patient.

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 There is a common presumption that there is a „right to die‟, in the sense of an autonomous
right to choose the time and manner of one‟s death, and that an appeal to this right will be
sufficient ground for legalization Euthanasia. There is an ethical right to die, in the sense of a
right to be allowed to die, when one is dying and it is in one‟s interest to die, by discontinuing or
not commencing unwanted, burdensome or futile medical treatment and by providing all
necessary comfort. But this is not what is meant in the context of Euthanasia.59
A right to have one‟s life taken on request has never been recognized in codes of Ethics or
the law of any country. Its assumption conflicts directly with the genuine right to one‟s life,
acknowledged and protectively enunciated in the universal Declaration, to which most countries
are signatories. If the right to euthanasia on request was genuine, and a doctor was permitted to
take the life of a patient who asked for it, the doctor would also be justified, and perhaps obliged
out of compassion, in taking the lives of others in similar unfortunate circumstances. This may
apply especially when, for any reason, patient could not ask. It could be thought discriminatory
and unjust to withhold such a benefit, merely because it could not be requested, if there was also
a right to that benefit. The common reason to want legalized Euthanasia can be categorized as:
seeking the compassionate relief of pain and suffering. Providing protection for doctors who
behave compassionately, showing respect for human rights and assisting in the containment of
health costs. Since the common good is a good for all, not a good for each, proposals for the
legalization of Euthanasia must, at the very least, include some attempt to find a balance between
individual choice and the community is need for good order, social harmony and the protection
of its vulnerable members.
Thus, Euthanasia cannot be considered without reference to human rights, but all relevant
rights should be included. These will include the rights of every person to their life and to the,
standard of health care appropriate, to their illness and, where the provision or quality of that
care is demonstrably uneven, to the right to distributive justice to protect the equal rights of all
the sick. No right should be included unless its existence has been validated beyond questions.

Everyone yearns for a healthy wholesome life with no diseases. No one need be a mere
comatose lump of flesh, affected by terminal, incurable and irreversible disease. It is now widely
accepted that physicians must respect the patient‟s decisions regarding continuance or refusal of
treatment. Any decision taken by the patient to stop extraordinary treatment, which is

59
Supra 1, pp-54-55.

30
excessively burdensome and without any benefit to the patient is to be respected. Extraordinary
treatment is understood as one which is excessively burdensome but which does not produce
sufficient benefits to outweigh the patient‟s burdens. Revolutionary developments in medical
technology have created the problem of living of the dead. This in fact brought the issue of
euthanasia to the centre stage. India is also in the threshold of the euthanasia debate, but the
debate seems to generate only heat rather than light. The realization that law is a dynamic
science and its social utility lies in its ability to keep abreast of the emerging trends in social and
scientific advancements by being amenable to readjust its postulates so as to accommodate the
emerging trends.

Thus as a normal rule, every human being has to live and continue to enjoy the fruits of life
till nature intervenes to end it. Death is certain. It is a fact of life. Suicide is not a feature of
normal life. It is an abnormal situation. But if a person has right to enjoy his life, he cannot be
forced to live that life to his detriment, disadvantage or disliking. If a person is living a miserable
life or is seriously sick or having incurable disease, it is improper as well as immoral to ask him
to live a painful life and suffer agony. It is an insult to humanity. Right to life means right to live
peacefully as a human being. One can appreciate the theory that an individual may not be
permitted to die with a view to avoiding his social obligations. He should perform all duties
towards fellow citizens. At the same time, however, if he is unable to take normal care of his
body or has lost all the senses and if real desire is to quit the world, he cannot be compelled to
continue his painful life enduring torture and pangs of death.

Based on overseas experience, human rights will continue to play a prominent role in the
euthanasia debate, particularly as those on either side of the debate have framed many of their
arguments in rights language. Although the rights and freedoms protected in the Bill of Rights
Act discussed above, do not recognise the „right to die‟, they do not appear to preclude active
voluntary euthanasia either so long as appropriate procedural safeguards to protect the vulnerable
are inserted in any regime allowing patients to request assistance to die. But human rights will
not provide an answer to many of the concerns that have been raised about active voluntary
euthanasia, particularly those relating to potential abuse by physicians and medical institutions,
members of the patient‟s family and society in general. It also will not resolve the struggles
between divergent religious doctrines, social attitudes and philosophical beliefs concerning “the
value and meaning of life, the redemptive virtues of suffering and the moral and societal taboo

31
against the act of suicide.”60Unfortunately, there do not appear to be any easy answers to these
issues.
Whatever arguments may or may not be thought sufficient to support legalised euthanasia,
an appeal to human rights has not been shown to be among them. The claimed rights are either
unwarranted misrepresentations of rights, or are „wants‟ masquerading as „rights‟. The right to
life under international law is widely regarded as a fundamental right. The term “fundamental” is
ambiguous. It is variously used as synonymous with “absolute”, “inalienable” or both. In the
present context it is intended to mean no more than “of cardinal significance”. Despite the
conflict in the writings, there is a consensus on this lowest common denominator denotation. The
right to life is not, however, absolute. In carefully circumscribed circumstances, there would not
appear to be a violation of the right to life provided that:
(i) the law seeking to diminish the effect of the right does not involve an arbitrary
deprivation of life;
(ii) legal protection is afforded in such a manner as to delimit such authorisation to the non
arbitrary sphere.
What is “arbitrary” or “non-arbitrary” is contentious and allows the consideration of moral
and ethical issues. A state is accorded a degree of autonomy in defining this boundary. There are
conflicting views as to whether the right to life (whether absolute or qualified) is an inalienable
right. It would seem that an effective legal waiver can operate in restricted circumstances if it is
authentic, reliable and subject to appropriate safeguards. A waiver will arguably not be effective
in all circumstances. It is submitted that the likelihood of a legally effective waiver diminishes as
the potential erosion to the right to life increases.
Further it can be pleaded that according to the natural law theory euthanasia and assisted
suicide could be considered to be morally right in the light of utilitarianism. The principle of
utility states that, any action is morally right if it increases the amount of happiness or
alternatively decreases the amount of misery. The argument then goes on to say that killing at
their own request a terminally ill patient who is suffering intolerably would decrease the amount
of suffering in the world and therefore this action would be morally right.

60
J Scherer Final Rights: An International Comparative Study of Euthanasia Regulations and Right to Die Issues
(1997) 53, quoted in L Bradbury “Euthanasia in the Netherlands: Recognising Mature Minors in Euthanasia
Legislation” 9 New Eng J Int’l & Comp L 209 (2002) at 211.

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 Finally, a trite but important observation is apposite. Political and moral judgments in
relation to voluntary euthanasia are not ultimately capable of resolution exclusively by reference
to international human rights standards. Probable legal conformity with human rights standards
(for example Art 6(1) ICCPR) is not determinative of the moral or political appropriateness of a
particular law such as the ROTTIA. The final political and moral judgment which necessarily
includes an assessment of whether it is possible to guarantee via safeguards that a statutory
scheme authorizing limited active voluntary euthanasia will never be abused must be one for the
legislature.

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