LEGALISATION OF EUTHANASIA: A JURISPRUDENTIAL ANALYSIS

WITH RESPECT TO LAW AND MORALS DEBATE

Submitted to Submitted by
Dr. Pradeep Singh Name- Nitin
Roll no-210608
LL.M 1st Sem
TABLE OF CONTENTS

INTRODUCTION .............................................................................................................................. 1
1.1 DEFINITION AND SIGNIFICANCE.................................................................................. 1
1.2 PROBLEM ............................................................................................................................ 1
1.3 RATIONALE ........................................................................................................................ 1
1.4 OBJECTIVES ....................................................................................................................... 1
1.5 REVIEW OF LITERATURE ............................................................................................... 1
1.6 HYPOTHESIS ...................................................................................................................... 2
1.7 NATURE OF STUDY .......................................................................................................... 2
1.8 SOURCES OF DATA .......................................................................................................... 2
1.9 CHAPTERIZATION ............................................................................................................ 2

1.10 LIMITATIONS OF THE STUDY...................................................................................... 2

1.11 CONTRIBUTION............................................................................................................... 3
CHAPTER 1: DEBATE ON EUTHANASIA ................................................................................ 4
CHAPTER 2: INDIAN APPROACH TOWARS EUTHANASIA ............................................... 5
THE SUPREME COURT’S TAKE............................................................................................ 5
A NEW DIMENSION TO EUTHANASIA IN ARUNA SHAUNBAG CASE ........................ 5
CHAPTER 3: ANALYSIS OF EUTHANASIA IN THE CONTEXT OF LAW AND MORALS
DEBATE ......................................................................................................................................... 7
CONCLUSION ............................................................................................................................... 9
REFERENCES ............................................................................................................................. 10

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INTRODUCTION
1.1 DEFINITION AND SIGNIFICANCE

While euthanasia is typically illegal, there is a growing trend towards legalization, especially in
the western jurisdictions. In particular, in a limited number of jurisdictions, law that permits
voluntary euthanasia has now been passed and civil courts in other countries are regularly asked
to determine if the concerns at stake are relevant to the right to die should be acknowledged.
Possibly one of the most fascinating scholarly debates of all time which has existed in
jurisprudence is the Hart-Fuller debate. Although Hart claimed that law and morality are distinct
and should be considered mutually exclusive, both remain independent from one another. Fuller
was of the belief that while a strong relation existed amongst law and morals, and the law's
authority is extracted from its conformity with morality. This project seeks to discuss the
legalisation of euthanasia in the context of this debate.

1.2 PROBLEM

Should Euthanasia be legalized looking at it with respect to Law and Morals Debate?

1.3 RATIONALE

The study is necessary to understand the need of legalizing euthanasia by understanding the status
quo from the perspective of the Law and Morals Debate.

1.4 OBJECTIVES

To have a jurisprudential analysis of the question of legalization of euthanasia with respect to the
Law and Morals Debate.

1.5 REVIEW OF LITERATURE

Bruce Vodiga, ‘Euthanasia and the Right to Die—Moral, Ethical and Legal Perspectives’, 51
CHICAGO-KENT LAW REVIEW, 1-41 (Jun.1974).

The issue of legalisation of euthanasia is taken into consideration in this article and some of the
responses have also been formulated. Not only it provides the user with certain essential reference
material for a more detailed assessment of the now ‘controversial’ definition of human death, but

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also with a reference context, a logical, rational and convincing viewpoint from which death and
dying can be regarded.

John Coggon, ‘The Wonder of Euthanasia: A Debate That’s Being Done to Death’ 33 OXFORD
JOURNAL OF LEGAL STUDIES, 401-419 (2013).

This essay presents a reflective study of the essence of the law's normative criticisms. The
emphasis moves on medico-legal research towards a clearer indicator. The statement highlights
the number of related concerns that need to be discussed, considering both medical law as a
profession and the study of end-of-life issues, and discusses the question of whether they are well
conceived as ones of medical law.

1.6 HYPOTHESIS

Euthanasia in any form must be avoided until extremely necessary.

1.7 NATURE OF STUDY

This research work is descriptive in nature.

1.8 SOURCES OF DATA

This study is done with the help of secondary data. This secondary information has been obtained
from published sources such as books, journals, newspapers, official websites, government
publications etc.

1.9 CHAPTERIZATION

The project report has been divided into three chapters. The first chapter deals with the subsisting
debate on Euthanasia all over the world. The second chapter lays down the status quo in the Indian
sub-continent. The third chapter analyses the subject with respect to the Law and Morals Debate.

LIMITATIONS OF THE STUDY

The project has been firstly made with secondary resources, thus it is limited in this respect. So far
as secondary data has been used, all the articles upon the subject have not been exhausted and thus

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there is this limitation. Also, instead of discussing the global scenario, it focuses on the Indian
conditions for argumentation.

1.10 CONTRIBUTION

The project analyses the euthanasia from the point of view of Law and Morals Debate and hence
plays a very important role in the deciding the need for legalization of Euthanasia.

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 CHAPTER 1: DEBATE ON EUTHANASIA
Owing to various social and legal changes, the subject of euthanasia has gained recognition
worldwide. This comprises: the advancement of new medical technologies and the likelihood of
artificial extended lifespan; in historical words, by denying euthanasia, we inherit daunting laws;
the prevalence of growing elderly people and the number of people afflicted by HIV/AIDS; and
religious institutions' diminishing power.1 In addition to tradition, when individuals had the
opportunity to revoke their own lives, and in what situations they would have done, philosophers
have also discussed the issue. It influences important human desires, such as mortality, spirituality
and well-being and hence triggers profound emotions.

The word euthanasia is derived from the Greek word eu, meaning good" and thanatos, meaning
death. The ancient Greeks saw the illness as the right of a helpless and suffering sick person to
request state consent to commit suicide.2 Passive euthanasia is sometimes referred to as denial of
therapies to remain in existence, whereas others who are to do with constructive actions that cause
death are referred to as active euthanasia. Another difference may be established between
voluntary euthanasia, when the patient's consent is taken first and forced euthanasia, when the
patient's consent is not taken, such as where a patient is in a chronic vegetative state or loses the
ability to consent or approval.

Socrates considered disease agony of pain and suffering as a good reason not to ‘cling to life.’
Aristotle claims suicide was an insult to the state, calling it an activity against duties as a resident
of a representative of the state.3 Stoic philosophers were among the first to recognise suicide,
possibly because sickness or suffering did not afford a natural life to be enjoyed. According to St.
Augustine's understanding of the religious, it was an irreversible order, regardless of what tragedy
happens to a person or suffering, suicide is never allowable. Although as in ancient times, the
controversy over euthanasia remains contentious today.

1
J SCHERER, R SIMON, EUTHANASIA AND THE RIGHT TO DIE: A COMPARATIVE VIEW 2 (Rowman & Littlefield
Publishers, Lanham 1999).
2
PLATO, ‘PHAEDO’ IN FIVE GREAT DIALOGUES 90 (Benjamin Jowett trans, Walter J Black 1942).
3
G S Neeley ‘The Right to SelfDirected Death: Reconsidering an Ancient Proscription’ 35 CATHOLIC LAW 111
(1995).

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 CHAPTER 2: INDIAN APPROACH TOWARS EUTHANASIA
In the controversy on euthanasia in India, the key topic of concern has been Article 21 4 of the
Indian Constitution. The Supreme Court of India's progressive reading of Article 21 has
incorporated several protections as the right to life doesn't entail the mere existence of human
beings, but implies a dignified or qualitative life. It is then claimed that any human has a life to
live with at least a certain dignity and that the individual must be able to terminate a rather tortuous
existence when the condition of existence slips far below that minimum standard.5 In such
situations, the nature of the defence provided for in Article 21 should form the relief from misery
rather than the maintenance of life.6 Personal liberty is also said to state clearly, according to
Article21, that one must be free to deal with one's body in any manner he wants.7 Sections 306 and
309 of the Indian Penal Code (IPC), though which prosecute abetment to suicide8 and attempt to
commit suicide9, respectively, have been considered to be the two essential provisions for the
lawful right to die.

THE SUPREME COURT’S TAKE

The Supreme Court again got occasion to discuss the issues of suicide and euthanasia in Gian Kaur
v. State of Punjab.10 The constitutional validity of both S.306 and S.309 of IPC was affirmed by
the Supreme Court. The Supreme Court found it clear that 'Euthanasia' and 'Assisted suicide' were
not legal in India and were drawn to these activities by the terms of the Indian Penal Code 1860.
The court ruled that euthanasia is unconstitutional and should only be legalized by law i.e. the act
of humanely as possible killing a patient to alleviate (and be subject to sufficient care and control)
his suffering from an incurable disease.

A NEW DIMENSION TO EUTHANASIA IN ARUNA SHAUNBAG CASE

The question as to the right to withdraw treatment came up for the consideration before the Indian
judiciary very recently in Aruna Ramachandra Shanbaug v. Union of India.11 The Hon'ble SC

4
INDIA CONSTI ART 21.
5
25 GEORGE BUHLER, LAWS OF MANU (SACRED BOOKS OF EAST) 204 (Motilal Banarsidass, 2001).
6
Shreyans Kasliwal, ‘Should Euthanasia be legalized in India?’ PL WebJour 16 (2003).
7
T. Basant, ‘Euthanasia - Why a Taboo?’, 2 ICFAI JOURNAL OF HEALTH CARE LAW 60 (2004).
8
The Indian Penal Code, 1860, §306.
9
The Indian Penal Code, 1860, §309.
10
AIR 1996 SC 946.
11
2011 (3) SC 300.

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claimed that suicide is not really an offense and urged the government to consider repealing Indian
Penal Code Section 309, which penalizes a person who has sustained an failed attempted suicide.
The court made a substantial difference between passive and active euthanasia and ruled that while
active euthanasia is illegal, passive euthanasia is acceptable.

The Supreme Court allowed passive euthanasia when determining this case, granting number of
people living in a chronic vegetative condition around the country the right to remove the artificial
life support device to allow them to stop a life of suffering. The decision of the Supreme Court to
pave the way for passive euthanasia is a major move forward as lawmakers will hopefully push to
address the issue without any more delay.12

12
The last rights of staying alive, HINDUSTAN TIMES, (9 March, 2011), https://www.hindustantimes.com/india/the-
last-rights-of-staying-alive/story-sjuzy955VSGfrhK5U7E1AI.html.

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 CHAPTER 3: ANALYSIS OF EUTHANASIA IN THE CONTEXT OF LAW
AND MORALS DEBATE

It is possible to recognise law and morality as principles, but any effort to describe them is difficult.
Morality classifies human actions as positive or evil. ‘Morality’ is the identification of
characteristics, such as right or wrong, and the application to certain attributes of principles, such
as good or evil, in order to achieve a structure of comparison through which to perform life's
affairs.13 Whether one does not abide by the defined principles of justice, he cannot be found
morally accountable.14

Prof. HLA Hart claims that it is just not essential for legislation to actually fulfil moral criteria. He
would not accept that they are inter-dependent on each other while recognizing the close bond
between law and morality. From the other hand, our legal processes, according to Professor Fuller,
are based on principles of justice that have a religious component. In deciding whether a series of
laws qualifies as a legal framework, the mechanisms that are represented in a legal system are
morally relevant. He claims a moral practical test must be passed for a law to be considered a law
in the true sense. If a rule or series of laws does not adhere to this purpose, it does not qualify as
law.15

It is more difficult psychologically to justify letting someone suffer a dehumanized, painful and
unpleasant death than it is to justify having him escape from that suffering.16 Adjustments to
conventional ethics, enforced by modern technical advancements, make it easier to defend
euthanasia as a rational way of reaching an end to life that is or has been ineffective. While death
should not be accelerated, it may reduce obstacles and does not lengthen the misery.17

The doctor's rights and liabilities are correlated to those of the patient. Indeed, where the patient is
concerned, the practitioner should not have a distinct or independent right. In general, he can only
take immediate action if the patient grants him approval, explicitly or impliedly, knowingly or
unknowingly. The resuscitation procedure that affects us here does not in itself involve something

13
Moffat, ‘The Indispensable Role of Independent Ethical Judgment’, 21 FLA. L. REV. 477 (1969).
14
Steven Shavell, ‘Law versus morality as regulators of conduct’ 4(2) AMERICAN JOURNAL AND ECONOMICS REVIEW
227-257 (2002).
15
Benjamin C Zipursky, ‘Practical Positivism versus Practical Perfectionism: The Hart Fuller Debate at fifty’, 83
NEW YORK UNIVERSITY LAW REVIEW,1170- 1212, (2008).
16
Fletcher, ‘Ethics and Euthanasia’, 73 AM. J. NURSING 670 (1973).
17
Rackman,‘Morality in Medico-Legal Problems’, 31 N.Y.U.L. REV 1205 (1956).

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unethical. Therefore, if he was willing to make a conscious choice, the patient should do it legally
and, ultimately, give the doctor permission to use it. Every citizen has the right to die, loving
personal care and without attempts to prolong terminal disease merely because the technology is
available to do so.18

The law is the ethics of government, the standards which the government imposes upon its
constituency. The statute of this nation should be the requirements that persons enforce on
themselves. And their rule should be a representation of their collective morals, since individuals
each have a morality. To claim that the statute is beyond morality is to ignore any function it has.

Therefore the statute is the ultimate measure of justice.19 If all others prove unsuccessful,
unmanageable or unwilling to coexist with each other it is the norm that supersedes the others. It
can only be seen where there is proof that moral principles are endangered or abused. Death is the
inevitable mysterious aspect of life that brings a sense of truth to our beliefs, regardless of how we
think of it. Death is the inevitable mysterious aspect of life that brings a sense of truth to our beliefs,
regardless of how we think of it. It imparts an importance that makes time valuable to us and our
morals. It is no less of a value than love, and no less like an inherent component of our ethics.

18
Report of the Social Principle Study Commission, UNITED METHODIST CHURCH, Apr. 1973.
19
Allred, ‘Legal Aspects of Euthanasia’, 14 LINACRE Q. 1, 2 (1947).

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 CONCLUSION
The 'euthanasia dispute' is more about semantics than reality. The debate does not exist, since it is
now known. But on the ground, there is a major issue, one that must be discussed, contemplated
and if possible, acted upon. The dilemma of who can die will emerge by trying to look at death as
an object unto itself. The possibilities can be -the powerful and stable should live, and the poor
and timid should die, the wise should live, and the unintelligent should die. So we slip into the pit
that those who would make us put an end to the ‘defective’ would have set for us. This cannot be
expected to occur. We must have it in our overall definition of existence rather than treating death
as a separate function. Our attention must be on life, and our energies must be on enhancing it.
Our humanity and human awareness should direct our steps towards the aim of life with dignity
for each person, not death with dignity. The morality of mankind would not have it otherwise.

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 REFERENCES
 Bruce Vodiga, ‘Euthanasia and the Right to Die—Moral, Ethical and Legal Perspectives’,
51 CHICAGO-KENT LAW REVIEW, 1-41 (Jun.1974).
 Dr. Irena Shala, Drnt. Kilda Gusha, ‘The Debate Over Euthanasia and Human Rights’, 12
EUROPEAN SCIENTIFIC JOURNAL (Mar. 2016).
 Nuno Ferreira, ‘Revisiting Euthanasia: A Comparative Analysis of a Right to Die in
Dignity’ SSRN ELECTRONIC JOURNAL, (Nov.2015).
 Divya Sharma, Dr.Kuljit Kaur, ‘Jurisprudential Aspects Of Euthanasia: With Special
Reference To India’ INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE
STUDIES, ISSN 2348-8212.
 Subhash Chandra Singh, ‘Euthanasia and Assisted Suicide: Revisiting the Sanctity of Life
Principle’, 54 JOURNAL OF THE INDIAN LAW INSTITUTE (2012).
 John Coggon, ‘The Wonder of Euthanasia: A Debate That’s Being Done to Death’ 33
OXFORD JOURNAL OF LEGAL STUDIES, 401-419 (2013).

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