Electronic copy available at: http://ssrn.com/abstract=2265358

1

EUTHANASIA AND ETHICS

INTRODUCTION

The term 'euthanasia' (or 'mercy killing') comes from the Greek word meaning 'good death.'

Such dying, with the assistance of others, can be either active or passive. It can be voluntary

or non-voluntary.1 The act or practice of killing hopelessly sick or injured individuals (as

persons or domestic animals) in a relatively painless way for reasons of mercy; also: the act

or practice of allowing a hopelessly sick or injured patient to die by taking less than complete

medical measures to prolong life.2

From the above two definitions it is quite clear that a person who is suffering from a lot of

pain and has no hope of recovering completely to a normal way of life can have the option of

Euthanasia. Mercy killing is a wide debate; it is so large a debate that it merely remains that:

A debate. There are multiple takes to Euthanasia.

A general religious one is that god created life and only god has the right to take it away, that

no man should have the legal power to take away life for whatever reason. The religious

belief is extremely rational one: it can be backed up by proper realistic points like who

decides when a man is supposed to die? To paraphrase another general point raised in all

Euthanasia debates: If the person had to die, wouldn’t he be already dead? Why should

anyone be granted the authority to take away someone else’s life? A brief reading of the

Hindu Ideology would point out the concept of Karma. Karma basically means all the acts

done by the person and the significance of those actions in ones’ life. In a talk with a Baba

once, at a family function, he pointed out to me that Karma is the sole reason a person stays

alive and reaps or suffers his fate. He also concluded by saying all our acts always come back

1 http://caae.phil.cmu.edu/cavalier/Forum/euthanasia/background/euth/Euthanasia.html as

viewed on March 29, 2013 2 http://www.merriam-webster.com/dictionary/euthanasia as accessed on March 29, 2013

Electronic copy available at: http://ssrn.com/abstract=2265358

2

to us and there is nothing that can stop death from knocking on our door and that if your

deeds are bad and god wishes you to suffer for them, you will.

Another reasoning that is usually adopted is with respect to sane and rational thought, the

logical course of life. One thought is that mankind has the choice over their own lives.

Another is that a terminally ill patient has huge medical expenses and with no scope of

recovery, relief may be required by the relatives. That if a person is in such deep pain,

shouldn’t man be merciful and relieve that person of the pain?

The debate can rage on, however, my endeavour in the present circumstances is to analyse

the Bentham School of Thought with respect to Euthanasia. How will the Hedonistic

Calculus created by Bentham applied to Euthanasia. I will also be examining the one real life

case and the Hedonistic Calculus.

The laws in India are clear with respect to Euthanasia, it is illegal and against the law. Over

the years numerous petitions have been sent to the Supreme Court, begging for mercy, but

they are always repealed. While the Author does not wish to examine all the myriad cases,

she will be examining the few mercy petitions that have come up before the Supreme Court

to examine the governing law in the country.

EUTHANASIA IN INTERNATIONAL PERSPECTIVE

Oregon, Washington, Montana, the Netherlands, Belgium and Luxembourg are the only

jurisdictions in the world where laws specifically permit euthanasia or assisted suicide. In the

United States of America the States of Oregon3 and Washington

4 passed laws and Montana’s

Supreme Court determined that assisted suicide is a medical treatment.5

3 Oregon’s “Death with Dignity Act” (ORS 127.800-897) passed in November 1994 and went

into effect in 1999 taken from http://www.patientsrightscouncil.org/site/oregon/ as accessed

on March 30, 2013 4 Washington approved the Washington “Death with Dignity Act” on Nov. 4, 2008.

5 On December 31, 2009, the Montana Supreme Court determined that physicians could

assist patients in ending their lives with a lethal dose of drugs, taken from

http://www.patientsrightscouncil.org/site/montana/ as accessed on March 30, 2013

3

In Europe The Netherlands6, Belgium

7 and Luxembourg permit both euthanasia and assisted

suicide. Although euthanasia and assisted suicide are illegal in Switzerland, assisted suicide is

penalized only if it is carried out “from selfish motives.”8

In 1995 Australia’s Northern Territory approved a euthanasia bill.9 It went into effect in 1996

but was overturned by the Australian Parliament in 1997. Also, in 1997, Colombia’s Supreme

Court ruled that penalties for mercy killing should be removed.10

However the ruling does not

go into effect until guidelines are approved by the Colombian Congress.

196 Countries in the world, only 4 approve of the concept of Euthanasia and allow practice of

it legally. The United States of America has 56 States and only 3 allow for it. The concept of

Euthanasia has two angles to it. While some states allow of ‘Assisted Suicide’ others allow

‘Euthanasia’.

For the purposes of this term paper it is crucial to know the difference between the two.

Frances Kamm, PhD, Lucius Littauer Professor of Philosophy and Public Policy at the John

F. Kennedy School of Government, Harvard University, in her essay11

explained:

"Euthanasia involves a death that is intended (not merely foreseen) in order to benefit

the person who dies. It differs from physician-assisted suicide undertaken in the

6 Although both euthanasia and assisted suicide had been widely practiced in the Netherlands,

they remained technically illegal until passage of a bill for the “Review of cases of

termination of life on request and assistance with suicide” was approved in April 2001 taken

from http://www.patientsrightscouncil.org/site/hollands-euthanasia-law/ as accessed on

March 31, 2013 7 Belgium’s law was passed on May 16, 2002.

8 Swiss law states, “Whoever, from selfish motives, induces another to commit suicide or

assists him therein shall be punished, if the suicide was successful or attempted, by

confinement in a penitentiary for not more than five years or by imprisonment.” As enshrined

in the Article 115 of the Swiss Penal Code. 9 Rights of the Terminally Ill Act,” Northern Territory of Australia (1996).

10Republic of Colombia Constitutional Court, Sentence # c-239/97, Ref. Expedient # D-1490,

May 20, 1997. 11

Frances Kamm, “Physician-Assisted Suicide, Euthanasia, and Intending Death” Physician-

Assisted Suicide: Expanding the Debate, 1998 in

http://euthanasia.procon.org/view.answers.php?questionID=000149 as accessed in March 31,

2013

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interest of the person who dies partly in that it involves a final act or omission by

someone other than the patient (e.g., the doctor) in order to end the patient's life.... In

active euthanasia, the doctor introduces the cause of the patient's death, e.g., a lethal

injection.... Active physician-assisted suicide can involve, for example, the provision

of means of death, like pills, that a patient may use. However, it might also involve

giving the patient a stimulant to keep him awake so that he can shoot himself. That is,

the active assistance need not involve giving a lethal substance."

Having distinguished the difference between the two, it can be seen that both concepts are not

private acts; they are public, usually involving atleast one more person and can severely

abused and exploited. Moreover, reports have shown that in places where Euthanasia has

been legalised, there is a rise in the amounts of deaths.12

13

It had reached the stage where in

Springfield, Oregon, the patient suffering from Cancer asked her Insurance Company to

approve the new chemotherapy drug Tarceva, but the Oregon Health Plan sent her a letter

telling her the cancer treatment was not approved. Instead, the letter said, the plan would pay

for comfort care, including "physician aid in dying," better known as assisted suicide.14

EUTHANASIA IN INDIA

The Law Commission of India in August 2012 in its 241st Report

15 analysed Passive

Euthanasia. The Law Commission was asked to look in to the Case of Euthanasia after the

12

Statistics as published by the Central Bureau of Statistic, Holland

http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLen&PA=81655ENG&LA=en as

accessed on March 31, 2013 13

Oregon Public Health Division Report

http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDig

nityAct/Documents/year15.pdf as accessed on March 31, 2013 14

Letter Noting Assisted Suicide http://www.katu.com/news/26119539.html as viewed on

March 31, 2013 15

241st Law Commission of India, Report, “Passive Euthanasia – A Relook”

http://lawcommissionofindia.nic.in/reports/report241.pdf as accessed on April 01, 2013

5

case of Aruna Ramamchandra Shanbaug v. Union of India16

where the Supreme Court after

much consideration held Passive Euthanasia to be legal.

Passive euthanasia, otherwise known as ‘negative euthanasia’, involves withholding of

medical treatment or withholding life support system for continuance of life e.g., withholding

of antibiotic where without doing it, the patient is likely to die or removing the heart–lung

machine from a patient in coma. Passive euthanasia is legal even without legislation provided

certain conditions and safeguards are maintained.17

The core point of distinction between

active and passive euthanasia as noted by Supreme Court is that in active euthanasia,

something is done to end the patient’s life while in passive euthanasia, something is not done

that would have preserved the patient’s life. To quote the words of learned Judge in Aruna’s

case, in passive euthanasia, “the doctors are not actively killing anyone; they are simply not

saving him”. The Court graphically said “while we usually applaud someone who saves

another person’s life, we do not normally condemn someone for failing to do so”.18

Active euthanasia on the other hand involves taking specific steps such as injecting the

patient with a lethal substance which causes the person to go in deep sleep in a few seconds

and the person dies painlessly in sleep, thus it amounts to killing a person by a positive act in

order to end suffering of a person in a state of terminal illness. It is considered to be a crime

all over the world (irrespective of the will of the patient) except where permitted by

legislation.19

In India it is illegal and is a crime under Section 302 and 304 of the Indian Penal

Code, 1860.

16

Aruna Ramamchandra Shanbaug v. Union of India 2011 (4) SCC 454 17

Para 39 of the Case 18

Passive Euthanasia – A Relook, Law Commission of India Report, p. 2,

http://lawcommissionofindia.nic.in/reports/report241.pdf as accessed on April 01, 2013

19

Law Commission of India Report, “Passive Euthanasia – A Relook”, p. 1,

http://lawcommissionofindia.nic.in/reports/report241.pdf as accessed on April 01, 2013

6

This was not the first time that Euthanasia was considered in the Indian Legal history. In its

196th

Report the Law Commission did considered Euthanasia, but clarified emphatically that

it wasn’t Euthanasia that they were dealing with, it stated:

“The Commission was not dealing with “euthanasia” or “assisted suicide which are

unlawful but the Commission was dealing with a different matter, i.e., “withholding

life-support measures to patients terminally ill; and universally in all countries, such

withdrawal is treated as lawful”. Time and again, it was pointed out by the

Commission that withdrawal of life support to patients is very much different from

euthanasia and assisted suicide.”20

In the 17th

Law Commission Report21

, the Commission clearly made a distinguishing

between Euthanasia and Assisted Suicide and withdrawal of Life Support Measures. It states

that:

“In this Report, we are of the view that ‘Euthanasia’ and ‘Assisted Suicide’ must

continue to be offences under our law. The scope of the inquiry is, therefore, confined

to examining the various legal concepts applicable to ‘withdrawal of life support

measures’ and to suggest the manner and circumstances in which the medical

profession could take decisions for withdrawal of life support if it was in the ‘best

interests’ of the patient.”

However Passive Euthanasia has always been supported by the Law Commission Reports, in

the 196th

Report, it was supported for both Incompetent and Competent Patients.22

20

196th

Law Commission of India Report on Medical Treatment to Terminally Ill Patients

(Protection of Patients and Medical Practitioners) 21

17th

Law Commission of India Report 22

The Bill Proposed by the 17th

Law Commission Report, “Medical Treatment to Terminally

ill Patients (Protection of Patients and Medical Practitioners) Bill 2006”, defines

Incompetent Patients as a patient who is a minor or a person of unsound mind or a patient

who is unable to weigh, understand or retain the relevant information about his or her medical

treatment or unable to make an ‘informed decision’ because of impairment of or a

disturbance in the functioning of the mind or brain or a person who is unable to communicate

the informed decision regarding medical treatment through speech, sign or language or any

other mode. A competent Patient has to be defined with reference to the said definition.

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Which brings us to the Case of Aruna Ramachandran Shanbaug v. Union of India, the 2011

landmark Supreme Court judgement is a much publicised verdict probably as much as, the

story of Aruna Ramachandran Shanbaug herself.

The case was filed as a Writ Petition under Article 32 of the Constitution of India. It is stated

in the writ petition that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse

working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th

November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain

around her neck and yanked her back with it. He tried to rape her but finding that she was

menstruating, he sodomized her. To immobilize her during this act he twisted the chain

around her neck. The next day on 28th November, 1973 at 7.45 a.m. a cleaner found her lying

on the floor with blood all over in an unconscious condition.

It was alleged that due to strangulation by the dog chain the supply of oxygen to the brain

stopped and the brain got damaged. It was alleged that the Neurologist in the Hospital found

that she had plantars' extensor, which indicates damage to the cortex of the brain along with

severe brain injury.

From the date of the Incident in 1976 to the date of verdict in 2011, 36 years have expired

since the incident and now Aruna Ramachandra Shanbaug is about 60 years of age. It was

stated she is featherweight, and her brittle bones could break if her hands or legs are

awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating

and her skin is now like papier mache' stretched over a skeleton. She is prone to bed sores.

Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can

only be given mashed food, on which she survives. It was furhter alleged that Aruna

Ramachandra Shanbaug is in a persistent negetative state (p.v.s.) and virtually a dead person

and has no state of awareness, and her brain is virtually dead. She can neither see, nor hear

anything nor can she express herself or communicate, in any manner whatsoever. Mashed

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food is put in her mouth, she is not able to chew or taste any food. She is not even aware that

food has been put in her mouth. She is not able to swallow any liquid food, which shows that

the food goes down on its own and not because of any effort on her part. The process of

digestion goes on in this way as the mashed food passes through her system. However, Aruna

is virtually a skeleton. Her excreta and the urine is discharged on the bed itself. Once in a

while she is cleaned up but in a short while again she goes back into the same sub-human

condition. Judged by any parameter, Aruna cannot be said to be a living person and it is only

on account of mashed food which is put into her mouth that there is a facade of life which is

totally devoid of any human element. It is alleged that there is not the slightest possibility of

any improvement in her condition and her body lies on the bed in the KEM Hospital,

Mumbai like a dead animal, and this has been the position for the last 36 years. The prayer of

the petitioner is that the respondents be directed to stop feeding Aruna, and let her die

peacefully23

.

While the Union of India contended that the Nursing Ward and all attendants of Ms.

Shanbaug are extremely proud of their achievement of looking after her and that she has an

able and willing staff to take care of her.

“They all are very proud of their achievement of taking such a good care of their bed-

ridden colleague and feel very strongly that they want to continue to take care of her

in the same manner till she succumbs naturally. They do not feel that Ms. Aruna

Ramachandra Shanbaug is living a painful and miserable life.”24

As per the medical report submitted by the Medical Team constituted for the purposes of

investigation by the Supreme Court gave a detailed analysis of her condition, to summarise,

Ms. Shanbaug has developed non-progressive but irreversible brain damage. In Ms. Aruna's

23

Arun Ramamchandra Shanbaug v. Union of India 2011 (4) SCC 454

24

Arun Ramamchandra Shanbaug v. Union of India 2011 (4) SCC 454

9

case, she has had irreversible brain damage for 37 years, making her perhaps the longest

survivor in this situation. She meets most of the criteria for being in a permanent vegetative

state (PVS). PVS is defined as a clinical condition of unawareness of self and environment in

which the patient breathes spontaneously, has a stable circulation and shows cycles of eye

closure and opening which may simulate sleep and waking. Further, her dementia has not

progressed and has remained stable for last many years and it is likely to remain same over

next many years. At present there is no treatment available for the brain damage she has

sustained.25

Under Article 32 of the Constitution, any writ petition filed has to prove violation of a

fundamental right. In Gian Kaur v. State of Punjab26

it was held that Right to Life enshrined

under Article 21 does not include the Right to Die. However, Supreme Court in Vikram Deo

Singh Tomar v. State of Bihar27

observed:

“We live in an age when this Court has demonstrated, while interpreting Article 21 of

the Constitution, that every person is entitled to a quality of life consistent with his

human personality. The right to live with human dignity is the fundamental right of

every Indian citizen.”

Thereby creating a legal conundrum for the Court, the decided to give a detailed explanation

for the distinction between Passive and Active Euthanasia, including examining the Airedale

NHS Trust v. Bland28

, a judgment delivered by the House of Lords in 1993. Anthony Bland aged

about 17 went to the Hillsborough Ground on 15th April 1989 to support the Liverpool Football Club.

In the course of the disaster which occurred on that day, his lungs were crushed and punctured and the

supply to his brain was interrupted. As a result, he suffered catastrophic and irreversible damage to

25

Arun Ramamchandra Shanbaug v. Union of India 2011 (4) SCC 454 26

Gian Kaur v. State of Punjab 1996 (2) SCC 648 27

Vikram Deo Singh Tomar v. State of Bihar 1988 (Supp) SCC 734, para 2 28

Airedale NHS Trust v. Bland (1993) All E.R. 82 (H.L.)

10

the higher centres of the brain. For three years, he was in a condition known as `persistent vegetative

state (PVS). In this state of affairs the medical men in charge of Anthony Bland case took the view,

which was supported by his parents that no useful purpose would be served by continuing medical

care, and that artificial feeding and other measures aimed at prolonging his existence should be

stopped. Since however, there was a doubt as to whether this course might constitute a criminal

offence, the hospital authorities sought a declaration from the British High Court to resolve these

doubt. The broad issued raised before the House of Lords in the Airedale case was “In what

circumstances, if ever, can those having a duty to feed an invalid lawfully stop doing so?”

All the Judges in the House of Lords unanimously agreed to the following:

“That it is in the best interests of the community at large that Anthony Bland's life should now

end. The doctors have done all they can. Nothing will be gained by going on and much will

be lost. The distress of the family will get steadily worse. The strain on the devotion of a

medical staff charged with the care of a patient whose condition will never improve, who may

live for years and who does not even recognize that he is being cared for, will continue to

mount. The large resources of skill, labour and money now being devoted to Anthony Bland

might in the opinion of many be more fruitfully employed in improving the condition of other

patients, who if treated may have useful, healthy and enjoyable lives for years to come.”

Airedale (1993) decided by the House of Lords has been followed in a number of cases in

U.K., and the law is now fairly well settled that in the case of incompetent patients, if the

doctors act on the basis of informed medical opinion, and withdraw the artificial life support

system if it is in the patient's best interest, the said act cannot be regarded as a crime.

But the Supreme Court held in the Aruna’s Case that firstly, decision has to be taken to

discontinue life support either by the parents or the spouse or other close relatives, or in the

absence of any of them, such a decision can be taken even by a person or a body of persons

acting as a next friend. It can also be taken by the doctors attending the patient. However, the

decision should be taken bona fide in the best interest of the patient. In the present case, we

have already noted that Aruna Shanbaug's parents are dead and other close relatives are not

11

interested in her ever since she had the unfortunate assault on her and that it is the KEM

hospital staff, who have been amazingly caring for her day and night for so many long years,

who really are her next friends, and not Ms. Pinky Virani who has only visited her on few

occasions and written a book on her. Hence it is for the KEM hospital staff to take that

decision. The KEM hospital staff has clearly expressed their wish that Aruna Shanbaug

should be allowed to live.

Secondly it was held that we are of the opinion that it is the KEM Hospital staff who is really

the next friend of Aruna Shanbaug. We do not mean to decry or disparage what Ms. Pinky

Virani has done. Rather, we wish to express our appreciation of the splendid social spirit she

has shown. We have seen on the internet that she has been espousing many social causes, and

we hold her in high esteem. All that we wish to say is that however much her interest in

Aruna Shanbaug may be it cannot match the involvement of the KEM hospital staff that has

been taking care of Aruna day and night for 38 years29

.

Therefore today despite 37 years on a bed in a permanent vegetative state but due to

wonderful care and patience of her fellow colleague Aruna Shaunbaug is alive and breathing,

which takes us to Bentham’s perspective on the issue of Euthanasia, especially with respect

to, the condition of Aruna Shaunbaug.

29

Arun Ramamchandra Shanbaug v. Union of India 2011 (4) SCC 454 p. 44

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BENTHAM’S HEDONISTIC CALCULUS

Jeremy Bentham is a part of Utilitarianism School of Thought, which basically works on the

premise that the outcome of Action determines whether the action is right or wrong. Bentham

developed a hedonic calculus to work out factors like the duration of the pain, it’s intensity,

how remote it was etc. He was also concerned with the extent of the suffering suffered by a

person. For example in the case of a person X, who suffered from a terminally ill disease, in

Bentham’s case he would be worried about the extent of pain suffered by Patient X and the

next of Kin in case they take decision of not to die. Modern Utilitarian’s have argued that

people don’t just value pleasure. If someone was suffering from a debilitative condition that

took away dignity, this could be a valid reason for allowing euthanasia.30

Bentham’s Hedonic Calculus can be briefly put in the following steps:

1. The intensity of any pleasure or pain.

2. The duration of any pleasure or pain.

3. The certainty or uncertainty of any pleasure or pain.

4. The remoteness of any pleasure or pain (or how much the legislator might be

affected).

5. The chances of the same effects being repeated (More pleasure or more pain?).

6. The chances of the same effects not being repeated (No more pleasure or pain?).

7. The number of people who will be affected by any pleasure or pain arising as a result

of the act in question.

Applying this to the Aruna Shanbaug Case, the intensity of pain of seeing Aruna suffer would

reduce and so would any kind of pain that Aruna is suffering but cannot tell us. The number

of people who are will receive pain at her death are large, basically the entire hospital staff

and nursing, however the pleasure of her death, that is for the greater good, would be much

30

The Hedonistic Calculus: Ethics http://philosophy.lander.edu/ethics/calculus.html as

accessed March 29, 2013

13

larger too, a number of people would seek Euthanasia for their terminally ill patients who till

now did not have the right to do so. The duration of the pain of her being the vegetative state

would decline too, she would not be accompanied by pain and the pain that is suffered by the

Hospital staff would be temporary, their exemplary services will remain but her painless

transition would be ensured.

Further there is remoteness in this pain, except for the immediate persons involved who have

lived with her for the last 38 years. Their pain is difficult to gauge in its intensity and so are

their feelings. Both the Hospital Staff maybe content in looking after their ward however, it is

a truth that there does exist a burden on their shoulders, that their duties and responsibilities

will keep on increasing but they will still have to be accountable for her.

In the present case the conundrum is also there, whether the recipient would have any pain or

will they receive any pleasure at their ward finally departing and breathing her last in this

painful and sad life? Moreover, the extent of the pain or pleasure will affect numerous

persons if euthanasia is practiced or how much pain or pleasure will be felt by each affected

person. Following Bentham who first propagated reducing pain over increasing pleasure, it is

crucial to see that Aruna’s pain remains, she is stranded on an island between life and death

and there must be dignity in life as well as death. Therefore while it may give pleasure to all

the Hospital Staff as it is truly their honour that they have looked after her so well, her pain

must be considered and Bentham’s Calculus could have directed us to passive Euthanasia.

CONCLUSION

While the debate of Euthanasia and its legality rages on, so does the pain of all those victims

who cannot help themselves. There is no reprieve from that pain and not everyone has the

good fortune of having a long successful life, a painless, easy death. It is true that we have no

right to decide who lives and who dies, but if we can make that decision with respect to

capital punishment we can do so in respect of those who are incompetent. Bentham’s theory

14

rested on analysing each case individually and therefore the Author also understands the

Courts and Legislatures hesitancy in not legalising Euthanasia. However, in the case of Aruna

Shaunbaug the Author disagrees with the verdict. The final verdict having rested on the

shoulders of the Hospital staff is right and virtuous but fails to consider the larger picture, the

state has the authority to decide for those who are incompetent, the care and medical

treatment of patient could carry on for a longer period but the end to this would not be

happiness or any other pleasure, it has to end in a sad demise and there would be no point in

prolonging its process. No human being deserves to suffer Aruna’s tragedy and no human

deserves be in such a state as her. There must be a certain dignity in a person’s life and by not

passively Euthanizing Aruna that dignity is being eroded by that very staff which seeks to

nurture and protect her.