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, wouldnt he be already dead? Why should
anyone be granted the authority to take away someone elses 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
viewed on March 29, 2013
2
http://www.merriam-webster.com/dictionary/euthanasia as accessed on March 29, 2013
1

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

as

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,
shouldnt 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 Washington4 passed laws and Montanas
Supreme Court determined that assisted suicide is a medical treatment.5

Oregons 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
2

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

In Europe The Netherlands6, Belgium7 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 Australias 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, Colombias 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

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
Belgiums 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).
10
Republic 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 PhysicianAssisted
Suicide:
Expanding
the
Debate,
1998
in
http://euthanasia.procon.org/view.answers.php?questionID=000149 as accessed in March 31,
2013
3

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 Report15 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
4

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 heartlung
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 patients life while in passive euthanasia, something is not done
that would have preserved the patients life. To quote the words of learned Judge in Arunas
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 persons 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

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
17

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
5

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 wasnt 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.
6

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

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 bedridden 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

8

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

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.)
26

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 Arunas 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
10

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 Benthams 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

11

BENTHAMS 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, its 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
Benthams 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 Utilitarians have argued that
people dont 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
Benthams 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
12

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 Arunas 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 Benthams 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. Benthams theory

13

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 Arunas tragedy and no human
deserves be in such a state as her. There must be a certain dignity in a persons life and by not
passively Euthanizing Aruna that dignity is being eroded by that very staff which seeks to
nurture and protect her.

14