A COMPARATIVE ANALYSIS OF THE LEGALITY OF EUTHANASIA ACROSS DIFFERENT LEGAL SYSTEMS, Essays (university) of Civil Law

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A COMPARATIVE ANALYSIS OF THE LEGALITY OF EUTHANASIA

ACROSS DIFFERENT LEGAL SYSTEMS OF NETHERLANDS,

SWITZERLAND, CANADA AND THE UNITED KINGDOM

TABLE OF CONTENTS

1. EUTHANASIA- INTRODUCTION AND LEGAL OVERVIEW

2. TYPES OF EUTHANASIA

3. LEGALITY IN THE NETHERLANDS

4. LEGALITY IN SWITZERLAND

5. LEGALITY IN CANADA

6. LEGALITY IN UNITED KINGDOM

7. COMPARITIVE ANALYSIS

8. CONCLUSION

No international law and/or convention expressly provides for the right to die per se and the same would be discussed towards the end of this paper.As discussed, traditionally, the public sentiments have also been opposed to Euthanasia, however, in recent times, due to certain heart-breaking instances, growing awareness and medical research, widespread social activism^3 and few judicial pronouncements, there has been observed, a growing acceptance towards Euthanasia in the eyes of the general public at a global level. Euthanasia & Physician Assisted Suicide There is a slight but important difference between Euthanasia and Physician Assisted Suicide (PAS). Broadly, PAS or physician assisted dying or medical assistance in dying, is considered a subset of Euthanasia. As mentioned above, Euthanasia simply means a person intentionally causing death of another who is terminally sick and inevitably ailing whereas PAS refers to cases where the doctor, on the patient’s consent and request, gives the patient fatal medication which would end his/her life^4. PAS is widely accepted as there is consent as well as voluntariness in such cases. Controversy around Euthanasia The rationale behind Euthanasia being subject to such legal controversy is multifaceted. Conferring the citizens with a right to die raise certain ethical, moral and procedural questions^5. Primarily, one contention against conferring such a right to die is that it is morally unacceptable and no different from murder. Others argue that if right to life is given, it would diminish and degenerate “the sanctity of life”^6 in the eyes of general public. Added to it, almost no religion around the world supports or permits Euthanasia. Apart from these, there lies the ethical issues with performing Euthanasia as Doctors around the world have expressed their concerns over ethical complications as they take the “Hippocratic oath” at the time of joining the profession. Even if Doctors are convinced, (in countries where only voluntary euthanasia is legal) some are not sure about the patient’s mental condition with (^3) Dignityindying.org.uk Staff,”Why we need Change” https://www.dignityindying.org.uk/why-we-need-change/ (^4) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5245170/ (^5) ROZOVSKY, LORNE ELKIN, and FAY ADRIENNE ROZOVSKY. “Law Reform and Euthanasia.” Canadian Journal of Public Health / Revue Canadienne de Sante’e Publique 73, no. 6 (1982): 431–32. http://www.jstor.org/stable/41987885. (^6) Singh, Subhash Chandra. “EUTHANASIA AND ASSISTED SUICIDE: REVISITING THE SANCTITY OF LIFE PRINCIPLE.” Journal of the Indian Law Institute 54, no. 2 (2012): 196–231. http://www.jstor.org/stable/43953537.

regards to giving consent for the same and claim that doctors making judgment about the mental status of individual consenting to Euthanasia is prone to natural human error^7. The author contends that keeping the moral and ethical concerns aside, it is important to prioritise and consider the circumstances in which the individual is suffering. Moreover, the author is of the view that voluntary-passive euthanasia for critically ill patients or extremely old and suffering individuals should be globally legal in the 21st^ century provided that the person is not quitting life to merely escape the burden of responsibilities that naturally fall on individuals. An adequate set of yardsticks and guidelines should be prepared by an authority/agency at national or state level, specifically set up for analysing on a case-to-case basis, to act as a checklist before permitting the performance of euthanasia on patients. Additionally, the author purports for an international convention/conference through which adequate international framework is gradually developed, on the lines of which the developing and -middle income countries can enact their national laws.

II. TYPES OF EUTHANASIA

Before dwelling onto the varied legal dynamics in different countries, it is important to understand some crucial differences among the of forms of administering euthanasia and consensual variations as almost all countries of the world have prohibited at least one of them while debates revolve around the legality of the other. The two most common forms of euthanasia are: Active Euthanasia In cases where the patient is given a fatal dose of substance or injected with one in order to end his/her life is referred to as active euthanasia. Direct and deliberately administering of fatal substance in order to cause the patient’s death is often done on consenting and sound adults who consciously choose to die.^8 Active euthanasia is globally frowned upon due to its moral and ethical implications. Passive Euthanasia (^7) Sessums LL, Zembrzuska H, Jackson JL. Does This Patient Have Medical Decision-Making Capacity? JAMA. 2011;306(4):420–427. doi:10.1001/jama.2011. (^8) BBC.com Staff,”Ethics”, last accessed on 15/11/ https://www.bbc.co.uk/ethics/euthanasia/overview/forms.shtml

III. LEGALITY IN NETHERLANDS

Legal Overview The Netherlands isn’t the first country to legalise voluntary euthanasia in its varied forms but has one of the most justiciable and stern laws relating the legalising euthanasia. The country’s parliament enacted the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act”^12 in 2002 through which it decriminalized voluntary euthanasia and assisted dying in in very particular cases and in very specific situations and suspends prosecution of physician if he/she has acted in accordance with the legal criterion of due care and other safeguards. The Act lays down a complex system of checks and balances by entailing into the very details which need to be complied with or fulfilled at every stage of decision making and review of the same, before euthanasia or assisted dying is actually conducted. The Act’s provision emphasize that euthanasia is only permissible in exceptional circumstances along with providing an in-depth the criteria for the same. Legal Framework – Judicial Precedent & Statute The need for legislative statute was evident in the Netherlands since 1973, after the infamous “Postma Case”^13 , in which the court laid down a set of criteria that would need to be checked before any doctor could proceed with helping or assisting a patient in dying, for instance, the patient should be suffering severely without any potential for recovery or improvement and should be in a sound state of mind as well as aware of his condition, another important criteria is that the patient should be willingly and persistently requesting to die. The said criteria were very effective and eventually found its way into the Termination of Life Act as well. Apart from the criteria, the Act lays down a number of safeguards by setting up regional review committees which are dedicated to assess whether the case complies with criteria of due care and to check if all conditions were met, before closing the case. If irregularities are found, the case is sent to the Public Prosecutor to initiate criminal proceedings against the physician assisting or performing euthanasia or assisted dying. (^12) Maurice A. M. de Wachter. “Euthanasia in the Netherlands.” The Hastings Center Report 22, no. 2 (1992): 23–30. https://doi.org/10.2307/3562561. (^13) Capron, Alexander Morgan. “Euthanasia in the Netherlands American Observations.” The Hastings Center Report 22, no. 2 (1992): 30–33. https://doi.org/10.2307/3562562.

The legislation also gives legal validity to “Wills” containing a directive to perform euthanasia when a patient is in coma or is in a mentally incapable state of making sound decisions.

IV. LEGALITY IN SWITZERLAND

Legal Overview and Historical Context The country has the oldest and most liberal legal provisions in a statute that permits voluntary passive euthanasia (specifically, assisted dying). In 1937, Switzerland’s parliament passed the Swiss Penal Code, article 115 of which makes assisted dying a crime only and only if it is done for a “selfish” motive. Moreover, it even does away with the compulsions of a physician to perform the act^14. These said legal provisions have been subject to widespread criticism, especially with legal critics opposing the assisting of suicide by virtually anyone, as doctors are not given special status in the code with regard to conducting passive euthanasia. Amusingly, this has made Switzerland a hub for patients and people who voluntary want to die to the extent that specific enterprises have opened up for such purposes.^15 The legislation does not limit its applicability to only its citizens, therefore the patient or recipient can be tourists and foreigners as well. As for theoretical formalities, the set of ethical and medical guidelines are followed for dying person’s care^16. However, despite having such liberal provisions, it explicitly prohibits active euthanasia by administration of fatal intravenous injections to any patient by any person including doctors.

V. LEGALITY IN THE CANADA

Legislation and Judicial Precedent Canada is one country which recently in, 2016 decriminalised voluntary passive euthanasia i.e only medically assisted dying (derived from and means the same as physician assisted 14 Samia A. Hurst and Alex Mauron, “Assisted suicide and euthanasia in Switzerland: allowing a role for non- physicians”, BMJ. 2003 Feb 1; 326(7383): 271–273. (^15) Campaign for dignity,org.uk Staff, < https://www.dignityindying.org.uk/assisted-dying/international- examples/switzerland/ last accessed on 15/11/ (^16) Ernst-Allemann, Cecile, A. G. Bondolfi, Ch Bruckner, Silvia Kappeli, Ch Rapin, J. Rey-Bellet, Gertrud Siegenthaler-Zuber, and J. Gelzer. "Medical Ethical Guidelines for the Medical Care of Dying Persons and Severely Brain-Damaged Patients." Schweizerische Medizinische Wochenschrift 126, no. 4 (1996): 136-139.

F v. West Berkshire Health Authority^21 The case is considered to be one of the earliest landmark judgments relating to non-voluntary passive euthanasia wherein the court held that in situations when a patient, who due to his illness and subsequent unsoundness of mind is incapable of giving consent, the doctor shall lawfully treat such a patient as he deems fit, keeping his best interests in mind. It is pertinent to note here that, it is in this case that the test of determining if medical decision of performing euthanasia were done with the “best interests of the patient” was developed and has been a common element in most euthanasia cases in the UK. The Airedale Case : Airedale NHS Trust v. Bland^22 This case is one of the most historic cases on the subject of euthanasia, the said case currently governs the law regarding incompetent individuals/patients. The decision of the West Brikshire Authority case was upheld and new guidelines were also placed. According to the judgment, the act of removing the artificial life support by a doctor on informed and varied medical consultations and having the best interests of the patient in mind, would not be a counted as crime. The appeal was dismissed by the House of Lords and the patient, in the said case, crippled in a persistent vegetative state since a long time with no chances of recovery was permitted to be passively euthanized. Laying emphasis on the principle of the self-determination and sanctity of life, the Lords held that if a patient wants to discontinue his treatment which would only prolong his suffering and death, it will be lawful on part of the physician to abide by the same and incases of non-voluntary euthanasia, it is lawful duty of the doctor to decide and act accordingly in the patient’s best interest. A mandatory need to take permission of the court in contended cases was also put in place (was removed through subsequent precedents^23 ). Much more recent judgments and statutory legislation has further changed the law. Since 2005, In England and Wales, advance directives have been given legal validity and a provision of appointing a proxy for such decision making has also been made through an act of parliament^24. The requirement of obtaining permission of court before performing passive euthanasia by withdrawal of artificial support system was also done away with in the NHS (^21) [1989] 2 All ER 545 at 548 (^22) (1993) All E.R. 82) (^23) Pereira, Jose. "Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls." Current Oncology 18, no. 2 (2011): 38-45. (^24) Section 24(3) Mental Capacity Act, 2005

Trust Case^25 in 2018 by the Supreme court of UK. However active euthanasia is still a criminal offence in the UK. ANALYSIS OF EUTHANASIA IN COMMON VS CIVIL LAW COUNTRIES As discussed above, it is clear from a plain reading that Civil Law countries such as The Netherlands and Switzerland, where the legislation has enacted statutes which provide for Euthanasia are often much better and effective at clarifying and enforcing the law of the land than the Common Law countries such as the UK and India where judicial precedents are the sole source of law especially with regard to Euthanasia. It is evident that through the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act, 2002, a comprehensive legal framework has been established in the country providing for clear definitions, applicability, conditions-precedent and subsequent, safeguards, review mechanisms, and provisions for enforcement as opposed to the UK where the infamous Airdele Cases form the majority of legal backing around the legality and procedure of Euthanasia a apart from the provision of “advanced directives” for Passive Euthanasia in the country’s Mental Capacity Act. However, it is clear that Bijural countries such as Canada, which has elements of both common and civil law prove to be the most effective when it comes to laws regarding Euthanasia through both, judicial precedents and Bills like C-7. UNIVERSAL RELIGIOUS RESENTMENT TOWARDS EUTHANASIA In the Hindu context, Supreme Court in the landmark case of “Common Cause a Redistered Society” and Anr. v. “Union of India”^26 , the court has cited The Rigveda, “Ajyesthaaso Akanisthaasa Yete”; “Sam Bhraataro Vaavrudhuh Soubhagaya (RigVeda, Mandala-5, Sukta- 60, Mantra-5)” to justify the contention that “sanctity of life” and the responsibility to protect life has been an ancient ideology in the majority of India. Moreover, it also has described the theosophical backgrounds of various other religions, holding the same view that the sanctity of life is supreme and that life shall not be taken away by anyone, even in the interests of the other. For instance, it goes on to elaborate on the tenets of the Holy Quran which vies man as a creation of God and any harm to man as a harm to God and the propagates the view that man God, owing to his love for man, wishes to grant him a life of “recognition, dignity and authority”. (^25) An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants) [2018] UKSC 46 (^26) LNIND 2018 SC 87

multifaceted and involve a number of historical, political and religious factors^29. This is also because the general public’s sentiment and the moral standpoint regarding passive euthanasia is also unclear to the legislation and judiciaries of the world as the views regarding the right to life to be interpreted as encompassing the right to die, seem to be more and more divided and drastically on different ends of the spectrum, from a global perspective. Added to it, the lack of an international treaty or regional convention relating to specifically on the subject of passive euthanasia have further swayed attention of the legislations from the subject as there is no international obligation in its respect^30. It would be justified to state that there is an unsaid and undivided global agreement regarding the illegal status of Active euthanasia, however, much of the legal jurisprudence across the world seems to be fuelled by their respective historical and ideological backgrounds.

CONCLUSION

While the global prohibition and illegality of active euthanasia is settled and expressly laid down in one form or the other into almost every country’s national law, it would not be an overstatement to conclude that the legal framework regarding passive euthanasia is still in its rudimentary stages, primarily because of a divided legal opinion and jurisprudence, at national level^31. Notwithstanding the fact that huge differences lie between the different legal systems across the world, one constructive provision which could be included in all the said systems is the setting up of regional institutes or quasi-judicial bodies specifically devoted to supervise that pre-operation requirements are met in all cases of lawful euthanasia as well as post-case review of the whole procedure, where lawful euthanasia is conducted. While traces of legal jurisprudence and statutory provisions can be traces as far back as the 1930s, it is only in the beginning of the 21st^ century that we observe a few nation states accepting the use of passive euthanasia on humanitarian and scientific grounds. (^29) Mustafa D. Sayid, "Euthanasia: A Comparison of the Criminal Laws of Germany, Switzerland and the United States," Boston College International and Comparative Law Review 6, no. 2 (Spring 1983): 533- (^30) ADFInternational.org Staff, “International Law and The ‘Right To Die.’”,n.d. (^31) “Euthanasia Around The World.” BMJ: British Medical Journal 304, no. 6818 (1992): 7–10. http://www.jstor.org/stable/29714082.