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Israt Jahan Eva and Asaduszaman Sohag |
The great Greek
philosopher, Epicurus has said:
“Why should I fear Death?
If Death is, then I am
not
Why should I fear that
which can only exist when I do not?”
Euthanasia refers to the
intentional termination of a person's life span who is in a vegetative state in
order to alleviate suffering and pain. In Black 's Law Dictionary euthanasia
means, ‘the act or practice of killing or bringing about the death of a person
who suffers from an incurable disease or condition, esp. a painful one, for
reasons of mercy.
Euthanasia is classified
into two types based on its procedure: active euthanasia and passive
euthanasia. Active euthanasia is the intentional act of a physician to cause
the patient's death by injecting poison or lethal substances. The withdrawal of
treatment, such as the removal of a life support or feeding tube, is referred
to as passive euthanasia. Passive euthanasia is also called as physician
assisted suicide.
There are a variety of
complex religious and ethical perspectives on euthanasia.
It could be argued that
since God gave us life, He should also take our lives. Since the right to life
is the cornerstone of all fundamental rights, everyone has their own
choice to put an end to their lives. The right to die is private, and the
government shouldn't interfere. Keeping a patient alive without medication may
be expensive. Euthanasia might free up medical resources for lifesaving.
However, passive euthanasia
is legal in a number of countries, including Canada, Luxembourg, New
Zealand, Spain, and India.
Right to life has
enshrined in Article 21 of the Indian Constitution. The right to die with
dignity is now part of the expanded jurisprudential definition of the right to
life. Suicide and abetment to suicide is punishable under Section 309 and 306
of Indian Penal Code. However, in Gian
Kaur vs. State of Punjab (1996), it was argued that "Right to
Die" is an aspect of the "Right to Life" under Article 21 of the
Indian Constitution. By helping another person in committing suicide,
that person is merely exercising a fundamental right guaranteed by Article 21.
As a result, it is against their fundamental right to punish the abettor under
Section 306. Here the Supreme court held that abetment of suicide is distinct
from attempt to suicide.
The first euthanasia case
in India is Aruna Shaunbaug vs Union
of India (2011) where after remaining 37 years in vegetative state and
incapable to give consent for passive euthanasia, Aruna’s friend Pinaki as her
‘next friend’ made plea before the court to end her life through euthanasia.
The question arose before the court whether non-voluntary passive euthanasia be
performed on a person who is unable to give consent. Relying on the Gian
Kaur vs State of Punjab Case, (1996) Petitioner argued that “life is
not mere living but living in health and health is not absence of illness but a
glowing vitality.” On this landmark judgement the Supreme Court of India
allowed passive euthanasia in certain cases and held that when dealing with
such delicate issues, where one's life or death is at stake, a balanced
approach must be taken.
Bangladesh has no
euthanasia legislation. Doctors must intend to murder patients to execute
euthanasia. If the dead had legitimate consent, exception 5 of the stated
clause applies and punished u/s 304 of the Penal Code for culpable homicide not
amounting to murder. Suicide is punishable u/s 305, 306, and 309 of Penal Code.
Fundamental rights are
clearly explained in part III of our Constitution. Article 32 of our Constitution
promises us the protection of the right to life with a minimum of human
dignity. In the Mohiuddin Farooque vs. Bangladesh case, the SC
has taken the extended meaning of the right to life on the reliance of the
Indian case Bondhua Mukti Morcha Vs. Union of India (1984), which
added that the right to life means ensuring a quality of life consistent with
human dignity. Supreme Court learned advocate Mahmudul Islam claimed that the
right to life guarantees a dignified existence, not the right to die.
Being a Muslim-majority
country, euthanasia is illegal under both secular and Sharia law. Legalizing euthanasia is difficult. It requires a
detailed assessment of Bangladesh's current situation, people's perspective,
equipment acceptability, and religious views. If it were legalized in
Bangladesh, strict and well-structured laws would guarantee the consent and
will of the individual, monitor the failure of all medical resources and
methods to revive the person, intentions of caregivers and medical officials,
proper ways to ensure no abuse of the law, and review the circumstances under
which euthanasia is allowed.
However, considering the
best interest of the patient, specific guidelines for euthanasia should be
introduced in Bangladesh.
Author:
Israt Jahan Eva
Lecturer, Department of Law, The People’s University of Bangladesh.
Asaduszaman Sohag
Lecturer, Department of Law,
Uttara University.