By Muhammad Masood Asghar, Civil Judge, Sargodha
When a person possesses a right, it implies that he may avail himself beneficially of the right or he may waive it. If that is not the case the very right may become an obligation. However the matter becomes complicated when this principle is applied to right to life. Euthanasia is a kind of assisted suicide usually taking place in the field of medicine. In common parlance it is understood as the deliberate termination of life for alleviation of ache and agony. When a patient is suffering severe pain or where he is in some "vegetative state" for a long time and there is no chance of his survival, it is considered that ending his life would be for his benefit and would end suffering. Euthanasia as such is a concept related to medical practice. The British House of Lords Select Committee on Medical Ethics defined euthanasia as "a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable stiffering".^1^ It is also known as 'mercy killing'. Euthanasia may be voluntary, non-voluntary or involuntary. In "non-voluntary euthanasia" the consent of the person dying cannot be had e.g. infant or a person in coma. "Voluntary euthanasia" is ending life after consent given by the person. "Involuntary euthanasia" is without such consent and is termed, by some, as murder. In some countries euthanasia is permissible in certain cases but in some other countries like Pakistan no law allows it. Can a doctor put an end to the life of his patient? What would be legal repercussions of such an act? These questions shall be discussed here with reference to Islamic, International and Pakistan's national law.
At present there is no international treaty or convention on the issue of euthanasia. However UN is considering a treaty on euthanasia. "Department of Economic and Social Affairs" is running the UN Program on Aging. A debate in underway on legality of euthanasia.^2^ In Netherlands , it is termed as "termination of life by a doctor at the request of a patient". Laws relating to euthanasia vary in different countries. Some countries have recognized euthanasia within their legal framework but most countries regard it as a culpable homicide.^3^ In U.K. protection of life is given value and co-operation in suicide is an offence.^4^ Mercy killing is not sanctioned by law.^5^
In United States there has been marked development on the issue of legality of euthanasia. United States Supreme Court in Cruzan v. Director, Missouri Department of Health^6^ held that in order to remove life sustaining treatment of even a vegetative patient, there should be evidence of his earlier wish and mere request from family members was not sufficient. Further in Washington v Glucksberg^7^ US Supreme Court in a unanimous decision upheld State ban on assisted suicide or 'mercy killings', rejecting the idea that there was any 'right to die'. Such a ban was also affirmed in Vacco v Quill.^8^ In this case Court drew distinction that when a patient refuses life saving treatment or medicine, his death is attributable to the disease he is suffering from but when a doctor administers life ending medicine to his patient, even though it be on his request, he has a conscious intention of causing death and that is not allowed by law. The Oregon Death with Dignity Act saved medical practitioners from penal liability in case they prescribed fatal drugs to a terminally ill person on his request. The attorney general issued an interpretive rule that it did not allow assisting suicide. The rule was challenged and the Court in Gonzales v Oregon^9^ held that "the attorney general had no power to issue such a rule; announcing a medical standard as illegal which is allowed by a state law". In "re Guardianship of L.W."^10^ Wisconsin Supreme Court held that a guardian may allow removal of life sustaining medical treatment but the Court stressed that this permission was limited only to persons who were in a persistent vegetative state.
In India in P. Rathinam v Union of India^11^ Supreme Court found it strange that instead of feeling sympathetic and trying to solve social problems that led a person to attempt to commit suicide, the society hid behind the notion that he is a criminal and held him punishable. Section 309 of the Indian Penal Code was struck down as unconstitutional. Impliedly right to die was acknowledged. However the decision in P. Rathinam case was overturned in A.K. Gopalan v Union of India^12^ when a larger bench of Indian Supreme Court held that "Right to life" does not contain "Right to die" and there is no unconstitutionality in section 309 IPC.^13^ However 'Mercy killing' was held to be within the purview of "Right to die with dignity" which right was stated to be originating from "Right to live with dignity". Mercy Killing was held to mean as quickening of the already commenced process of death.
Euthanasia and Islam
Islam believes in the sanctity of every life as given by Allah Almighty and is therefore opposed to its intentional killing in general.^14^ There are several verses in the Holy Quran laying emphasis on the sanctity of life and prohibiting its killing. These verses have use in explaining the ban on all kinds of suicide as well. It is the Allah Almighty who decides how long one has to live and no one can make a decision to end his life by overtaking the exclusive discretion of Allah Almighty. Use of force against oneself is forbidden. Prophet (PBUH) said;
"Whosoever jumps from a mountain, drinks poison (with the intention of killing him/her self) will be in the hell fire forever. Whosoever kills him/herself with a piece of iron, he will continuously do the same to him/herself in the hereafter, while he/she in the hell fire and remain forever."^15^
In short concept of any kind of euthanasia is not recognized in Islam. The reasons; ending intractable pain and suffering and the benefit of the patient or his legal heirs perceived from this fact is not recognized by Islam as a valid ground for ending or taking one's life. As per Holy Quran murder and "spreading mischief in the land" are recognized as grounds valid for taking away one's life.^16^ Quran states "Do not take life which Allah made sacred other than in the course of justice."^17^ As per Islam there are two reasons for not allowing 'mercy killings'; (1) The grounds on which euthanasia is done are not recognized for taking the life of a person in Islam. (2) It is the exclusive domain and discretion of Allah Almighty to give or end one's life.^18^ Dr. Yusuf al-Qaradawi^19^ issued a fatwa to the effect that;
"Euthanasia or Mercy Killing is the act or practice of ending the life of an individual suffering from a terminal illness or an incurable condition, through lethal injection or the suspension of extraordinary medical treatment. This act is forbidden as per Islam for it encompasses a positive role on the part of the physician to end the life of the patient and hasten his death via lethal injection, electric shock, a sharp weapon or any other way. This is an act of killing, and, killing is a major sin and thus forbidden in Islam, the religion of pure mercy".^20^
Islamic Medical Association endorsed the viewpoint that euthanasia is not permissible in Islam.^21^ In a nutshell it can be said that a Muslim never loses hope and believes that Allah can do anything miraculous even when medical experts have lost every single hope of saving an individual's life. This is the underlying rationale behind not allowing physician assisted suicide under any circumstances.
In Pakistan euthanasia is not lawful. Some unreported cases have featured in newspapers where son applied non-voluntary euthanasia to her mother who remained in coma for some 9 years and mother euthanized her suffering daughter, but there is no authentic source of these. However these were done surreptitiously. In a reported case Abid Hussain Shah v State^22^ accused killed his friend at his request who was fed up of his life due to illness and his conviction was upheld. As such 'mercy killing' was considered to be culpable. Euthanasia is a kind of assisted suicide and attempt to commit suicide is a crime in Pakistan under section 325 of Pakistan Penal Code. However there is no specific legislation against euthanasia as such. No Pakistani statute legalizes euthanasia or mercy killing. In our country if a terminally ill patient requests his physician to remove life sustaining treatment and the doctor does so, there may be a debate about culpability/legality of the act as there is no specific law addressing such situation. Therefore there is need for legislation on the subject of euthanasia.