Jurisprudential Analysis of Euthanasia
- Author Calvin A/L Cherley, Dr Nabeel Mahdi Althabhawi
- Published November 14, 2021
- Word count 1,276
The word ‘Euthanasia’ is derived from Greek, ‘Eu’ meaning ‘good’ and ‘thanatos’ meaning ‘death’, by putting together it means ‘good death’. The Stedman’s medical dictionary defines euthanasia as the act or practice of ending the life of an individual suffering from terminal illness or an incurable condition, as by lethal injection or the suspension of extraordinary medical treatment. Euthanasia is also known as mercy killing. Mercy killing refers to painless termination of the life of an unbearably suffering patient by the physician upon patient’s request. Euthanasia is of two types: active and passive. Passive euthanasia involves the act of withdrawing life sustaining treatments or withholding further medical interventions in circumstances where recovery was unlikely, continuation of treatment would be futile and would not be in patient’s best interests by virtue of medical experts’ responsible decision. Active euthanasia involves taking of active steps such as injecting patient with a lethal substance to cause or hasten death of patient.
Passive euthanasia is permissible under the Malaysian law and would not subject health care professionals to criminal liability as it does not amount to the offence of culpable homicide not amounting to murder provided under section 299 of the Penal Code, nor to the offence of murder itself under section 300 of the Penal Code. If treatment is withdrawn or withheld in compliance with the terminally ill patient’s request or if continuation of treatment would be futile and would not be in the such patient’s best interests, the act does not fall within the ambit of section 299 nor section 300 of the Penal Code since the withdrawal or withholding of treatment is an omission rather than an act. However, the situation is different as regards to active euthanasia. Any unequivocal act of active euthanasia is strictly prohibited in Malaysia. Any deliberate act at taking active steps, at either causing, or hastening the death of a patient, would amount to committing murder under section 300 of the Penal Code if it has been performed against the wishes of his patient. Even if the patient consents, the offence of culpable homicide would have been committed under section 299 of the Penal Code as it is said to be a direct violation of the principle of sanctity of life. In addition, a doctor assisting a terminally ill patient to end his life may alternatively be charged under one of two provisions which relate to the abetment to suicide: section 305 of the Penal Code for abetting the suicide of child or insane person and section 306 of the Penal Code for abetting suicide.
The act of active euthanasia is viewed as murder, culpable homicide and abetment of suicide in Malaysia. However, active euthanasia should be legalized by virtue of several grounds based on jurisprudential perspective:
Utilitarianism is most closely associated with Jeremy Bentham. The theory known as utilitarianism is only a development of simple statement of Jeremy Bentham that nature has placed mankind under the governance of two sovereign masters which are pain and pleasure, it is for them to point out what we ought to do, as well as to determine what we shall do. By the principle of utility said Bentham, “is meant the principle which approves or disapproves of every action whatsoever, according to the tendency it appears to have to augment or diminish the happiness of the party whose interest is in question or what is the same, in other words, to provide or oppose that happiness.” Utilitarianism is the ethical doctrine by which the moral worth of an action is solely determined by its contribution to overall utility. Therefore, it is a form of consequentialism meaning that the moral worth of an action is determined by its outcome-the ends justify the means. A moral theory is utilitarian if and only if it assesses, acts and rules in terms of nothing but their utility. On this view, people’s level of well-being is determined solely by how much pleasure and pain they experience.
By virtue of utilitarian grounds, active euthanasia should be legalized as the sufferings of the terminally ill patients serve no utility whatsoever. Instead of serving maximum happiness to maximum number of people, the patient’s suffering only causes sadness and pain to the people around by taking into account the anxious waiting of the relatives, the cost for extra drugs, nursing time and hospital bed can’t be utilized by some other needy patients that have higher probability of recovering from the illness.
(b) Economic approach to law
The rationale behind the economic analysis of law is to implement economics to the legal decision-making process. The “economic man” which refers to resourceful evaluating maximizing man may be taken as perfectly rational while breaking legal norms if it maximizes utility. The economic analysis of law substitutes the notion of justice by the notion of efficiency and wealth maximization.
Patients who suffer from terminal illness or life-limiting illness are considered as incurable as the illness most likely will lead the patients to death. Prolonging the life and sufferings of the said patients will only render the act to be inefficient under the economic theory. This is due to large sum of money and resources spent by the patients’ family and the State on their treatment just to ensure the life of the patients able to be prolonged and with the hope of curing their illness although it is clear that the probability of them recovering from the diseases is very low or unlikely to happen.
(c) Libertarian Grounds
Libertarianism is a political philosophy advocating only minimal state intervention in the lives of its citizens. According to the social contract theory, State was formed as a result of a contract between the people. The people would give up a part of their rights to the State and the State in turn would enact certain laws for the welfare of the people. Barbara Jacobs Rothstein, a Senior United States District Judge, in a case concluded that active euthanasia is similar to the abortion decision and the suffering of a terminally ill person cannot be deemed any less intimate or personal, or any less deserving of protection from unwarranted governmental interference, than that of a pregnant woman.
It cannot be denied that the State has a strong and legitimate interest in deterring young people or others with a significant natural life span ahead of them from committing suicide. However, in the case of active euthanasia no rights of any person are being violated as the patient gives full consent and it is his life. In fact, the State is violating terminally ill patients’ right to die with dignity by illegalizing active euthanasia as they are subjected to unwarranted pain and suffering.
In conclusion, active euthanasia should be legalized just like passive euthanasia. Passive euthanasia involves non-commission of an act while active euthanasia involves commission of the act, but the end-goals for both are similar which are to cause the death of the terminally ill patients in order to put an end to the pain and suffering that they are experiencing. In addition, active euthanasia is a faster and more efficient method to acquire the same results that passive euthanasia aims to acquire. Thus, when there is a more efficient method that benefits the patient, the patient must not be subjected to any more torture by prolonging his suffering by making him to choose passive euthanasia and refusing treatment. Legalization of active euthanasia not only aid in reducing the pain and suffering experienced by the patients but also help in relieving the family of the patients from emotional burden and mental agony from watching the patients suffer on a daily basis.
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