Malikova Saniya, LL.M

Department of International Law

Faculty of International Relations

Al-Farabi Kazakh National University

Sylkina Svetlana, PhD, Scientific Supervisor,

Associate Professor of International Law Department

 

 

 

 

Legal regulation of euthanasia.

 

          Recently, discussions related to voluntary euthanasia and the right to die have been receiving a great deal of coverage. For many years, society has given the idea of euthanasia mixed reactions. The question of euthanasia gained attention with increased social progress, specifically the advent of life-support technology for the seriously ill. It is hard to overstate the relevance of this situation because, first of all, it has to do with the most precious thing that a person has -- their life. In addition, the issue itself is not very well studied, and there are not enough pertinent scientifically published works or legislative acts regarding euthanasia. There have been attempts to form a definition of death; medical doctors, biologists, bioethicists, and lawyers alike seek to establish a set of criteria for categorically determining physiological, bodily death before deciding anything else.

In spite of this, modern medicine asks the justice system an entirely different set of questions when it comes to determining a person’s death. Scientific achievements must, no doubt, be taken into account when improving any existing legislation, as medicine and law should never be in opposition with each other. It is no secret that 20th century culture left euthanasia at the periphery of the public consciousness. Official ideology forbade its legalization, avoiding discussion on the topic and acting as if it did not exist at all.

          In recent years, the debate has intensified overseas about the legalization of euthanasia. A significant reason for this was many foreign countries’ adoption of specialized regulations, securative legislation, and laws regulating the basis and conditions for its implementation. Currently, passive euthanasia is legally permitted in more than 40 countries worldwide. In many countries, right-to-die laws are being constantly under review; for example, the British Parliament rejected passive euthanasia laws more than twenty times. The first attempt to legalize euthanasia occurred in the state of Ohio in 1906. In that case, the state legislature voted against the law.

          The world practically broke into two camps for and against euthanasia. Both sides’ arguments carried a lot of weight and made it impossible to reach any actual compromise. Opponents of euthanasia cite numerous historical examples, as well as several supporting arguments, emphasizing the dangerous nature of a subject that has not been well-studied.

          Originally, the term "euthanasia" was coined by the English philosopher Francis Bacon (1561 – 1626) to refer to an easy, painless death (from Greek: euthanasia, eu – good, thanatos – death); that is, a nice, quiet and easy death, without pain or suffering. The term "euthanasia" is literally translated as "good death", but the “good” has come to apply less to the death and more to its purpose. In medical, philosophical and legal literature, it is interpreted in different ways: “a painless, gentle, and irreversible transition into oblivion, relieving suffering”; "causing the death of a terminally ill person at their request, for the purpose of ending their suffering"; “a conscious action that leads to the death of a terminally ill person by relatively quick and painless means with the aim of ending suffering." None of these definitions can be considered exhaustive, nor do they include all the features or cover all the possible situations of euthanasia. The first definition does not distinguish euthanasia from suicide committed without the involvement of another person. The second does take into account cases where the patient is unable to express his request (such as in a comatose state). The third definition contains a reference to the action resulting in death, but does not cover cases of deliberate inaction by a physician in order not to interfere with the natural course of events and the onset of the patient's death. None of these definitions address the subject of the euthanasia himself. Therefore, euthanasia can be defined as the intentional act or inaction of a medical worker, carried out in accordance with a clearly and unambiguously expressed request of the informed patient or his legal representative, to stop the physical and psychological suffering that the patient undergoes for medical reasons, which result in his death.

          From the times of Hippocrates to the present day, the traditional ethics of medicine include an oath: “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect.”  In recent times, however, doctors find themselves more and more prepared to resort to this practice, at least when the patient himself requests death.

The term “euthanasia” is marked by stark contradictions. The approach to the issue of euthanasia depends on the definition and interpretation of the term itself. There is a distinction between active and passive (the criterion being the doctor’s situation), voluntary and non-voluntary (the criterion being the patient’s situation) euthanasia.

          Passive euthanasia (or, as it is called, the “withholding treatment” method) is distinguished by the cessation of life-support treatment, which accelerates the arrival of natural death. Active euthanasia (the “filled syringe” method) is the administration of any drug or other actions that lead to quick and painless death (lethal injection).

 

Active euthanasia takes on the following forms:

          1. ”Mercy killing" occurs in cases where the doctor sees a hopelessly sick               person who is suffering greatly and, not being able to heal them,                              administers to him to an overdose of painkillers;

          2. ”Physician-assisted suicide" occurs when the doctor only assists the                   terminally ill person in committing suicide;

          3. Active euthanasia can also take place without the help of a doctor.

          The patient himself initiates the euthanasia, thereby deciding their own fate.

 

          Euthanasia is described as voluntary when it is implemented at the patient’s unequivocal request, or by prior expressed consent (the practice of expressing one’s will in the event of an irreversible coma, in advance and through legally-binding means, has become widespread in the United States and other Western countries). Non-voluntary euthanasia is conducted without the direct consent of the patient. These conditions create four different methods (scenarios) for euthanasia: voluntary and active; voluntary and passive; non-voluntary and active; and non-voluntary and passive.

          Understanding the phenomenon known as euthanasia involves a set of interrelated aspects, including generally isolated bio-medical, ethical, legal and religious elements.

The biological and medical aspect of the problem is, firstly, to establish categories of patients, in relation to which the possibility of the application of euthanasia can be considered. Some patients can be separated as facing unavoidable biological death, and who are, while dying, experiencing great physical suffering. The question of terminating the life of a patient whose physical suffering can be eliminated by appropriate medical means should not even be considered.

          Another category of patients are those that are ill and in a persistent vegetative state. In that case, the medical side of the issue consists of having to identify the graveness and treatability of the illness; reaching the stage in the medical process when all possible medical options have been expended; and establishing the irreversibility of the vegetative state. The legal issue consists of the necessity of creating a legal procedure for instituting euthanasia in the case that legislation would permit such an act. The most important problem within the framework of this greater issue is the necessity of instituting possible law on euthanasia.

          The religious aspect that is essential for religious patients is characterized by a univocal response across all faiths: “life, no matter how difficult it may be, is given to mankind from Above; likewise, people do not have the right to artificially end it."

          There is no doubt that euthanasia is a conscious step to death. The criminal law of our country considers euthanasia to be murder, but, in my opinion, that is not a correct definition. After all, the point of the decision to take such a step, made by a person who performs determinate actions, consists of providing assistance to a seriously ill person in order to reduce his suffering; not to mention that it is at the patient’s own will. It is, in other words, help. Considering that the person requesting euthanasia is experiencing severe pain, suffering, emotional and psychological trauma, and independently decided that he wants to death, the only true path for his loved ones is to accept and come to terms with the patient’s intentions.

          We are only talking about euthanasia when we are dealing with the premeditated infliction of death. For one instance, a hopeless, terminally ill person’s life is taken—in order to deliver them of unnecessary suffering—either through direct intervention (for example, injecting barbiturates), or ending the patient’s artificial life support. For another instance, a newborn with severe physical deformities loses his life. Euthanasia is relevant only when there is a reason to end a person’s life, or to accelerate their death. This should not be confused with attempting to ease the suffering of someone in the final stages of a serious illness, giving him medicine that would only serve to accelerate the physiological process of dying. In that case, the death was not premeditated, but is rather a possible consequence of the pain relief therapy.

          Euthanasia can be put alongside a range of various medical practices: euthanasia is when a death-inducing drug is taken; or when the patient is withheld that which is necessary for life (food), or that which is beneficial to them (reanimation or treatment that is capable of prolonging life).

          it is not euthanasia to remove life support in the case of irreversible brain-                death (there is no treatment to reduce suffering, there is no opportunity for               recovery, and aside from that, the agony is only prolonged, relatives suffer,             and the government incurs disproportionate costs);

          it is not euthanasia to withhold reanimating a newborn afflicted with                         deformities or a in serious pathological state, if he were naturally                             approaching death (when life can be prolonged only artificially, without                   hope of recovery);

          it is not euthanasia if a patient is “allowed to die quietly” while untreatably                ill and naturally, quickly approaching death—in a case where any kind of                    therapy would serve to at least briefly extend life in unbearable                                circumstances.

 

          The value of human life warrants battling for it, even contrary to objective laws and in the most hopeless situations (and the medicine is full of instances when even the most hopeless cases were healed), which is why most euthanasia opponents protest; but there are cases when nothing can be done except to relieve the person of their suffering and let them depart in peace. Intense pain is often the reason for patients’ requests to die, but the physician must resist this with the wide selection of pain relievers that modern medicine has access to, instead of bending to the patient. But when a person spends extended periods of time in a comatose state and his consciousness is irretrievably lost, yet modern medical technology allows life support to be provided indefinitely, then it is normal to do this. The person is effectively dead, the soul has left the body, and medicine somehow merely extends his presence here on Earth, even though it has long been time to let him go. Typically, the psychological factor prevents loving relatives from disconnecting a person from life support—the hope that one day he will open his eyes and everything will be fine. Of course, in the history of medicine, there have been cases when even after 10 and 20 years of a coma, people had come back to life, but we should be realistic; and if all the evidence points to the fact that the person cannot come back, and that it is all just a useless, costly procedure, then all you can do is toughen up and let him go.

          Maintaining life during the stages of dying or a vegetative state, carried out with the help of advanced technology, is too expensive. Specifically, the money that is spent on continuing life in hopeless situations would be sufficient to treat the tens and hundreds of other people whose situations are manageable. Of course, this is not a very scrupulous approach, but one needs to be realistic.

          Life is good only when, as a whole, pleasure exceeds suffering, and positive emotions exceed negative ones. By such logic, some people are in a situation where it is better to die than to go on living. A prime example of this situation are those patients who suffer from severe pain or are condemned to live in an abject dependence on others.

          There will be those who say that allowing euthanasia would be equivalent to allowing suicide. And suicide, as we all know, is a great in every religion. The soul wanders between worlds and can not find rest. So what if people forbid euthanasia; it is better to let the real person suffer unbearable pain than for his soul to wander through the next world—a world that might not even exist?

          Suffering in itself arouses compassion: that is why one kills an animal that is writhing in pain. How can we refuse such an act of mercy? In fact, even some devout Catholics saw it as their duty to reduce suffering of those close to them, but the Church entirely condemns euthanasia. This condemnation extends to any infringement on human life, as in the case of abortion, as well as euthanasia. However, when it comes to removing artificial life support, the Church is not as strict, and follows the following principles: if there is even the slightest chance for a way out of the comatose state, the life of the patient should be sustained by all means. This is especially important when the patient is not able to express their own will. But if the comatose state is irreversible, it is not necessary to use a painful and methods that are costly both materially and emotionally. Artificial maintenance of human life in the absence of brain activity, reflexes, spontaneous breathing and heartbeat would be an outrage greater than death, and heavily traumatic to relatives.

 

It is worth noting that in countries where euthanasia is legally permitted, the discussion is only about passive euthanasia. It is also important to point out that legislation which allows passive euthanasia contains three founding principles:

          1. The euthanasia must be in good faith;

          2. The patient must be in a medically unsatisfactory condition;

          3. Only a doctor may provide help or deliver euthanasia;

 

Active euthanasia is against the law in all countries, though in practice these laws are rarely observed.

As based on the above, the issue of euthanasia still remains unsolved. To this day, euthanasia is treated differently throughout society, and the public opinion is split into two completely opposing sides.

Even with the full legalization of euthanasia, many will continue to believe that euthanasia (like killing the innocent) is absolute evil. The danger for abuse is also great. For example, within the parameters of our government and in the absence of proper treatment, euthanasia can become a means of death for lonely elderly, children with disabilities, or people with cancer and AIDS. Legalizing euthanasia may also deprive the government of incentive to research new, more effective treatments. On the other hand, one cannot deny that euthanasia is a real medical practice that already exists. What is clear is that this issue requires an immediate solution, and is something that we simply cannot ignore.

 

Bibliography:

 

1.      Kapinus O.S. Euthanasia in the light of the right to life. Moscow, 2006. p240.

2.     E. Durkheim E. Suicide. Moscow, 1994. p123

3.     A.A. Guseinov, J. Reychels Active and passive euthanasia. Moscow, 1990. p140.

4.     S. Jacques Euthanasia. Moscow, 1987. p45-52

5.     F. Philip Euthanasia Philosophy. 1990. - Ή 6, 14.