Saturday, December 13, 2008

Euthanasia, the death-shot

Life and death are no longer in the realm of only god’s activity. Or, at least, so it seems. Medical science, through In virto fertilization (IVF procedures) brings to reality certain aspects of human procreation hitherto not known to be possible. Again, when a person shall die may even be decided by a suave physician; he may deliver a death shot at a chosen time, without being charged with the offence of murder. Euthanasia is its name. But euthanasia is not legal yet in India. It may soon be, if global trends are any indication. Indian Medical Council (Professional Conduct, and Ethics) Regulations with regard to professional conduct, etiquette and ethics notified in 2002 also declares expressly euthanasia to be unethical conduct. However, the Regulation allows withdrawing life-supporting devices to a patient which shall be decided only by a team of doctors and not merely by the treating physician. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer / Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.

Assisted suicide in its diverse forms - General
Suicide is an act of criminal self-destruction. While it is not possible to punish a dead person for what he did, if he survived the attempt, he could be proceeded with legally under regimes that make an attempt at suicide an offence. The Indian Penal Code contains detailed provisions about when attempt to suicide is punishable, when abetment to suicide constitutes culpable homicide (a lesser form than murder) and when even the husband or certain classes of relatives could be said to committed acts of cruelty, when a woman after marriage commits suicide. We are however concerned to issues of assisted suicide in the context of medical intervention. Euthanasia is assisted suicide and something more. The mild variations are treated along the following lines:
(i) Passive Assistance, occurs when a health care provider does nothing to prevent a patient's choice not to seek medical intervention during terminally ill state.
(ii) Facilitation of Suicide is a second circumstance in the health care context, which occurs when the health care provider renders peripheral aid to the victim. Facilitation of suicide can be distinguished from other types of assistance, in that the health care provider's aid only amounts to minimal supportive behavior. Encouraging an individual to commit suicide, for example, is illegal.
(iii) Another type of assisted suicide occurs when the health care provider supplies the means for committing suicide. Most cases do not involve malicious acts but involve ailing victims who have determined that their existence is meaningless and intolerable. Some physicians assist patients who request [suicide assistance], either by prescribing sleeping pills with knowledge of their intended use or by discussing the required doses and methods of administration with the patient.
(iv) The last type of assisted suicide occurs when the health care provider actively participates in the act of suicide.

Euthanasia, active and passive
Assisting patients with suicide comes close to performing an act of euthanasia. Active euthanasia generally involves the administration of some agent or procedure which the physician believes is warranted to end the patient's life.
Passive euthanasia consists of permitting a patient to die by withholding life-sustaining treatment. Passive euthanasia may take many forms. McKay v. Bergsted (1990) was a case in Nevada, U.S.A, where the patient, who had been dependent on a respirator for twenty-one years but who could read, watch television and occasionally enjoy wheel chair ambulation, despaired at the prospect of his father’s natural death due to old age (His father was nursing the ailing son all along). The court allowed him to discontinue treatment. The court distinguished the plaintiff's case from that of a suicidal adult by stating, "Unlike a person bent on suicide, the plaintiff sought no affirmative measures to terminate his life; he desired only to eliminate the artificial barriers standing between him and the natural processes of life and death that would otherwise ensue with someone in his physical condition."
In the Netherlands, nearly 10,000 people die by euthanasia every year at the hands of cooperative physicians. The Netherlands has developed criteria that must be met for an act of euthanasia to be considered medically and ethically acceptable. First, the patient's medical situation must be intolerable, with no prospect for improvement. Second, the patient must be rational and must voluntarily and repeatedly request euthanasia of the physician. Third, the patient must be fully informed of the procedures and consequences. Lastly, there must be no other means of relieving the suffering, and two physicians must concur with the request. Although most physicians do not openly embrace the Dutch position, the silent practice of passive and active euthanasia will continue in the health care delivery system. Whatever attitudes society may develop toward assisted suicide or euthanasia, individual physicians will decide for themselves whether to provide suicide assistance or practice euthanasia.

The old justifications
There are again no universally accepted norms to justify it. On the contrary, the opinion that euthanasia is morally permissible is traceable to Socrates, Plato, and the Stoics. It is rejected in traditional Christian belief, chiefly because it is thought to contravene the prohibition of murder in the Ten Commandments. The organized movement for legalization of euthanasia commenced in England in 1935, when C. Killick Millard founded the Voluntary Euthanasia Legalisation Society (later called the
Euthanasia Society). The society's bill was defeated in the House of Lords in 1936, as was a motion on the same subject in the House of Lords in 1950. In the United States the Euthanasia Society of America was founded in 1938. The first countries to legalize euthanasia were the Netherlands in 2001 and Belgium in 2002. In 1997 Oregon became the first state in the United States to decriminalize physician-assisted suicide through the Death with Dignity Act. Opponents of the controversial law had it overturned by court process. State of Washington's ban on assisted suicide(1994), was challenged as violative of the U.S. Constitution Amendment XIV on assisted suicide. The US Supreme Court however held in Washington v Harold Glucksberg (1997) that the Act was prima facie rationally related to a legitimate government interest and did not violate the Due Process Clause of the Fourteenth Amendment. The court reasoned that State legislation sought to preserve human life and also uphold the integrity and ethics of the medical profession. Additionally, Washington's statute sought to protect vulnerable groups, such as the poor, elderly, and disabled from abuse, neglect, and mistakes. Finally, the Court held that Washington's ban on assisted-suicide effectively prevented a broader license to voluntary or involuntary euthanasia.

Limitation to the sanctity of life principle
A competent patient cannot be compelled to undergo life saving treatment. In Airedale NHS Trust v Bland [1993], a case decided in U.K, Tony Bland's awful predicament had been widely reported. He was a young supporter of Liverpool Football Club who was caught in the Hillsborough crush which reduced him to a persistent vegetative state. The hospital applied for a declaration that it might lawfully discontinue all life-sustaining treatment and medical support measures designed to keep him alive in that state, including the termination of ventilation, nutrition and hydration by artificial means. That declaration was granted. Under the double effect principle, medical treatment may be administered to a terminally ill person to alleviate pain although it may hasten death. This principle entails a distinction between foreseeing an outcome and intending it. The case of Bland involved a further step of the House of Lords holding that under judicial control it was permissible to cease to take active steps to keep a person in a permanent vegetative state alive. It involved the notion of a distinction between doctors killing a patient and letting him die. These are at present the only inroads on the sanctity of life principle in English law. The Dutch courts, relying on the principle of "noodtoestand" (necessity), relaxed the prohibition on euthanasia and assisted suicide. The perceived necessity was the conflict between a doctor's respect for life and his duty to assist a patient suffering unbearably. The Dutch courts reasoned that it is necessary to be guided by responsible medical opinion. It is important to note that this line of decisions is not based on the European Convention. The Parliament of the Netherlands has enacted a statute, viz the Termination of Life for Request and Assisted Suicide (Review Procedures) Act 2001, which formalises a relaxation of the law prohibiting euthanasia and assisted suicide previously by judicial decision. Both the case law and the 2001 statute only permit euthanasia and doctor assisted suicide under a regime of ascertaining the wishes of the patient and with considerable medical supervision. However, the UN Human Rights Committee in a report dated 27 August 2001 expressed serious concerns about the operation of the system.

The unending, inconclusive debate
The subject of euthanasia and assisted suicide have been deeply controversial long before the adoption of the Universal Declaration of Human Rights in 1948, which was followed two years later by the European Convention on Human Rights and Freedoms (1950). The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The opposing views within the disability community on the issue of assisted suicide share a common ground—a recognition of the danger of discrimination to the interests and fair treatment of people with disabilities. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless.
We are prepared to wink at medical interventions such as that which assists birth to take place to a woman in Haryana well past her 70, after menopause (TOI, 8th Dec 2008). A transsexual, Beatie at Los Angeles who underwent a sex change surgery from female to male retained his/her ovaries, lived like a man outwardly and begot a child (TOI, 5th Jul 208). If you say that in birth lies happiness and hence such medical interventions against nature is possible, there are some who suggest that in death dies freedom from suffering. Hear Donne say: Death be not proud, though some have called thee/ Mighty and dreadful, for, thou art not so/…/One short sleepe past, wee wake eternally/ And death shall be no more; death, thou shalt die.

Tuesday, December 02, 2008

Magic remedies and Indian law

A public interest litigation in Punjab & Haryana High Court is reported to have been filed ‘to curb the menace of tantriks promising magical cures within minutes’ through advertisements in newspapers, television channels and even web sites (The Tribune dated 19th Nov ’08). Are there laws that regulate or prohibit such advertisements? Do such types of objectionable advertisements abound elsewhere outside India?

The Indian Medical Council Act, 1956 establishes the Medical Council of India (MCI). The Council has notified Indian Medical Council (Professional Conduct, and Ethics) Regulations in 2002 which mandates observance of the code of conduct on the pain of suspension or removal of the licence to practice for the breach of its regulations. They include the practice against promising magic remedies and advertisements. To the extent to which the Regulations are directed against practitioners of only the allopaths, it is obvious that we have to look elsewhere for the practitioners of other systems of medicine. The Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) established by the Ministry of Health & Family Welfare in March, 1995 gives no similar guidelines.

It is not merely unethical to prescribe a magic remedy; it is illegal under the Drugs and Magic Remedies (Objectionable Advertisements) Act passed as early as in 1954. The Act proclaims its avowed object to be to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. Magic remedy includes ‘a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals’. Even machines of science or of electric treatment whose magically curative properties are advertised by a person as capable of increasing the sexual virility of a patient is prohibited under the Act. They will be treated as articles intended to influence the organic function of the human body which is prohibited under the Act. A person made an advertisement under the following terms:

New Life, New vigour, New Spirit, New Wave. If you want a cure, see to-day well known world-famous experienced registered Physician. Special diseases such as oldness in youth, all sorts of defects in nerves, or weakness, laziness are treated with full responsibility, with new methods, new machines of science and electric treatment and are cured permanently.

Supreme court held in Zaffar Mohammad alias Z.M. Sarkar v The State of West Bengal (1976) that the advertiser was liable for conviction. No person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for (a) the procurement of miscarriage in women or prevention of conception in women; or (b) the maintenance or improvements of the capacity of human beings for sexual pleasure; or (c) the correction of menstrual disorder in women; or (d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition in a wide classes of diseases that include cancer, sterility in women, leukoderma and leprosy. A person guilty of the act prohibited shall be punishable after a trial by a Magistrate of First Class (a) in the case of a first conviction, with imprisonment which may extend to six months, or with fine, or with both; (b) in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both.

The most popular advertisements for cosmetic surgery are posted in popular websites through internet. They offer privacy of one’s own reading room from where the access to medical information may be picked up through a personal computer. Internet auction sites abound with revolting, weird advertisement for sale of human organs that range between testicles to nude autopsy photos of murdered children (Business Week E.Biz, Nov. 20, 2000). Shocking medical items that have been sold or at least offered for bidding on eBay include organs available for transplanting, drug-free urine, and a male testicle. In one instance, a seller offered a "fully functional kidney for sale" on eBay. (The Top Ten Bizarre Online Auctions .) Bidding on the kidney went as high as $ 5.7 million before officials at eBay shut down the auction. Another website auctioned off the ova and sperm of fashion models available for in vitro fertilization, boasted the auction as "Darwin's Natural Selection at its very best," started the bidding at $ 15,000 and received a twenty percent service fee for the sale of the reproductive cells (Telegraph Herald, Oct. 24, 1999, discussing the website

Though much less widespread than medical information or medical advice websites, several websites have auctioned different types of surgeries. For example, the largest private hospital group in South Africa, Netcare, has auctioned off surgeries such as breast reductions, skin resurfacing and liposuctions, where the "winner" received a recovery stay at a plush Johannesburg hotel (The auction was conducted on Wellesley College even auctioned off a vasectomy as part of a fundraiser (The Washington Times, Aug. 4, 2000).
The Supreme Court of the United States has held that any governmental attempts to regulate or prohibit information posted on websites that is not defamatory may violate constitutional free speech protections (Reno v. ACLU, 117 S. Ct. 2329 (1997)), and the Communications Decency Act immunizes from liability websites that merely host or sponsor information provided by others. But in India, with The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 in place, it shall be possible to proscribe and take penal action against objectionable advertisements that guarantee magic remedies. But how many know that such an enactment exists?

Surrogacy, the new Indian scene

Times of India, dated 18th November 2008 reports that an Israeli gay couple Yonatan and Omer Gher had a child, which they named as Evyatar meaning ‘more fathers’ in Hebrew, through a surrogate mother at a fertility clinic at Bandra, Mumbai. Thankfully, the child found itself soon after its arrival the felicity of being cradled in the hands of two fathers but Baby Manji Yamada delivered at Anand, Gujarat few months earlier was not as lucky initially. The surrogate mother had abandoned the child at the hospital, the Japanese couple that hired the surrogate mother divorced and the grandmother flew in to India to take the child for her son after a delay of few months when the Supreme Court cleared the decks for its transportation to Japan, however on an Indian passport.

Surrogacy is normally referred in the context of a married couple (i) who have had multiple miscarriages; or (ii) who have failed repeated IVF attempts for unexplained reasons, seeking the help of a willing woman to bear the child. It is never an issue of convenience of woman unwilling to bear the burden of pregnancy and looking for a proxy. It is a painful decision, however willingly undertaken to take the responsibility of proud parenthood. With same sex marriages gaining social and legal approbation in many countries, gay couples seeking for surrogate mother to bear the child has become another distinct possibility. The media reports would have us believe that India is the preferred destination for surrogate mode of procreation; not because the laws afford a favorable climate but there exists no law to regulate this procedure.

The procedure
The essence of surrogacy is that eggs are recovered from the ovaries of the 'commissioning mother' after in vitro fertilisation (IVF) stimulation. They are inseminated and fertilised in a laboratory and then a number of embryos are placed in the uterus of a 'surrogate mother' who has agreed to carry the child until birth and then surrender it to those with whom she had entered into an agreement. Traditionally a surrogate mother is inseminated with the male client’s sperms so that the child would share some genetic relationship with the couple. Now it is possible to use both donated egg and sperm or an embryo from persons outside the bond of marriage for the couple seeking a child.
The childless couple may have to enter into surrogacy agreement where all the terms requiring consent of the surrogate mother to bear the child, the medical procedures of artificial insemination, the right to be reimbursed in the reasonable expenses for carrying the child to full term and willingness to hand over in adoption the child that is born to the contracting couple, presumption relating to the parentage of the child. The inadequacies of law are glaring at every stage.

Dilemma of entering birth particulars
If a child is born to a surrogate mother by artificial insemination using the semen of a person not her husband, the issue of paternity may be a source of social predicament as to whose name shall be entered in the Birth Certificates. The Indian Evidence Act makes a conclusive presumption that a child that is born to a woman and a man during the subsistence of marriage as the child of the man. In a surrogacy arrangement, the mother is not the mother that bears and gives birth to the child and the father is not the man that is married to the woman that gives birth to the child. This statutory presumption will have to undergo a change to register the actual paternity. Adoption is resorted only if the biological (natural) parent and the adoptive parent are different persons. In surrogate parenthood, a biological parent may be the hiring parent and the person actual giving birth to the child may not be the biological parent. If the couples seeking a surrogate mother are foreigners, there is further problem of taking an Indian passport for the child and after taking the child out of the country with the permission of the Court and changing the nationality of the child later at the country of the commissioning parent(s), if Baby Manji Yamada’s case is any legal precedent.

Australian law
In Australia, S. 6 of the Artificial Conception Act 1984 provides that a woman who becomes pregnant by means of (a) artificial insemination; or (b) the procedure of implanting in her womb an ovum (whether or not produced by her) fertilised outside her body, any man (not being, in the case of a married woman, her husband) who produced semen used for the artificial insemination or the procedure shall, for all purposes, be presumed not to have caused the pregnancy and not to be the father of any child born as a result of the pregnancy. (2) The presumption of law that arises by virtue of subs(1) is irrebuttable.

No guidelines for lawful expenses for bearing the child
There is again no law or guideline to suggest what shall be the lawful expenses that could be paid to a surrogate mother. For the usually uneducated Indian females who are involved in surrogacy business, it is a respectable way to earn a living and support themselves and their family. But a lot of surrogate mothers in India prefer to live incognito during this phase because of non-acceptance by the society in general. Also most surrogate mothers in India are reported to belong from the rural background where the lure of money is stronger than the wealthy metros. In the US, surrogate mothers are typically paid $15,000, and agencies claim another $30,000.According to Christian Science Monitory (issue, April 3, 2006)in India, the entire costs range from US $2,500 to $6,500. The industry is estimated to be valued at $449 million, and the number of cases of surrogacy is believed to have doubled in the recent years based on newspaper classifieds and inquiries at clinics. There are also no official figures on the number of surrogate births in India, but it estimated that about 100 to 150 occur annually in India, with the number of failed surrogacy attempts estimated to be much higher. The hard numbers remain elusive, partly because the practice is defused among small towns like Anand, Gujarat. What constitutes lawful expenses for bearing the child and what amounts to financial allurement or financial recompense for bearing the child are difficult to gauge.

UK law
In UK, under section 30(7) of Human Fertilisation and Embryology Act 1990 (the 1990 Act), no money or other benefit, other than for expenses reasonably incurred, could be given or received in relation to surrogacy, unless such payment had been authorised by the court. The Family Division of the English Court said in a 2002 case that the amount paid towards loss of earnings (when the surrogate mother was on state income support, which fact was not disclosed) to be apart from expenses for carrying the child, would be against law. Costs of surrogacy pursuant to a surrogacy agreement which an English woman had entered into with a Californian, who was to bear the child, was held to be not legitimate and opposed to public policy in another case before by the Queen’s Bench (2000), where the former complained that her ability to bear children had been negated by a medical practitioner treating her negligently and hence the compensation against the medical practitioner for medical malpractice should include ‘commercial surrogacy costs’.

Psychological issues
The child born through the surrogate mother is normally expected to hand over to the couples on whose behalf the child is conceived. A characteristic which distinguishes surrogate parentage from situations in which conventional adoption takes place, and bears directly on what is to be perceived as the welfare and interests of the child, is that the child's existence is the result of an intended chain of events in which adoption is a contemplated step even at the stage of its conception. In an Australian case of Re A and B (2000) before the Supreme Court of New South Wales, an arrangement had been made with the sister of the wife of the donor of the sperm for surrogacy. After the child was born and when an application had been moved by the couple for taking the child in adoption from the birth mother through an application in Court, it was opposed by the NSW Department of Community Services. The department raised a number of arguments: the public policy of discouraging surrogacy arrangements; the potentially adverse emotional impacts of the child's conception and birth; the inability of the child to be consulted at this stage; the possibility of the commissioning parents deciding to observe secrecy about the child's origins; and the disturbance of ordinary family relationships if the birth mother became the child's aunt. The department suggested various alternative regimes of guardianship and parenting orders, which would still leave open the possibility of an adoption order at a later stage. The Supreme Court of New South Wales took notice of the following circumstances: The applicants took part in pre-natal appointments and pre-natal classes. They took a parental role towards the child from the time of her birth onwards. They were both present throughout the birth mother's labour, shared the same room at the hospital and participated in all decisions by paediatric staff. All remained at the hospital for 5 days and were discharged together. The child then went home with the proposed adopting parents and had been in their continuous care since then. The applicants did not plan to extend their family further. The birth mother's conduct had been appropriate for an aunt, well known to the child while having a relationship and a family of her own, and living in a distant place. There was also happy communication between the child and her half-sister. Overall relationships were happy and appropriate for two families where the wives are sisters and their daughters were cousins, and the sisters lived independent lives. It accordingly, rejected the objection and while granting the adoption order.

Existing legal framework, fragile
Surrogacy in India for parents living in foreign countries but desiring children through Indian mothers is outsourcing practice at its worst. It is not always gratuitous altruism that is at work for a woman in India to make the choice of surrogate motherhood. There is a greater need to prepare a sound legal framework, by amending existing laws relating to birth registration, evidence, embryo transplantation, adoption and guardianship. The already over-burdened courts will have to devise new ways of educating and sensitizing judges to handle legal and psychological issues of prevention of exploitation of surrogate mothers on account of indigency , deciding on suitability of adoption and guardianship of intending parents. All this is not to say that by providing for suitable laws, all the issues are fully addressed. The failure of the Organ Transplantation Act to check racketeering in trading of organs, especially in kidney donations ought to make us extra circumspect in dealing with the present requirements as merely a legislative exercise waiting to be solved through laws. Doctors, psychologists and social workers will have to be actively involved to provide unction to keep this cogwheel moving to secure informed public opinion and arrest scope for exploitation and unethical practices.