University of San Carlos

School of Law and Governance

College of Law

A
Legal Writing
Term Paper
on

Is the mercy motive in euthanasia an

element of a crime or a defense to its
existence?

Submitted to:

Judge Yvonne Artiaga

Legal Writing Professor

Submitted by:

April Kirstin N. Chua

EH 410 JD

INTRODUCTION
Euthanasia has been a favourite topic of debate in law schools for the
past fifty years and currently it is also one of the most-pressing issue in the
Philippine society today considering not only is the Philippines a democratic
country but also a Catholic one.
Possibly the first in the history of the Congress of the Philippines, a
voluntary euthanasia or mercy killing and living will-related proposal
known as Senate Bill No. 1887 or the Natural Death Act was filed by
Senator Miriam Defensor-Santiago. The bill seeks to recognize the
fundamental right of adult persons to decide their own health care, including
the decision to have life-sustaining treatment withheld or withdrawn in
instances of a terminal condition or permanent unconscious condition.1
Over the past two decades, an end-of-life policy unfolded quietly in some
parts of the world. In the US, the Death With Dignity Act (1994) in Oregon
allows doctors to write legal prescriptions for terminally ill patients who
want to control the time and place of their death. To qualify under the law,
the patient should be fully conscious and able to administer his own
overdose. In Europe, Belgium is set to be the second country after The
Netherlands to allow terminally ill children over 12 years old facing
unbearable physical suffering and repeatedly makes the request to be
officially killed. Belgium and Switzerland have legalized euthanasia for
many years but only for people over the age of 18. The Netherlands have
legalized euthanasia for adults and children over 12 years for the past twelve
years.2
Now that a bill is with the Senate, among the many questions Filipinos wish
to be answered to have an in-depth understanding of the subject that will
enable them to make an informed yes or no and why in case of renewed
debates, survey or referendum, are: What is euthanasia or mercy killing?
What is the difference between voluntary and involuntary mercy killing?
What is a living will? May human life be shortened legally? What is the
rule in our jurisdiction on mercy killing and assisted suicide? Out of
compassion for a suffering patient, must we legalize euthanasia altogether?
Out of compassion for the actor, must we mitigate the harshness of formal
law under which euthanasia is treated as deliberate killing? If an individual
has the right to live, does he also have the right to die? If there is a right to
privacy, does it include the right to die? Does the right to decide ones health
care include the right to decide to end ones life? Is there a right to kill?
What are the religious, non-religious and medical views about euthanasia?
When does human life end? What is brain death? When is a person
legally and medically dead? Who has the right to make the decision to end
1 The Manila Times Mercy Killing: yes, no, and why?. 26 April 2014. Available
@ http://www.manilatimes.net/mercy-killing-yes-no-and-why/91879/.
Accessed 29 March 2015.
2 Ibid.

lifethe patient, the spouse, the parents, the doctor/team of doctors or the
courts? Who should pull the plug?3
These are just some of the questions one can think of when the word
euthanasia comes up and although it is possible to answer all of it this term
paper only seeks to answer one: Is the mercy motive in euthanasia an
element of a crime or a defense to its existence?
EUTHANASIA in general
Euthanasia is the termination of a very sick person's life in order to
relieve them of their suffering. A person who undergoes euthanasia usually
has an incurable condition. But there are other instances where some people
want their life to be ended. In many cases, it is carried out at the person's
request but there are times when they may be too ill and the decision is made
by relatives, medics or, in some instances, the courts.4
The term is derived from the Greek word euthanatos which means easy
death.5
The issue has been at the centre of very heated debates for many years and is
surrounded by religious, ethical and practical considerations.6
KEY TERMS AND DEFINITIONS
Active euthanasia - In active euthanasia a person directly and deliberately
causes the patient's death.7
Assisted suicide - This is when the person who wants to die needs help to
kill themselves, asks for it and receives it.8
Competence - A competent patient is one who understands his or her
medical condition, what the likely future course of the disease is, and the
risks and benefits associated with the treatment of the condition; and who
can communicate their wishes.9

3 Ibid.
4 BBC Ethics of euthanasia: What is euthanasia. 2014. Available @
http://www.bbc.co.uk/ethics/euthanasia/overview/introduction.shtml.
Accessed 29 March 2015.
5 Ibid.
6 Ibid.
7 BBC Euthanasia: Key terms and definitions. 2014. Available @
http://www.bbc.co.uk/ethics/euthanasia/overview/keywords.shtml. Accessed
29 March 2015.
8 Ibid.
9 Ibid.

Dignity - The value that a human being has simply by existing, not because
of any property or action of an individual.10
DNR ( Do Not Resuscitate) Instruction telling medical staff not to attempt
to resuscitate the patient if the patient has a heart attack.11
Doctrine of Double Effect - Ethical theory that allows the use of drugs that
will shorten life, if the primary aim is only to reduce pain.12
Futile treatment - Treatment that the health care team think will be
completely ineffective.13
Indirect euthanasia - This means providing treatment (usually to reduce
pain) that has the foreseeable side effect of causing the patient to die
sooner.14
Involuntary euthanasia - This occurs when the person who dies wants to live
but is killed anyway. It is usually the same thing as murder.15
Living will - A document prepared by an individual in which they state what
they want in regard to medical treatment and euthanasia.16
Non-voluntary euthanasia - This is where the person is unable to ask for
euthanasia (perhaps they are unconscious or otherwise unable to
communicate), or to make a meaningful choice between living and dying
and an appropriate person takes the decision on their behalf, perhaps in
accordance with their living will, or previously expressed wishes.17
Palliative care - Medical, emotional, psychosocial, or spiritual care given to
a person who is terminally ill and which is aimed at reducing suffering rather
than curing.18
Passive euthanasia - In passive euthanasia death is brought about by an
omission - i.e. by withdrawing or withholding treatment in order to let the
person die.19
PAS - Abbreviation for Physician Assisted Suicide. A physician facilitates a
patients death by providing the necessary means and/or information to
10
11
12
13
14
15
16
17
18
19

Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.

enable the patient to perform the life-ending act (eg, the physician provides
sleeping pills and information about the lethal dose, while aware that the
patient may commit suicide).20
Voluntary euthanasia - This is where euthanasia is carried out at the request
of the person who dies.21
HISTORY OF EUTHANASIA
Euthanasia comes from the Greek words, Eu (good) and Thanatosis (death)
and it means "Good Death, "Gentle and Easy Death." This word has
come to be used for "mercy killing." In this sense euthanasia means the
active death of the patient, or, inactive in the case of dehydration and
starvation.22
The first recorded use of the word euthanasia was by Suetonius, a Roman
historian, in his De Vita Caesarum--Divus Augustus (The Lives of the
Caesars--The Deified Augustus) to describe the death of Augustus Caesar.23
What we would term euthanasia, has been both practised and condemned by
various cultures and civilizations since time immemorial:
In ancient times physicians had a dual role: one to cure, the other was
to kill.
Hippocrates separated the cure and kill functions of physicians.
The prevailing social conditions of the latter nineteenth century began
to favour active euthanasia.
In 1933 the Nazis replaced the Hippocratic Oath with the Gesundheit,
an oath to the health of the Nazi state.
Campaigns for legislation of euthanasia are widespread in many
countries, with activists challenging through the legal system where
they fail in legislature.24
EUTHANASIA in the Philippines
For many years euthanasia has been the centre of topic among debates,
forums and discussions in the Philippines because of its ethical and moral
effects in the society.
20 American Medical Association Physician-Assisted Suicide. 2015. Available
@ http://www.ama-assn.org/ama/pub/physician-resources/medicalethics/code-medical-ethics/opinion2211.page?. Accessed 29 March 2015.
21 Supra at note 7.
22 The Life Resources Charitable Trust A General History of Euthanasia.
2011. Available @ http://www.life.org.nz/euthanasia/abouteuthanasia/historyeuthanasia1/. Accessed 29 March 2015.
23 Ibid.
24 Ibid.

In the Philippines, euthanasia is not legal for the reason of the

predominance of the religious communities which hinders the ratification of
the Euthanasia Bill. Also, the majority of the Filipinos value the Christian
doctrine as the foundation of their conviction.
The stand of the Church that euthanasia is still immoral and unethical
is the prime reason of the unacceptability of this. According to the most
recent version of the Catechism of the Catholic Church (2003), All forms of
suicide and euthanasia remain strictly prohibited Voluntary co-operation
in suicide is contrary to the moral law Sick or handicapped persons
should be helped to lead lives as normal as possible. And according to
Pope John Paul II, Euthanasia must not be called false mercy, and indeed a
disturbing perversion of mercy. True compassion leads to sharing anothers
pain. It does not kill the person whose suffering we cannot bear. Also, some
people believe that compassion is no guarantee against doing harm. A
physician who does not know how to relieve a patients suffering may
compassionately, but inappropriately, agree to end the patients life. Until,
then, the only choices left for patients become continued agony or a
hastened death. A part of the Hippocratic Oath states that physicians must
value the life of their patient and never suggest anyone a way towards
suicide. Under the Philippine Constitution of 1987 (Article II, Section 11),
the State values the dignity of every human person and guarantees full
respect for human rights. Therefore, euthanasia contradicts both the
Hippocratic Oath and the Philippine Constitution.
But currently a proposal has been passed by Senator Miriam
Defensor-Santiago known as Senate Bill No. 1887 or the Natural Death
Act to recognize the fundamental right of adult persons to decide their own
health care, including the decision to have life-sustaining treatment withheld
or withdrawn in instances of a terminal condition or permanent unconscious
condition or simply-stated voluntary euthanasia.
Many doctors and lawyers doubt the legality of removing lifesustaining equipment from a terminal patient. They fear that they might be
violating their Hippocratic Oath and the law. Senator Miriam, however,
argues that our laws should recognize the right of terminal patients or those
suffering from irreversible comatose condition to stop prolonging their lives
in the interest of protecting individual autonomy and in recognition of the
dignity and privacy which patients have a right to expect.25
"Modern medical technology has made possible the artificial prolongation
of human life beyond natural limits. Such prolongation of the process of
dying for persons with a terminal condition or permanent unconscious
condition may cause loss of patient dignity, and unnecessary pain and

25 The Manila Times The right to die. 31 January 2014. Available @

http://www.manilatimes.net/the-right-to-die/72288/. Accessed 29 March 2015.

suffering, while providing nothing medically necessary or beneficial to the

patient," she said in her explanatory note of the bill.26
Santiago said it is important for the state to recognize the dignity and
privacy of the patient as well as the acknowledgement of a written directive,
which aims to promote compassion and the preservation of human dignity.27
The senator said the provision of the bill will be respected by the family
members and the government.28
If the bill passes, the law permitting medically assisted death will be the first
of its kind in a Catholic country like the Philippines.29
EUTHANASIA AND ASSISTED SUICIDE
Physician assisted-suicide is not in consonance with euthanasia. Physicianassisted suicide refers to the physician providing the means for death, most
often with a prescription. The patient, not the physician, will ultimately
administer the lethal medication. Euthanasia generally means that the
physician would act directly, for instance by giving a lethal injection, to end
the patient's life.30 Hence in euthanasia, the physician performs the
intervention.
The continuing opposition to legalized euthanasia emanates from the fact
that opponents equate the practice with the crime of assistance in suicide.
Following common law tradition, some U.S. states still consider attempted
suicide a crime. More important, however, under the common law, one who
assists another in suicide is considered a principal to murder. A few
jurisdictions still consider assistance in suicide to be murder. Other
jurisdictions deal with this situation specifically by statute, considering it
either as voluntary manslaughter or a separate crime. Some state legislatures
which have characterized this as a separate crime treat the crime as
involuntary manslaughter; others treat the crime as a minor offense and only
require the payment of a fine. 31
26 Sunstar Santiago files Natural Death bill for terminally ill patients. 26
November 2013. Available @ http://www.sunstar.com.ph/manila/localnews/2013/11/26/santiago-files-natural-death-bill-terminally-ill-patients315690. Accessed 29 March 2015.
27 Ibid.
28 Ibid.
29 Ibid.
30 The World Federation of Right to Die Societies Is physician-assisted
suicide the same as euthanasia?. Available @
http://www.worldrtd.net/qanda/physician-assisted-suicide-same-euthanasia.
Accessed 29 March 2015.
31 Mustafa D. Sayid. Euthanasia: A Comparison of the Criminal Laws of
Germany, Switzerland and the United States. Boston College International
and Comparative Law Review 6.2 (1983): 541-542. Web.

In determining a defendants guilt or innocence for homicide, court focus on

the question of intent rather than that of motive. Even a benevolent motive
does not alter the fact that intent to end the life of another human exists.
Therefore, euthanasia, which, by definition, is a merciful act, is,
nevertheless, condemned by American criminal law.32
Article 253 of the Revised Penal Code defines assistance to suicide as any
person who shall assist another to commit suicide shall suffer the penalty of
prision mayor, if such person lends his assistance to another to the extent of
doing the killing himself, he shall suffer the penalty of reclusion temporal.
However, if the suicide is not consummated, the penalty of arresto mayor in
its medium and maximum periods shall be imposed.
To summarize it there are two acts punishable as giving assistance to
suicide:
1) By assisting another to commit suicide, whether the suicide is
consummated or not.
2) By lending his assistance to another to commit suicide to the extent of
doing the killing himself.
Assistance to suicide is different from mercy-killing. Euthanasia
commonly knowns as mercy-killing is the practice of painlessly putting
death a person suffering from some incurable disease. Euthanasia is not
lending assistance to suicide. A doctor who resorts to mercy-killing of his
patient may be liable for murder under Article 248. 33
Section 10 of the Senate Bill 1887 does not authorize mercy-killing or
physician-assisted suicide it states that nothing in this Act shall be construed
to condone, authorize, or approve mercy killing or physician-assisted
suicide, or to permit any affirmative or deliberate act or omission to end life
other than to permit the natural process of dying.
Furthermore Section 4 of the Senate Bill 1887 provides for a
directive to withhold or withdraw life-sustaining treatment. According to the
said section, any person of legal age and sound mind may execute a directive
directing the withholding or withdrawal of life-sustaining treatment in a
terminal condition or permanent unconscious condition. The directive shall
be signed by the declarer in the presence of two witnesses.
Also Section 6 of the said bill provides for the liability of the health
care provider or facility that any physician or health care provider acting
under the direction of a physician, or health facility and its personnel who
participate in good faith in the withholding or withdrawal of life-sustaining
treatment from a qualified patient in accordance with the requirements of
32 Id, p. 547.
33 Reyes, Luis. The Revised Penal Code Criminal Law. Manila: Rex Book Store,
2012. Print.

this chapter, shall be immune from legal liability, including civil, criminal,
or professional conduct sanctions, unless otherwise negligent.
It is evident from this that the right to terminate ones life in voluntary
euthanasia comes from the patient himself and not from anyone and anyone
participating in his directive to terminate his life is not liable because it is
with his consent.
MOTIVE as defined
Motive is the moving power which impels one to action for a definite
result. Intent is the purpose to use a particular means to effect such result.34
In the case of People of the Philippines v. Aposaga, motive is an essential
element of a crime, and, hence, need not be proved for purposes of
conviction.35
As stated in the case of People of the Philippines v. Taneo, an extreme
moral perversion may lead a man to commit a crime without a real motive
but just for the sake of committing it. Or, the apparent lack of a motive for
committing a criminal act does not necessarily mean that there is none, but
that simply it is not known to us, for we cannot probe
into the depths of
ones conscience where it may be found, hidden away and inaccessible to
our observation.36
One may be convicted of a crime whether his motive appears to be good or
bad or even though no motive is proven. A good motive does not prevent an
act from being a crime. In mercy-killing, the painless killing of a patient
who has no chance of recovery, the motive may be good, but it is
nevertheless punished by law.37
Here are the instances when motive is relevant:
Motive is essential only when there is doubt as to the identity of the
assailant.38
Motive is important in ascertaining the truth between two antagonistic
theories or versions of killings.39
Where there are no eyewitnesses to the crime, and where suspicion is
likely to fall upon a number of persons, motive is relevant and
significant.40
If the evidence is merely circumstantial, proof of motive is essential.41
34
35
36
37
38
39
40
41

Id, p. 59.
G.R. No. L-32477, October 30, 1981.
58 Phil. 255, 256.
Supra at note 31, p. 60.
People of the Philippines v. Gadiana, G.R. No. 92509, March 13, 1991.
People v. Boholst-Caballero, G.R. No. L-23249, November 25, 1974.
People v. Melgar, G.R. No. L-75268, January 29, 1988.
People v. Oquino, G.R. No. L-37483, June 24, 1983.

MERCY AS MOTIVE OF HOMICIDE discussions and jurisprudene

The American criminal justice system, however, makes no provision for the
consideration of motive as an element of homicide. Presently, American
criminal law does not accept the motive of mercy as a defense to murder.
The common law does not recognize motive as an element of crime. If the
proved facts established that the defendant in fact did the killing wilfully,
that is, with intent to killand as a result of premeditation and deliberation,
thereby implying preconsideration and determination, there is murder in the
first degree, no matter what defendants motive may have been42 In
reality, U.S. courts recognize the mercy motive of the actor in euthanasia
cases. Nevertheless, this recognition has not altered the fact that courts
techinically treat euthanasia as homicide.43
Although most U.S. criminal justice systems believe that motive is
immaterial in substantive criminal law and that the most laudable motive is
no defense (to a crime), some European criminal law systems consider
motive a crucial factor in determining culpability. Germany and Switzerland
are two such countries whose penal codes consider motive as an important
element in determining culpability. The role that motive plays in euthanasia
is integral. For example, when a physician performs euthanasia on an
incurably ill patient, his intent may be to terminate the patient but his motive
is to relieve the patients suffering. This illustration suggests that whereas
intent is limited to the physicians purpose to commit the act, motive
involves the question of why he performed the act.44
The penal codes of Germany and Switzerland consider the motive of the
actor in both the grading of the offense and the sentencing of the crime.
These two countries adhere to the idea that once the judge considers the
motive of the actor, the character and personality of the criminal becomes
apparent.45
Prior to Germany and Switzerlands adoption of the motive standard, most
civil law countries evaluated homicide by the premeditation and deliberation
test. The test provides a guide for predicting whether or not a criminal would
repeat his criminal act. However, the use of motive as a standard for
determining culpability has caused the decrease in importance of the
premeditation and deliberation test. Today, Germany and Switzerland apply
the concept that the type of motive which determines the criminal act bears
on the character and personality of the actor and thus is the best indicator for
predicting whether or not a person will repeat a criminal act.46
42
43
44
45
46

State v. Ehlers, 98 N.J. L. 236, 238, 119 A, 15, 17 (1922).

Supra at note 31.
Id, p. 547
Id, p. 547-548
Id, p. 549.

The basic concept of the conventional systems of criminal law is the concept
of crime and the basic classification is that into different types of
crimes or types of criminal act. Modern reform movements rather center
around the personality of the criminal, the type of actor. Thus, motive
becomes relevant and the type of motive which determines the act is
believed to bear on the character of the actor and thus afford the best guide
for predicting whether or not he will repeat the act. It is believed that the one
who kills for profit may be expected to do so again, whereas a mercy-killer
is hardly likely to turn into a habitual criminal.47
In the case of Bagajo v. Marave the Supreme Court said but assuming that
the motive of the accused was really good, does this mean that criminal
intent on her part is thus completely ruled out? We do not believe so. A good
motive, as we have earlier intimated, is not incompatible with an unlawful
intent. One may be convicted of a crime whether his motive appears to be
good or bad or even though no motive is proven. A good motive does not
prevent an act from being a crime. A classic example is euthanasia. It is
condemned by law although the motive may be to spare a hopeless patient
prolonged suffering and if a father drowns his child who is five years of age
to save it from starving, he is guilty of parricide though he was actuated by
a good motive love for the child.48
ANALYSIS
In the United States, euthanasia is punishable as homicide; however, the law
in practice does not coincide with strict legal theory. This fact is evidenced
by the high incidence of failures to indict, acquittals suspended sentences
and reprieves. Some commentators suggest that euthanasia should be
distinguished from other forms of homicide because of the humanitarian
motive involved. These scholars emphasize that euthanasia is distinguishable
from other forms of homicide by consideration of the underlying motive as
an element of culpability.49
In both Germany and Switzerland, the statutory law specifically takes
cognizance of the motivation of the actor in arriving both the grading of
the charged offense and the ensuing sentence. In Germany, the motive is an
element of the crime of murder. However, mercy is not one of the motives
listed in the Penal Code as an element of murder. In Switzerland, motive is
also an element of the crime since the statutes expressly instruct judges to
consider the homicide motives of an individual in the sentencing
process.50
47 Silving, Euthanasia: A Study in Comparative Criminal Law, 103 U. PA. L.
REV. (1953).
48 G.R. No. L-33345, November 20, 1978.
49 Supra at note 31, p. 559.
50 Id.

In the Philippines euthanasia is regarded as a crime considering that the

country is a dominant Christian community. Although this may be the case
currently a senate bill is passed to legalize voluntary euthanasia to respect
the rights of a terminal patient to decide his own healthcare. Jurisprudence
would tell that a good motive alone does not mean that the perpetrator of the
crime has no criminal intent. Motive alone does not predetermine the intent
of the accused no matter how good the motive may be.
Motive is a decisive element in murder and homicide. Once a judge
equates motive with premeditation and deliberation then he is able to make a
decision in a given case. One of the essential elements of murder or
homicide is malice afterthought. This is given not only in homicide or
murder but in all of the crimes. Judges should consider the motive of an
individual who has practiced euthanasia to ascertain whether the required
malice is present. If the judge observes that the individual did not entertain
the same malicious motive or intent as a murderer but rather as a concerned
citizen, the individual would receive possibly a mitigated sentence.
CONCLUSION
The issue of euthanasia has become important in recent years because
euthanasia is arguably a solution to some dilemmas created by the advances
in medical technology. Today, medical technology has the capability in many
instances to maintain a human life far beyond the point which an individual
would desire. Euthanasia gives the terminally ill patient a free choice.
Consequently in determining whether people practising euthanasia
should be held liable the motive must be taken into consideration. In
American law, euthanasia is considered a crime no matter how good the
motive is this also applies in the Philippine law. In European countries like
German and Switzerland the motive of the actor is considered. If the motive
is good euthanasia is acceptable.
Considering the attendant circumstances and the research made in this
term paper it is then safe to say that the mercy motive in euthanasia is a
defense to its existence and not an element of a crime. The motive then is
subject to the premeditation and deliberation test where if given the same
circumstance the perpetrator would commit the crime again. The character
of the actor is also taken into consideration.
A comparison of the statutory laws of Germany and Switzerland to
those of the United States and in the Philippines show that certain provisions
might serve as a useful model for changes in criminal law with respect to
euthanasia. Such a model would enable the participants in the debate
concerning euthanasia to explore possible approaches. With expanded

alternatives, legislatures may be able to resolve the issue of euthanasia to a

greater satisfaction than what is presently practiced.