Euthanasia and the right to choose life or death has always been a subject of vigorous debate, with a varied difference of opinion among policy makers, academics, journalists and the common man. With the two intrinsic values of—a right to life against medical ‘killing’ of the patient versus a right to a good death that nullifies the prospective suffering of the patient. These two morally opposing positions have made it hard to arrive at a conclusion over the right path to take. Interestingly, the word euthanasia is of Greek origin, which essentially means ‘a good death’ (Moseley, 2012).
Euthanasia can be active or passive, and its need usually arises for the terminally ill, especially in cases where the patient is in a vegetative state. Active euthanasia is the provision of administering lethal doses of medical drugs to a patient such that the patient dies—a highly controversial issue, illegal in most parts of the world (Khan and Tadros, 2013). Passive euthanasia, as defined by the Supreme Court of India in the Aruna Ramchandra Shanbaug vs Union of India case, is when medical treatment is withheld such that death of the patient occurs due to the withdrawal of medicine. A ‘living will’ is prepared by terminally ill patients who are likely to pass into a vegetative state and consideration for euthanasia can also be included as provisions in the living will. The issue however, is more complex than merely a neither-nor argument.
The March 2018 Supreme Court order
In a landmark judgement on March 9, 2018, the Supreme Court of India legitimised the concept of living will in India. The Supreme Court (SC) also mandated guidelines for the living will of patients, including guidelines for who would execute the will. It also laid down rules for permission for passive euthanasia to be granted by a medical board, case-by-case. The guidelines will be in force until the Indian Parliament passes the legislation for legitimising passive euthanasia. The order was passed by a five-judge Constitution bench headed by Dipak Misra, the current Chief Justice of India (SCI, 2018), following a long chronology of judicial events spanning several years of debates in Indian courts (Fig. 1).
K Venkatesh, a 25-year-old former chess champion, who was battling muscular dystrophy for 18 years, had submitted a plea in the Andhra Pradesh High Court (HC) in 2004 to be allowed to donate his organs before he passes away. The HC dismissed his plea and two days later, Venkatesh died. As reported by the Press Trust of India (PTI), the first significant judicial event in terms of euthanasia in India occurred in 2005 with a public interest litigation (PIL) filed by a non-profit organisation Common Cause. Dr Vipul Mudgal, Director of Common Cause told G’nY, “The petition was filed by H D Shourie, Founder Director of Common Cause, after the verdict of Andhra Pradesh High Court in the K Venkatesh case seeking the enactment of a law on the lines of Patient Autonomy and Self-determination Act of the USA, which sanctions the practice of executing a ‘living will’ in the nature of an advance directive for refusal of life-prolonging medical procedures in the event of the testator’s incapacitation.” The ‘right to die with dignity’ was included in the plea as an interpretation of the fundamental right of Right to Life guaranteed under Article 21.
Although legislation for passive euthanasia was under consideration at the time, a significant event occurred in 2011 with the Aruna Ramchandra Shanbaug vs Union of India case. Aruna Shanbaug, formerly a nurse, had been sexually assaulted in 1973 by a ward attendant of a hospital in Mumbai where she worked, following which she suffered severe brain damage and paralysis. In 2011, when she was in the 37th year of her vegetative state, the Supreme Court deemed passive euthanasia legal only under exceptional circumstances but dismissed the plea for mercy killing of Shanbaug. In May 18 2015 after 42 years of struggle, she passed away in KEM Hospital where she was admitted indefinitely.
Different forms of euthanasia are deemed legal in different countries. Active euthanasia is legal in Canada by giving a consenting adult, who is mentally competent and suffering intolerably and permanently, the right to a doctor’s help in dying. In Switzerland, assisted suicide and active euthanasia can be opted for by patients suffering a painful terminal illness or old age.
The SC’s report on the March 9, 2018 judgement looks back at primarily four cases. In the Umed Ram Sharma Case of 1986 it was observed that “the right to life embraces not only physical existence but also the quality of life as understood in its richness and fullness within the ambit of the Constitution.” A similar stand was taken in the Maruty Sripati Dubal case of 1986, wherein attempted suicide was not considered illegal because Article 21 guarantees not only the Right to Life but also the Right to Livelihood and if ones livelihood is taken away, it is as good as taking away ones Right to Life. In the writ petition filed by P Rathinam and Nagbhushan Patnaik, under Article 32 of the Constitution, they questioned the constitutional validity of Section 309 of the Indian Penal Code (IPC) contending that the same is violative of Articles 14 and 21 of the Constitution. Section 309 of the IPC deemed attempted suicide a punishable offence. Looking back at the Sharma and Dubal cases, the Supreme Court said, “it is ironic that Section 309 IPC still continues to be on our Penal Code… Section 309 IPC has no justification to continue to remain on the statute book.” Similarly, SC treated the Aruna Shanbaug case as an exception and went on to consider passive euthanasia in exceptional cases.
SC guidelines on living will
The SC has laid down a set of guidelines to be followed throughout the country to permit passive euthanasia through living will for withdrawal of medical treatment. The person making a living will should be of sound mind, suffering with an incurable illness with no chance of recovery. The will has to be in writing, mentioning the specific date of when the medical treatment should be stopped or whether it should not be given in the first place. The will can be revoked by the said person at anytime. The name of the executor or guardian or a close relative has to be mentioned in the will, who can take decisions for the said person in case he/she becomes incapable of taking further decisions. The Judicial Magistrate of First Class (JMFC) has to record his/her satisfaction that the will is voluntarily executed by the said person in the presence of two witnesses. The JMFC has to inform the immediate family members of the said person in case they are not present at the time of execution. The physician of the said person will then ascertain the authenticity of the will from the JMFC after which the hospital will constitute a medical board to form an opinion whether medical treatment should be stopped or not. The decision of the board shall be conveyed to the JMFC who will then either permit or not permit the execution of the living will. In case the permission is refused by the board, the executor can approach the High Court to seek their permission to withdraw life support.
Possible repercussions of the order
Minakshi Biswas, a PhD Scholar from Jawaharlal Nehru University working on the issue, voiced her concerns over the SC order, “the availability of opting for passive euthanasia in case of the terminally ill patients or a medical condition which is irreversible in nature could be misused by the caregivers who find the patient a burden. Also family members may opt to bring an end to medical expenditure of the patient. They may also seek passive euthanasia for the purpose of gaining hold over the patient’s property after his death.”
On the other hand Harmala Gupta, Founder of Can Support, a non profit organisation, speaking with G’nY lauds the judgement, but adds a note of caution. “The downside of the judgement is that they have made the process cumbersome—this includes the living will. Also, use of the word euthanasia is problematic as it suggests to many that they can now end their lives prematurely,” she says.
Euthanasia based on measuring the levels of pain for a patient, a highly variable parameter, is a difficult and contentious decision. The moral debate over active and passive euthanasia as well as forms and composition of passive euthanasia make objectivity even more difficult. Gupta tackles the moral and legal debates, “passive euthanasia is being advocated by the recent SC judgement for people who are in a vegetative state or are likely to get there. The pain here is loss of dignity at the end of life. No law can provision for a painless death as the experience of pain is subjective and requires a case by case consideration.” Society, medical practice and law must strive to arrive at the best possible practical alternative for people who may or may not be in a position to decide.
In deliberations over passive euthanasia, the major issue for the Law Commission was about withholding or withdrawing medicine and treatment to patients. This was accompanied with many other considerations such as whether patients are competent enough to take the decision or not, the nature of the best interests of a patient and an informed decision or whether the court can be moved regarding the actions of doctors and more (Sharma, 2017). The prerogative for disallowing active euthanasia can be the doctor’s role as an active agent in violating the right to life for the patient. Even in discussing the withdrawal of medical treatment in the literal sense of the term, it suggests an active choice for medical practitioners in deciding to undertake actions that can be life-ending. Even through the withholding of treatment is as stipulated by the SC, the patient might undergo additional suffering for an indeterminate period of time with no guarantee that passive euthanasia might bring about a swift or a painless end to life (Shukla, 2016).
The right to constitute a living will thus comes closest to the patient’s autonomy in administering passive euthanasia. It marks a point where, in theory, the Fundamental Right to Life is guaranteed to the greatest extent, although it does not answer the moral question of the pain of patients who might not be in a position to decide on a living will. In some cases, the courts would need to decide on labelling the case as an exceptional one if they choose to do so in case the patient is not in a position to communicate. Also, even conscious patients might anticipate their condition inaccurately. Most patients are not able to judge the extent of their prospective suffering once they are diagnosed with a medical condition. In such cases the living will might be difficult to lay down.
Although the SC undertook to protect the Fundamental Right to Life in the case of terminally-ill patients, the order must also take into account the right to end suffering. The recent order stipulates that a living will addresses the ‘right to die with dignity’ in the case of terminally ill patients as an interpretation of Article 21, but does not take into account the ‘right to end suffering’ or the ‘right to a swift or a painless death’. The right to end suffering becomes much more complex because pain and its perception and the diversity in the perspective of caregivers, cannot be quantified.
Euthanasia is a difficult terrain. To anticipate, comprehend or fully diagnose what a terminal patient bears bring in extreme subjectivity. Medical practitioners might also not always be honest, which discourages many from opting for euthanasia. The Right to Life for a person is a profound question that is difficult to capture in an impersonal sphere. Yet the guidance of medical practitioners is necessary for a certain degree of clarity. It is this clarity that needs to be sought when deciding about passive euthanasia.
Khan F. and Tadros G., 2013. Physician-assisted Suicide and Euthanasia in Indian Context: Sooner or Later the Need to Ponder!. Indian Journal of Psychological Medicine 35(1): 101-105.
Moseley S., 2012. Euthanasia: From the Greek εὐθανασία Meaning ‘Good Death’. The Huffington Post. August 5.
Sharma S., 2017. Legal Challenges to Euthanasia in India: A Critical Study. International Journal of Research in Economics and Social Sciences 7 (2): 223-228.
Shukla R., 2016. Passive Euthanasia in India: A Critique. Indian Journal of Medical Ethics. 1(1): 35-8.
Supreme Court of India (SCI), 2018. Writ Petition (Civil) No. 215 OF 2005:SCI. Available at: http://supremecourtofindia.nic.in/supremecourt/2005/9123/9123_2005_Judgement_09-Mar-2018.pdf