Euthanasia: Right To die-Granted?
Euthanasia is considered to be the most viable option to end the life of an individual when all kinds of life-supporting systems fail to deliver a better life to the terminally-ill patient or patient in a vegetative state. It has different legal, social and economic ramifications. Various countries have dealt with these factors in a different manner. A long debate has been there as to whether there should be a law to govern euthanasia. Earlier this year 2018, an old couple wrote a letter to the President of India to allow active euthanasia. In the month of March 2018, the Supreme Court of India was hearing a plea made by an NGO named Common Cause to include right to die with dignity within the ambit of the right to live with dignity. A bench comprising Chief Justice Dipak Mishra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud, and Ashok Bhushani gave the judgment. Justice Chandrachud said, “Life and death are inseparable. Every moment our bodies undergo change… life is not disconnected from death. Dying is a part of the process of living”.
And The Court’s Verdict
The Apex Court has issued guidelines on passive euthanasia permitting the patient to draft ‘living will’ thereby stating that they are not put in the life-support system if they slip into an incurable coma. A ‘living will’’ is a document which is written by an individual, in a normal state of mind, stating for voluntary euthanasia in case he/she slips into a condition of an irreversible vegetative state. Countries like the United Kingdom, United States, Germany etc. have advance directives for making living will.
“It is a type of advance directive that may be used by a person before incapacitation to outline a full range of treatment preferences or, most often, to reject treatment. A living can detail a person’s preferences for tube-feeding, artificial hydration, and pain medication when an individual cannot communicate his/her choices”. It was cleared by the Court that Passive euthanasia would be allowed to the patients with no chance of recovery. Active euthanasia still remains illegal in India. The Apex Court gave guidelines as to who is authorized to give nod to execute the will and also the powers of the medical board to determine the feasibility of the advance directive. If there is no advance directive, then the close relative or friend would have to approach the High Court for granting passive euthanasia. If a person is of unsound mind or not in a state of making a will, then the medical board would make the same on his/her behalf after considering various factors.
Now it is really important to trace down the history of passive euthanasia. In the year 2016, the Government came up with detailed guidelines on passive euthanasia. It has also released a document on “Ministry of Health and Family Welfare” website on May 9, 2016, to invite comments from the public with respect to the above.
The Landmark Judgments
It all started with the Aruna Shanbaug case where a patient has been in a vegetative state for 42 years. Pinki Virani, a social activist, filed a writ petition before the Supreme Court of India on behalf of Aruna Shanbaug stating that her right to life under the Constitution of India has been violated. The Apex Court, in its decision, granted conditional passive euthanasia to the terminally-ill patients in rarest of rare cases. It stated that the petitioner has to file an application before the High Court, then it would be scrutinized by a body of medical experts. It will not depend merely on the discretion of the patient or his/her relative or friend. Lastly, the Supreme Court stated that the above decision would be valid until any legislation comes into force with respect to passive euthanasia. Earlier to this case, there was P.Rathinam case where the Apex Court termed Section 309 (Attempt to suicide) as unconstitutional. It held that the fundamental rights enshrined in our Constitution have both positive and negative aspects i.e. the right to life includes the right to die as well. This decision was overruled in Gian Kaur case where the Apex Court held that all the factors which can make the life more dignified would be included in Article 21. Therefore, Article 21 would not include the right to die. The 196th report of the Law Commission on Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners), released in 2006 and the 241st report in 2012, named Passive Euthanasia: A Relook were also related to the legalization of passive euthanasia in India.
On February 25, 2014, the Chief Justice of the Apex Court constituted a five-judge bench to look into the above matter as a petition had been filed by an NGO named Common Cause which argued in favour of the right to die with dignity. The petitioner had stated that the Supreme Court of India had made its decision in haste to include the right to die in right to life in the Shanbaug case. Therefore the Court realized the need for making a law on euthanasia and constituted the bench to formulate guidelines. On July 16, 2014, the Apex Court asked all the States and Union Territories to respond on the issue of legalization of passive euthanasia within the next eight weeks. But the Centre opposed the drive. There was another significant development during that time i.e. the concept of ‘living will’ gained pace among the people.
Euthanasia and physician-assisted suicide have been legal in The Netherlands and Belgium since 2001 and 2002. In the US, Switzerland, and Germany, euthanasia is illegal but physician-assisted suicide is legal. Euthanasia remains illegal in the UK, France, Canada and Australia.
It can be seen from the above cases that the Court has taken a liberal perspective with respect to the cases related to passive euthanasia. It has based its decision on the principles of autonomy and best interests of the patient. It would be important to note here that there is a huge difference between active and passive euthanasia. Active euthanasia is killing a terminally-ill patient by administering him or her with a lethal drug. But passive includes removal of life-support systems etc. People supporting palliative care do not support passive euthanasia as a form of euthanasia at all. The state is acting as the protector of life, thereby putting itself in a dilemma whether to legalize euthanasia or not. There are countries which have already legalized euthanasia of both kinds. It should be noted that the Court has delved upon the moral distinction between active and passive euthanasia. There is another argument by the medical experts that there is a provision in the medical code of ethics where a panel of doctors can withdraw the life-support system if the patient is brain-dead in specific cases. Next point would be whether India is ready for the law which requires sensitivity and maturity in the individuals. There are high chances of misuse of law if there is no proper law as the death of old people may be hastened in order to recover a hefty amount of life insurance cover. The Supreme Court has taken an active step towards the issue of euthanasia. It will depend on the response of the centre as to whether there must be law recognizing.