Is 'living will' good enough to enforce euthanasia?

The Supreme Court’s recent decision to set up a Constitution bench to take a conclusive view on euthanasia is likely to settle a long pending legal wrangle. The issue involved not only a question of law but moral, social, medical and ethical aspects as well.

A three-judge bench presided over by Chief Justice P Sathasivam decided to refer the question of euthanasia to the bench for an authoritative opinion and laying down exhaustive guidelines. It felt that since the subject concerned humanity as a whole, it required careful consideration by a larger bench.

It is interesting to go back to reasonings attributed by the apex court for reference to the Constitution bench. Dealing with a PIL filed by NGO Common Cause, the court found that there was only one judgment passed so far on the subject. In Aruna Shanbaug’s case (2011), the validity of passive euthanasia was upheld by a two-judge bench which also laid down elaborate procedure for its execution. But in the PIL by Common Cause, the court found that the verdict in Aruna Shanbaug’s case was based on a wrong premise that a Constitution bench had in the Gian Kaur’s case (1996) upheld the concept.

In its last month’s decision, the court said although the Constitution bench in Gian Kaur had upheld that the “right to live with dignity under Article 21 will be inclusive of right to die with dignity,” it did not arrive at a conclusion for validity of euthanasia be it active or passive.And the two-judge bench went ahead on a wrong interpretation of the 1996 verdict. It concluded that the Constitution bench had at one place held in the Gian Kaur case that the euthanasia could be made lawful only by a legislation but moved forward with a premise that it had approved the view taken in the House of Lords in Airedale vs Bland (1993), without clarifying who can decide whether life support should be discontinued.

This stand did not find favour with the three-judge bench. It asked, when, at the outset, it is interpreted to hold that euthanasia could be made lawful only by legislation, and where is the question of deciding whether the life support should be discontinued in the case of persons in coma or permanent vegetative state.

So the latest apex court verdict found inconsistency in the reasoning of the Aruna Shanbaug’s case. The two-judge bench in Aruna Shanbaug’s case had ruled in favour of passive euthanasia in case of patients in permanent vegetative state saying that such a decision arrived at by the near relatives and doctors can be undertaken only after the approval of the High Court.

Bona fide decisionIt had though dismissed a plea made by author and social worker Pinki Virani for mercy killing of Shanbaug, a Mumbai nurse, lying in the hospital for over three decades. While permitting passive euthanasia, it had said a decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending on the patient. However, the decision should be taken bona fide in the best interest of the patient.

NGO Common Cause quoted extensively from the Gian Kaur and the Aruna Shanbaug’s cases. It urged the court to allow a person make a ‘living will’ which could be executed in case of his becoming terminally ill. It wanted the apex court to direct the government to issue appropriate guidelines in this regard and to appoint an expert committee of doctors, social scientists and lawyers to suggest measures on execution of ‘living will’.

The petitioner also wanted the court to declare ‘right to die with dignity’ as a fundamental right within the fold of ‘right to live with dignity’ as guaranteed under Article 21 of the Constitution. There are many who suffered from chronic diseases or were at the end of their natural life span. There may be some who were likely to go into a state of terminal illness or permanent vegetative state. All these people were deprived of their rights to refuse cruel and unwanted medical treatment like feeding through hydration tubes, or being kept on ventilator and other life supporting machines, just in an attempt to prolong their natural life span artificially.

It claimed denying this right to such people leads to extension of pain and agony both physical as well as mental. Thus, it sought the court to allow people make an informed choice by way of clearly expressing their wishes in advance through ‘a living will’ which could be used in the eventuality of them going into a  state when it will not be possible for them to express their wishes.

The government, however, opposed the request saying the primary duty of every doctor was to save lives of patients. It also referred to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, which explicitly prohibited doctors from practicing euthanasia. Further, it relied on the apex court verdict in the Parmanand Katara vs Union of India (1989) which held that primary duty of a doctor is to provide treatment and to save the life whenever an injured person is brought to the hospital and not otherwise.

Virani, who was the petitioner in case of Aruna Shanbaug, felt the passive euthanasia law continued to stand as law until it is overturned by the court itself or is revoked by Parliament. So now, all eyes would be on final decision taken by the Constitution bench when it takes up the matter.

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