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In a landmark judgement, the Supreme Court (SC) of India, on 9th March 2018, ruled permitting of passive euthanasia, stating the right of an individual to die with dignity. Let us take a look at what has brought about this, and what it entails?
The debate over euthanasia in India was heightened in 2015 by the death of Aruna Shanbaug, a 66-year-old nurse, who for the past 40 years had been living in a coma after suffering a sexual assault. In 1973 she was raped and strangled by a ward attendant at the hospital that she worked in, in Mumbai. This rendered her paralysed with severe brain damage.
In 2011, the Supreme Court had ruled that for terminally ill patients, in exceptional circumstances, life support could be removed. This had placed the obligation of duty on doctors to file a petition for withdrawal of life support under the supervision of the courts. Prior to this, euthanasia in all forms was illegal, resulting in several pleas for active euthanasia being rejected by courts and the President in the past. This includes cases of Uttar Pradesh resident, Jeet Narayan’s plea to President Pratibha Patil in 2008, eliciting her permission to terminate the lives of his four paralysed children; and Tamil Nadu porter, Dennis Kumar’s petition in 2013 to end his infant son’s life, who had been suffering from a congenital disorder.
Prashant Bhushan, an eminent Supreme Court lawyer, had filed a petition seeking recognition of the right to establish a living will, with the Supreme Court, on behalf of a non-government advocacy body, Common Cause. The contention was that when a medical expert determined a ‘point of no return’ for a terminally ill patient, the person should be granted the right to refuse being put on life support. The petition read: “How can a person be told that he/she does not have right to prevent torture on his body? Right to life includes right to die with dignity. A person cannot be forced to live on support of ventilator. Keeping a patient alive by artificial means against his/her wishes is an assault on his/her body.”
What is euthanasia?
It is explained in the judgment that “Euthanasia is basically an intentional premature termination of another person’s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia) either at the express or implied request of that person (voluntary euthanasia) or in the absence of such approval/consent (non-voluntary euthanasia).”
Difference Between Active and Passive Euthanasia
In today’s judgment the Constitutional bench has clearly stated and discussed the difference between Active and Passive Euthanasia; furthermore, it has distinguished between euthanasia and physician-assisted dying by referencing various cases across different jurisdictions or Courts across the world.
Active euthanasia requires either a positive act or affirmative action or act of commission needing or involving the use of lethal substances or forces to cause the intentional death of a terminally ill or vegetative state patient/person. Example of Positive active euthanasia is – a lethal injection given to a person with terminal cancer who is in terrible agony.
On the other hand, passive euthanasia requires withdrawing of life support measures or the withholding of medical treatment of a patient/person for the continuance of life. For example, withholding of antibiotics in case of a patient where death is likely to occur as a result of not giving the said antibiotics or removal of the heart-lung machine from a patient in a coma.
Key Observations, Comments and Decisions given by the Constitutional Bench
- Chief Justice of India Dipak Misra, said “When the sanctity of life was destroyed, should we not allow them to cross the door and meet with dignity? For some, even their death could be a moment of celebration.” Chief Justice of India (CJI) also stated that despite there being four different opinions on the bench, all judges acquiesced that ‘living will’ should be allowed as a person cannot be left to continue suffering in a comatose state when he or she no longer wishes to live.
- Living will is a written document covering the course of action to be taken by the duly appointed and designated relative or friend of a person, in the event of an accident or terminal illness that leaves her/him in a vegetated state or on a life-sustaining support system where she/he is no longer capable of expressing her/his wishes. This will covers details regarding medical care and the degree of medical intervention.
- ‘Directives’ and ‘guidelines’ have been issued which shall govern the facilitation of passive euthanasia. This has provided for the terminally ill patient’s family members or relatives to go to court to request the sanctioning of euthanasia. Court-appointed doctors would then assess its need.
- The CJI elaborates on the Advance Medical Directive and similar guidelines used across various states in USA and in other countries.
- “The Black’s Law Dictionary defines an advance medical directive as, “a legal document explaining one’s wishes about medical treatment if one becomes incompetent or unable to communicate.”
- He also covered medical power of attorney which is another type of advance medical directive, which is “a document which allows an individual (principal) to appoint a trusted person (agent) to take health care decisions when the principal is not able to take such decisions. The agent appointed to deal with such issues can interpret the principal’s decisions based on their mutual knowledge and understanding.”
- The CJI stated that an “Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity” and also cautions that this directive should be read along with the safeguards that have been enumerated in the judgment covering questions and queries such as:
- Who can execute the Advance Directive and how?
- What should it contain?
- How should it be recorded and preserved?
- When and by whom can it be given effect to?
- What if permission is refused by the Medical Board?
- Revocation or inapplicability of Advance Directive
- The bench also expressly stated that the “right to live with human dignity” means that such right shall continue to be vested with an individual up to the end of natural life and as a result including a right to dignified life up to the point of death which make the procedure of death inclusive by default.
It is a historic judgment which has not only legalized and recognized the right to die with dignity as a fundamental right under Article 21 of the Constitution of India, but it has also laid down principles relating the procedure to be followed while “execution of Advance Directive and provided the guidelines to give effect to passive euthanasia in both circumstances, namely, where there are advance directives and where there are none”, by exercising power under Article 142 of the Constitution of India. These shall remain in force until legislation is passed.
 “the predominant difference between ― active and ―passive euthanasia is that in the former, a specific act is done to end the patient‘s life while the latter covers a situation where something is not done which is necessary in preserving the patient‘s life. The main idea behind the distinction, as observed by the Bench, is that in passive euthanasia, the doctors are not actively killing the patient, they are merely not saving him and only accelerating the conclusion of the process of natural death which has already commenced.
 Difference between euthanasia and physician-assisted dying lies in the fact as to who administers the lethal medication. It has been observed that in euthanasia, a physician or third party administers it while in physician-assisted suicide, it is the patient who does it though on the advice of the doctor.
 The Constitutional Bench came to the conclusion of recognizing that the Right to Die with Dignity is a Fundamental Right for terminally ill patients after an in-depth study of Airedale case, and R (on the application of Pretty) v. Director of Public Prosecutions of UK Court; Cruzan Case, and Vacco Case of the US Court; Australian Court Judgments in Hunter and New England Area Health Service v. A, and Brightwater Care Group (Inc.) v. Rossiter; Canadian Courts Position in Rodriguez Case, and Carter v. Canada (Attorney General); and various other judgments across different countries such as Netherlands, Switzerland, Belgium, Luxembourg, Germany including the relevant International laws Considerations Under the International Covenant on Civil and Political Rights (ICCPR) , UN Human Rights Committee and Decisions by European Court of Human Rights (ECHR).
Common Cause (A Regd. Society) V. Union of India and Another… WRIT PETITION (CIVIL) NO. 215 OF 2005
Passive euthanasia can be further categorized in to:
- Voluntary passive euthanasia wherein a person is capable of deciding himself that he would prefer to die due to various reasons, and
- Non-voluntary passive euthanasia wherein such person is not in a position to decide for himself, for example, if the person is in a coma.