Legalising euthanasia can have
disastrous consequences in India’s corrupt medical and legal system and
especially at a time when human relations are increasingly monetised and
criminalised. Though there are many moral, human and economic reasons to
justify euthanasia, any move towards this should be preceded by a strong
regulation. At a time when medical science is expanding into new frontiers,
what is incurable can perhaps be curable tomorrow.
Medical diagnosis and prescriptions
are at a wide variance making any assessment in favour of euthanasia prone to
controversies. There should be a wider national debate before India goes for
it. Even as the debate on the vexed question of permitting euthanasia, remain
unresolved, the Supreme Court in its latest verdict has legalised passive
euthanasia differentiating it with active euthanasia.
Recognising the “right to die with dignity”, the Supreme Court legalised
passive euthanasia in a landmark judgement. The apex court ruled
that a person can make an advance “living will” authorising the withdrawal of
all life support system if in the opinion of the doctor he has reached an
irreversible stage of terminal illness.
While allowing a person to make a
living will, a five-judge Constitution Bench headed by Chief Justice Dipak
Misra, however, laid down strict conditions for executing “a living will that
was made by a person in his normal state of health and mind”. The bench laid
down guidelines on who would execute the will and how a nod for passive
euthanasia would be granted by the medical board. The court also permitted a
person to draft in advance a “living will” in case she/he slips into an
incurable condition.
Euthanasia or mercy killing, refers to the act of causing death of a
patient painlessly who is suffering from an incurable, especially a painful,
disease and condition as by withholding medical measures. In medical terms,
there are two types of euthanasia- active and passive.
A condition where there is the
withdrawal of medical treatment with the deliberate intention to hasten the
death of a terminally-ill patient is termed as passive euthanasia. Active
euthanasia is an intentional act of causing the death of a patient in great
suffering. Active euthanasia is illegal in India.
In 2011, the Supreme Court had
recognised passive euthanasia in Aruna Shanbaug’s case by which it had
permitted withdrawal of life-sustaining treatment from patients not in a
position to make an informed decision.
A ‘living will’ is a written document
that allows a person to give explicit instructions in advance about the medical
treatment to be administered when he or she is terminally ill or no longer able
to express informed consent.
However, the critics opine that there is no difference between passive
and active euthanasia as both tantamount to facilitating death of a person.
However, in case of passive euthanasia, the doctors are not under moral dilemma
that they, by administering something are causing the death of a suffering
patient.
Similarly, the family members are
also not under psychological duress that they are committing something which
they are not supposed to. In the case of passive euthanasia and the concept of
‘living will’, it is the decision of the person concerned and the family
members can avoid moral dilemma.
Notwithstanding the differentiation in passive and active euthanasia,
the critics of apex court verdict question that there are issues beyond the legal
dimensions. Judiciary cannot certainly be the expert to adjudicate on the
complex medical issues involved in the debate.
But, the Supreme Court in this
historic verdict clarified on many questions dealing with life and death.
Prolonging the life of a person knowing well that he or she cannot be cured
would only levy unprecedented emotional, physical and financial stress
on the patient’s family. Sometimes, the costs associated with it could be even
devastating. Besides, the patient is subjected to unbearable pain in certain
medical cases.
In a privatised health care, the costs
incurred in keeping a person alive in a critical condition could be highly
prohibitive. Just because medical technology allows us to prolong the life, why
should a patient and his or her family members should undergo such an enormous
suffering even though cure is impossible.
The 241st Law Commission report recommended that the passive euthanasia
be allowed. The additional solicitor general also told the Supreme Court that the
government is considering a law on passive euthanasia.
The Court held that “as part of the right to die with dignity in case of
a dying man who is terminally ill or in a persistent vegetative state, only
passive euthanasia would come within the ambit of Article 21 and not the one
which would fall within the description of active euthanasia in which positive
steps are taken either by the treating physician or some other person. That is
because the right to die with dignity is an intrinsic facet of Article
21”.
Article 21 of the Constitution of India says, “No person shall be
deprived of his life or personal liberty except according to a procedure
established by law”.
On the issue of personal autonomy and the self determination of an
individual, the apex court held that every adult with a capacity to give
consent has a right to refuse medical treatment and right of
self-determination. But, the Supreme Court clearly cautioned that the doctors
would be bound by the choice of self-determination made by those patients who
are terminally ill and undergoing a prolonged medical treatment or is surviving
on life support provided the illness of the patient is incurable.
Thus, the personal autonomy of an individual as guaranteed by the
Article 21 of the Constitution in regard to refusing medical treatment to die
with dignity is applicable only to the patients who have no hope of survival. A
competent medical authority has to decide on the state of illness of that
patient.
The apex court clearly stated that due caution should be taken to permit
passive euthanasia as this court itself observed in Aruna Shanbaug case that
in the name of the best interests of the terminally ill patient, the
elderly would be at risk for the sake of inheritance.
Delving much deeper into the personal liberty and autonomy as enshrined
in Article 21 of the Constitution, the Supreme Court said that if withdrawing
life support for a patient who is terminally ill or in a permanent vegetative
state can be called a murder, then artificially keeping the patient alive in a
vegetative state or in a great pain can be construed as invasion of personal
autonomy.
Thus, the right to die with dignity is integral to right to personal
liberty which is intricately linked to concept of right to life. Thus, the
right to dignified life extends up to the point of having a dignified death.
The debate on euthanasia as Justice DY Chandrachud observed, should balance
between life, morality and the experience of dying.
Thus, accelerating the process of death is to reduce the period of
suffering and therefore it is a right to live with dignity. The apex
court in this landmark verdict felt that burdening a dying patient with life
prolonging treatment and equipment merely because medical technology has
advanced would be destructive of his or her dignity.
Individual interest is to be relieved of pain and suffering while the
States' interest is to preserve human life to the extent possible. But, in terminally
ill and permanently vegetative state, the individual interests should prevail
over the State’s interest, the Supreme Court reasoned. It may sound strange,
but it is not without a rationale.
However, the legal and philosophical reasoning given by the apex court
while enunciating a person’s right to die with dignity, would only stand the
test of time if the gross misuse of provisions is prevented and adequate
safeguards are put in place and properly implemented to avoid any mala fide
intentions of the corrupt system or vested interests.
SOURCE: THE HANS INDIA
AUTHOR: PROF K.NAGESHWAR
