Euthanasia, Living Will and The Analysis In India

Euthanasia, i.e. mercy killing, refers to the act of painlessly putting to death a person who is either very old or very ill to prevent further pain and suffering. It is basically a practice that is done on people suffering from incurable diseases or incapacitating physical disorder wherein they are allowed to die by the withdrawal of artificial life support system or withholding of medical treatment. On 9th March 2018, the Supreme Court of India, in a historical decision, legalised passive euthanasia and the right of terminally ill persons to give advance directives for refusal of medical treatment. Therefore, the concept of ‘living will’ was recognised which essentially refers to the document that the person writes in a normal state of mind seeking passive euthanasia when he reaches an irreversible vegetative state or when he gets terminally ill. For a comprehensive understanding of this whole topic, we have demarcated between different types of ‘mercy killing’ in the next section. Also, we will discuss the concerned judgement in detail not forgetting to mention the backdrop that led to the much-anticipated move. Additionally, we will try to summarise the arguments of both the supporters as well as the dissenters of the move before finally moving to the conclusion.

Active Euthanasia, Passive Euthanasia, Indirect Euthanasia and Assisted Suicide

Active Euthanasia refers to the deliberate act of ending the life of a terminally ill or incurable patient through the administration of a legal drug or injection by the physician. Passive Euthanasia is the withdrawal or withholding of artificial life support system when the patient requests to do so or when prolonging of his life is termed futile. Indirect Euthanasia means the provision of treatment with an aim to reduce pain and suffering, but which eventually speeds up the process of death. And, assisted suicide (also called physician-assisted suicide) refers to the situation when the doctor intentionally and knowingly provides the patient with the knowledge and/or means to commit suicide. The laws regarding euthanasia differ throughout the world. In countries like Belgium and the Netherlands, euthanasia has been legal since 2002. The practice of ‘Assisted Suicide’ is legal in European countries of Switzerland and Germany. In England, both euthanasia, as well as assisted suicide, are illegal. In most of the U.S., euthanasia is illegal but physician-assisted suicide has been legalised in ten of its states. In India, passive euthanasia was legalised two years back. The next section discusses the same in detail.

Euthanasia in India: The Aruna Shanbaug Case and the Common Cause Judgement

The case of Aruna Shanbaug has been quite instrumental in changing the euthanasia laws in India. Ms. Aruna Ramchandra Shanbaug was an Indian nurse who in 1973, was sexually assaulted by a ward boy in the hospital as a result of which she went into a vegetative state. In 2010, a plea was filed by activist Ms. Pinki Virani before the Supreme Court seeking euthanasia for Ms. Aruna Shanbaug. The Court took up the plea and finally, on March 7, 2011, delivered the historical judgement. Ms. Virani’s plea got rejected but at the same time, broad guidelines were issued legalising passive euthanasia in India. It was held that the decision to withdraw life support must be taken by parents, spouse or other close relatives in the absence of all of whom, the ‘next’ friend would be entrusted with the responsibility. In this particular case, the hospital staff that had been taking care of Ms. Aruna for years was called the ‘next friend’ and not Ms. Virani. In 2015, Ms. Aruna Shanbaug, after 42 years of constant suffering died of pneumonia at the age of 66 but not before playing a vital role in influencing upcoming euthanasia-related laws in India.

In a separate move, ‘Common Cause’, an NGO working for people’s rights, approached the Supreme Court under Art. 32[1] of the Constitution in the year 2005, wherein they prayed for the declaration that ‘Right to Die with Dignity’ be made a fundamental right under Art. 21 [2] i.e. Right to Life. Additionally, they requested the court to give directions to the government with regards to the execution of living wills in case a person gets terminally ill. The argument was that subjecting terminally ill people or the people suffering from chronic diseases to cruel treatments denied them the right to live with dignity. On February 25, 2014, a 3-judge bench of the Supreme Court led by the then CJI P. Sathasivam started final hearing in the case wherein it came out that the previous judgements given in the case of Aruna Shanbaug v. Union of India (2011)[3], as well as the case of Gian Kaur v. State of Punjab (1996)[4], were inconsistent. The matter was then referred to a 5 Judge Constitutional Bench. And finally, on March 9, 2018, in a historical decision, CJI Deepak Mishra led bench recognised the concept of ‘living will’ that was to be drawn by terminally ill patients for passive euthanasia and also laid down comprehensive guidelines for the same. Hence, the ‘Right to Die with Dignity’ was held to be a fundamental right.[5]

Euthanasia- a good or a bad thing?

The proponents of Euthanasia argue that allowing an incurable patient to die will alleviate the constant pain and suffering that one has to go through when in the vegetative state. The other point which they talk about is that ‘right to die with dignity’ is a matter of personal choice and no-one else should be allowed to interfere in the patient’s decision. It has also been said time and again that timely executed euthanasia could also relieve the financial burden on the family of the patient which in case of absence of the law, could exert a lot of financial burden on poor households.

Moreover, coming to the major points that the opponents say, the fact that the law on euthanasia could be misused is always talked about. It is argued that children of old and ill parents would certainly want to neglect their parents when they are needed the most. This does not fit with the kind of social and cultural environment that we have in India, where parents are supposed to be provided with care when they get too old. Also, the opponents lay emphasis on the sanctity of life and reckon that accepting euthanasia would lead to a reduction in society’s respect for life.

Benefits of recognising Living Will

Recognition of Living will indeed have some good impact. The concept essentially requiresa person to write the will as an advance directive when he is capable of making a sensible decision. And, thus, this rules out the possibility of the situation when the patient, being too ill, is not able to make an informed and competitive decision especially so in the case of Mentally Challenged patients and the patients who are incoma. Also, the living will, to much extent, would relieve the moral burden from the family member who actually takes steps for euthanasia, for ultimately, he would be fulfilling the informed wish of the patient only. Passive Euthanasia could sometimes, in exceptional circumstances, lead to the allegations of murder so the existence of a living will have a role to play in preventing such situations. In and all, the legalisation of ‘living will’goes a long way in effective implementation of the laws of euthanasia in India.

Concluding Remarks

In the course of this article, we tried to explain with clarity the concepts of euthanasia as well as ‘living will’. We listed out the arguments of both the proponents as well as the opponents of euthanasia and also mentioned how the ‘living will’ is going to have a positive impact. Giving due importance to the judgement of the Supreme Court in the Common Cause Case, the long-anticipated Fundamental Right to Die with Dignity has finally been accepted. The legalisation of Passive Euthanasia, along with the recognition of ‘living will’ would make a lot of difference in how the severely ill patients meet their death. Having a dignified death is equally important as having a dignified life, so in that respect, the laws on euthanasia would come out to be of vital importance. As far as the living will is concerned, it is definitely going to simplify the entire process of euthanasia. In the end, we could just hope that the laws are able to achieve the desired objectives.

[1]The Constitution of India, 1950, Art. 32.

[2]The Constitution of India, 1950, Art. 21.

[3] Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454.

[4]Gian Kaur v. State of Punjab, (1996) 2 SCC 648.

[5] Common Cause (A Regd. Society) v Union of India and Anr, 2018 5 SCC 1.