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Current Editorial
Death
with dignity: on SC's verdict on euthanasia and living wills (10.03.18)
The core philosophy underlying
the Supreme
Court’s verdict allowing passive euthanasia and giving legal status to
‘advance directives’ is that the right to a dignified life extends up to the
point of having a dignified death. In four concurring opinions, the five-member
Constitution Bench grappled with a question that involved, in the words of
Justice D.Y. Chandrachud, “finding substance and balance in the relationship
between life, morality and the experience of dying”. The outcome of the
exercise is a progressive and humane verdict that lays down a broad legal
framework for protecting the dignity of a terminally ill patient or one in a
persistent vegetative state (PVS) with no hope of cure or recovery. For, in
such circumstances, “accelerating the process of death for reducing the period
of suffering constitutes a right to live with dignity”. The core message is
that all adults with the capacity to give consent “have the right of self
determination and autonomy”, and the right to refuse medical treatment is also
encompassed in it. Passive euthanasia was recognised by a two-judge
Bench in Aruna Shanbaug in 2011; now the Constitution
Bench has expanded the jurisprudence on the subject by adding to it the
principle of a ‘living will’, or an advance directive, a practice whereby a
person, while in a competent state of mind, leaves written instructions on the
sort of medical treatment that may or may not be administered in the event of
her reaching a stage of terminal illness.
Passive euthanasia essentially
involves withdrawal of life support or discontinuation of life-preserving
medical treatment so that a person with a terminal illness is allowed to die in
the natural course. The court’s reasoning is unexceptionable when it says
burdening a dying patient with life-prolonging treatment and equipment merely
because medical technology has advanced would be destructive of her dignity. In
such a situation, “individual interest has to be given priority over the state
interest”. The court has invoked its inherent power under Article 142 of the
Constitution to grant legal status to advance directives, and its directives
will hold good until Parliament enacts legislation on the matter. The
government submitted that it was in the process of introducing a law to
regulate passive euthanasia, but opposed the concept of advance directive on
the ground that it was liable to be misused. The stringent conditions imposed
by the court regarding advance directives are intended to serve as a set of
robust safeguards and allay any apprehensions about misuse. The court is
justified in concluding that advance directives will strengthen the will of the
treating doctors by assuring them that they are acting lawfully in respecting
the patient’s wishes. An advance directive, after all, only reflects the
patient’s autonomy and does not amount to a recognition of a wish to die.
XXX
Older Op-Eds
Should
euthanasia be allowed? (26.01.18)
YES
|FLAVIA AGNES
The Lavates’ request is
unlikely to be heeded as India is not comfortable with the idea
Article 21 of the Constitution
gives me the right to life, but I also interpret it as giving me the right to
take away my life. The right to life includes the right to live with dignity.
When you are in pain, that dignity is lost and you are forced to rely on your
kith and kin for support.
Section 309 of the Indian Penal
Code prescribes punishment for attempting suicide. It is an offence, but it
should not be one. You could die, but if you survive, you should get
counselling, not go to jail.
Narayan Lavate (88) and Iravati
Lavate (78) from Maharashtra say that they do not wish to be a burden on
society in their old age. They don’t have children and their siblings are no
more, they say. They argue that spending the country’s scarce resources on
keeping them alive, the old and ailing alive, is a criminal waste. This is
simple logic. They also ask: What is the point in wasting money in treating
old-age ailments when one has to eventually die?
A demand driven by logic
The couple sees the aversion to
euthanasia in India as a sign of the country’s “cultural backwardness”.
According to Iravati, their desire to die is driven by logic, not spirituality.
There is no point in living only because a legal system demands it, she says.
At the same time, they are averse to the idea of committing suicide, which is
an offence in India. What if something goes wrong, they wonder. The Lavates are
fit. They worry for themselves and other old couples like them who want to die.
But no one is ready to pay
attention to their request. After writing letters to various Chief Ministers,
legal experts like Ram Jethmalani, and Members of Parliament, all of which did
not yield results, they have now written to President Ram Nath Kovind, hoping
for a favourable response to their plea of “mercy death” or physician-assisted
suicide.
But it is highly unlikely that
the state will listen to their request. We are still not comfortable with the
concept of euthanasia. The path-breaking judgment in Aruna Shanbaug v.
Union of India (2011) brought the issue of euthanasia into the public
domain. But unlike the Lavates, Aruna was in a permanently vegetative state
since the brutal sexual attack on her in 1973 by a ward boy in Mumbai’s King
Edward Memorial Hospital where she worked as a staff nurse.
The 2011 judgment helped to push
the debate to the extent of permitting passive euthanasia for terminally ill
patients under the strict supervision of the High Court, in consultation with a
team of doctors treating the terminally ill patient. Passive euthanasia means
withdrawing life support to induce death in a natural way. In contrast, active
euthanasia means injecting legal drugs to induce death. This is not permitted
in India and so the Lavates’ request is unlikely to be heeded.
Should we allow living wills?
But their letter to the President
has opened up a new debate in this area. So far, the debate has been confined
only to people who are terminally ill. Countries like Canada have given legal
recognition to the concept of a “living will”, where people lay down directives
in advance on how they should be treated if they end up in a vegetative state.
Now an important question before the courts is whether the law should allow
living wills.
The Supreme Court is likely to
take a decision on living wills in 2018, even as a draft Bill on withdrawal of
life support to patients with terminal illness is under consideration.
The Bill, however, deals only
with terminal illness.
Flavia Agnes is an activist
and women’s rights lawyer
NO | M.C. MISRA
If it is allowed or legalised,
there will be no limits to its abuse in India and elsewhere
I don’t think India is ready for
this. Euthanasia is allowed in some countries of the European Union —
Luxembourg, the Netherlands, and Belgium. In Belgium, euthanasia is allowed in
the case of terminally ill children. In Switzerland, it is allowed only in the
case of advanced malignancy or in the case of intractable pain and suffering.
Clearly, even there, euthanasia is not for everybody.
This is a complex issue in every
society and the chances of its misuse are high. That’s why it is not accepted
as a way of ending the lives of mentally alert and reasonably healthy persons.
A big no for the mentally
alert
In the Aruna Shanbaug case, which
generated a lot of debate, we have to bear in mind that Shanbaug was not in a
position to take any decisions herself. In the case of terminally ill patients
who are provided with expensive health care, whose families know that the
patients are unlikely to return to normalcy or near-normalcy, and given the
economic burden on the family and on society to treat these patients,
euthanasia could be debated. But euthanasia for those who are mentally alert,
though physically disabled, is a big no.
Euthanasia in that form cannot be
allowed or legalised because the probability of its misuse — whether it is
demanded for property, money, or because of animosity among family members — is
very high. Usually such killings are classified as homicide, and if the
perpetrators are caught, they are punished. Imagine the consequences of
legalising this. There will be no limits to its abuse in India and elsewhere.
The decision in favour of
euthanasia is far more complex when a person is mentally alert. This brings to
my mind a Hindi film about a quadriplegic who seeks death. The court denies his
wish. I think that was the right decision.
Debating passive euthanasia
We doctors encounter this dilemma
when we are faced with terminally ill patients, when we know that it is an
exercise in futility to use resources to keep the person alive. In such cases,
we talk about passive euthanasia with the concurrence of family members.
Passive euthanasia is partly permitted and implies withdrawing life support when
a person is not mentally alert. Mental alertness is assessed by the Glasgow
Coma Scale (GCS) score, which tells us the level of consciousness. In normal
individuals, the score is 15, and for those who are brain dead, it is three. A
GCS score of less than eight means that the patient is not conscious, her
airway is threatened, and her chances of recovery are less. But if the GCS
score is three, the possibility of recovery is practically zero unless there is
a miracle. I have not seen such miracles happening in clinical practice.
In some developed countries,
donations after cardiac deaths are increasing. Seventy percent of organ
donations come from such patients. They are done in a fully controlled
environment where some patients could also be mentally alert. The question is
the cost of care and who should bear the cost. If the condition is such that
survival is impossible, then passive euthanasia is allowed.
The Lavates are physically fit.
Nobody should or can allow them to die. They can help society in many ways. As
a doctor, I can debate this only in the context of those suffering from
terminal diseases, in critical care units, facing multiple organ problems —
where the courts have ruled that life support can be withdrawn only when the
chances of return to life are negligible.
As told to Anuradha Raman
M.C. Misra is former director
of the All India Institute of Medical Sciences
IT’S COMPLICATED | SHRIHARI GANESH ANEY
No legislation lays down
procedure to permit a person to take her own life
The right to life is an old
debate. When the Supreme Court heard the challenge to the imposition of
Emergency, it rejected the argument that in India, the right to life available
to a citizen flows from Article 21 of the Constitution, and that if such an Article
were to be deleted or suspended, the citizen would have no right to his life
under law.
The right to life
The right to life was made more
sacrosanct and, over the years, has been seen as a basic feature of the
Constitution, thereby making it both fundamental and permanent.
The significance of this is that
if one relinquishes the right, one can do so only in accordance with procedure
established by law. Imposing death by way of capital punishment is an example
of the right to life being terminated in accordance with the procedure
established by law. To terminate life, even one’s own life, were it to be done
without the authority of law, would amount to an unlawful act. In certain
cases, it may even be a criminal act. In fact, an attempt to commit suicide is
a crime under the IPC.
No procedure
At the heart of the legal problem
is the fact that there exists no legislation laying down the procedure to
permit a person to take her own life. The absence of any law governing the
subject results in people taking recourse to courts to seek ‘permission’ to end
their own lives, or the lives of others over whom they have some control. These
would include petitions for euthanasia filed by persons who do not wish to
live, or by relatives on behalf of those who suffer extreme pain or incurable
affliction. Petitions also extend to asking for permission to terminate
unwanted, accidental or dangerous pregnancies which, interestingly, relate to
the rights of an unborn person to enter life itself. The courts become arbiters
of the fate of such people. What happens now is that the courts are called upon
to decide, without having the benefit of legislation to guide their
decision-making. They rely on facts and the call of their conscience. Such ad
hoc decisions suffer from arbitrariness and uncertainty — two qualities that
make for bad law.
The right to choice
There is another legal dimension
to this debate. Taking away life is often related to the inability of the
affected or concerned individual to live with dignity. For instance, thousands
of farmers in Vidarbha took their lives when faced with a dehumanising
existence. The right to life under Article 21 has been interpreted by the
Supreme Court as the right to live with dignity.
When a person chooses to end her
life because she can no longer live with dignity, the question to be asked is
not whether she can waive her constitutional right to life, but whether she has
a right to choice. The debate extends to whether the fundamental right to life
extends to the right to choice, because, after all, there is no overt act
required to be performed to live life. The more abstract jurisprudence content
that arises is whether there is a right to choose at all, and if there is, will
it govern the right to life or be subservient to it.
The courts are yet to come up
with an answer.
Shrihari Ganesh Aney is a
designated senior counsel and former advocate general of Maharashtra
(All of the above articles have
been taken straight from The Hindu. We owe it all to them. This is just an
effort to consolidate opinions expressed in The Hindu in a subject-wise
manner.)
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