Supreme Court allows passive Euthanasia with guidelines, says humans have right to die with dignity

New Delhi: After years of comparing euthanasia with suicide and homicide, the five-judge Constitution Bench of the Supreme Court on Friday delivered a landmark judgment, declaring the right to die with dignity as a fundamental right. It reverses a 1994 judgment by another 5-judge bench declaring euthanasia as “unlawful” and stressing that that the right to life did not include the right to die.

The Bench headed by Chief Justice of India Dipak Misra has now upheld a “living will” for passive euthanasia, holding that the fundamental right to a meaningful existence included a person’s choice to die without suffering. Recognising “living will” or a person’s right to choose death over life support in case of suffering from terminal and irreversible illness, the Court allowed passive euthanasia with strict guidelines. Such a will has to be executed with explicit instructions in advance of the medical treatment when they become terminally ill and no longer able to express informed consent.

Passive euthanasia is entirely different from active euthanasia in which death is brought about by an act like killing a person by giving an overdose of sleeping pills or pain killers. In passive euthanasia, death is brought by omission, by not carrying out any medical intervention to save and prolong the person’s life only when it is the only viable option on noting that all life care interventions fall short of ensuring a better life for the terminally-ill patient, or one who is in a vegetative state.

To prevent misuse of the verdict, the Court framed guidelines to be in force until Parliament enacts a law on passive euthanasia, empowering a family member or a friend to go to the High Court, which will allow withdrawal of the life support on the recommendations of a medical board if passive euthanasia is needed.

CJI Misra detailed how pressure from society and fear of criminal liability led to prolonging a patient’s sufferings, resulting in his/her “undignified death,” stressing that it was time to let go of such shared suffering and face reality. Reading out the judgment, the CJI said though there were four separate opinions of the Bench, all were unanimous that the “living will” should be permitted since a person cannot be allowed to continue suffering in a comatose state when he or she doesn’t wish to live.

Other judges on the Bench that passed the judgment were Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. There are actually four separate judgments running into total 538 pages. The CJI’s verdict running into 192 pages is concurred by Justice Khanwilkar while three others are by Justice Sikri (111 pages), Justice Chandrachud (133 pages) and Justice Ashok Bhushan (99 pages).

The judgment puts India in the league of a very few countries allowing euthanasia. Netherlands was the first country to legalise euthanasia and assisted suicide in April 2002, while Belgium followed suit in the same year. Though euthanasia remains illegal in the US, its five states allow doctors to prescribe lethal doses of medicine to terminally ill.

Though the Supreme Court verdict has come on a PIL by NGO Common Cause filed 13 years ago in May 2005 seeking nod of the country’s highest court to a “living will, the Apex Court had allowed passive euthanasia on March 7, 2011 to Aruna Shanbaug, a nurse lying in vegetative state in the KEM Hospital of Mumbai for 42 years after a brutal rape in 1973. She died in 2015. She could not have exercised the “living will” as she was not in that state to execute it.

The guidelines it framed specify who can execute the “living will” and how the nod for passive euthanasia would be granted by the medical board. A person has been allowed to draft in advance a ”living will” in case she/he slips into an incurable condition. The life support, however, can be removed only after the statutory medical board declares the patient to be incurable. The guidelines say the advanced directive of a terminally-ill patient can be executed by the next friend and relatives of such person, after which a medical board would consider it.

Noted lawyer Prashant Bhushan, who appeared for the petitioners, had argued in the case that when a medical expert suggests that a patient suffering from a terminal disease has reached a point of no return, he or she should have the right to refuse artificial life support – medically referred to as passive euthanasia – to avoid prolonged agony.

A living will is a written document allowing a patient to give instructions in advance about the medical treatment to be administered when he/she is terminally ill or no longer able to express informed consent, including withdrawing life support if a medical board declares that all life-saving medical options have been exhausted. The Centre had opposed the concept of a living will, stating that there was risk of misusing such a provision. And that it may not be viable as a part of public policy.

‘EUTHANASIA’: KEY POINTS

SC has recognised an individual’s right to die with dignity. The landmark judgment arrived on a PIL filed by NGO ‘Common Cause’ in 2005.

In its judgment, the SC adopted the advance directive of the person for permission after a lengthy discussion on how it is followed in many countries as an abundant precaution that the verdict is not misused in any manner.

2011: SC, on a separate plea on behalf of Aruna Shanbaug, had allowed passive euthanasia for the nurse lying in vegetative state at a hospital in Mumbai.

WHAT IS A LIVING WILL: Patients can authorise withdrawal of life-support system if they are suffering from terminal and irreversible illness.

HOW CAN IT BE DONE: By giving explicit instructions in advance.

WHO WILL EXECUTE THE WILL: Authorised relative or friend, subject to SC guidelines which will be operative till a law is put in place.

CONDITIONALITY: A statutory medical board must say that a disease is incurable.

CAN A LIVING WILL BE CONTESTED: Yes, any family member or friend can move the High Court, which will ask a medical board to examine wherever passive euthanasia is needed.

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