Welcome if SC gives legal clarity on euthanasia: Pinki Virani

Reviving the debate on euthansia, the Supreme Court in a surprise decision last week decided to review its landmark 2011 judgment that legalised passive euthansia under specific circumstances. On 25 February, the apex court invited a a five-judge bench to go into all aspects of passive euthansia in response to a public interest litigation (PIL) by an NGO seeking legal recognition for ’living wills’ (An advance directive by a patient giving explicit instructions about medical treatment to be administered when the patient is terminally ill or permanently unconscious). Firstpost spoke to social activist and award-winning author Pinki Virani, whose petition to grant euthansia to her friend Aruna Shanbaug led to the 2011 Supreme Court judgment, about the impact the Passive Euthansia Law has had and what its review it entails. [caption id=“attachment_1413935” align=“alignleft” width=“380”]  File photo of author Pinki Virani[/caption] Excerpts from the interview: What is your reading of the Supreme Court decision to review the landmark 2011 judgment that legalised passive euthansia under certain circumstances? The background to this is that another PIL has quoted the law on passive euthanasia and states that ’living wills’ (which give people a chance to choose how much medical intervention they want in the event of them being unable to state it on hospital beds) should now be made legal (like financial wills are). In response, the Chief Justice of the Supreme Court of India opines that he sees Consitutional inconsistencies between a 1996 judgement and the Passive Euthanasia one of 2011. He adds, “We refrain from framing any specific questions for consideration by the Constitution Bench as we invite the Constitution Bench to go into all the aspects of the matter and lay down exhaustive guidelines in this regard.” Are you disappointed by Supreme Court’s decision to review its earlier judgment? Does the CJI’s statement necessarily indicate that the Passive Euthanasia Law of 2011 will be revoked? The Constitutional Bench has been invited to “lay down exhaustive guidelines”. I welcome all legal clarity. Not only will it help ease the way further for that individual Indian who is in an irreversible medical condition and does not have either ‘state’ (governmental largesse) or ’estate’ (personal funds) but will also go a long way towards legal literacy. Meanwhile, allow me to please enumerate some of the side-good, as it were, which has come from this Law. Since the judgement provides medico-legal clarity on brain-death, the Passive Euthanasia Law has also been instrumental in heightening acuity on organ donations. [Healthy vital organs would get wasted while arguments rage over brain-steam death.] An amendment proposed in Parliament, a few months after the judgement, allows the doctor of the brain-dead patient to inform the relatives about the option of organ donation. Second, post-judgement there was also impetus in the national thought - including in key ministries with stake-holders citing the Passive Euthanasia Law and Permanent Vegetative Status (PVS) - that rules must be relaxed on morphine for the terminally-ill to ease their pain. The government of India has last week allowed for a more humane availability of morphine for those patients in severe pain like PVS, cancer, AIDS and the like. Third, the Passive Euthanasia Law asks that ‘attempt to commit suicide’ be decriminalised; this is being considered by policy-makers in a new proposed mental health law. Fourth, due to the national awareness of PVS due to the Passive Euthanasia Law, the Government of India’s Parliament has also accepted, in its strengthened anti-rape law in March 2013, my recommendations that the law include a “vegetative” clause and the perpetrator who puts the victim in a vegetative state before, during or after sexual assault be categorised as “rarest of the rare”, therefore treated on par with being a murderer. Do you think the SC’s decision to review will have an impact on cases for passive euthansia that come up between now and passing of the final judgment by the Supreme Court? Will this adversely affect the chances for requests for passive euthansia in the meantime? I have consulted Supreme Court Senior Advocate Shekhar Naphade who found the brilliant constitutional provision of me being the “next friend” in the PIL as an Indian and, of course, for Aruna Shanbaug. There is clarity that the Passive Euthanasia Law continues to stand as legal - unless or until it is overturned by the Supreme Court bench or revoked by Parliament - for those in two very specific irreversible medical conditions: Brain-stem death, Persistent Vegetative State (PVS). I must add here that the Passive Euthanasia Law lays down some specifics for relatives wanting to opt for it for their loved ones languishing in intensive care units or on beds. In the case of brain death, life support like a ventilator is somewhat easier to take a decision on, since its the turning off of a machine. It’s the PVS which is much tougher. Doctors need to gauge any existing level of consciousness within the patient, legal minds need to weigh in on it, and then the life-support, which is essentially a feed pipe through the nose or throat, is slowly tapered down. There is an internationally designed and accepted medical manner of slowly tapering off a feed (like in the Terri Schiav case) while adding palliatives, pain-killers and other medicines (like controlled morphine) to ensure that the patient passes away peacefully. This tends to get done after hospitals discharge PVS patients, at home as per medical advice. Some doctors don’t approve of this, some see it as humane. My observation is that it tends to, without generalising, broadly fall into the same differences as doctors who are pro and anti abortion. Passive Euthanasia has been Law for three years now. Patients in irreversible medical conditions have found peace through this humane, compassionate law. I don’t know the number of patients because this is such a private matter, taken at micro-levels all over such a vast country. So I honestly can’t say whether the call for further guidelines will have a current impact. To your knowledge, have there been instances where people have opted for passive euthansia in the last three years in India? In your opinion, has legalising passive euthansia started to have an impact in India? Has the judgment influenced public opinion on euthansia? Yes. Yes. The answer to your last question - there is low knowledge of the Passive Euthanasia Law among even doctors; interestingly, however, young-adults as working professionals appear to be far more informed of it and approve. Two tv channels last week even did a whole phone-in, sms, twitter, tv program recently on the subject in Hindi and Tamil. The level of response to Passive Euthanasia among the young was “good to have the choice”, only one of the older voices thought of irreversible illness as karam bhugto (fate). Even though the 2011 judgement made passive euthansia legal it stopped short of granting it to Aruna Shanbaug… Actually, in the case of my poor, poor Aruna, her “next friend” has been judged by the SC as those who knew her from the time she became a patient. And they have been given the right to approach the Bombay High Court “should they change their mind”.