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Passive euthanasia gets SC nod: Medical board would create hurdles, not smoothen path to peaceful demise

"A calf, having been maimed, lay in agony in the ashram and despite all possible treatment and nursing, the surgeon declared the case to be past help and hope. The animal’s suffering was very acute.

In the circumstances, I felt that humanity demanded that the agony should be ended by ending life itself. The matter was placed before the whole ashram. Finally, in all humility but with the cleanest of convictions I got in my presence a doctor to administer the calf a quietus by means of a poison injection, and the whole thing was over in less than two minutes.

Supreme Court of India. AP

Supreme Court of India. AP

"Would I apply to human beings the principle that I have enunciated in connection with the calf? Would I like it to be applied in my own case? My reply is yes. Just as a surgeon does not commit himsa when he wields his knife on his patient’s body for the latter’s benefit, similarly one may find it necessary under certain imperative circumstances to go a step further and sever life from the body in the interest of the sufferer."

Mahatma Gandhi on the Right to Die with Dignity

For a country that swears by Mahatma Gandhi, it is sad that it has taken almost two decades for India to finally decide that both passive euthanasia and the living will are now legal.

The apex court stated on 9 March 2018, that human beings have the right to die with dignity. It allowed passive euthanasia but wanted to put in place out strict guidelines that will govern passive euthanasia when it is permitted. The order was passed by a five-judge Constitution bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. The judges gave four separate opinions. However, all of them were unanimous that a 'living will' should be allowed. They said that no individual should be allowed to continue suffering in a vegetative state when the person did not wish to continue living.

In fact, the judgment also throws India’s legislators in a very poor light because they could not see the social need for legalising both passive euthanasia and living will. The government has usurped the right to life, without bothering about the means to make life meaningful. Just visit any government-owned hospital as a layperson. See the quality of the medical care you can get.

What is worse, the quality of medical care has worsened over the years. The government allowed the X-Ray machines and its MRI scanners in many its hospitals to remain non-functional, thus allowing fatcats of private clinics make money. It weakened the provisions of charitable hospitals — where poor patients could earlier hope to get treated — leaving people to rely more on expensive and often unaffordable privately dispensed medicare. It reduced the number postgraduate medical courses, thus letting private medical colleges fill the vacuum. It chose not to increase the number of medical seats for a country that was woefully primitive in its doctor to population ratios. And to add salt to the wounds, the legislators sanctimoniously declared that life is holy. Passive euthanasia can be misused. We cannot allow a person to die voluntarily, even if the facilities for decent medicare do not exist.

Hollow arguments

The fact remains that there is nothing that cannot be misused. A scalpel can be used as a knife to kill. Yet it can be used to treat a patient. The same is the story with a matchstick. The same with an axe, a baton, cough syrup, alcohol or morphine.

India’s legislators appear to have forgotten that civilisations become stronger when the list of banned items becomes shorter. Civilisations are known to be mature when they cope with the possibilities of misuse and don’t work through bans. India’s legislators have shown the entire world how shallow their thoughts can be because they love imposing bans at the slightest drop of a hat.

In fact, to understand how good processes can actually help, one has only to look at another piece of legislation — The Transplantation of Human Organs Act 1994 (THOA 1994). This act legalises ‘brain death’, even when heart and lungs are working, (for making removal of organs possible after proper consent). Within a span of six to 24 hours a team of four specialists examine the brain dead individual and certify brain stem death. Thereafter, organs of an individual can be used for transplantation to other waiting patients. Thus the certification process does not take more than 24 hours.

If euthanasia can be misused, so can THOA 1994. A patient in a coma, who is not brain dead, may be declared brain dead by unscrupulous elements in society. The remedy lies in trust, good processes, appropriate safeguards and stringent punishment for any violation of the law.

That is where the present Supreme Court judgment may actually prove to be self-limiting. According to the judgment, the court wants each case of euthanasia to come up before a medical board that the court or the government will set up. Such a board was not required under THOA 1994. Could it be because India’s powerful could benefit from a speedier process when it came to organ transplants? But nobody benefits from passive euthanasia, except the patient and his immediate family. Could this selfish reason be the cause for being generous with the processes of THOA 1994, but not with passive euthanasia?

What is a living will?

The living will is nothing but an advance directive – made legal in many countries. It is a directive to the medical fraternity on what steps to take – or avoid – when the person concerned is in a coma or is unable to expressly spell out the course of treatment that should be permitted for himself. Some countries have another name for it – DNR or Do not Resuscitate)

Assisted suicide at Dignitas
Year Total/year Grand total
1998 6 6
1999 5 11
2000 7 18
2001 50 68

It is based on a simple premise that every mentally competent individual has the right to decide what treatment to accept or reject. Thus even if I have a tumour which could be life-threatening, and I refuse to take the treatment my doctor recommends for me, I am within my right to refuse such recommendations. This right remains undiminished even if I were to die because of my refusal to accept the recommended line of treatment.

But the situation changes when I am not mentally competent to decide or express my decision (e.g. because of dementia, PVS or coma). At that point in time, the state takes over, and the doctors are free to treat me the way they wish. If my relatives and friends protest and refuse the recommended line of treatment, they could be held as abettors in hastening my death.

It is to prevent such a situation that many countries have allowed patients to prepare an advance directive or Living Will. It outlines the treatment a patient will accept or reject in case of inability to express this wish. To give it more teeth, many doctors and lawyers even recommend that in addition to the living will, the person may execute a limited power of attorney appointing a surrogate (relative or friend) authorising him/her to take healthcare decisions on behalf of the person. Thus the advance directive can be a living will and/or durable power of attorney. It authorises someone to ensure that the patient’s wishes are respected even when he is unable to make decisions or express them.

If you look at this logically, the living will and durable power of attorney do nothing more than arming a person with the same rights he had when he was mentally competent and articulate, hence the name advance directive. It asks for nothing more and nothing less.

Now what?

What the country will now have to do is to see if India’s legislators finally come up with a piece of legislation on enabling passive euthanasia.

A court-appointed medical board will not work. It will not work the same way as the stipulations of the Supreme Court after the Aruna Shanbag case did not work. Anybody who wanted to opt for passive euthanasia had to approach the court. Only then would the court direct the person to a panel of doctors. As a result, few cases have been taken up for passive euthanasia since the Auruna Shanbag judgment, even though thousands of cases have been cleared under THOA 1994.

India needs a more humane approach to the right to live and the right to die. Its legislators left the way open for the courts to decriminalise homosexuality and even suicide. Once more the courts have had to step in because the legislature was found wanting.

Can the country get better counsel from its lawmakers?

The author is a senior journalist and an office bearer of the Society for the Right to Die with Dignity.


Updated Date: Mar 09, 2018 18:32 PM

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