Today's Editorial

Today's Editorial - 18 February 2023

‘Living will’ and passive euthanasia

Source: By ANTARA BARUAH: The Print

Recently, the Supreme Court agreed to modify its existing guidelines to make India’s “living will” — a written statement that details a person’s desire regarding future medical procedures — to make it less cumbersome.

During its hearings, a Constitution Bench of Justices K.M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and C.T. Ravikumar pulled up the central government for not making a law on “living wills”. 

The apex court, which had legalised passive euthanasia in 2018 and had held the “right to die with dignity” as part of the fundamental “Right to Life” under Article 21 of the Constitution, said: “Realise one thing. (These are) areas that are meant for (the) legislature to exercise power but it’s not and (instead of) going by this Court’s directions, you are passing the buck.”

The petition by Non-Governmental Organisation Common Cause, which asks for modification of the guidelines for living will/advance medical directive that was issued in the 2018 verdict, has brought the focus back to the two-decade-old debate on euthanasia and the right to die.

So what is active and passive euthanasia and what’s the current view on it, both internationally and in India?

What is euthanasia?

Euthanasia is the act of deliberately putting an end to a person’s life in order to eliminate pain or suffering.

Some ethicists differentiate between active and passive euthanasia. Active euthanasia, or assisted suicide, is the act of deliberately and actively doing something, such as injecting a lethal dose of a drug, to end a person’s life.

The Missouri School of Medicine defines passive euthanasia as “intentionally letting a patient die by withholding artificial life support such as a ventilator or a feeding tube.”

While the Supreme Court first tackled the question of whether the “Right to Life” includes the “right to die” in P Rathinam vs Union of India (1994) and Gian Kaur V State of Punjab (1996), it wasn’t until 2011 that debate gathered steam in its present form — whether a person who’s in a vegetative state could be euthanised.

In her petition before the Supreme Court, activist and author Pinki Virani asked for permission to pull out the life support of Aruna Shanbaug, a nurse who had by then spent nearly 40 years in a vegetative state after she was raped in 1973.  

Aruna Shanbaug and what the SC said

Shanbaug, formerly a nurse at King Edwards Hospital in Bombay, was sexually assaulted at the age of 25. She died of natural causes in 2015. Although the 2011 petition to stop administering life-supporting drugs to her was dismissed, it helped the court come to its SC’s 2018 landmark verdict.

In that case, a Constitution Bench headed by the Chief Justice of India Dipak Misra drew the distinction between active and passive euthanasia.

Active euthanasia entails the use of lethal substances or forces to kill a person, e.g. a lethal injection… Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it, a patient is likely to die,” the court said.

“By rejecting outright the use of active euthanasia to end life through administration of lethal substances, the apex court thereby laid down stringent guidelines under which passive euthanasia would be legally allowed via a high court-monitored mechanism,” the court said.

Where the world stands

Assisted suicide is legal in SwitzerlandAustria, Belgium, Canada, Germany, Luxembourg, the Netherlands, New Zealand, Spain, portions of the United States, and parts of Australia under certain circumstances. Of these nations, Canada appears to be the most permissive, with the country all set to extend its euthanasia law to those living with severe mental health issues.  

After French new-wave filmmaker Jean Luc-Godard died by assisted suicide last September in the Swiss town of Rolle, President Emmanuel Macron announced a “national debate” on life-ending options that include engaging with the possibility of legalising assisted suicide. Currently, a 2016 French law says that doctors can keep terminally ill patients sedated before death but stops short of permitting assisted suicide.

Issue of ‘living wills’ in India

Although the 2018 SC order recognises passive euthanasia, the procedure on living wills has been seen as time-consuming.

Currently, the law states a living will should be signed in the presence of two attesting witnesses and affirmed by a judicial magistrate. In case the executor — that is, the person for whom the will is made — becomes terminally ill, a doctor overseeing treatment is mandated to constitute a board of three experts. 

The experts must be from the fields of general medicine, neurology, psychiatry, oncology, cardiology, or nephrology with at least 20 years of experience in the medical field.  The medical board will decide whether to certify whether to carry out the instructions in the living will. However, this is only a preliminary opinion — once the hospital board grants permission, it asks the appropriate district collector for its sanction.

The collector will form a medical board comprising the chief district medical Officer and three expert doctors. If the board agrees with the hospital’s findings, the decision will be communicated to the appropriate judicial magistrate before the decision is implemented.

While anyone over age 16 can make a living will in India, registering such a will has proven to be an arduous task. It is this procedure that court seeks to simplify. During its hearings, the court has said that the stringent requirements currently needed for the “living will” may not be possible to follow.


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