Law on Euthanasia in India
Law on Euthanasia in India. Euthanasia, also known as mercy killing or assisted suicide is no longer a baffling term for Indians today after there have been discussions over it in the Indian Supreme Court while pronouncing the landmark judgment on Aruna Shambaugh in March 2011. Aruna Shambaugh, a nurse at K.E.M. Hospital, Mumbai, was sexually assaulted by a ward boy and remained in a persistent vegetative state for more than 30 years. The Supreme Court laid down certain guidelines as to legalize passive Euthanasia in India but, however, did not allow discontinuing Aruna Shanbaug’s life because the hospital staff taking care of her was not in support of it. Justice Markandey Katju started the judgment with a couplet by Mirza Ghalib: “Marte hain aarzoo mein marne ki, Maut aati hai par nahin aati (They live but with a desire to die… Death arrives, yet eludes them). Law on Euthanasia in India
Supreme Court laid down that any High Court that is approached with the petition for euthanasia must seek the opinion of the committee of three doctors preferably one neurologist, one should be a psychiatrist, and the third a physician nominated by the Bench to study the condition of the patient and also, it must try to give its decision at the earliest. With that, it denied allowing active euthanasia. Apex Court also distinguished between active and passive euthanasia. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection is given to a person with terminal cancer who is in terrible agony. 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, or removing the heart-lung machine, from a patient in a coma. Law on Euthanasia in India. CASH FLOW
Now, when the law for active and passive euthanasia has been settled by the Highest Courts of law, the legal eagle has once again knocked the doors of the Supreme Court to discuss another aspect of Euthanasia, which has never been discussed before that is, ‘Living Will’. Also known as active declarations, it must not be confused with the will.
This term was proposed by an Illinois Human Rights lawyer Luis Kutner in 1969. Just as a person when he dies, directs what must be done with his property after his death in a will, similarly, in the event of his death, he must have the right to direct his medical preferences for the time when he might not be able to deliver his consent. This is triggered when the person has no hope to live further or is made to survive by artificial means like a ventilator. The reason behind this might be that keeping a body alive that is no more capable even of breathing, goes through a painful and gut-wrenching treatment when forced to breathe by means of a ventilator or any other heroic measures.
‘Living will’ in the form of a written document gives clear instructions about the administration of one’s medical treatment when he is permanently ill or unconscious and is not able to communicate his choices and, might prove helpful to his doctors as well as relatives. It would have a legal sanction as the document needs to be notarized and attested by witnesses that it was made out of a person’s free will. The idea seems to have been derived from Robert Nozick’s theory of self-ownership and minimal State. The latter talks about the rights a person has on his own self as he is the sole owner of his body. So, he will only decide as to how he must be treated and even his closest of relatives must not be allowed to give their consent to keep him alive when his body does not naturally allow or most importantly when his advance directives direct something contrary. Also, the theory of minimal state would support this idea as the State must not be allowed to interfere in one’s personal rights over oneself and should only be allowed to perform its duties as “night-watchman” State, a government which protects individuals from force, fraud, and theft, etc. with the help of police and military forces and administers courts of law, and so. Except performing all these duties, the State has no right to impede the personal rights of a person that also include the right to choose his method of treatment when suffering from any severe illness or disease.
This is all about how the subject of ‘living will’ evolved and how it is going to be interpreted. However, this is still not legal in India unlike countries like Illinois, Florida, etc. This is not entirely a debate on Right to Die which was struck down by the Court in P. Rathiram v. Union of India in 1994 but, surely a facet of it which needs to be discussed thoroughly now. A PIL was filed in July, 2014 in Supreme Court by NGO Common Cause and it was argued by Mr Prashant Bhushan on their behalf that even though it is upon Legislature to take necessary steps for any needed or emerging laws after public debates but, enough of public debates had taken place on this subject and still no step was taken by the Parliament in this context. Explaining “living will”, Bhushan argued that a person has the right to refuse a particular treatment that might prolong his agony and when he has no chance to recover. He has a right to die with dignity. It is undoubtedly a complex issue that involves many questions which need to be answered before enacting such law in India as it concerns with legal, social as well as moral aspect of human existence like what is dignified life, who will decide when actually the event of death has commenced, is it not possible that the stance of the person might change after he has written his living will that concerns the most important question of his own life and death and what would happen if tomorrow medical science is able to find a remedy to terminally-ill diseases and so on.
The worst and best thing about law is, it is never stable. We might end up making a law on one issue and another issue in relation to that might be confronting us to be discussed upon. That is what we call ‘evolution of law’. Same has happened with the issue of Euthanasia in India. The Supreme Court had just legalized passive euthanasia and the concept of ‘living will’ has come up before us. It needs to be discussed as per the social, economic and political culture of our country and implemented accordingly.