A week ago, when union health minister Harsh Vardhan said that the government would not rush to legalise euthanasia and called for a national consensus on the subject, he ignited a debate on a highly emotive issue.
The comments by the minister, a qualified doctor, came in the wake of the Supreme Court asking the government on July 16 to come up with appropriate legislation governing euthanasia, something that India does not now have. Health activists and some associations of doctors have also filed intervention applications before the court contending that the law must recognise a person’s right to assisted suicide.
Euthanasia is defined as intentionally, knowingly and directly acting to cause the death of another person who is ill by, for example, giving him or her a lethal injection. Assisted suicide is defined as intentionally, knowingly and directly providing the means of death to another person who is ill so that he or she can use that means to commit suicide by, for instance, giving him or her a prescription for a lethal dose of drugs.
In connection with a public interest litigation petition filed by the New Delhi-based non-profit group Common Cause, a Constitution bench of the Supreme Court asked the government to consider whether it would be just and legal to permit a certain category of people to mitigate their suffering by refusing medical treatment that would prolong their corporeal existence but rob them of the dignity of living.
A three-judge bench that was initially hearing the petition had referred the case on February 25 to the five-judge Constitution bench. Common Cause had filed the petition in 2005.
Right to execute a living will
Contrary to what some people think, the Constitution bench is not concerned with either euthanasia or assisted suicide in this case. It is considering a more limited contention that Common Cause has made in its petition, which is that the court grant an individual the right to execute a living will.
This is the right of a person in sound health to refuse in advance to be medically treated or be kept on life support if he or she becomes terminally ill. If the court recognises the right of an individual to execute a living will, then it can go on to decide whether to grant individuals the right to assisted suicide.
The petition has, however, qualified its contention by saying that the strictest safeguards should govern the right to execute a living will. An expert committee must ensure that a person is not being compelled to resort to this step either out of diminished mental capacity or any other kind of pressure, especially from family members who could be motivated by material considerations.
In the absence of a law governing euthanasia, citizens must rely on two judgements for guidance on the issue. One is the Constitution bench’s decision in the Gian Kaur case of 1996 to hold that only natural death in the course of time is permitted under the law.
The other is the Supreme Court’s decision in the Aruna Shanbaug case of 2011. In that case, the court liberated those in a permanent vegetative state by laying down detailed, mandatory guidelines regarding when it would be legal for doctors and medical personnel to pull the plug.
Aruna Shanbaug had been in a permanent vegetative state for more than two decades when the court passed the judgement. While the court declined to intervene in her case, its general guidelines came into force.
Right to die
In addition to the specific issue about the right to execute a living will, the petition also points out that the Supreme Court's position on a more fundamental issue, namely an individual's right to die, is ambiguous because it has made contradictory statements in its judgement in the Aruna Shanbaug case.
In paragraphs 21 and 101 of the judgement the court held that it had not ruled conclusively on an individual's right to die while looking at the Gian Kaur case, but in paragraph 104, the court said just the opposite, the petition says.
Clarifying this is important because if the court had indeed ruled that an individual had a right to die, then that would have been the law, one that would have allowed euthanasia.
The petition also contends that in the Aruna Shanbaug judgement, the Supreme Court has wrongly interpreted the Gian Kaur judgement with respect to one point. This is a decision made by Britain’s House of Lords in what is called the Airdale case. This decision allowed doctors to take a terminally ill patient off life support when doctors had conclusively established that his condition could not improve.
The petition contends that in the Gian Kaur judgement, the court made only a passing reference to the Airdale case, while in Aruna Shanbaug judgement it stated that it had affirmed the Airdale decision.
A clarification from the court here is also important because that would determine whether the judges are leaving it to Parliament to legislate on euthanasia or are taking a position on the matter by upholding a person’s right to die according to his or her wishes.
A way forward
While hearing the Common Cause petition, perhaps the court can draw inspiration from Britain. There, the House of Lords is evenly split on Lord Falconer’s Assisted Dying Bill, which would allow doctors to prescribe a lethal dose to terminally ill patients judged to have less than six months to live.
While we can debate whether we need such a law, the court could consider adapting sections 24 and 26 of Britain’s Mental Capacity Act, 2005. This grants individuals the right to determine in advance to refuse medical treatment, including one that is life-sustaining, and in the process, grants them the freedom to unshackle themselves from the pain and indignity of dying every day.
After all, if an individual makes an informed and voluntary choice and if we value a person's autonomy, then both law and morality permit no other course of action.
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The comments by the minister, a qualified doctor, came in the wake of the Supreme Court asking the government on July 16 to come up with appropriate legislation governing euthanasia, something that India does not now have. Health activists and some associations of doctors have also filed intervention applications before the court contending that the law must recognise a person’s right to assisted suicide.
Euthanasia is defined as intentionally, knowingly and directly acting to cause the death of another person who is ill by, for example, giving him or her a lethal injection. Assisted suicide is defined as intentionally, knowingly and directly providing the means of death to another person who is ill so that he or she can use that means to commit suicide by, for instance, giving him or her a prescription for a lethal dose of drugs.
In connection with a public interest litigation petition filed by the New Delhi-based non-profit group Common Cause, a Constitution bench of the Supreme Court asked the government to consider whether it would be just and legal to permit a certain category of people to mitigate their suffering by refusing medical treatment that would prolong their corporeal existence but rob them of the dignity of living.
A three-judge bench that was initially hearing the petition had referred the case on February 25 to the five-judge Constitution bench. Common Cause had filed the petition in 2005.
Right to execute a living will
Contrary to what some people think, the Constitution bench is not concerned with either euthanasia or assisted suicide in this case. It is considering a more limited contention that Common Cause has made in its petition, which is that the court grant an individual the right to execute a living will.
This is the right of a person in sound health to refuse in advance to be medically treated or be kept on life support if he or she becomes terminally ill. If the court recognises the right of an individual to execute a living will, then it can go on to decide whether to grant individuals the right to assisted suicide.
The petition has, however, qualified its contention by saying that the strictest safeguards should govern the right to execute a living will. An expert committee must ensure that a person is not being compelled to resort to this step either out of diminished mental capacity or any other kind of pressure, especially from family members who could be motivated by material considerations.
In the absence of a law governing euthanasia, citizens must rely on two judgements for guidance on the issue. One is the Constitution bench’s decision in the Gian Kaur case of 1996 to hold that only natural death in the course of time is permitted under the law.
The other is the Supreme Court’s decision in the Aruna Shanbaug case of 2011. In that case, the court liberated those in a permanent vegetative state by laying down detailed, mandatory guidelines regarding when it would be legal for doctors and medical personnel to pull the plug.
Aruna Shanbaug had been in a permanent vegetative state for more than two decades when the court passed the judgement. While the court declined to intervene in her case, its general guidelines came into force.
Right to die
In addition to the specific issue about the right to execute a living will, the petition also points out that the Supreme Court's position on a more fundamental issue, namely an individual's right to die, is ambiguous because it has made contradictory statements in its judgement in the Aruna Shanbaug case.
In paragraphs 21 and 101 of the judgement the court held that it had not ruled conclusively on an individual's right to die while looking at the Gian Kaur case, but in paragraph 104, the court said just the opposite, the petition says.
Clarifying this is important because if the court had indeed ruled that an individual had a right to die, then that would have been the law, one that would have allowed euthanasia.
The petition also contends that in the Aruna Shanbaug judgement, the Supreme Court has wrongly interpreted the Gian Kaur judgement with respect to one point. This is a decision made by Britain’s House of Lords in what is called the Airdale case. This decision allowed doctors to take a terminally ill patient off life support when doctors had conclusively established that his condition could not improve.
The petition contends that in the Gian Kaur judgement, the court made only a passing reference to the Airdale case, while in Aruna Shanbaug judgement it stated that it had affirmed the Airdale decision.
A clarification from the court here is also important because that would determine whether the judges are leaving it to Parliament to legislate on euthanasia or are taking a position on the matter by upholding a person’s right to die according to his or her wishes.
A way forward
While hearing the Common Cause petition, perhaps the court can draw inspiration from Britain. There, the House of Lords is evenly split on Lord Falconer’s Assisted Dying Bill, which would allow doctors to prescribe a lethal dose to terminally ill patients judged to have less than six months to live.
While we can debate whether we need such a law, the court could consider adapting sections 24 and 26 of Britain’s Mental Capacity Act, 2005. This grants individuals the right to determine in advance to refuse medical treatment, including one that is life-sustaining, and in the process, grants them the freedom to unshackle themselves from the pain and indignity of dying every day.
After all, if an individual makes an informed and voluntary choice and if we value a person's autonomy, then both law and morality permit no other course of action.