India's Top Court Legalizes Passive Euthanasia, Living Will

Glen Norman
March 11, 2018

India's Supreme Court ruled on Friday that individuals have the right to refuse or withdraw life saving medical treatment, a decision that is also termed "passive euthanasia".

A living will is a written document that allows a patient with deteriorating health or the terminally ill to choose not to remain in a vegetative state with life support system if he/she goes into a state when it will not be possible for them to express their wishes.

Guidelines issued by the five-judge bench will be in place until the federal government enacts a law on mercy killing or passive euthanasia. "In our considered opinion, advance medical directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity", he said. The Centre, through its draft "Management of patients with terminal illness-withdrawal of medical life support Bill', tabled in Parliament in 2016, had proposed that patients with terminal illnesses with no chance of revival be allowed passive euthanasia".

Noted senior lawyers like Arvind Datar, Colin Gonsalves and advocate Prashant Bhushan said the judgement has "cleared the air" on passive euthanasia which was "long-overdue". "Hence, the Constitution protects the legitimate expectation of every person to lead a life of dignity until death occurs", he said. It is legal in handful of countries namely-Switzerland, Netherland, Canada, certain states in the USA.

The case was brought before the Supreme Court in a petition from non-governmental organization "Common Cause".

The CJI, while reading out the judgment, said that though there were four separate opinions of the bench but all the judges were unanimous that the "living will" should be permitted since a person can not be allowed to continue suffering in a comatose state when he or she doesn't wish to live.

The CJI said though there was no legal framework in India as regards to the advance medical directive, the apex court was obliged to protect the right of the citizens enshrined under Article 21 of the Constitution. "However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured", the court said. Active euthanasia is banned in India.

When the living will or medical directive is produced by the family to the treating doctor, the hospital shall constitute a Medical Board of three doctors of minimum 20 years standing to examine the patient and the feasibility of executing the "living will".

But the judge held that active euthanasia is unlawful.

Let us now take a look at some of the prominent cases in India that has raged the debate around Euthanasia. The doctors in most cases will have to consider a case as that of terminally ill nature hence the living will concept needs to be implemented with the active support of the doctors. "But I suspect that some of the procedures built into the implementation of advanced medical directives may be too cumbersome to be understood by the people who need them".

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