First published at DailyO on 20th August 2016.
Article 21 of the Constitution, considered as fundamental to all fundamental rights, provides for protection of life and personal liberty. According to the Supreme Court, Article 21 guarantees not only the Right to Life but also a right to dignified life. But does the Right to Life implicitly mean a right to take away one’s own life?
The right to die not only covers euthanasia, but also suicide, assisted suicide and other related concepts. Section 309 of the Indian Penal Code criminalizes attempt to suicide with an imprisonment up to one year and a fine.
Euthanasia is a highly emotional issue and has taken a legal recourse in recent times. In May 2016, the government of India invited suggestions on the draft Bill for euthanasia, titled “Terminally Ill Patients (protection of patients and medical practitioners) Bill.”
In 2006, the 196th report of the Law Commission of India brought the Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2006 but the government did not make any law on euthanasia. In 2008, Jeet Narayan, a laborer from Uttar Pradesh sought euthanasia for his four sons – all crippled and paralyzed below the neck. His plea was rejected by the then president.
During the Aruna Shanbaug vs Union of India case of 2011, the Supreme Court agreed for the first time that passive euthanasia may be practiced on a case to case basis. The court held that patients who are brain-dead, or in a permanent vegetative stage/state, and if doctors have lost all hopes of reviving them, may be allowed to die by withdrawing life-sustaining drugs and life support system.
|Giving right to die is respecting patient’s choice.|
Active euthanasia means deliberately doing something to cause death, whereas passive euthanasia occurs when the patient dies because the medical professionals either don’t do something necessary to keep the patient alive or when they stop doing something that is keeping the patient alive.
In August 2012, the Law Commission again proposed a legislation on passive euthanasia. It doesn’t recommend active euthanasia, which continues to remain a crime under the law.
The recent Bill was drafted to “provide for the protection of patients and medical practitioners from liability in the context of withholding or withdrawing medical treatment including life support systems from patients who are terminally ill”.
The proposed law says that competent patients, including those above 16 years of age who can take informed decisions themselves, can ask the doctor directly to withhold treatment.
The law explicitly states that the doctor, as well as the patient, would be protected from any criminal or civil liability. For incompetent patients, their relative, friend or doctor has to file a case in a high court. The high court is expected to pass a judgment within a month. Before taking a decision, the court would have to take the opinion of three doctors and the wishes of the patient’s close relatives. These three would be chosen by the high court from a panel of doctors.
However, the draft does not give complete clarity on the concept of a living will, “a document in which a person states his/her desire to have or not to have extraordinary life-prolonging measures used when recovery is not possible from his/her terminal condition.” The draft Bill also says that any “advance medical directive (living will) or medical power of attorney executed by the person shall be void, of no effect and shall not be binding on any medical practitioner.”
A living will, therefore, become irrelevant. Also, in cases where a competent terminally ill patient can decide on further treatment, the decision still rests with the doctor. The medical practitioner has to be satisfied with patient’s competency in deciding. This gives too much discretion to the doctor and is a violation of patient’s autonomy.
Doctors unwilling to withdraw life support can take shelter in this provision. The current Bill gives power to 16-year olds to decide on passive euthanasia, whereas 18 is the age of consent for surgical treatment or administration of medicine, and even to vote and drive. Child rights activists are also not too happy with the draft. Enakshi Ganguly of the Haq Centre for Child Rights in Delhi called it “ridiculous” to allow a child to decide something as important as life and death.
Different laws give a different definition of being an adult. We need consistency in our laws regarding age of a major.
Lawmakers in India may also refer to international examples.
In countries like Japan, Canada, Germany, and United States, passive euthanasia is already legal. Albania justifies passive euthanasia if a patient is incapacitated from making the decision to die. In 2009, Luxembourg fully legalized euthanasia, giving the right to die to terminally ill patients who have asked for it more than once.
In 2013, Belgium opened a debate and then voted in favor to extend the administration of voluntary euthanasia to terminally ill children in unbearable pain who are able to fully comprehend the meaning of euthanasia.
India should look into these matters and come up with a concrete solution. There have been suggestions like brain death certification to check the patient’s euthanasia plea. There are also concerns for involving courts to check every plea. Given the number of cases already pending in our courts, we might need special courts or tribunals for this.
While the Bill does talk of providing palliative care for terminally ill patients, irrespective of the decision taken, the facilities for such care are not enough in the country.
India has initiated a national debate and working to enact a separate law on the subject with safeguards to prevent its misuse. The courts have repeatedly asked for it. The media has taken the lead. Elected representatives should follow it, and so should think tanks and civil society leaders. The courts have said that the right to live does not include the right to die by implication, but there can always be a separate right to die.
Patients living in a vegetative state are not only in emotional trauma but they also become a financial burden for families. State’s insufficiency, apathy, and inadequate investment in health become a mockery to “Right to Life”.
Giving right to die is respecting patient’s choice. It also provides an opportunity for organ transplantation before a medically deteriorated stage. Allowing death with dignity to dying persons is the least society can do for them.