To lay down law of life and death, the Supreme Court took the opportunity provided by Pinky Virani in her writ petition seeking permission to end life of terminally ill Aruna Shanbauh, a rape victim lying in vegetative state for 37 years. Disallowing the petition, which means allowing prolonging life of Aruna, the Supreme Court said passive euthanasia could be permitted only when the High Court offers a considered opinion. It also visualized legalizing of passive euthanasia. This reminds that our Parliament is yet to fulfill obligation of enacting a code for terminally ill people like Aruna. Union Law and Justice Minister M. Veerappa Moily went on record saying that the government was examining whether a fresh legislation was required to permit passive euthanasia. The bench of Justices Markandey Katju and Gyan Sudha Misra clarified that until Parliament enacts a law, its judgment on active and passive euthanasia will be in force.
Passive or active euthanasia
The bench explained the terms: “Passive euthanasia would occur when medical treatment is withheld or withdrawn leading to the death of a terminally ill person. Active euthanasia is generally referred to a state where a patient is given a lethal injection or through any other method allowed to die in presence of doctors, while passive euthanasia involves withdrawing the life support system from a patient…. passive euthanasia can be voluntary and non-voluntary. It is voluntary if the patient requests mercy killing”.
The court explained the difference between voluntary and non-voluntary euthanasia. Euthanasia conducted with the consent of the patient is “voluntary euthanasia”, which is legal in Belgium, Luxembourg, the Netherlands, Switzerland, and the U.S. states of Oregon and Washington. When the patient brings about his or her own death with the assistance of a physician, the term “assisted suicide” is used. If euthanasia is carried out on a patient, who is not in a condition to express his or her desire to die, it is called non-voluntary euthanasia. Examples include child euthanasia, which is illegal worldwide but decriminalized under certain specific circumstances in the Netherlands under the Groningen Protocol. In Colombia, the Supreme Court ruled in favor of mercy killing in 1997 and recommended removing penalties over it, but Colombian Congress did not pass any guidelines. If three or four members of family agree, it is legal in Albania. In 1995, Australia’s Northern Territory had approved a euthanasia bill. It went into effect in 1996, but the Australian Parliament overturned the bill the next year. Both forms of euthanasia are illegal in Switzerland; assisted suicide is penalized only if it is carried out “from selfish motives”. Ireland opposed active contribution for ending the life while legalized removal of life support systems. In Mexico, active euthanasia is illegal but since 2008 the law allows the terminally ill to refuse medication or further medical treatment to extend life. Though active euthanasia remained illegal in Norway, it has softened penalties if a caregiver takes the life of someone who is “hopelessly sick” and consents to the act. The Supreme Court of India has allowed passive euthanasia under “exceptional circumstances” it has made clear that active euthanasia is illegal.
Referring to the contentions, Justice Katju wrote: “There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision. We agree with [senior counsel] Mr. T.R. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General [G.E. Vahanvati] that it should never be permitted.”
Next Friend
Deciding who ‘next friend’ is, the Court held: “Aruna Shanbaug's parents are dead and other close relatives have not been interested in her ever since she had the unfortunate assault on her. It is the KEM Hospital staff who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani, who has only visited her on a few occasions and written a book on her. Hence it is for the KEM Hospital staff to take that decision. The KEM hospital staff has clearly expressed their wish that Aruna Shanbaug should be allowed to live.”
Who decides?
While laying down the principles under which the passive euthanasia could be allowed, the Bench did not leave the issue to the relatives or next friends or medical experts’ team but, rightly preferred the High Court to decide it with judicious application of mind. The Bench suggested the High Court could pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person. The High Court should seek the opinion of a committee of three reputed doctors to be nominated by it. The committee should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court which should appropriate orders on the application seeking withdrawal of life support.
Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/137.html
Follow Prof. Madabhushi Sridhar, Professor, Nalsar at http://madabhushi.goforthelaw.com
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