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Posted on 01.12.17 by

Euthanasia, Living Wills & the Right to Die : Summary of Arguments

In this case, Common Cause v UOI, a Five-Judge Bench of the Supreme Court was tasked with deciding whether Article 21 of the Constitution includes in its ambit the right to die with dignity by means of executing a ‘‘living will’’. The Bench consisted of Chief Justice Dipak Misra, Justices A.M. KhanwilkarD.Y. Chandrachud, A.K. Sikri and Ashok Bhushan heard the arguments on 10th and 11th Oct.

The Petitioners represented by Mr Prashant Bhushan started by differentiating between ‘passive’ and ‘active euthanasia’. He noted that while the latter refers to an intervention to end one’s life, the former refers to withdrawal of an intervention thereby causing life to end on its own. He emphasized that only passive euthanasia was the subject matter of this petition and that the same has been recognized in various jurisdictions around the world, including by the Supreme Court itself in the case of Aruna Shanbaug v. Union of India (2011).

Mr Bhushan then went on to establish the meaning of ‘living wills’, which is defined as a pre-emptive statement wherein the individual states that he does not want his life to be extended by artificial means in certain circumstances. These wills are recognized in parts of the United States, Europe and Australia.

He contended that forceful administration of medical treatment violated Article 21, as any forcible insertion of tubes into one’s body amounted to assault and battery under the IPC. He further contended that this type of medical treatment restricted the right to live with dignity of other patients, who might be in more urgent need of medical care.

At this juncture, the Bench raised the point of balancing the obligation of the State to protect life vis-à-vis the absolute right of an individual to abstain from medical treatment. In response, the Petitioners underlined the need for two necessary safeguards: to ensure that the ‘living will’ was an authentic document expressing the true intent of the person, and the presence of a Medical Board to determine the extent of deterioration of the patient’s medical condition. Mr Bhushan also submitted that if the person was conscious, their consent would be the predominant factor; but if the person was unable to express themselves, and if the medical opinion was that they could not be brought back to consciousness, only then would the ‘living will’ be allowed to take effect.

The Petitioners concluded their arguments by stating that since passive euthanasia had been allowed in India, ‘living wills’ must also be allowed as they were corollaries, and inherently co-existed with one another. The Petitioners were supported by various intervening parties which emphasized that ‘living wills’, choice and informed consent all form a part of Article 21.

The respondent, the Union of India, was represented by the Additional Solicitor General Mr P.V. Narsimhan. His primary contention was that passive euthanasia in India should be permitted subject to the approval and authorization by the Medical Board. He declared that it was not up to the individual to decide to end his life but such a decision could only be made by the Medical Board and the individual’s family. He further argued that the binding value of ‘living wills’ differed in different jurisdictions; and although the Government had been willing to draft a bill on passive euthanasia, it had left out the concept of ‘living will’s on the recommendations of the Law Commission Report.

He also contended that a ‘living will’ could potentially be subjected to great misuse and that if a cure was found to an incurable disease after the living will had been drafted then the ‘living will’ would itself be detrimental to the patient. He also emphasized that an important factor to had to be considered by the Court was the social stigma attached to certain curable diseases which might influence persons to write ‘living wills’  leading to further misuse. Throughout the arguments of the Respondents, however, the Bench reiterated that the use of a ‘living will’ would be subject to approval by the Medical Board, which would take into consideration the possibility of curing the disease and other such factors.

The hearing was concluded after the CJI reiterated that the right to die was not synonymous with the right to life but the right to dignified life and the right to die with dignity was a Fundamental Right. This concluded the hearings in this case and judgment was reserved.



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