India's Supreme Court rules to allow passive euthanasia

Alan Olson
March 11, 2018

On 25 February 2014, a three judge bench had referred the plea for voluntary passive euthanasia to the constitution bench.

Senior advocate Mahesh Jethmalani welcomed the Supreme Court decision on passive euthanasia stating that he believes any individual who is very ill and unable to take care of himself should be allowed to make a decision on his life.

If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the patient or his family members or even the treating doctor or the hospital staff to approach the high court and its chief justice will have to constitute a division bench to decide upon case.

A five-judge Constitution bench presided over by Chief Justice Dipak Misra unanimously declared passive euthanasia can be undertaken with advance medical directive as part of one's fundamental right to live with dignity.

A "living will" is made by a person, in his normal state of mind, seeking voluntary euthanasia in case of terminal illness, if he or she reaches an irreversible vegetative state.

The Court concluded the right to passive euthanasia was upheld by Article 21 of the Constitution of India which declares that no person will be deprived of his life or personal liberty except for procedures established by law.

However, before we understand what the judgment implies for the common man, it is imperative to understand the concept of passive euthanasia and living will. It also laid down the difference between active and passive euthanasia observing that in active euthanasia something is done to end the patient's life while in passive euthanasia, something is not done that would have preserved the patient's life.

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Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.

The document should also specify the name of the guardian or close relative, who in the event of the person becoming incapable of taking a decision, will be authorised give consent to withdrawal of medical treatment. However, the court issued a set of broad guidelines for legalising passive euthanasia in India. A decision for acting on such an advance directive can be taken by the medical board. Active Euthanasia is considered the aggressive form of Euthanasia as it is directly involved with the killing. In 2009, journalist and rights activist Pinki Virani filed a case before Supreme Court, seeking that Shanbaug be allowed to die. In active euthanasia, a patient is put to death through a lethal injection.

It is now legal in India for terminally ill patients to refuse medical treatment.

Passive euthanasia involves stopping medical treatment with the deliberate intention to hasten the death of a terminally ill patient.

The apex court said that chairman of the board nominated by the collector shall convey its decision to the judicial magistrate before giving effect to the decision to withdraw medical treatment to the patient.

It enshrines the right to refuse care, although under strictly controlled conditions.

A person's advance directive meant to die with dignity should take effect only when a medical board affirms that the person's medical condition was incurable and irreversible.

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