SC's verdict on Passive Euthanasia: Won't Active Euthanasia be better?

Samarjit Kambam *

"Thou shalt not kill but needst not strive, officiously, to keep alive" – Arthur Hugh Clough

The writer had previously written an article expressing his views on 'Euthanasia' aka 'Mercy Killing'. Some years back, the word "Euthanasia" was perceived as a taboo or a word comprised of gross and gore that struck fear to the people. Now, Euthanasia is gaining more and more momentum in many countries thereby getting it legalised with Netherlands as the harbinger followed by other nations such as Belgium, Colombia, Luxemberg and Canada even though the first case of Euthanasia took place in Australia. It may be hard to absorb but Euthanasia was practiced years ago in Buddhism and Jainism also.

In a landmark verdict, the Supreme Court on 9th March 2017 declared Passive Euthanasia and the right of persons, including the terminally ill patients with no hope for cure to give advance directives to refuse medical treatment permissible.

A Constitution Bench led by Chief Justice of India Dipak Misra, in three concurring opinions upheld that the fundamental right to life and dignity includes right to refuse treatment and die with dignity. The top court said that directions and guidelines laid down by it and its directive shall remain in force till legislation is brought on the issue.

The bench observed that a person cannot be allowed to continue suffering in a comatose/non curable terminal state when he or she doesn't wish to live. The verdict came to the limelight as per a petition seeking recognition of 'living will' made by terminally-ill patients for Passive Euthanasia.

It empowers a person of sound mind and health to make a living will specifying that in the event of him/her slipping into a terminal medical condition in future, his/her life should not be prolonged through life support system. The person concerned can also authorise through the will any relative or friend to decide in consultation with medical experts when to pull the plug.

On 7th March 2011 also, the Supreme Court of India legalised passive euthanasia by means of the withdrawal of life support to patients in a permanent vegetative state. The decision was made as part of the verdict in a case involving Aruna Shanbaug, who had been in a Persistent Vegetative State (PVS) until her death in 2015 but was not enacted as an Act in the Indian Constitution due ambiguity of the Legislature and the Executive on the issue.

Euthanasia has remained a burning issue with multifaceted opinions coming from different sections of people throughout the world since a very long time. Euthanasia comes in various forms – Passive, Active, Assisted Suicide which is quite similar to Active Euthanasia, Voluntary, Involuntary etc.

Passive Euthanasia is a practice wherein the patient dies because the medical professionals either don't do something necessary to keep the patient alive such as switching off life-support machines, disconnecting a feeding tube, not carrying out a life-extending operation, not giving life-extending drugs with non-treatment not seen as cause of death with the patient understanding to have died due to the underlying conditions etc., while Active Euthanasia is the practice wherein the medical professionals deliberately do something that causes the patient to die abruptly and painlessly after consent of willingness is taken from the patient.

In Assisted Suicide, a terminally ill patient of sound mind who has six months or less to live are given lethal dose of medication which is to be administered by the patient himself. Assisted suicide is legalised in Vermount, Montana, Oregon and Washington and has been declared Constitutional Rights in their respective countries.

Life is priceless and ending it is not a happy scene for anyone, even difficult is the situation of the near and dear ones. However, seeing a dear one in extreme pain for a period of time which seems unending and when the chances of revival is near to none, Euthanasia comes as a boon for alleviating the patient's pain else the patient will keep on suffering and tormenting not just the himself/herself but also their family members.

There are cases where doctors notify the patients that medical treatment would not be able to cure them and the pain and cost of being under life-support system is unbearable to the patient in terms of pain and agony and his family in terms of emotional and monetary resources, then the patient should have the right to opt for Euthanasia. The pain of waiting for death to come, knowing that it would come any while, is traumatising and fearful. In these situations, the individual should have the right to decide for himself.

Debates and deliberations have been going on since long time back with some specifying that it is immoral to take away one's life in the name of "Euthanasia/Mercy Killing". Some have the opinion that Life and death are natural processes and humans should not interfere to decide when the life of an innocent should be terminated on any ground and legalising Euthanasia will worsen illegal practices of wrongfully terminating life of elderly people to inherit their property or for other unethical reasons. Many also express their views that unlawful practice will emerge and crimes of practicing Euthanasia on healthy people will take over.

Euthanasia is very controversial because the line of moral difference between 'killing' and 'letting die' is blurred. Many people make a moral distinction between Active and Passive Euthanasia. They think that it is acceptable to withhold treatment and allow a patient to die, but that it is never acceptable to kill a patient by a deliberate act.

Some think that it allows them to provide a patient with the death they want without having to deal with the difficult moral problems they would face if they deliberately kill that patient provided the "living will" of the patient is taken. But some people think this distinction is crap, since stopping treatment is a deliberate act, and so is deciding not to carry out a particular treatment thereby complimenting such practices as acts of murder. So there is no vast difference between Passive and Active Euthanasia, since both have the same result i.e. the death of the patient on humanitarian grounds.

In India Active Euthanasia is illegal and a considered a crime under Section 302 or at least section 304 IPC. Physician assisted suicide is also a crime under section 306 IPC (abetment to suicide) of the Indian Constitution. However, the writer prefers Active Euthanasia over Passive Euthanasia because in Active Euthanasia, the patient dies instantly and painlessly by injection of lethal doses of chemicals such as Sodium Pentothal whereas in Passive Euthanasia, the patient is bound to suffer since the death is not an abrupt one but a gradual one.

In fact, Passive Euthanasia goes against the very ethics of painless death of the patient as withdrawing of life supporting machines and medications will make the patient to suffer for longer duration. The very goal of Euthanasia is to let the terminally ill patient die painlessly within an instant.

However, Passive Euthanasia goes divergent with the very aim of mercy killing. It's more like a torture to the patient because it is "letting the patient to die" not "causing the patient's death". Thus the act of removing life-support is just as much an act of killing as giving a lethal injection.

Many deliberations go on around the world about which option is better i.e. Passive Euthanasia and Active Euthanasia. As per the writer's opinion Active Euthanasia is morally better because it is quicker and cleaner and less painful for the patient.

The general legal position all over the world seems to be that while Active Euthanasia is illegal unless there is legislation permitting it, Passive Euthanasia is legal even without legislation provided certain conditions and safeguards are maintained. A further categorisation of Euthanasia is between Voluntary Euthanasia and Non Voluntary Euthanasia.

Voluntary euthanasia is where the consent is taken from the patient, whereas Non Voluntary Euthanasia is the one where the consent is unavailable e.g. when the patient is in a comatose state before he has given his "will" or is otherwise unable to give consent. That's why experts fear that under-privileged people could be susceptible to abuse when Passive Euthanasia and living wills are legalised in the country.

India's democracy is a beautiful one with many fundamental rights of its citizens such as Right to life, Right to Freedom of Expression etc. Now, it's the right time to include "Right to Die with Dignity" in our Constitution. With many nations in a logjam in deciding whether to legalise Euthanasia or not, India, one of the largest democratic countries in the world surprisingly came up with the issue of promulgation of Euthanasia especially Passive Euthanasia.

As the Acts in the Indian Constitution can be amended from time to time, the inclusion of Active Euthanasia as a crime should be made null and void. Before moulding into an Act, the Supreme Court needs to seriously introspect on whether to give more significance either to Passive Euthanasia or Active Euthanasia. Though many among the populace may abhor Active Euthanasia, the greater portion of the populace will definitely welcome it.

One prime component of Euthanasia of any kind is "Safeguards". Many options should be made available by the Supreme Court by allowing a patient to change his mind or withdraw his decision at any time while he has the capacity to do so or, by specifying who may act as witnesses (at least two) before signing the living will.

The Supreme Court should provide stringent guidelines for prevention of possible misuse by greedy relatives eyeing the patient's property by giving effect to 'living will' and undergoing of Euthanasia by involving multiple medical boards comprising several experts, even judicial officers, relatives and witnesses of the terminally ill patient.

Euthanasia, if fallen into the wrong hands will become a killing machine rather than helping humans to die with dignity. I hope that the Supreme Court removes Active Euthanasia from Act of Crime from the Constitution and legalise it. If so, I will be the first one to give my "will" or "consent" for Active Euthanasia.