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SC Constitution Bench Hears Crucial Arguments On Euthanasia

Supreme Court’s Constitution Bench,  on Tuesday, sought clarifications from the counsel on the legal and philosophical issues in legalizing euthanasia.   Prashant Bhushan, counsel for the petitioner,  Common Cause, submitted that a robust system of certification is necessary to withdraw life support to terminally ill patients.  A person should be free to express in advance that if his or her condition is considered as a terminal state, then the option of putting him or her on ventilator must not be considered.

The Chief Justice of India, Dipak Misra, who heads the five-Judge bench, also comprising Justices A.K.Sikri, A.M.Khanwilkar, D.Y.Chandrachud and Ashok Bhushan, asked whether if there is no legal guardian to decide on whether life support can continue for a terminally ill patient, court’s intervention would be required.

Justice Chandrachud sought to know how to address the philosophical issue involved if an able-bodied person of sound mind has to decide the options when he or she reaches the terminal state.  Does the State have the overriding interest on the individual, not to take his own life, he asked.

Prashant Bhushan asked the bench whether the State can tell a patient suffering from cancer that only chemotherapy or radiation can help, and he or she should not try alternative treatment.

Examining the legal position after the Supreme Court’s judgment in Aruna Shanbaug, he said the result today is that a legal guardian or a medical board can decide whether life support could be withdrawn to a terminally ill patient, but the person suffering from such terminal illness cannot decide.    He justified active euthanasia by saying that a person facing the only option of leading a life with suffering and pain, should have the right decide that he wanted to put an end to life without dignity.  The bench then said that the paradox would be if the person has no sound faculties, to so decide.

The bench then sought to make a distinction between withdrawal of intervention, and the decision not to intervene to prolong the life of a terminally ill person.  Prashant Bhushan agreed that the Medical Board should be competent to take a decision on the withdrawal of the life support system, if the person is not able to decide.  Why should the resources be wasted on a person, whose recovery has been completely ruled out, and is not likely to survive, he asked.

The Additional Solicitor General, P.S.Narasimha, submitted that there are legal consequences, if  passive euthanasia is understood  as inducing the fact of death.  He agreed that the Living Will could be considered as a factor, apart from the medical opinion, in concluding whether life support has to be withdrawn.  ‘There are many variations’, he suggested.  He agreed with Prashant Bhushan that in a robust system of certification, doctors would take correct decision.

The Government seems to be saying that in passive euthanasia, the medical board is free to decide whether life support system can be withdrawn, Prashant Bhushan said, and added that Living Will only tells doctors not to put the person in life support, if he or she is in terminal state.  Medical Board is a sufficient safeguard, the bench suggested.

Arguments will continue on Wednesday.

BACKGROUND

The petition seeks the enactment of a law on the lines of the Patient Autonomy and Self-determination Act of the USA, which sanctions the practice of executing a “living will” in the nature of an advance directive for refusal of life-prolonging medical procedures in the event of the testator’s’incapacitation.   The matter was first disposed of on 25 February 2014.

While disposing this of in 2014, the Supreme Court did not pronounce any order on the specific prayer made in the petition, but invited a Constitution bench to resolve the inconsistencies between the Division Bench judgment in Aruna Shanbaug (2011), which allowed passive euthanasia under certain safeguards, and the Constitution Bench judgment in Gian Kaur (1996), which held that the right to life does not include the right to die.

Another Constitution bench had earlier sought the Centre’s response on living wills.  The Government sought time to consider the report of the Law Commission reports Nos.196 and 241 on the issue, in order to prepare a Bill to facilitate passive euthanasia.

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