MEDIA COVERAGE OF THE SUPREME COURT'S RULE ON PASSIVE EUTHANASIA IN INDIA

When a person ends his life by his own act, it is called "suicide", but to end the life of a person by others though at the request of the deceased is called "euthanasia" or "mercy killing". The Supreme Court of India on 9th March 2018  declared passive euthanasia and the right of persons, including the terminally ill, to give advance directives to refuse medical treatment permissible. 

In three concurring opinions, a Constitution Bench, led by the then Chief Justice of India, Dipak Misra, upheld that the fundamental right to life and dignity includes the right to refuse treatment and die with dignity. The fundamental right to a "meaningful existence" consists of a person's choice to die without suffering, it held. 

The core philosophy underlying the Supreme Court's verdict allowing passive euthanasia and giving legal status to 'advance directives' is that the right to a dignified life extends to the point of having a dignified death. In four concurring opinions, the five-member Constitution Bench grappled with a question that involved, in the words of Justice D.Y. Chandrachud, "finding substance and balance in the relationship between life, morality and the experience of dying". The outcome of the exercise is a progressive and humane verdict that lays down a broad legal framework for protecting the dignity of a terminally ill patient or one in a persistent vegetative state (PVS) with no hope of cure or recovery. In such circumstances, "accelerating the process of death to reduce the period of suffering constitutes a right to live with dignity". 

The core message is that all adults with the capacity to consent "have the right of self-determination and autonomy", and the right to refuse medical treatment is also encompassed in it. Passive euthanasia was recognized before by a two-judge Bench in the Aruna Shanbaug in the year 2011; now the Constitution Bench has expanded the jurisprudence on the subject by adding to it the principle of a 'living will', or an advance directive, a practice whereby a person, while in a competent state of mind, leaves written instructions on the sort of medical treatment that may or may not be administered in the event of her reaching a stage of terminal illness.

Passive euthanasia involves withdrawing life support or discontinuing life-preserving medical treatment so that a person with a terminal illness can die naturally. The court reasoned that burdening a dying patient with life-prolonging treatment and equipment merely because medical technology has advanced would destroy her dignity. In such a situation, "individual interest has to be given priority over the state interest". 

The court invoked its inherent power under Article 142 of the Constitution to grant legal status to advance directives, and its directives will hold good until Parliament enacts legislation on the matter. The government submitted that it was in the process of introducing a law to regulate passive euthanasia but opposed the concept of advance directive on the ground that it was liable to be misused. The stringent conditions imposed by the court regarding advance directives are intended to serve as a set of robust safeguards and allay any apprehensions about misuse.

 The court justified in concluding that advance directives will strengthen the will of the treating doctors by assuring them that they are acting lawfully in respecting the patient's wishes. An advance notice, after all, only reflects the patient's autonomy and does not amount to a recognition of a want to die.

Historically, the euthanasia debate has tended to focus on several key concerns. According to euthanasia opponent Ezekiel Emanuel, proponents of euthanasia have presented four main arguments. First, people have a right to self-determination and thus should be allowed to choose their fate and assisting a subject to die might be a better choice than requiring that they continue to suffer. Secondly, the distinction between passive euthanasia, which is often permitted, and active euthanasia, which is not substantive (or that the underlying principle–the doctrine of double effect–is unreasonable or unsound) and that permitting euthanasia will not necessarily lead to unacceptable consequences. Pro-euthanasia activists often point to countries like the Netherlands and Belgium and states like Oregon, where euthanasia has been legalized, to argue that it is mostly unproblematic.

Other arguments say that people with an incurable, degenerative, disabling or debilitating condition should be allowed to die in dignity. This argument is further defended by those with chronic debilitating illness, even though it is not terminal such as severe mental illness. Most such petitions are filed by the sufferers, family members, or caretakers. The caregiver's burden is huge and cuts across various financial, emotional, time, physical, mental and social domains.

The  Right to refuse medical treatment is well recognized in law, including medical treatment that sustains or prolongs life. For example, a patient with blood cancer can refuse treatment or deny feeds through a nasogastric tube. Recognition of the right to refuse treatment gives way to passive euthanasia.

Euthanasia in terminally ill patients provides an opportunity to advocate for organ donation. This, in turn, will help many patients with organ failure waiting for transplantation. Not only euthanasia gives the 'Right to die' to the terminally ill, but also the 'Right to life' for the organ needy patients.

Most of the publication houses and newspapers like The Hindu, Hindustan Times and Times of India positively covered the Supreme Court judgement, hailing it as a historic and landmark judgement. At the same time, other newspapers and media houses like The Wire, The Print And The Indian Express called upon the need to scrutinize and address the verdict and its implication.

The Hindu Business Line reports that 'the right to die is tough to follow'. An article written by M. Kumar Maiya says, "While the decision to passive euthanize oneself can be left to the patient, the conditions on which this right may be invoked can be left to a medical board. A living will makes sense when coupled with a medical power of attorney and independent third-party monitoring. This will allow for a middle way to consider all the interests at play: the right of the patient, the state's interest in human life, and the interest of the patient's family."

The Supreme Court has taken a bold decision — only time will tell what course it will take. How easy it is for a family to put into action a patient's desire to die depends on how quickly the process of medical/judicial reviews and verifications takes place. If done tardily and with insensitivity (as in such situations, experience tells us), the whole purpose can be self-defeating.

Madhav Khosla, the co-editor of the Oxford Handbook of the Indian Constitution, in one of his articles published in The Print on 23rd March 2018, opines that given the legal framework in India, the distinction to be debated is not one between active and passive euthanasia, but between passive euthanasia and suicide. It is hard to sustain the case for passive euthanasia without decriminalizing suicide. The claim that suicide involves an affirmative, positive action, whereas passive euthanasia is an omission targeted at a "natural" end, is unconvincing and cannot make sense of even primary cases like starving unto death (which involves restraint from eating). 

Further, reasons like autonomy offered in support of passive euthanasia apply equally to suicide.

Gian Kaur bound Common Cause, as both had benches of coequal strength. Ideally, the Supreme Court should have referred the matter to a higher bar to arrive at an outcome where its position on suicide, active euthanasia and passive euthanasia might cohere.

Without that, the court has done its best under the circumstances. However, it is ironic that the law now allows passive euthanasia but criminalizes suicide, effectively meaning that the state decides when we have the autonomy to end our life. The freedom granted by passive euthanasia is to be cherished. Still, it is a reminder that Indian constitutionalism preserves individual liberty in make-do ways rather than through the consistent, broad application of the principle.

In an op-ed article written by Shah Alam Khan, the head of the Department of Orthopedics of All India Institute of Medical Sciences, New Delhi, in The Wire on 01st April 2018, said,

The premise of using passive euthanasia in terminal conditions, as allowed by the Supreme Court judgement, can be easily misused by doctors, kin and patients. This would need constant evaluation by the treating physician, free from the diktats of the law.

The Supreme Court judgement is unclear in defining the permissible acts of omission in such cases of passive euthanasia. This grey area leaves a dangerous space for manipulation and even murder. The argument on euthanasia is always on moral grounds, of right versus wrong, murder versus suicide. Judgements like the one by the apex court represent the traits of an evolving society. 

We are indeed evolving as a society, but at the same time, we retain our century-old traits, including evils like poverty, ignorance, superstition and caste. Thus, extra care is needed to applaud verdicts like the one on passive euthanasia blindly. We are a complex society entrenched in our past and living in a promised future. To accept evolution without losing one's tail would be the most horrendous mistake of advancement. For passive euthanasia to be seriously considered an option in a country like ours, we need to remember the words of Immanuel Kant, the proponent of principles of ethics that also form the basis of medical ethics. He argued that morality could not be based on happiness; moral principles could be derived from practical reason alone.

While the majority of the media has wholeheartedly supported the Supreme Court's order of the legalization and taking into account the Aruna Shanbaug case, the main stakeholders here are also the doctors; where the majority of them do not support it, say that every plea needs to be looked at on a case-to-case basis and say that there is a vast difference between passive and active euthanasia. They argue that active euthanasia has more likelihood of being misused by unscrupulous individuals to attain their ulterior motives and, therefore, may not be approved. The media has tried their best to present both sides from the doctors. 

The other group of doctors feel that the Supreme Court's decision is the right step. They say that it will ease the suffering and mental trauma of the patient and reduce the burden of the cost of treating such patients when the family cannot afford it; it is a good move. It is not as if it is active euthanasia. One is just withdrawing the support system and letting the patient go. Just as every person has the right to life, the person also has the right to die with dignity. It is inhuman to force them to live on life support: It is torture for the person and the family and increases the cost of staying at the hospital. Thus, this decision by the SC needs to be applauded. 

The media has tried its best to cover both the use and the misuse, the pros and cons. In the societal and religious angle involved in this issue, where most of the major religions in India oppose passive euthanasia, viewing it as akin to suicide, not much of the media has covered it. News 18 has reported that in Hinduism, though the act of suicide is considered maha paap (major sin)" and is strictly prohibited, it is the concept of having served "all-purpose" that gains validity under the religion. It is said that Ichhamaran (euthanasia) was extremely common among Hindus for thousands of years.

According to Sunnis and Shias, killing a terminally ill person, whether through active euthanasia (physician-assisted suicide) or passive euthanasia (stopping life support or medicine), is considered an act of disobedience against God. Similarly, Indian Christians, especially the Catholic Bishops Conference of India, are against euthanasia. The Catholic Church forever promotes the sanctity of life. Thus euthanasia is contrary to its teachings."

 

The media coverage could have covered more on the significant hurdles posed by the religious communities, which became very important in the passage of the acceptance of passive euthanasia in the country. Private medical care in India is expensive and often unaffordable. Not everyone can take the expense of keeping a person on an artificial life support system for an extended period. In any case, the person is already dead if it were not for the machines that are working on him. If one removes artificial life support, a doctor's advice falls into a grey area.

There is a reason for the growing demand for euthanasia in the country. It is directly linked to changing social milieu. There are too many old and sick people. Lack of money, time and interest in caring for them, increasing nuclear families and the use-and-throw mentality of the new generation are some reasons. The media could have reported more on the aftermath of this as well.