By Rabia Mohamed Ismail Abdul Rahim, NUALS, Kochi.

There’s a story of a democratic country I would like to narrate today. India. The Indian Constitution guarantees every individual the Right to Life. THE END.

In our country, this is less of a right and more of an obligation. It can also be called as ‘The Obligation to Live’. India has criminalised suicide and brings euthanasia within the ambit of suicide. The country believes that it is better to support any remaining vestiges of life than to act in a manner which would speed up death. Debates around this topic are incessant, spurred by the Supreme Court judgement in the Aruna Shanbaug case, wherein passive euthanasia was declared to be legal, and guidelines were published to ensure that such an option was not misused. The question arising here is, if Passive euthanasia can be legalised, why shouldn’t ‘Living Wills’ be considered valid?

Passive Euthanasia, the withdrawal of life supporting systems, is distinct from Active Euthanasia, which entails deliberately causing the patient’s death.  A Living Will is a written statement detailing a person’s desires regarding future medical treatment in circumstances in which they are no longer able to express informed consent. It can more or less be described as an Advance Directive for Healthcare and Appointment of Healthcare Representative. This document is invoked when such person is diagnosed with terminal or incurable injury or illness or if he is permanently unconscious, as certified by two physicians. If retained, the person’s opinion on the manner of his/her treatment is sought directly as per law and ethics.  It would make sense to say that, a Living Will is a corollary to Passive Euthanasia.

The recent Supreme Court Judgement on the Right to Privacy, recognising individual autonomy as an aspect of the Right to Liberty has brought some hope to the proponents of the concept of Living Will. As a result of this, on October 10, 2017, Common Cause, an NGO, sought a law to permit passive euthanasia for the terminally ill so that they are allowed to die by withdrawal of life support if the person has made a “living will” to that effect.

The Additional Solicitor General, on behalf of the Centre opposed the concept of a “living will” rejecting the option of life support in case of a terminal illness. The Centre believes that a provision for a “living will” can be misused. However, the government also reassured the Supreme Court of the preparation of a draft legislation legalising the option of passive euthanasia for terminally ill patients with no chance of survival. This draft legislation is also said to be based on the guidelines issued in the Aruna Shanbaug case and the recommendation of the Law Commission, as the Judgement “had become the law of the land and the government has accepted it.” Under the draft Bill also, the High Courts have been given the power to monitor all cases requesting the option of Passive Euthanasia, referred to it by the duly constituted medical board of the State. The Centre also insisted that a living will could be misused and may not be viable as a part of public policy.

Common Cause contended that the “Right to Life” includes right to refuse medical intervention, prolonging life using life-support systems. It was further elaborated by the Counsel that in a country with a massive population like that of India’s, where there are not adequate healthcare facilities, it would be pointless to use up the scarce resources for the terminally ill with no hope of survival. The fundamental goal of medicine is to reduce pain and alleviate suffering and eradicate the agony. In this respect, passive euthanasia can become an extension of medical care, in cases of terminal illnesses and extreme suffering.

The government suggested that it is still left to examine the pros and cons of a ‘living will’, which may not be a good policy as the issue is complex, given the cultural, religious and legal system in India.  The Centre’s resistance to ‘Living Will’ is also due to the Law Commission recommendation which suggested that a Living Will cannot be legal.

Luis Kutner, a human rights Lawyer from Chicago, with the Euthanasia Society of America, was the first to come up with the idea of a Living Will, in 1967. He was the first to write a will. Medical advances, especially those related to intensive care and organ transplantation, evolved with patient education initiatives and consumer rights awareness in the 1960s to the 1980s in the US, and States passed legislation making living wills and advance medical directives valid.

A person who is severely handicapped or is terminally ill should be given the right to choose whether he wants to live or not. This should be regarded as a fundamental right. All patients have the moral and legal right to take their own decisions about recommended treatment under the linked concepts of patient autonomy and informed consent. The execution of Living Will would only relieve the relatives of taking the painful decision of advising doctors to withdraw life support from the patient. Moreover, the Supreme Court is contradicting itself, as on one hand it is allowing passive euthanasia but on the other, it does not recognise execution of a Living Will.

Can advance medical directives be misused? The US, UK, Germany and Netherlands have advance medical directive laws that allow people to create a ‘living will’. Like any other legal tool (contracts, estate wills), they can, but in the 40 years of its use in the US, there are probably only about 10 documented cases of violation. We specifically require special safeguards but making living wills and advance medical directives foolproof is likely to make them unworkable as well. The risk of abuse should not be a deterrent; the focus should be on creating a strong law with safeguards to ensure it is not misused. There is definitely the necessity to debate how such a law would operate. This will help ensure the constitutionally guaranteed right to bodily integrity and autonomy, and to minimise misuse of the law, as every person has a right of self-determination and the right to pass an advanced directive indicating what action should be taken in case of his state of vegetation or unconsciousness.

The Government should look into the concept of Living Wills again, focusing more on the pros, which are undoubtedly more than the cons. By this, let’s hope to realise the ‘Right to Life’ in its truest sense.