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All you need to know about Euthanasia and ‘Living Will’ in India

 What does Euthanasia mean?

Euthanasia is the intentional killing of an individual for the ultimate benefit of that individual so as to relieve him or her from the pain and suffering. The word euthanasia (‘Eu’ means Good, and Thanatos means Death) has been derived from the Greek language. 


Euthanasia is also known as ‘mercy killing’. It can either be carried out by inducing a poison into the patient’s body or removing his/her life support system (for example a ventilator). Euthanasia, as it ends in the death of a human being, is a widely debated subject. Due to the same reasons, Euthanasia is not legal in several countries, while in a few other countries it is allowed with certain limitations. 


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What are the different types of Euthanasia?

There are two main types of Euthanasia- Active Euthanasia and Passive Euthanasia. The same are explained as follows:

 


1. Active Euthanasia 

Active Euthanasia is also called aggressive or positive euthanasia. The process of Active Euthanasia involves causing the death of the individual by means of direct intervention. This could include a lethal dosage of a drug or a lethal injection. This procedure is a faster procedure to cause death. Human Rights Activists argue that Active Euthanasia is completely unethical and equates to murder. In India, it is argued that Active Euthanasia is against the fundamental Right to Life as guaranteed by Article 21 of the Constitution of India and is a crime under Section 302 or 304, under the Indian Penal Code. 

 


2. Passive Euthanasia 

Passive Euthanasia is also known/called as negative or non-aggressive euthanasia. The process of Passive Euthanasia involves causing the death of a human being by taking away or not providing necessary treatment or equipment or life essentials. These include removal of ventilator/life-support, feeding tube, etc. and intentionally not providing essential medicines or performing necessary life-extending operations required to keep that individual alive. Passive Euthanasia, although more widely accepted/legal in various countries across the world, is a slower process and can even prove to be way more uncomfortable than Active Euthanasia. Distinction has been made between Active and Passive Euthanasia on moral grounds - that it is moral to allow a patient to die but not acceptable to deliberately kill a patient/human being. 


Consult: Top Civil Lawyers in India


Euthanasia can also be categorized as Voluntary, Non-Voluntary or Involuntary Euthanasia as detailed below:

 


1. Voluntary Euthanasia

If Euthanasia is carried out by an express desire and consent of the patient, it is Voluntary Euthanasia. It is when a patient has a choice available to him/her and thereby chooses to end his life so as to put a final end to his/her insufferable pain. 

 


2. Non-voluntary Euthanasia 

If the decision of Euthanasia has been taken by a person (close relative or family member) other than the patient himself/herself, it is called non-voluntary Euthanasia. However, it is important that the patient should not have a mental or physical capacity to make a decision regarding his/her life or death. 

 


3. Involuntary Euthanasia

It is involuntary Euthanasia when a patient’s life has been ended without his/her consent or will to die. However, it is murder if an individual is killed against his/her express consent. 


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Why should Euthanasia be legal or illegal? 

Given below are arguments that are made for and against Euthanasia in several countries, including India.

 


Arguments for Euthanasia: 


It is argued that if an individual/patient is suffering to an extent where he/she can no longer live a life without any pain, it should be okay to relieve him/her from such pain even if it means ending his/her life. If life is not lived meaningfully and without insufferable pain, there is no point to linger it so as to cause discomfort to him/her. Not living is better than being in a vegetative state or in a state of deep pain where carrying out normal day to day activities also becomes impossible. Euthanasia not only relieves the patient from physical pain, but also helps in relieving mental pain. A person should be allowed to choose whether to live or not when his/her life is full of insufferable pain and only depends upon a life-support or other individuals. A person in a vegetative state is also a burden on the patient’s family - Euthanasia relieves the family and gives also them closure.  

 


Arguments against Euthanasia:


It is argued that Euthanasia is immoral and does not value life. One suffers due to their own ‘Karma’ and no human being has the right to take away another human being’s life just because the latter is in pain. There is a lot of room for misuse in Euthanasia. It is neither in sync with medical ethics for nursing, nor is it ethical by societal norms. Euthanasia violates the central tenet of the medical profession. No one should have the capacity to decide someone’s death, not even for themselves. There is no fixed threshold to measure what pain deserves Euthanasia and what doesn’t. 


Some arguments are also only in favour of allowing passive euthanasia and disallowing active euthanasia. Moral distinctions are made and it is stated that passive euthanasia involves letting an individual die, whilst active euthanasia involves ‘killing’ an individual and hence the former proves better than the latter. 


Even though granting of Euthanasia is a rare, difficult and emotionally painful process, it is argued that individuals have the right to live life and even die with dignity. Considering the tough nature of the act and the result, it is a widely debated subject even in India. If you need more information regarding the matter, you should contact a civil lawyer.


 

Consult: Top Civil Lawyers in India

 


Is Euthanasia Legal in India?

In India, only Passive Euthanasia is legal (under strict guidelines) and Active Euthanasia is is considered as a crime. As per the permitted method of passive euthanasia in India, the doctors are allowed to withhold the treatment essential to life for the terminally ill patient. Such an action can be taken only for those individuals that are in a changeless vegetative state (with no chance for recovery). In the year 2011, Passive Euthanasia had been allowed in the landmark case of Aruna Shaubagh who was in a persistent vegetative state after a gruesome sexual assault in the year 1973. This verdict allowed Passive Euthanasia in rarest of rare cases. 


 


Euthanasia by way of ‘Living Will’ in India 


An Advanced Directive or a Living Will can also be made by an individual, consenting to passive euthanasia - which can in turn authorise the withdrawal of life support system if the individual has reached an irreversible stage of terminal illness. Advanced Directive should be executed voluntarily and without any coercion, by an adult of sound mind. It shall be written clearly, without any ambiguity and must state that the medical treatment should be withdrawn or no medical treatment must be administered in order to delay the process of death that may otherwise cause only pain and suffering. It should in clear words indicate the decision relating to the circumstances in which such withdrawal of treatment needs to be resorted to. The allowing of Passive Euthanasia by way of Living Will has been a recent ruling by the Supreme Court in the year 2018. The Living Will has been discussed in detail below:


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A. What is ‘Living Will’?


‘Living Will’ is a document that entails a patient’s wish(es) about how he/she would want to be treated in case they are suffering from a serious illness in the future. The Supreme Court in March, 2018 put out a landmark judgment regarding passive euthanasia, thereby recognising the right to die with dignity as a fundamental right. The principles related to the procedure of execution, guidelines and safeguards to give effect to passive euthanasia in both scenarios, i.e. where the the ‘living will’ or the ‘advance directive’ exists and where it doesn’t, were spelt out by the Apex Court in this judgment. 


In more descriptive terms, ‘living will’ is an instrument with the help of which an individual/patient can express his/her wishes at a time and under such circumstances when they are incapable of making an informed decision (eg. in coma/unconsciousness) regarding how the medical treatment should proceed, its length, etc.


In India, ‘living will’ made by terminally-ill patients for passive euthanasia is recognized. There are several advantages of living wills, including but not limited to the fact that the patient’s human rights are respected, the doctors/medical professionals can take better decisions knowing what the patient wants, and even the family of the patient would not have to take such difficult decisions regarding life and death. 

 


B. Guidelines for a Living Will?


A living will can be legally drawn up only when the following are fulfilled:

1. The individual is an adult and is of a sound mind and in also capable of communicating and understanding the consequences of executing the ‘living will’.


2. It should be made with the individual’s full consent i.e. voluntary and not under any coercion.


3. It must be in writing and should state in clear terms when the medical treatment could be taken away/withdrawn or if any medical treatment to delay the process of death should be given.


4. It must include a declaration which states that the individual who is drawing the ‘living will’ has fully comprehended the consequences of executing this document.


5. Name of a guardian or a close relative (who would have the authority to give or refuse to give consent or withdraw the medical treatment) should be specified on the document.


6. It should also state that the patient would have the right to revoke the instructions and/or the authority mentioned upon the document at any time.


7. The instructions upon the document should be written clearly and there should be no ambiguity.


There could be more than one valid ‘living will’ or advance directive and the most recently signed document would have to be considered as the last proclamation of the wishes of the patient and therefore, this last document will be implemented. 


Consult: Top Civil Lawyers in India

 


C. Procedure to make and preserve a ‘Living Will’ :


1. The document must be signed by the patient/holder of the ‘living will’ in the presence of two (preferably independent) witnesses and also countersigned by the concerned Judicial Magistrate of the first class. 


2. The Judicial Magistrate and the witnesses have to state that the ‘living will’ has been executed with consent, voluntarily and without any force or coercion. 


3. For the purpose of preservation, one copy of this document is preserved at the office of Judicial Magistrate and one copy is forwarded to the registry of the relevant District Court. 


4. The immediate family members of the patient are to be informed and made aware of the execution of the ‘living will’. This responsibility lies with the Judicial Magistrate. 


5. The Municipal Corporation or the Panchayat would also get a copy of the ‘living will’ which will thereafter nominate a competent official who will be the custodian of this document. 


6. The Judicial Magistrate is also required to hand over a copy of the document to the family physician. 

 


D. How to Implement or execute a Living Will :


Since this document is somewhat a deciding factor for the life or death of a patient, it needs a strict transparent procedure in place, for it to be implemented. When an individual becomes severely or terminally ill and even after treatment there is no chance of recovery and when the doctor/physician treating the patient learns about the existence of the ‘living will’, he has to confirm that the document is genuine from the appropriate Judicial Magistrate before acting upon it. 


It is pertinent to get permission from the medical board before executing the ‘living will’. This medical board consists of the head of the treating department and a minimum of three experts with experience of at least 20 years, in the fields of general medicine, neurology, psychiatry, cardiology, etc. The patient would be visited by this board in the presence of the patient’s close relatives and thereafter form the opinion whether to certify or not certify the instructions in the document. 


After this step, if the medical board certifies that the instructions are to be carried out, the appropriate Collector shall be informed by the concerned hospital about the approach. Another medical board would be constituted by the collector and the chairman of this board would then convey the final decision to the Judicial Magistrate before withdrawing the medical treatment that is being administered to the patient. 


The Judicial Magistrate would visit the patient and after the examination of all of the aspects, give authorization to implement the decision of the medical board. 


In those cases where the medical board does not grant its consent to move ahead and execute the living will, the family of the patient can knock the doors of the High Court which will have to constitute a division bench in order to decide the matter. 


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E. Chances of misuse of Living Will?


Despite there being many advantages of the ‘living will’, several legal practitioners and jurists are of the opinion that this concept can be misused. The side of the coin condemning the verdict is majorly of the opinion that the relatives can easily abuse the ‘living will’ causing the patient to die in order to rid themselves of the trouble of caring for the ill patient, in both physical and monetary aspects. They have also argued that it may not be viable as a part of public policy. 


However, to prevent the misuse, a lengthy structure has been built that needs to be carried out before taking the grave step of executing the ‘living will’. The procedure involves expert opinions and consent of medical boards, along with the involvement of the Judicial Magistrate, thereby ensuring that the chances of misuse are slim. 


Certain rights that are the most basic and inalienable in nature, which means that they cannot be taken away, are ensured to the citizens of India by the Indian Constitution. These rights are known as Fundamental Rights and they ensure that the people in the country lead peaceful and dignified lives. These rights include the right of equality before the law, freedom of religion, freedom of speech and expression, right to life, etc. The right to die was not a recognized right in India, however, the Supreme Court declared the right to die with dignity a fundamental right while allowing passive euthanasia in India with its landmark judgment in March 2018. 


The verdict expanded the right to life (Article 21 of the Constitution) to include the right to die with dignity by legalizing passive euthanasia and approving ‘living will’ to provide the terminally ill patients or those in PVS (persistent vegetative state) a ‘dignified exit’ by refusing or stopping life support or continued medical treatment. Justice Chandrachud, while allowing the ‘living will’ for passive euthanasia stated that “to deprive an individual of dignity at the end of life is to deprive him of meaningful existence”


However, active euthanasia is still illegal and cannot be carried out in the country. 


Consult: Top Civil Lawyers in India

 


Which other countries allow Euthanasia?

Euthanasia has multiple and complex legal, moral, and even emotional ramifications and different countries have evolved different treatments of the said factors when it comes to Euthanasia. Several countries disallow Euthanasia on humanitarian grounds since it involves an individual’s death, that too assisted by other individuals. A lot of the countries that have allowed Euthanasia, have allowed it with many conditions. 

 


The Netherlands became the first country in 2002 to legalize both euthanasias and assisted suicide under strict conditions. The law codified a 20-year-old convention to not prosecute doctors who have committed euthanasia in specific cases and under specific circumstances. 


Belgium legalized euthanasia in 2002. 


Canada - Voluntary active euthanasia allowed to individuals above 18 years of age only when natural death is progressing. 


Columbia legalized euthanasia in 2015. 


USA- Only some forms of passive euthanasia are legal that too in some states only. 


In countries such as Australia, Israel, the UK, Turkey, all forms of Euthanasia are illegal. 

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