In response to a petition by NGO Common Cause, the Supreme Court recently sought the responses from all states and union territories on the need to legalise 'living wills'. The court's action triggered a debate over passive euthanasia, which was legalised by the apex court in 2011 but with strict guidelines to prevent abuse. The 2011 verdict itself had been in response to the plea of activist-author Pinki Virani in December 2009 to grant euthanasia to her friend Aruna Shanbaug, a nurse who had been lying in a permanently vegetative state for 40 years at KEM Hospital in Mumbai. Avantika Bhuyan speaks to Virani about the latest development
Your initial reaction to this development? How has this taken the apex court's 2011 judgement forward?
I am delighted that we Indians get a chance, again, at understanding what 'passive euthanasia' actually means. I thank the Supreme Court for widening the discourse. The last time - when Justice Markandey Katju heard my public-interest litigation as "next friend" for both Aruna and other patients in similar irreversible conditions and gave the judgement-law on passive euthanasia - it was the very first time since 1947 that most people had even heard of the difference between passive and active euthanasia. Generally, it was assumed that the "right to die" was some sort of quick-fix, and therefore a brutal process, because it was confused with active euthanasia. This time, the debate is going to the next step, to that of the living will. It is good because legal literacy on passive euthanasia is a powerful tool in an individual's arsenal.
Could you explain the concept of 'living wills'?
'Living wills' are exactly like regular 'wills'. They can be changed as often as you like while you are of sound mind and body. The safeguards to be taken are equally similar: witnesses, copies of the living will and a legal mind kept in the loop. The difference would be that in a living will, additionally, one would need to verbally inform whoever one trusts of its contents. Obviously, the contents would need to conform to the law of the land. The conditions under which passive euthanasia is permitted are when one is brain dead and when one is in a persistent vegetative state. A living will, created when a person is of sound mind and body, can lay down instructions for, say, when the ventilator should be turned off or feeding stopped. Plus, one can stipulate the period after which the passive euthanasia process is to be initiated - for instance, ventilation should be stopped after 10 days or feed tapered off after six months. These are random time-frames, but the point is the choices are completely those of the person writing the living will.
The Law Commission of India, while reviewing the Supreme Court's decision of 2011, had said: "...for incompetent patients who have not taken 'informed decision', a doctor can take a decision to withhold or withdraw medical treatment if that is in the best interests of the patient…" How are the 'best interests' determined?
The best interests of any patient in any irreversible condition are determined through a living will by the patient before he or she goes into that condition. However, if there is no living will, then the best interests are determined by the closest family members or loved ones or "next friend" in conjunction with the patient's doctors. And both, the patient's near and dear ones and doctors, would do best if they simply put themselves in the patient's place. Ergo, do unto that vulnerable body on the bed what you would want compassionately done to you.
How are the guidelines for passive euthanasia in India different from those in Western Europe or parts of the United States where it is legalised?
Instead of getting into loads of legalese, let me give you an example of the landmark Terri Schiavo case from the US. While Schiavo lay in permanent vegetative state in a hospital for over a decade from 1990, her husband wanted to terminate life support to her while her parents opposed such a move. They went to court against each other. The court ruled in Schiavo's best interests and allowed her feed to be tapered off. An internationally prescribed method was followed and in doing so, Schiavo did not suffer starvation and dehydration and her death was not painful or sudden. Feeding was lessened systematically, painkillers and palliatives were added gradually and she, after horrific years of being both un-alive and unhealthy, legally died in 2005 in the comfort possible under such circumstances. Suffice to say that since we are still understanding passive euthanasia, we have not reached the point that Western Europe or parts of the US have. They view an irreversibly ill patient being forced to linger on as a human rights violation.
