PASSIVE EUTHANASIA : Centre says ‘no’ to living will

The Central government on Tuesday submitted before a Supreme Court Constitution bench that it is opposed to granting recognition to the 'living will' of a terminally ill patient seeking withdrawal of life support on the ground that it could be misused and may not be viable as a public policy.

A living will is when a person can give consent which allows withdrawal of life support systems if the individual is reduced to a permanent vegetative state with no real chance of survival.

"We have been following the guidelines laid down by this court in Aruna Shanbaug's case and a medical board is the final authority to decide on passive euthanasia, not the living will created by a person," Additional Solicitor General P S Narasimha, appearing for the Centre, said.

The court is considering the prayer of an NGO, Common Cause, which wants that “every person should be able to execute a document like the ‘living will’, so that he or she is not subjected to unwanted medical treatment or unwanted life support system.” In other words, “every person has a right of self-determination and one has the right to pass that advance directive.”

The Centre told the five-judge constitution bench headed by Chief Justice Dipak Misra that a draft bill based on the guidelines for passive euthanasia in the Shanbaug case was under its consideration.

Elaborating on the possibility of abuse of the ‘living will’, the AG said: "If a person is not of sound mind, then he is a not a competent person to make a living will and in that case, it is a medical board which will have to look into the affairs and not the individual. Safeguards have to be there and nothing more could be done," he said.

The bench questioned whether any medical board is permanently constituted to take a call on passive euthanasia. "No, the medical board is not permanently constituted and is set up on case-to-case basis," Narasimha said.

The bench then asked advocate Prashant Bhushan, appearing for NGO 'Common Cause' which is seeking recognition to living will, whether an individual has a right to refuse medical treatment or can the State interfere to safeguard life.

Bhushan said various countries recognise living will made by persons. In India, where resources are so limited, it should be legally acceptable in order to avoid creating a hopeless situation for the middle-class, he said. "Under Article 21 of Constitution, a person has the right to die peacefully without any suffering and therefore he has right to create a living will that when he can't recover from illness, his life should not be prolonged," Bhushan said.

He said it is contradictory that the court allows passive euthanasia but does not recognise execution of living will. Justice Chandrachud then expressed concern over elderly people being treated as a burden by some people and said that safeguards need to be created to avoid misuse, if the living will is recognised.

Bhushan said that forcing prolonged medical treatment on someone who does not want it, amounts to assault and added that passive euthanasia in the Aruna Shanbaug's case was distinct from living wills. The hearing remained inconclusive and would continue.