‘Living Will’ to Die With Dignity

The legend goes that Dharmaraj Yudhisthir told Yaksha that the greatest wonder is that whosoever is born will have to die but nobody wants to believe it. The five-judge constitution bench of the Supreme Court recently delivered a judgment, laden with philosophical conundrums, ethical values, and legal scopes. Many a time it is the same life that becomes burdensome for the person, who is face to face with inevitable death, and also for his/her family members. This judgment has now given the right to people to die with dignity and can write a ‘Will’ of death, saying that if he/she is in the coma or vegetative state, the plugs of life may be pulled off. The poet Alfred Tennyson has said that ‘no life that breathes with human breath has ever truly longed for death.’ But this perception is not always the same at every stage. There comes a phase in life when the spring of life is frozen, the rain of circulation becomes dry, the movement of body becomes motionless, the rainbow of life becomes colourless and the word ‘life’ which one calls a dance in space and time becomes still and blurred and the death comes near to hold it as an octopus gripping firmly with its tentacles so that the person ‘shall rise up never’.

Ernest Hemingway expounded the idea that man can be destroyed but cannot be defeated. Nevertheless, life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration. It is a vexed question whether a person should be allowed to remain in the stage of incurable passivity suffering from pain and anguish or should he/she not be allowed to cross the doors of life and enter, painlessly and with dignity, into the dark tunnel of death that is full of resplendence.

The Court said that the legal question does not singularly remain in the set framework of law or, for that matter, morality or dilemma of the doctors but also encapsulates social values and the family mindset to make a resolute decision which ultimately is a cause of concern for all. There is also another perspective to it. A family may not desire to go ahead with the process of treatment but is compelled to do so under social pressure especially in a different milieu, and in the case of an individual, there remains a fear of being branded that he/she, in spite of being able to provide the necessary treatment to the patient, has chosen not to do so. The social psyche constantly makes him/her feel guilty.

There is always the fear of misuse of Euthanasia because some greedy kith and kin with the help of unethical doctors may accelerate the death of the comatose person. Thus, the Court observed that in an action of this nature, there can be abused by the beneficiaries who desire that the patient’s heart should stop so that his property is inherited in promptitude and in such a situation, the treating physicians are also scared of collusion that may invite the wrath of criminal law as well as social stigma. The medical, social and ethical apprehensions further cloud their mind to take a decision. The apprehension, the cultural stigma, the social reprehension, the allegation of conspiracy, the ethical dilemma and eventually the shadow between the individual desire and the collective expression distances the reality and it is here that the law has to have an entry to alleviate the agony of the individual and dispel the collective attributes and perceptions.

The factum of the case, in brief, is: The petitioner, a registered society, seeks to declare “right to die with dignity” as a fundamental right within the fold of “right to live with dignity” guaranteed under Article 21 of the Constitution; to issue directions to the respondents to adopt suitable procedure in consultation with the State Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients should be able to execute a document titled ‘My Living Will and Attorney Authorisation’ which can be presented to the hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness which may threaten termination of the life of the executant; to appoint a committee of experts including doctors, social scientists and lawyers to study into the aspect of issuing guidelines as to the “Living Wills”; and to issue such further appropriate directions and guidelines as may be necessary.

The execution of a ‘Living Will’ has become a necessity in today’s time keeping in view the prolongation of treatment in spite of irreversible prognosis and owing to penal laws in the field that creates a dilemma in the minds of doctors to take the aid of the modern techniques in a case or not. A comparison has been made between the fundamental rights of an individual and the State interest focusing on sanctity as well as the quality of life. However, it was opposed by the Government of India due to the following reasons among others: (a) Hippocratic oath is against intentional/voluntary killings of the patient. (b) Progression of medical science to relieve pain, suffering, rehabilitation, and treatment of so-called diseases will suffer a setback. (c) Wish of euthanasia by a mentally ill patient/in depression may be treatable by good psychiatric care.

Earlier in Gyan Kaur vs the State of Punjab, the Constitution Bench of the Supreme Court had said that ‘Right to life’ is a natural right embodied in Article 21, but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of ‘right to life’. Adverting to the concept of euthanasia, the Court observed that existence in the persistent vegetative state (PVS) is not a benefit to the patient of terminal illness being unrelated to the principle of ‘sanctity of life’ or the ‘right to live with dignity’. The Court addressed the legal issues, namely, active and passive euthanasia. It noted that such legislation is prevalent in Netherlands, Switzerland, Belgium, U.K., Spain, Austria, Italy, Germany, France and United States of America. An example was cited by stating that if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available is passive euthanasia and similarly, withdrawing the machine where a patient is in the coma or on heart-lung machine support will ordinarily result in passive euthanasia.

Euthanasia is basically an intentional premature termination of another person’s life either by direct intervention or by withholding life-prolonging measures and resources either at the express or implied request of that person or in the absence of such approval/consent. While dealing with active euthanasia the Supreme Court in Aruna Shanbaug said that the euthanasia entails a positive act or affirmative action or act of commission entailing the use of lethal substances or forces to cause the intentional death of a person by direct intervention, e.g., a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia, on the other hand, also called “negative euthanasia” or “non-aggressive euthanasia.

Quoting the Law Commission report, the Court said ‘A hundred years ago, when medicine and medical technology had not invented the artificial methods of keeping a terminally ill patient alive by medical treatment, including by means of ventilators and artificial feeding, such patients were meeting their death on account of natural causes. It is well-settled law in all countries that a terminally ill patient who is conscious and is competent, can take an ‘informed decision’ to die a natural death and direct that he or she be not given medical treatment which may merely prolong life.

The word ‘liberty’ is the sense and realization of choice of the attributes associated with the said choice, and the term ‘life’ is the aspiration to possess the same in a dignified manner. Liberty allows freedom of speech, association, and dissemination without which the society may face hurdles in attaining the requisite maturity. History is replete with narratives how the thoughts of individuals, though not accepted by the contemporaneous society, later on, gained not only acceptance but also respect. The Court further said: ‘Life is precious in itself.’ But life is worth living because of the freedoms which enable each individual to live life as it should be lived. To live is to live with dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfillment of dignity and is a core value which the protection of life and liberty is intended to achieve.’

The Court said that: It will be open to the executor to revoke the document at any stage before it is acted upon and implemented. The Court has set strict Guidelines to prevent its misuse so that the person may be able to die with dignity

‘Living Will’ to Die With Dignity