Law

Before Hailing SC Verdict on Passive Euthanasia, We Must First Address Its Flaws

A 'living will' is a privilege which only the educated can avail. The provision of passive euthanasia in India, then, becomes exclusive to the educated, if not the elite.

A five-judge bench of the Supreme Court recently legalised passive euthanasia and issued guidelines in recognition of  “living will” made by terminally-ill patients. The judgement has been hailed for its far-reaching impact on Indian society. It may be worth mentioning here that though the five judges were of different opinions on the matter, yet they were unanimous on allowing a ‘living will’ to terminally-ill patients.

As a surgeon who has been treating patients with bone cancer for the last 15 years, I have seen innumerable patients die (and survive) and therefore have a different perspective on the judgement. I believe that death has an inevitability and amorality of its own. The Supreme Court judgement has in a sense ascribed morality to death by bringing in human intervention.

Paul Kalanithi, in his bestseller When Breath Becomes Air, has written, “But knowing that even if I’m dying, until I actually die, I am still living.” For physicians who observe the dying from a close quarter, nothing could be truer. The process of life is not over till it ends. Whether this judgement is bound to change that perception or not is something we will have to wait and see.

A ‘living will’, which allows one to choose death, is a privilege which only the educated can avail. In a country which is riddled with ignorance and illiteracy, who can make such a ‘living will’ is no secret. Thus, in a sense, the provision of passive euthanasia in India becomes exclusive to the educated, if not the elite.

The poor and illiterate may value faith above reason and not even consider exercising the option of euthanasia. The judgement has drawn blood from similar cases in countries like the US and Australia – nations we differ from greatly. To believe that we can emulate their legality in a contentious issue like euthanasia is not just difficult but also outrageous. Thus, for many of us who treat terminally sick patients, the judgement appears blemished as it bestows death (through passive euthanasia) upon some while ‘actively’ denies it to others. For a layman like me, any law or rule should be beyond the precincts of poverty and ignorance of a social order, and if it cannot look beyond this distinction, then the law needs a serious re-think.

It is also important to realise that the spectrum of something as certain as a ‘terminal’ illness or even a vegetative state is highly broad. As physicians, we see patients come out of their terminal states to lead a normal life. And to assume that this is uncommon is unaffordable frivolousness.

Thus, the premise of using passive euthanasia in terminal conditions as allowed by the Supreme Court judgement can be easily misused by doctors, kin and even by the patients. This is something which would need constant evaluation by the treating physician, free from the diktats of the law. This for me is a critical flaw in the judgement and will raise a storm once fully operational in our society.

Supreme Court of India. Credit: Reuters

A brief review of healthcare services is also a must before we wholeheartedly accept the concept of passive euthanasia as interpreted by the court. It may be noted that our healthcare facilities are among the poorest in the world. Most of passive (and active) euthanasia across the globe is practiced by hospice and palliative care specialists. The concept of hospice services (which are end of life services within a medical or home setup) is practically nonexistent in India. In the absence of well-organised hospice services in most government and private hospitals, death will not come easy and I am sure it won’t be a simple choice to die in the absence of a comprehensive service which can guarantee a decent death to those willing patients who will choose passive euthanasia.

In an interesting point made in the judgement, it is mentioned that:

“it is to be borne in mind that passive euthanasia fundamentally connotes absence of any overt act either by the patient or by the doctors.”

This is interesting because it raises a question of morality versus legality on part of the doctor who will preside over the death of a willing patient. Doctors are bound by acts of commission or omission which should be in tune with patient’s welfare. The intent of treatment is defined through our acts of omission or commission, which should help the patient to get better.

For example, what should a doctor do in the case of a dying patient on a ventilator who had made a living will? By the words of the judgement, the doctor is not allowed to administer a lethal injection (active euthanasia). To slowly withdraw life support would mount to an act of commission thereby raising significant questions of morality and will be against the legal words of the honourable court. The Supreme Court judgement is not clear in defining the permissible acts of omission in such cases of passive euthanasia. This grey area leaves dangerous space for manipulation and even murder.

The argument on euthanasia is always on moral grounds, of right versus wrong, murder versus suicide. Judgements like the one by the apex court represent the traits of an evolving society. We are surely evolving as a society but at the same time, we retain our century-old traits including evils like poverty, ignorance, superstition and caste. Thus, extra care is needed to blindly applaud verdicts like the one on passive euthanasia. We are a complex society entrenched in our past and living in a promised future.

To accept evolution without losing one’s tail would be the most horrendous mistake of advancement. For passive euthanasia to be seriously considered as an option in a country like ours, we need to keep in mind the words of Immanuel Kant, the proponent of principles of ethics which form the basis of medical ethics too. He argued that morality can’t be based on happiness; moral principles could be derived from practical reason alone.

Shah Alam Khan is at the department of orthopaedics, All India Institute of Medical Sciences, New Delhi. The views expressed in this article are personal.

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