Opinion Going gently into that good night

Explaining this concept further,the court commented that if the person is allowed to die by not administering life-saving drugs or some other type of mechanical or technical support,it can be deemed to be passive euthanasia. But administering lethal drugs that would induce death would be active euthanasia. Upholding a person’s right to refuse treatment,the court validated the principle of self-determination or informed consent to passive euthanasia. The court clarified further that informed consent can be given in advance,through the concept of a “living will” made at an earlier point of time while the person is in full control of all faculties,an idea which is more common in countries like Canada.

The court explained that in passive euthanasia,the question is not whether it is in the best interest of the patient that s/he should die. Rather,the question is whether it is in the best interest of the patient that her life should be prolonged by the continuance of life-support treatment. This opinion must be formed by a responsible and competent body of medical persons in charge of the patient. However,fearing misuse,the Supreme Court has restrained the right of family members,doctors and “next friend” to make the choice of passive euthanasia on behalf of a terminally ill patient,and has directed that the permission must be sought from the high court in its capacity as parens patriae (guardian of an incompetent person) on a case-to-case basis,examining the facts and circumstances of each case.

The fear of misuse by greedy relatives who might resort to this remedy and withdraw life-saving support,or the anxiety that this provision might aid husbands to cut short the medical treatment of their wives suffering from curable ailments,is real. Hence the case-to-case approach is necessary and appropriate to separate the grain from the chaff.

While being sensitive to the needs of the terminally ill,why did the court reject Virani’s petition filed on behalf of Aruna on a note of compassion,to bring to an end her suffering? Aruna has been in a vegetative state since the day she was brutally sodomised and strangled 38 years ago,causing irreparable brain damage.

The court held that though the efforts of Virani,who had written a book on Aruna’s suffering,needed to be applauded,she could not be deemed the “next friend” and hence did not have locus standi to plead on her behalf for her death. This power to petition for her death,the court declared,vests squarely with the medical and nursing staff of KEM hospital,who have been caring for Aruna through these years with utmost dedication; at the appropriate time,it is they who will have the right to plead for mercy killing on her behalf. Through this,the court elevated the status of the primary caregiver as “next friend”,vested with powers of decision-making on behalf of their ward of life-and-death magnitude. This is in recognition of the selfless service the hospital provided Aruna,even while her own biological family abandoned her.

Though the writ petition could have been dismissed at the preliminary stage,as no ground of violation of a fundamental right was made out,the Supreme Court opted to examine the issue at length due to the growing societal concern over euthanasia and set certain guidelines for future cases. The judgment will have far-reaching implications and will bring some respite to families who do care for their loved ones but lack the crucial financial resources to meet the prohibitive costs of privatised medical care,and save the terminally ill from a tortuous and lingering death. Unless the state provides free medical aid to the poor and marginalised,mere moral pontification about the divinity enshrined in the right to life is of little solace to the families of terminally ill people.

The writer is a women’s rights lawyer