Opinion Life,death and what lies between
Without any legislative guidance,the Supreme Court has taken a pioneering step on euthanasia but a court appeal and a three-doctor panel might be too high a hurdle for most
On November 27,1973,Aruna Ramchandra Shanbaug,a young nurse,24 years old,at KEM hospital in Mumbai was brutally strangulated with a dog-chain and sexually assaulted by a sweeper at the hospital. As a result of this assault,Aruna suffered irreversible brain damage and came to be in a persistent vegetative state (PVS) for 37 years,with no mental faculties or sense of awareness. Since September 2010,she has been kept alive only by being fed through a nasogastric tube. Abandoned by her family and friends,she has been looked after for over 37 years by the hospitals nursing staff,which has considered her one of their family.
Arunas case would have been forgotten but for the accident of a social activist and journalist Pinki Virani who,claiming to be her next friend, and with the best intentions and out of humanitarian considerations,asked the Supreme Court to save Aruna from further misery by withdrawing the life-support given her. On March 7,2011,the Supreme Court,in a landmark decision bearing Arunas name,made amends for the cruelty with which life and society had treated her,by refusing this prayer to discontinue her life-support,and allowing her to remain for the rest of her life in the tender care and support of the hospitals nursing staff.
In coming to this decision,Justice Markandey Katju and Justice Gyan Sudha Misra gave a pioneering judgment on the subject of terminating the life of terminally sick persons. This is at all times a controversial subject,on which there is no legislative guidance or any authoritative pronouncement of any court in India,till date. The only legislation is the antiquated Indian Penal Code of 1860,which cruelly punishes a person who attempts suicide and those who abet the suicide. In 1996,the Supreme Court held that these provisions of the penal code were legal and that there was no fundamental right to die a decision generally considered retrograde and out of tune with the realities of life.
For the first time in India,the Supreme Courts judgment,written by Justice Markandey Katju,has authoritatively stated that it is lawful to withdraw life-support of a patient in a persistent vegetative state and allow death to take place. This is described as passive euthanasia. On this,the court agreed with this writers opinion as amicus curiae,and disagreed with the opinion of the attorney-general of India,that such a step should never be permitted in law. The court has also opined that it is high time that the offence of suicide in the Indian Penal Code was repealed. On the other hand,the court has forbidden the positive action of putting an end to human life,say by administering a lethal drug. This is described as positive euthanasia. Such an action on the part of the doctors,attendants or the family of a terminally ill person would be a crime.
The law has recognised the principle of self-determination of a person. This permits a person to choose the continuation of a medical treatment or not. What happens when a terminally ill patient is not in a condition to make his own decision? This is the most difficult situation. In such cases,the termination of treatment is to be made considering the best interests of the patient. This decision should be made by the medical attendants who are in charge of the patient,and usually with the endorsement of patients family. In such cases the discontinuance of life-support is not considered to be a termination of life,like cutting a mountaineers rope or severing the air pipe of a deep sea diver. Rather,the question is whether medical treatment should be continued if it only prolongs the patients life,with no purpose.
The unusual feature of Arunas case was that there was no medical opinion holding that her condition was such that the feeding tube should be withdrawn. On the other hand,three eminent doctors appointed by the Supreme Court stated in their report that although she was in a persistent vegetative state,the decision to terminate
life support or not,in Arunas best interests,could be made only by the doctors and nurses of the hospital who had looked after her for 37 years.
In an affidavit,the dean of KEM hospital stated: Not once,in this long sojourn of 33 years,has anybody thought of putting an end to Arunas so-called vegetative existence. Withdrawal should not be allowed as she had crossed 60 years of life and would one day meet her natural end, and that the doctors and nurses and staff of the hospital were determined to take care of her till her last breath by natural process. After this moving statement by the dean of the hospital,the court rightly considered his opinion as most decisive in the matter of the withdrawal of life-support to Aruna. In fact,the court considered the hospital staff to be Arunas real guardians.
For future cases of life-support to be refused or withdrawn,the court has mandated that until Parliament makes the necessary law,the high courts consent should be obtained for each case,assisted by a committee of three reputed doctors appointed by the high court. The court made this provision for fear that the liberty given to doctors and relatives of the patient may be misused. However well-intentioned,this may inhibit and delay necessary and immediate action in genuine cases,and many people across India may not be able to apply to the high court. But overall,the Supreme Court has made an outstanding contribution to humanistic jurisprudence in our country.
The writer,a former solicitor-general of India,was amicus curiae to the Supreme Court in Aruna Shanbaug vs Union of India
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