Right to Die

A petition filed in the Delhi High Court recently sought to prevent a Noida-based, 48-year-old man from travelling to Switzerland, where euthanasia is legal. The petition—which was later withdrawn—was filed by a Bangaluru-based woman who said that she was a close friend of the man who is suffering from Chronic Fatigue Syndrome (CFS) since 2014.

The petition though withdrawn—as the petitioner said in the Court that her friend was deeply traumatised after hearing about the plea, and the purpose of the plea may go in vain if proceeded—however again raises questions over Euthanasia as a method, which has been an issue of debate, worldwide, and people have put a question mark in terms of its morality, ethicality and religious inappropriacy.   

It was stated in the petition that CFS is a complex, debilitating, long-term neuro inflammatory disease which is in the early stages of research. The petition added that symptoms of her friend’s condition surfaced in 2014 and his condition deteriorated over the past eight years, making him bed-ridden and able to walk just a few steps inside his home.

According to the petition, her friend has decided to go for euthanasia through Dignitas, an organization in Zurich, Switzerland, which provides physician-assisted suicide and had already travelled to Zurich for the first round of psychological evaluation in June 2022. It was claimed in the petition that according to the information received by the petitioner, her friend’s application was accepted by Dignitas, his first evaluation was approved and he was awaiting the final decision by the end of August 2022.

The plea further sought directions to the centre through the Ministry of Health and Family Welfare to constitute a medical board to examine his medical condition and also provide necessary medical assistance to him, while claiming that he had made false claims to the authorities for getting travel permission. It added that other family members and friends would suffer irreparable loss and hardship if the plea to halt his travel was not allowed as the man is the only son of his parents, who are in their seventies. The plea also asked the Union government not to grant emigration clearance to the man for travelling to Europe for euthanasia.

It was mentioned in the petition that the man was undergoing a method of treatment called Fecal Microbiota Transplantation at the All India Institute of Medical Sciences for his condition, but could not continue in the pandemic situation due to donor availability issues.

There are various types of euthanasia. In passive euthanasia, a patient’s life is brought to an end indirectly by cutting off life-sustaining support systems like ventilators or feeding tubes. In active euthanasia or aggressive euthanasia, the patient is put out of misery by active means. Then, there is voluntary euthanasia which takes place with the consent of the patient while involuntary euthanasia is administered without the consent of the patient. It can be involuntary against the patient’s wishes or non-voluntary without consent, but the wishes are unknown, like when the patient is in a coma and unconscious. Self-administered euthanasia is when the patient is the own administrator of the death. Other-administered euthanasia is when a person takes the help of another person like the doctor to administer the means of death.

 The case related to euthanasia that made headlines in India was that of Aruna Shanbaug, a nurse working at the hospital in Parel, Mumbai. On November 27, 1973, she was strangled and sodomised. The deprivation of oxygen had left her in a vegetative state ever since. On behalf of Aruna, her friend, Pinki Virani, a social activist, filed a petition in the Supreme Court arguing that the “continued existence of Aruna is in violation of her right to live in dignity”. The Court rejected the plea to discontinue Aruna’s life support, but issued a set of broad guidelines legalising passive euthanasia in India.

The guidelines were that a decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient. Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires the presence of two witnesses and a countersign of a First Class Judicial Magistrate, and should also be approved by a medical board set up by the hospital. The Supreme Court’s decision to reject the discontinuation of Aruna’s life support system was based on the fact that the hospital staff who treated and took care of her did not support euthanizing her.

On February 25, 2014, while hearing a Public Interest Litigation filed by NGO Common Cause, a three-judge bench of the Supreme Court had observed that the judgment in Aruna Shanbaug case was based on a wrong interpretation of the Constitution bench judgment in Gian Kaur vs State of Punjab. The Court observed that the judgment was inconsistent in itself as although it observes that euthanasia can be allowed only by the legislature, it goes on to lay down guidelines on the same. Therefore, the apex court referred the issue to a Constitution bench which was to be heard by a strength of at least five judges.

 On March 9, 2018, the Supreme Court legalised passive euthanasia by means of the withdrawal of life support systems to patients in a permanent vegetative state. It is a landmark law which places the power of choice in the hands of the individual, over government, medical or religious control which sees all suffering as destiny. A five-judge bench of the top court, headed by then Chief Justice of India Dipak Misra, and comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, issued guidelines in recognition of a “living will” made by terminally-ill patients.

 The top court specified two irreversible conditions to permit Passive Euthanasia Law in its 2011 Law:

• The brain-dead for whom the ventilator can be switched off.
• Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-managing palliatives be added, according to the laid down international specifications.

The Supreme Court declared through a five-judge Constitution bench that if strict guidelines are followed, the government would honour living wills, allowing consenting patients to be passively euthanized if the patient suffers from a terminal illness or is in a vegetative state. According to Section 115(1) of the Mental Healthcare Act, “any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.” Section 309 of the Indian Penal Code criminalises attempted suicide.

A five-judge bench headed by Justice JS Verma in Gian Kaur vs State of Punjab in 1994, while overruling the two-judge bench decision in P Rathinam vs Union of India, which had struck down Section 309 of the Indian Penal Code (attempt to suicide) as unconstitutional, had held that both assisted suicide and euthanasia were unlawful. The bench stated that the right to life did not include the right to die.

Forms of active euthanasia, including the administration of lethal compounds, are legal in a number of nations and jurisdictions, including Luxemburg, Belgium and the Netherlands, as well as the US states of Washington and Oregon. Australia became the first country to legalise euthanasia by passing the Rights of the Terminally Ill Act, 1996. In 2002, Netherlands became the first country in the world to legalise both euthanasia and assisted suicide. In Canada, patients have the right to refuse life sustaining treatments, but they do not have the right to demand for euthanasia. Switzerland is the preferred choice for many seeking euthanasia, though the country has recently tightened its suicide laws. 

The most recent case involving Dignitas was that of Mark Fleischman, who owned the legendary New York nightclub Studio 54. He died by assisted suicide in Switzerland, his former business partner said. Fleischman became ill in 2016 and was left unable to walk or do many things for himself, but said doctors had not been able to diagnose his condition. He died from assisted suicide at the Dignitas clinic near Zurich. 

—By Shivam Sharma and India Legal Bureau