Right to Die : Indian Express

Thou shalt not kill; but needst not strive/ Officiously to keep alive.” Arthur Clough’s famous lines, taken out of context, have been the legitimating thought behind non-voluntary euthanasia. In a landmark ruling in Aruna Ramchandra Shanbaug vs Union of India, the Supreme Court has created a legal framework for passive, non-voluntary euthanasia under very strict conditions. High courts can now entertain petitions to withdraw life support of patients in what is known as persistent vegetative state (PVS). They will follow certain procedural guidelines in ascertaining whether such petitions should be granted. These procedural guidelines require a case to be heard by at least a two-judge bench and include seeking the opinion of a panel of three doctors, consulting relatives but not regarding their view as binding.
The case itself is searingly difficult. The extremes of human nature converge in the judgment: the extraordinary brutality of the crime that put Aruna Shanbaug in a vegetative state meets the quite extraordinary kindness of the KEM hospital staff. The judgment is balanced and clearly argued. It honours existing Indian law that renders active euthanasia and suicide illegal. It merely suggests that attempted suicide should not be criminalised. But in the absence of an elaborate domestic law, it relies on the “persuasive value” of foreign rulings, particularly Airedale NHS trust vs Bland from the United Kingdom. But as in any judgment on a difficult case, more questions will have to be resolved as the guidelines are implemented.
Although the court relies heavily on the Airedale case, it is something of a pity that the court did not provide more guidelines on dealing with issues concerning PVS that have arisen since the case was decided. The determination of when PVS obtains is itself contested. But while the court has set up a process, it can be asked whether it has given sufficient substantive guidelines to high courts. Even those jurisdictions that permit passive euthanasia have different attitudes towards different ways of letting die. Peter McCullagh’s comprehensive study of the medical and legal issues surrounding PVS found that doctors across national jurisdictions have very different attitudes towards two ways of letting die. Some doctors make a distinction between the appropriateness of not treating acute infections and other life-threatening conditions on the one hand, and withdrawal of artificial hydration and nutrition on the other. So the question of appropriate method still remains. Courts will now enter uncharted territory when it comes to PVS.
Second, the ground of the judgment is very narrow, perhaps appropriately so. Although the discussion starts off with references to the right to die with dignity, conceptions of dignity play no role in the argument. The argument does not rest on the proposition that the justification for letting die is to mitigate the suffering of the patient or to honour their dignity. The worry about these arguments is that they open the door for voluntary euthanasia. The argument, in this instance, seems to go like this. Under certain circumstances (PVS), no interest is served by prolonging life and therefore there is no obligation to do so. Why is there no interest? Because it is futile to expect the patient can recover from PVS. The idea of “futility” is deeply complex. But the interesting question is whether the futility standard will be a necessary condition for courts to entertain any euthanasia appeal. Will this, rather than dignity or suffering-based arguments, underlie euthanasia jurisprudence?
Should this also play out in standards that should apply to when we should accept a patient’s own refusal of treatment? The court leaves open the question whether not taking food consciously and voluntarily with the aim of ending one’s life is a crime. But here’s the complication. If it is not a crime, can the state “force feed”? If there is no obligation to prevent death as the court suggests, would force-feeding presumptively count as a violation of rights? The judgment hints rightly that we do not have a unified framework for thinking about these issues.
Third, the judgment reveals interesting attitudes towards the meaning of a patient’s life. The court rules that Aruna’s life not be terminated since the medical staff at KEM hospital are the only ones who can bring a petition in this respect. They are bearing the costs of the treatment and are quite happy to do so. But, more importantly, Aruna’s continuing life has meaning for them. These are powerful considerations. But there is still something disquieting about the fact that PVS cases test the limits of any standard of life that is patient-centred. In PVS cases, usually costs are an important consideration. Where no benefit can come from treatment and the costs are perhaps prohibitively high, life may not be prolonged. Second, someone must wish it prolonged because the existence of the patient, even in PVS, is fraught with meaning. Both of these considerations unwittingly reveal the sense in which the value of life is not intrinsic. It depends, in extreme circumstances, upon costs; and it depends upon whether someone cares for you. When these circumstances obtain is highly variable. Judges cannot be expected to compensate for all the ethical irrationalities of the world. But this case is a stark reminder of how often life is valued, not from the agent’s perspective but from the social valence placed upon it.
The judgment relies on the philosophical distinction between acts and omissions. To be very honest, there is a bit of re-descriptive casuistry at work in applying this distinction to PVS cases — the cause of death is not some underlying disease that is allowed to take its course; the cause is the act of withdrawal. We should be ambivalent about this distinction. For many this distinction leads to an evasion of responsibility. It allows us to get away with the thought that we are not responsible for deaths to others even though our acts could have possibly prevented them. But this distinction is a reminder of our own smallness and finitude. To say that there is no distinction between acts and omissions, and the prohibitions that apply to killing should also apply to omissions, would require us to be more than human. Perhaps those lingering at the edge of life teach us this: we still cannot fully make sense of the ethical structures we inhabit. But in the meantime we should be grateful that the court has at least given a mechanism with plausible safeguards to adjudicate these difficult questions. Few things are more inhuman than not even getting a hearing.
The writer is president, Centre for Policy Research, Delhi

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