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Insights into Editorial: The will to die — on ‘living wills’

Insights into Editorial: The will to die — on ‘living wills’


The Chief Justice, heading a five-judge Constitution Bench, was responding to a debate on when exactly a person’s Living Will’ or advance directive for end-of-life medical care should take effect.

The court is hearing a petition by NGO Independent Thought to legalise euthanasia and the concept of ‘Living Will’.

Bench says it would lay down guidelines for drafting living wills and how it can be authenticated. It has reserved the case for judgment.

Earlier, India has taken the stance of not allowing active euthanasia (where a life ends through the administration of lethal substances). However, it does allow “passive euthanasia” where life support is withdrawn for patients in permanently vegetative state.

What is Living Will?

A living will is a concept associated with passive euthanasia. It is a legal document which allows you to express your wishes to doctors in case you become incapacitated. In a living will, you can outline whether or not you want your life to be artificially prolonged in the event of a devastating illness or injury.

When does Living Will come into play as per five judge constitutional bench?

The bench said the living will come into play only after a statutory medical board gives nod.

  • A person’s advance directiveto withdraw medical care to allow him to die with dignity should take effect only when a medical board affirms that his condition is beyond cure and irreversible.
  • The board must declare that s/he has slipped into a condition that would inevitably and irreversibly lead to end of life.
  • If the board says that s/he could be revived from an apparent hopeless medical condition, the living will would not be taken into account

A certificate from a statutory medical board that a patient’s condition was beyond cure and irreversible, may relieve the close family members and caregivers of a terminally ill patient of the moral burden of making a life-ending decision.

How does an authority ascertain the condition of Living Will?

While reserving its verdict, the court has indicated that it may lay down comprehensive guidelines on operationalizing the idea of living wills. It is suggested framing guidelines to the tune that there should be medical boards in every district, the decision of the board would be final and an advance directive should yield to the board’s decision.

A two-fold test as to when a ‘Living Will’ would come into effect.

  • One, when the medical condition of the patient has become irreversible.
  • Two, when the prolongation of his life can be done only at the cost of pain and suffering which is at a level inconsistent with his advance directive.

What are its implications?

The Supreme Court, in a landmark verdict in 2011, ruled out any support for active euthanasia, but laid down a broad legal framework for passive euthanasia, or the withdrawal of life support subject to safeguards and a fair procedure.

Under U.S. jurisdiction patient autonomy is paramount, and many States have laws allowing advance directives, even the nomination of a ‘health care proxy’ who can decide on behalf of the patient. But the question is whether India should allow same procedure within our nation.

The question is fraught with legal, moral and philosophical implications. The court will have to resolve the question whether the right to life under Article 21 of the Constitution, which according to an earlier verdict does not include the right to die, is being voluntarily waived by a person giving such an advance directive.

Why does government oppose the concept of an advance directive or Living will?

The government, represented by Additional Solicitor General said the legalisation of ‘advance directives’ would amount to waiving off the paramount fundamental right to life enshrined under Article 21 of the Constitution.

The government was opposing the concept of ‘Living Will’ as a principle of public policy. It said the State’s primary obligation is to sustain life and not legalise a person’s wish to die.

The government is rightly concerned that the idea may be misused and result in the neglect of the elderly.  Persons who exercise the right of self-determination should know that there are many under-privileged persons who may be subjected to abuse if ‘living wills’ are legalised.

The government had said the passive euthanasia is the law of the land, with thousands of cases in which doctors withdraw life support after getting the informed consent of the relatives. The government pointed out that the Supreme Court itself, in 2011, issued comprehensive guidelines allowing passive euthanasia in the tragic case of the bed-ridden former Mumbai nurse Aruna Shanbaug which observed that right to live with dignity also includes right to die with dignity, to approve of passive euthanasia.

As part of it, the government is already finalising draft law on passive euthanasia called ‘The Management of Patients with Terminal Illness – Withdrawal of Medical Life Support Bill’.

Way Forward

In the present case, the court may have to draw up stringent safeguards for certifying living wills, preferably by a judicial officer, and lay down the exact stage at which the advance directive becomes applicable.

The court’s observation that it would kick in only after a medical board rules that a person’s condition is incurable ought to be sufficient reassurance for those concerned about its possible misuse.

The present law provides for advance directives regarding treatment of mental illness, so the concept is not new to Indian law. Living wills, if sanctified in law, should come with robust safeguards.