The Supreme Court on 15 February refrained from passing an order on a plea to legalise passive euthanasia and the right of terminally-ill persons to execute 'Living Will'.
A five-judge Constitution bench, headed by Justice AR Dave said that it was up to the government to take a call on both issues. The bench, which comprised Justices Kurian Joseph, Shiva Kirti Singh, AK Goel and RF Nariman, said:
"The issues of passive euthanasia and Living Will is being considered by the government. However, we may clarify that the pendency of the petition should not come in the way of the authority to take a decision".
"We are not passing any order at this stage," the bench said, while agreeing with the view of the Centre that the court should post the next hearing in July and till then allow a public debate to take place in the Parliament.
Additional Solicitor General PS Patwalia opposed the plea of NGO Common Cause and its advocate Prashant Bhushan that the court should consider and pass an order at least on the limited issue of Living Will, till a legislation is enacted.
He submitted that since the Health Ministry was examining the Law Commission report after which a Bill would be drafted by the Law Ministry, the apex court should defer the hearing and wait till July for the debate to take place.
Bhushan also argued that the issue of Living Will is not the subject of parliamentary debate as it concerns the fundamental right to life guaranteed under the Constitution which also covers the right to die with dignity. When he argued for consideration of the limited issue of Living Will saying that it is given by the terminally-ill persons of sound mind, the bench asked, "would it not be a case where you are permitting a miracle to happen?"
Patwalia cited the example of former Formula One world champion Michael Schumacher - who has been in coma for over two years - saying that his family members are against withdrawing life support in the hope that advancements in medicine will help him return to normalcy.
Dr Kishore submitted that persistent vegetative state did not mean that a person is dead, so the life support system should not be withdrawn. He elaborated that during his 40-year long career as a doctor, he had come across three cases where people have been resuscitated after being in a coma for 19 years.
The bench was hearing a PIL filed in 2005 by NGO Common Cause which said that when a medical expert opines that the person afflicted with a terminal disease has reached a point of no return, then he should be given the right to refuse being put on life support system, as otherwise it would only prolong his agony.
In a recent affidavit, the Centre said it has framed a draft legislation on the issue but would await the apex court's verdict on it.
"Based on recommendations of the expert committee, the Directorate General of Health Services (DGHS) has proposed formulation of legislation on passive euthanasia. The expert committee has further suggested certain changes in the draft bill. The committee has not agreed to active euthanasia since it has more potential for misuse and, as on date, it is prevalent in very few countries worldwide," the ASG had said in the last hearing.
He had submitted that the Law Commission's report favouring legalising of passive euthanasia with certain safeguards is being examined and a bill will be drafted thereafter. The court is awaiting the government's stand in its endeavour to examine a plea to legalise passive euthanasia by means of withdrawal of life support system to terminally-ill patients.
The apex court, on 15 January, asked the government to make its stand clear in a reasonable time. The law officer apprised the bench about the 241st report of the Law Commission which has stated that passive euthanasia should be allowed with certain safeguards and there was a proposed law -- Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practioners) Bill, 2006. He had said his contention will also be based on 6.7 regulation of 2002 in Medical Council of India Act which says that practicing euthanasia shall constitute unethical conduct.
However on specific occasions, the question of withdrawing supporting devices to sustain cardio-pulmonary function even after brain death, shall be decided only by a doctors' team and not the treating physician alone.