Controversy surrounding ‘good death’ (euthanasia) is indeed one among few that raise their spiky heads at intervals in our life. It is perhaps an issue that will never go away. Whenever it raises its head, we give serious thought to it and then forget it. We send it to oblivion finding no solution in the labyrinth of arguments on either side of the proposition.
The 538-page judgement delivered on 9 March 2018 by a five-judge Constitution bench of the Supreme Court, headed by the Chief Justice Dipak Misra, on writ petition (Civil) no. 215 of 2005 between Common Cause, a registered society, versus Union of India and another, has brought another occasion for pondering over the issue. The bench did an arduous task while coming to a conclusion to give sanctity to ‘living will’ or ‘advance medical directive’. It elicited opinions from the states, union of India, amicus curie, learned counsels and so on.
The bench also did extensive survey of literature, studied prevailing positions on the issue in many other countries and previous judgements of courts to get to the crux of the issue. From their efforts, it can be realised that the Bench was resolute this time to come to a conclusion by way of striking a balance between extant laws, apprehensions that loom large in the human mind and also the growing consciousness in our citizens about the rights of people and duties of a society. It is evident from the fact that though they were concurrent about their conclusion, premises varied. A five-judge Constitution bench penned three judgements.
Literature is replete with arguments in favour of ‘good death’ as well as against it. Arguments in favour of legalising such death are more. Still, arguments against it were so potent that reason more often than not veered to its side.It is perhaps the Hippocratic Oath which sowed the seed of the current controversy. One line of this Oath is ‘I will give no deadly medicine to anyone, even if asked’. This is one of the oft-cited reasons for not allowing euthanasia by medical practitioners. They trace their primary duty to the oath that they swore.
Another factor which warns us to tread carefully is the fear that once euthanasia is legalised, prevention of its misuse is almost impossible. People can be persuaded to choose euthanasia when they do not really want to. Legal safeguards or guidelines are not enough to stop this from happening. The 1990 Remmelink Report commissioned by the Dutch government vouched for the claim of such inevitable slides. It showed how a number of times legal safeguards had been flouted. It is this factor that held back most decision-makers throughout the world from taking a decisive stand.
The Writ Petition was preferred under article 32 of our Constitution. It wanted the Court to declare ‘right to die with dignity’ as a fundamental right and to be brought under the fold of ‘right to live with dignity’. The later right is guaranteed under Article 21 of our Constitution. Thus, it is the issue of ‘dignity’ which is the central point of focus.
There is no gainsaying the fact that all of us want to live a dignified life irrespective of our station in life. To the question when a person wants mercy killing, the offhand answer will be if he/she thinks that his/her life is not worth living as it is not a dignified one. Hence, it is quality of life, on which hinges our choice. This needs to be examined before we can decide the ethicality of any pronouncement on ‘good death.’
When can we say that a life has quality or is worthy of living? In spite of many sufferings in our life we do not solicit mercy death. Rather we make every effort to lessen our sufferings. Arthur Schopenhauer tells us that an expectation of a life of painlessness is actually a will-o’-the wisp. But it is also a fact that some people unfortunately face a situation in life, mostly physical pain, and seek a merciful release. It is a bone of contention whether these people’s lives lack quality.
In the celebrated Aruna Ramchandra Shanbag case, the counter-affidavits filed by Dr. Amar Ramaji Pazare, Head of KEM Hospital, and Dr. Sanjay Oak, Dean of the hospital, described some core issues very succinctly. In a way it was an effort to decide the quality of life. They said though Aruna was in vegetative state, her life was not without quality.
Care was ‘given to her not as a part of duty but as a part of feeling of oneness. This is the finest example of love, professionalism, dedication and commitment.’ On the other hand, quality of life meant something else to petitioner’s (Pinki Virani’s) counsel. For him, life is not mere living but living in health. Health is not the absence of illness but a glowing vitality.
The Constitution bench while allowing legality to advance medical directives, of course with a lot of riders, tried to set some benchmarks for deciding quality of life. However, the moot case is: Is the metaphysics of quality of life so simple? American thinker R. Pirsig made an attempt to excavate the metaphysics of quality of life by way of making distinction between dynamic quality and static quality and thereafter giving importance to dynamic quality. Whether we agree with Pirsig or not is not an issue here. However, it will be agreed that many more discussions on quality of life may make our blurred vision clearer.
If we are taken care of by our near and dear ones, does it imply that our life is not worth living, i.e. quality of life is poor? Is it right to consider some illness as incurable or terminal? What might sound terminal in a poor region of the globe may not be so in another region where advanced technology is available and also affordable. Who is responsible for making the illness terminal? Host of such questions will come to the forefront.
The worth of life ultimately boils down to the search for the meaning of life. But wherefrom comes the meaning of life? The Bench has quoted from ancient Greek thinker Epicurus and considered his view fallacious. For Epicurus, death is nothing on account of its mutual exclusivity with life – when we are alive, death has not come and when death has come, we are not alive.
But this is only one side of the coin. For Epicurus, happiness or pleasure is the alpha and omega of life, and this gives life its meaning. But it is not gross hedonism that he advocated. A careful study of his writing makes us think that it is he who sowed the seed of qualitative hedonism and that is why he talked about bringing moderation in happiness. He defined happiness as absence of pain in the body and of trouble in the soul. A person who pens a ‘living will’ will not definitely be free from trouble in his/her soul for many reasons.
Another thinker, Richard Taylor, opines that meaning of life does not come from without, but from within. This explains why even Sisyphus, an ancient mythical character, can give meaning to his life though he has been cursed to a very boring and repetitious task of taking a boulder uphill. Aristotle, interestingly, wondered, while opposing euthanasia, whether a rational person can properly be said to treat himself unjustly.
Another point that comes to our mind is why courts, Supreme Court as well as High Courts, took so much time in allowing passive euthanasia in the sense of allowing withdrawal of artificial life support system. A little thinking makes it clear that in their change of mind we find a paradigm shift in value-hierarchy system.
When opinions, judgements were given against euthanasia the underlying thought was that life was the supreme good. Other good must come only after life is protected. Now that the Supreme Court has allowed passive euthanasia, it implies that one value system has been relegated to the background and a new one embraced.
In this new order, importance of life has been brought down from the higher rank and has been replaced by individual rights. The Constitution bench, therefore, considered the quality of life as more important than the value of life itself. Abraham Maslow delineated such a value hierarchy.
The Union of India in its counter affidavit, while opposing mercy killing, talked of the tremendous advancement that palliative care medicine had made in recent past. Can this be a reason for not allowing euthanasia (of course including passive euthanasia) is an interesting point.
Peter Ravenscroft, a professor in palliative care medicine of Australia, argued that palliative care tries to improve the quality of a person’s life, even the very last part of life. He says: “I value sitting with dying patients or holding their hands. It reminds me that life is a great mystery and we all share characteristics of being human. We take part in all of life, including dying, but we are not masters of it.”
The bench after considering various views about life and death also upheld the view that life is indeed a great mystery. Ravenscroft, like many other thinkers, argued that if euthanasia is legalised, it may be easier to choose death instead of continuing to look for a better treatment.
Mr. Sanjib Bardhan’s case explains the fear expressed in the argument. Mr. Bardhan, an engineer by profession, suffered severe injury to his backbone and neck because of a bike accident. After prolonged treatment he applied for euthanasia in 2006 when it seemed there was no hope for his recovery.
His plea was rejected. He had to search for other avenues of medical treatment and he is now recovering and searching for a job to give meaning to his new life. Dutch experience also revealed that doctors were less interested in techniques for caring for the dying people. They preferred administering euthanasia. All these amply prove that legalisation numbs public conscience. All these substantiate the claim of the Union of India.
Another important outcome, which may be considered positive, of this judgement is that it may open up new vista for glasnost in the doctor-patient relationship. As it was a forbidden issue before the pronouncement of the judgement, neither patient nor doctor felt free to discuss it and on account of this inhibition the patient failed to make an informed decision. Medical practitioners will also be comparatively free from conflicts that they find with their basic role of saving the life of patient. Now it remains to be seen whether the cautions so carefully drawn by the Court work well or not.
Attention also needs to be drawn to society’s preparedness for accepting euthanasia, passive or whatever, in a mature way. Is our society mature enough to accept it? Dr. Oak lamented, in his affidavit in the Shanbag case, that our society is not mature enough to accept euthanasia. Marks of a mature society for Oak are its capacity and commitment to take care of its ‘invalid’ ones. He claimed that as a developing nation we should move in a positive manner of taking care of several unfortunate ones paralyzed with deficiencies, disabilities and deformities.
G. E. Vahanvati, a former Attorney General of India, once submitted to the apex court on the same issue and said that Indian society is emotional and career-oriented; we do not send our parents to old age homes. There is a great danger in permitting euthanasia as he feared that relatives of a person may conspire with doctors and get the person killed to inherit property.
In the judgement pronounced in Shanbag’s case the judges took recognition of this danger and warned: “this is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialisation, and the rampant corruption, and hence, the court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may get him eliminated by some crooked method.”
T. R. Andhyarujina, amicus curiae in Shanbag’s case, however, supported passive euthanasia in terms of a living will. But recasting the issue he put the question in a different way. For him, it is not whether it is in the best interest of the patient that he should die. The question rather is whether it is in the best interest of the patient that his life should be prolonged by the continuance of life-support treatment.
It might be thought that arguments and counter-arguments on such a contentious issue will take at least a temporary pause after the pronouncement of the present judgement. To my mind, the judgement has stoked a bigger debate. The kernel of the debate is whether allowing passive euthanasia will inevitably lead to a demand for legalising active euthanasia. Now we are standing on a precarious slope which is really slippery.
Acceptance of practice of passive euthanasia will invariably lead to the demand for acceptance of practices which are currently deemed unacceptable to the Court, i.e. active euthanasia. The Court citing importance to the principle of autonomy accepted the voluntary decision of a person. Personal autonomy is no doubt important, but the moot point is if it can be treated as absolute. Won’t it not willy-nilly take us to admit the demand of non-voluntary and involuntary euthanasia too?
There are thinkers who foresaw such an undesirable outcome and therefore argued to resist taking the first step. John Keown, known for his famous work on this issue, contended that the slippery slope is a logical one which does not require empirical support. If death is a benefit, he argued, it will be regarded as inconsistent to deny it to people just because they cannot request it.
Prof. David Jones of St. Mary college of England holds that the validity of this logical slippery slope argument does not decide the issue of whether it is right or wise to legalize voluntary euthanasia. Voluntary euthanasia implies non-voluntary euthanasia. Hence either we have to accept both or reject both.
Their apparently plausible arguments bring angst to our minds. Our discomposure is aggravated when we find that we are situated at a juncture when the country has growing tribes of mercy killing advocates. Therefore, it is to be seen whether we are heading in that inevitable direction – raising our demand to legalise other sorts of euthanasia which have not been allowed in the present judgement.
The writer is a Professor at North Bengal University and can be reached at [email protected]