Non-Voluntary Passive Euthanasia permissible: SC

The Supreme Court of India, on Monday, pronounced a very important judgment on euthanasia and its permissibility under Indian law, specifically in view of Section 309 of Indian Penal Code.

The question for adjudication before the court was, as to whether a person consciously and voluntarily refusing to take life saving medical treatment so as to lead to one's death, commits a crime or not. Also, whether not taking food consciously and voluntarily with the aim of ending one's life is a crime under section 309 IPC (attempt to commit suicide) or not?

In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as USA where attempt to suicide is not a crime.

In the course of the judgment, the court made a distinction between active and passive euthanasia. Non voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g., if he is in coma or unconscious and life is ended by mere withdrawal of life support system. Whereas active euthanasia is the case, when the life is ended by an over act, like giving lethal injection to terminate a person's life.

On the question that when a person can be said to be dead? 
Observing that a person's most important organ is his/her brain the bench held that "if the brain is dead a person is said to be dead". Stating reason for the same the bench held that "brain cannot be replaced...If someone else's brain is transplanted into one's body, then in fact, it will be that other person living in one's body"

The judgment also defines the term "brain death".-"the irreversible cessation of all functions of the entire brain, including the brain stem".

The court also differentiated between brain death and "persistent vegetative state" as under persistent vegetative state "the brain stem continues to work, and so some degree of reactions may occur, though the possibility of regaining consciousness is relatively remote".

Guidelines
The court while laying down guidelines stated that until Parliament makes a law on the subject, the guidelines of the court would govern the matters relating to euthanasia. While allowing non-voluntary passive euthanasia, the court laid down following guidelines:

 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.

 Further even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned. The court noted that possibility of unscrupulous persons with the help of some unscrupulous doctors fabricating material to show that it is a terminal case with no chance of recovery cannot be neglected.

Procedure to be adopted by the High Court when such an application is filed
The bench stated in its order that when such an application seeking permission for non-voluntary passive euthanasia, is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench will have seek opinion of a committee of three reputed doctors nominated by the Bench after consulting medical authorities/medical practitioners. The judgement mentions that "Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician".

The committee will have to submit its report after carefully examining the patient, consulting the record of the patient and taking the views of the hospital staff.

The High Court simultaneously with appointing the committee of doctors "shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it is available."

The apex court also stated in the judgement that High Court should give its decision speedily at the earliest, as delay in such matters may result in causing great mental agony to the relatives and persons close to the patient. The High Court will have to pass its verdict keeping in mind the best interest of the patient and stating reasons for allowing or denying euthanasia as the case may be.