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India's Top Court Legalizes Passive Euthanasia, Living Will

It is now legal in India for terminally ill patients to refuse medical treatment. In the absence of a living will, it would be the discretion of family and doctors to decide if they want the patient to be taken off life support.

New Delhi (Sputnik): In a landmark judgment, India's Supreme Court on Friday ruled that "right to die with dignity" is a fundamental right, legalizing passive euthanasia and living wills. The court has, however, laid down stringent guidelines for the administration of passive euthanasia and the enforcement of living wills. A five-bench judge also defined the rule to implement the procedure in case there would be no living wills.

A living will is a written document that allows a patient with deteriorating health or the terminally ill to choose not to remain in a vegetative state with life support system if he/she goes into a state when it will not be possible for them to express their wishes. It includes authorizing his/her family to withdraw life support system in case a medical board declared that they were beyond medical help.

READ MORE: India Readies Law for Passive Euthanasia

"Today, the Supreme Court has delivered a historic judgment. Constitution bench has cleared the air on all the issues relating to advanced directives or living wills or what we called passive euthanasia. The court has held that an individual has full right to decide that he should not take any kind of medical treatment or he should not keep alive by artificial support systems and if that person so decides that the decision of that individual is binding or the doctors and his/her family and they have to respect his/her decision; they have to give affect to his/her decision," Prashant Bhushan, an advocate who appeared on behalf of the NGO Common Cause, which filed the plea, said, explaining the judgment outside the Supreme Court.

"Secondly, if a person gives an advance directive or gives a living will saying that if I become unconscious and I am in a situation where my life can only be prolonged by artificial life support systems then that advance directive has to be honored by his family and doctors," he said, adding, "thirdly, if a person has not expressed his will and if he can only be kept alive by artificial life support systems, then the doctors and the family members can take the decision to withdraw life support."

The Narendra Modi government said before the court that it has already mooted a bill governing passive euthanasia and "living power of attorney." Until the bill takes the shape of a law, the Supreme Court's guidelines will be in force to execute any case related to passive euthanasia. 

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In 2005, the NGO Common Cause filed a petition before the court, arguing that when a medical expert is of the opinion that a person afflicted with a terminal disease has reached a point of no return, he should be given the right to refuse life support. India's law commission in its 241st Report titled "Passive Euthanasia- A Relook" had proposed that a legislation be enacted on "Passive Euthanasia." The Commission had also prepared a draft Bill — the medical treatment of terminally ill patients (protection of patients and medical practitioners) Bill.

READ MORE: Dead to Rights: Canada’s Senate Passes Euthanasia Billa

In India, the case of Aruna Shanbaug first introduced passive euthanasia as a matter of public debate. Shanbaug, a nurse, had been left in a vegetative state after being brutally raped and assaulted in 1973 at the Mumbai hospital she worked at. After spending over three decades in the hospital in an unconscious state, despite showing no improvement, human rights activist and journalist Pinki Virani took up her case and appealed before the apex court to allow Shanbaugh to die. In 2011, the court did not allow Shanbaug to die but it did pass a landmark judgment back then that opened the door for passive euthanasia in the rarest of rare cases. Shanbaugh died in 2015.

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