OPINION

Is active euthanasia the next step?

Yes, the operative term in the question being “is”, and not “should... be”. If passive euthanasia is a guaranteed fundamental right, a rigid “active” versus “passive” euthanasia distinction (APD) is analytically unsustainable. In Common Cause v. Union of India , the Supreme Court expounded the basis of its 2011 ruling in Aruna Shanbaug v. Union of India , which permitted “passive” euthanasia, including “involuntary” passive euthanasia for mentally incompetent patients, in certain terminal cases. Ruling that Article 21 of the Constitution guaranteed the “right to die with dignity”, the court also issued interim guidelines to enforce individuals’ living wills in case of future incompetence.

Active and passive

Aruna and Common Cause have incorporated the judicial APD evolved primarily by U.K. courts. In popular discourse, APD has become shorthand for an apparently axiomatic ethical and legal dichotomy between “killing” and “letting die”. But the ethical and jurisprudential underpinnings of the apex court’s rulings logically dictate that the right declared in Common Cause extends to “active” euthanasia in carefully circumscribed circumstances.

Overall, judges and commentators recognise that in the context of euthanasia, ceteris paribus , there is no legally intelligible difference between deliberately “doing” (active) and “not doing or stopping to do” (passive) something that leads to death. Nor is there any articulable reason why “withdrawal” (as opposed to “withholding”) of current treatment isn’t an illegal “active” decision that hastens death from the underlying cause, much like a lethal injection that also accelerates imminent death. To quote Lady Hale of the U.K. Supreme Court in Nicklinson v. Ministry of Justice , “Why does active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance [does] not?”

As a result, APD is a morass of legal fictions about intentionality and the “ultimate” causation of death, which don’t withstand scrutiny. More importantly, it may unjustly deny a recognised fundamental right to those who need assistance to access it. A tragic U.K. case showcased the dangers of treating APD as an axiomatic rule that overrides legitimate requests to exercise the right. Diane Pretty, while mentally competent, was in the terminal stages of incurable motor neurone disease, which left her completely paralysed from the neck down. Faced with the prospect of progressive suffocation as her breathing and swallowing muscles failed, Pretty required assistance to effectuate a dignified and bearable death in a manner and time of her choosing. To be clear, these inherent contradictions in APD are the inevitable outcome of fragmented rule-making by courts hamstrung by the lack of a comprehensive and coherent legislative and policy framework. APD is an elaborate and flawed judicial construct arguably necessitated by overarching policy concerns, namely, potential for abuse by unscrupulous individuals; the spectre of criminal prosecution of benign doctors and families; and the exercise of judicial restraint on a sensitive issue that warrants legislation embodying the democratic will.

These dilemmas fall within the realm of Parliament, which must act to resolve them. As Justice D.Y. Chandrachud notes, “the meeting point between bio-ethics and law does not lie on a straight course,” and these complex issues “ cannot be addressed without the legalisation and regulation of active euthanasia” (emphasis added).

By emphatically erring on the side of self-determination and recognising passive euthanasia with certain safeguards as a fundamental right, Common Cause signals that APD’s days are numbered. Whether couched as “dignified death” or “bodily autonomy”, there is no reasonable basis for negating the right vis-à-vis a patient whose circumstances warrant assistance to exercise it.

The views expressed are personal

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