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Living Wills Permissible Now 

SC Constitution Bench Also Holds Passive Euthanasia Permissible

New Delhi—In a landmark judgment, the Supreme Court on Friday recognised 'living will' made by terminally-ill patients for passive euthanasia.

A five-judge constitution bench headed by Chief Justice of India (CJI) Dipak Misra said passive euthanasia and advance living will are "permissible".

The bench, also comprising justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan also laid down guidelines as to who would execute the will and how the nod for passive euthanasia would be granted by the medical board.

The apex court said that advance directives for terminally-ill patients could be issued and executed by the next friend and relatives of such person after which a medical board would consider it.

The top court said that directions and guidelines laid down by it and its directive shall remain in force till a legislation is brought on the issue.

The CJI, while reading out the judgment, said that though there were four separate opinions of the bench but all the judges were unanimous that the 'living will' should be permitted since a person cannot be allowed to continue suffering in a comatose state when he or she doesn't wish to live.

In a separate opinion, Justice Chandrachud observed that modern medical science should balance its quest to prolong life with need to provide patients quality of life. One was meaningless without the other, he said.

The issue of death and when to die transcended the boundaries of law, but the court had intervened because it also concerned the liberty and autonomy of the individual, he said.

Justice Chandrachud read from his judgment that the sanctity of life included the dignity and autonomy of the individual. He said the search for a meaningful existence, the pursuit of happiness included the exercise of free will.

"Free will includes the right of a person to refuse medical treatment," he said.

A person need not give any reasons nor is he answerable to any authority on why he should write an advanced directive.

But the judge held that active euthanasia is unlawful.

For this reason, he said the reasons given by a two-judge Bench of the Supreme Court in the Aruna Shanbaug case, allowing passive euthanasia, were "flawed" as the convoluted procedure to get a go-ahead for passive euthanasia made the dignity of a dying person dependent on the whims and will of third parties.

"To deprive a person dignity at the end of life is to deprive him of a meaningful existence," Justice Chandrachud read from his opinion he shared with Justice Ashok Bhushan.

The top court had in 2011 recognised passive euthanasia in Aruna Shanbaug case by which it had permitted withdrawal of life-sustaining treatment from patients not in a position to make an informed decision.

The bench was hearing a PIL filed by NGO Common Cause, saying safeguards were needed while taking a decision by medical boards to withdraw life support of a terminally-ill patient.

On January 15, 2016, the Centre had said the 241st report of the Law Commission stated that passive euthanasia should be allowed with certain safeguards and there was also a proposed law --Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006.

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