Human Rights Of Person In Persistent Vegetative State
What is life? What is death? It’s just fraction of moment which changes the state from earlier to later. But have we ever imagined a stage in between both. It may be a stage of persistent vegetative state. The term ‘persistent vegetative state’ (PVS) is used to describe a state of severe brain damage with three main characteristics:
• The patient has a pattern of wakefulness and sleep;
• All movements and reactions are reflex responses;
• There is no evidence of meaningful response to anything around them.
We may also define persistent vegetative state as a vegetative state present one month after acute traumatic or nontraumatic brain injury or lasting for at least one month in patients with degenerative or metabolic disorders or developmental malformations.
Laws of all the lands have made provisions for persons living and the obligation towards dead body, but can we find any provision for person who are neither having personhood nor they can be declared as medically dead. In such conditions many of the times when a person is declared as ‘brain dead (when his brain is damaged to such an extent that he has lost all the characteristics of the functioning of brain)’, his other systems such as digestive or the respiratory systems are kept on functioning so as to transplant the organs. Now arises a question of his human rights and the rights over his body or body organs. We may find all the provisions regarding property, its ownership, etc in Transfer of Property Act 1872. But the most challenging issue is; have the law or our society accepted human as a property?
Is Human Body A Property?
What makes a person ‘human’?
What is importance of a kidney, eye, hands or legs for considering a human in order to recognise human rights for him? Even if person having either a single kidney or handicapped, won’t devoid him of human rights in any way. So are we considering a person’s organ or his sentient to recognise his human rights? It is brain which is a decision making authority which makes person ‘a human’.
Is human body a property?
Even if today legal system does not include body in the definition of property, it is more or less used and all the characteristics of property are given to body. For example, womb is given on rent in case of surrogacy, prostitutes rents their body (legalised in Amsterdam, Bangkok, etc), transplantation of organs , commercial transaction of human organs.
Body parts that are detachable are independent of the characteristics that make a human a sentient being who is capable of autonomous decision-making, and these are the body parts that are typically permitted to be donated for transplantation (especially if they are also regenerable)
Some circumstances in Ancient India!
In the Chapter on "The hermit in the forest", Manu's Code says “Or let him walk, fully determined and going straight on, in a north-easterly direction, subsisting on water and air, until his body sinks to rest”.
A Brahmana having got rid of his body by one of those modes (i.e. drowning, precipitating burning or starving) practiced by the great sages, is exalted in the world of Brahamana, free from sorrow and fear.
Two commentators of Manu, Goverdhana and Kulluka , say that a man may undertake the mahaprasthana (great departure) on a journey which ends in death, when he is incurably diseased or meets with a great misfortune, and that, because it is taught in the Sastras, it is not opposed to the Vedic rules forbid suicide . To this Max Muller adds a note as follows: it is, however, evident that a voluntary death by starvation was considered the befitting conclusion of a hermit's life. The antiquity and general prevalence of the practice may be inferred from the fact that the Jaina ascetics, too, consider it particularly meritorious.
What are his rights over his body?
In Gian Kaur’s case , Supreme Court’s constitutional bench has declared that, ‘A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the 'right to die' with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced . Here it shows the intention of Supreme Court to recognise the rights of a person over his own body to end his life.
It is notable that dead bodies can be considered to be bodies that have been abandoned by their inhabitants, so it does not infringe an inhabitant’s liberty or autonomy to make his or her body the object of another person’s possession.
A dead body- which has by definition lost the characteristics of being sentient and able to make autonomous decisions about one’s own actions and behaviour is a candidate for property rights . A live body without these characteristics is said to be ‘brain dead’ and becomes prime candidate for the harvesting of its tissues and organs;
What about his property?
As everyone knows, in order to keep the nation and people progressing, property has to be utilised or alienated. If the owner is in the state of PVS, he can neither look after the property nor can he give his consent to transact over it. The property is kept floating without any profits arising out of it when pockets of his family members are emptied up by doctors for his treatment and maintenance. In such condition we may presume that he is dead as concerned to his property. To take support of the recent law, we may notice that at common law a person who has not been heard of for seven years by those who, if he had been alive, would be likely to have heard of him, is presumed to be dead . I know that such statements of presumption may hurt emotions and sentiments of some persons. I too accept that many emotions and feeling are attached with the person on bed in whatever condition he might be. But let’s think practically when condition of the family members is financially pathetic. Can a common man afford such huge hospital charges? Instead why can’t we open his property and make provisions for his maintenance in a systematic way. I am not of a stand to kill the patient but rather to make provisions for his life and a dignified ending.
What about spouse?
His entry into that state of permanent loss should be immediately recognised by the law. If he is married, his spouse should at once be freed to grieve, and then to carry on her life as if he has died in the fullest sense. Why should his wife suffer because of his condition? It is duty of Court to assign his legatees, duty to maintain him as respect to property with which he is devolved. Some critics might raise the issue of morality, social norms and humanity, but why law, which is made for us, must be designed in such a way that it makes our life a hell. If wife is interested in serving her husband, she must be encouraged, but why to bind a woman who is facing this in her early age or having some future plans for her life.
If a person can’t take his own decision, it doesn’t mean that he should be deprived of human rights. If he has got right to life; it is duty of State to protect it. Human body is a property with restriction of not to extinct it. It is same as land as a property where owner can build only with the permission of Government or in case of farm where he cannot grow some plants restricted by the law. So is the condition of a human body where he has absolute rights over his body but cannot destroy or sale it. It doesn’t mean an anti liberalism as every property has to be used considering the social norms. As concerned to property of person who has started his death phase, it is wise to free his property to his legal heir for his own medical expenses under the guidance of Court.
If a person cannot decide when to come to a cradle, who is he to decide his time to go the grave?
*Coined by neurosurgeons Professor Bryan Jennett from Glasgow and Professor Fred Plum from New York in 1972
. Section 9 of Transplantation of Human Organs Act, 1994.
. The Indian Medical Association (IMA) …said that it was an open secret that the commercial transaction had been taking place between patients suffering from chronic renal failure who needed kidney transplantation and the poor who were willing to sell their kidneys. All such transactions are illegal and punishable under the Transplantation of Human Organs Act, 1994, but the buying and selling continues. In the process, the donor gets taken for a ride, gets paid a pittance and by the time he wakes up, it is too late…http://www.vish.com/html/body_mohan.html.
. Property in the Human Body & Its Parts Reflections on Self-Determination in Liberal Society; Alexandra George; EUI Working Paper LAW No.2001/8.
. A person who lives alone.
. (See : Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F. Max Muller, (1967 Reprint) Vol. 25, page 204, Shlokas 31 and 32) (See Medhatithi's commentary on Manu)
(See : Laws of Manu, translated by George Buhler, Sacred Books of the East edited by F. Max Muller, (1967 Reprint) Vol. 25, page 204, foot note 31).
(See : Ibid) From the parallel passage of Apas tambha II, 23, 2,)
Smt. Gian Kaur vs. State of Punjab; AIR1996SC1257
A conventional for ‘dead’ is “(1) deprived of life: having died; (2) having the appearance of death; (3) lacking power to move, feel, or respond; (4) incapable of being stirred emotionally or intellectually…” WWWebsterDictionary, op cit., http://www.m-w.com/cgi-bin/dictionary?dead.
The definition of brain-dead has been a topic of much debate within the medical literature. The Australian Red Cross has adopted the following guidelines for use in transplantation cases: “A person who dies according to brain death criteria, will not demonstrate any brain stem reflexes, not will they make any spontaneous effort to breathe when disconnected from the ventilator for a prescribed amount of time…Additional testing such as an x-ray angiography may be required to show that all blood supply to the brain has ceased. The time of death is documented as being the time when the second set of tests confirm brain death. The diagnosis of brain death must be confirmed by two specialist doctors who must not be involved with transplantation in any way
Death has occurred if the person has no response to tests which assess the essential functions of the brain. All the functions listed below must be absent to establish the diagnosis of brain death, no pupil reaction to light; no response to pain; no blinking when the cornea is touched; no eye movement when the head I turned; no eye movement when ice cold water is put into the ear; no gagging response to a stimulus at the back of the throat; no breathing when disconnected form the mechanical ventilation machine.” http://www.organ.redcross.org.au/where.html
Prudential Co v Edmonds (1877) 2 App Cas 487, 509
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