Living Wills - Issues and Challenges in India

This paper examines the doctrinal foundations, evolution, and operational realities of living wills (advance medical directives) in India. Anchored in Article 21 jurisprudence, it traces the constitutional arc from Maruti Shripati Dubal and P. Rathinam through Gian Kaur, to the Constitution Bench decision in Common Cause v. Union of India (2018), which recognised passive euthanasia and validated advance directives subject to safeguards. Despite this constitutional recognition, and the Supreme Court’s procedural streamlining in 2023, the absence of a comprehensive statute leaves a regulatory vacuum that burdens patients, families, and clinicians with complex attestation, multi-board certifications, and fear of legal exposure. The analysis situates living wills within India’s broader legal landscape (IPC, Mental Healthcare Act, professional guidelines) and explores key implementation frictions: limited public awareness, socio-religious hesitation to discuss end-of-life choices, institutional risk aversion, documentation and access problems (no central registry), and family disagreements at the bedside. Comparative perspectives from the United States and United Kingdom illustrate how statutory infrastructure, surrogate decision-making, and capacity law can stabilise practice, while experiences in the Netherlands, Belgium, and Canada delineate the boundary between passive euthanasia and more permissive assisted-dying regimes. Normatively, the paper argues that effective realisation of a dignified death requires targeted legislative action (clear forms, registries, clinician immunity for good-faith compliance), hospital protocols, and public education, alongside robust palliative care. The study concludes that India has built a principled constitutional foundation for living wills, but translating that promise into consistent bedside practice remains the central challenge.