Assisted Dying Is Unlawful
South African law on assistance with dying is clear: it is a criminal offence.
First, assisting with suicide is a criminal offence – murder, attempted murder, or culpable homicide – even though attempted suicide itself is no longer a crime.
Second, voluntary (active) euthanasia is the intentional killing of another person, which is murder, unless there is a ground of legal justification.
Motive – such as empathy, compassion, or mercy – is not a recognised ground of legal justification of an act of killing, but it may impact on the severity of the sentence.
Following this legal position, the HPCSA (Health Professional Council) “finds active euthanasia, or the wilful act by a healthcare professional to cause the death of a patient, unacceptable, notwithstanding whether or not such an act is performed at the request of the patient or his or her closest relatives or of any other person”.
The Ethical Dilemma of Legalising Assisted Dying.
What are the ethics of legalising assisted dying? Is there an ethical case to be made for decriminalising it?
Or are there compelling grounds for excluding assisted dying from a comprehensive bill on end-of-life choices that includes terminal pain management, withholding and withdrawal of life-sustaining treatment, and advance directives?
The ethics of assisted dying (as opposed to the ethics of legalising it) poses a typical ethical dilemma since both the case for and the case against assisted dying appear to be able to muster strong ethical arguments.
We face an ethical choice between right (we should assist) and right (we should refrain from assisting). In terms of purely ethical argument, untainted by partisan religious beliefs, the case for assistance with dying appears to be more cogent than the case against.
Still, moral or ethical consensus is probably impossible, given different basic values, priorities and interpretations. The SALC says the following about this ethical dilemma: “From the submissions received it is clear that in so far as active euthanasia [assisted dying] is concerned, society is divided and moral controversy is rife. It places the SA Law Commission in the difficult position of having to clarify the principles on which legal intervention should proceed in the absence of a moral consensus on the issue.”
Public opinion alone cannot resolve this dilemma. In this regard, the SALC quotes Constitutional Court Judge Arthur Chaskalson who said that “public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication.”
Escaping this impasse would require finding common ground on a level other than our different, ethical and religious beliefs, by interrogating the content of our common constitutional values and rights, and asking what they require from us in our constitutional democracy.
Interpreting the Constitution – A Right to Life
The SALC Report contends that “the only way in which an answer will present itself is if the discussion could be conducted with total objectivity in terms of the constitutional principles.”
It argues that the constitutional debate will hinge on an interpretation of the constitutional right to life. In its most basic form, the right to life is a guarantee to citizens that they have a right “to be alive”.
Since a law authorising a limitation of the right to life does not necessarily amount to an extinction of that right (as was the case with legalising termination of pregnancy or abortion), it follows that a law authorising assisted dying may be a reasonable and justifiable limitation on the right to life.
Thus, “the constitutional survival of the proposed legislation [on assisted dying] will therefore depend on whether the Court gives ‘life’ a content value, importing some form of quality of life beyond mere existence; secondly whether it accepts that there are circumstances in which a person’s quality of life has degenerated to such an extent that to prolong the dying process runs counter to the right to life guarantee; and thirdly, to what degree the other rights of a terminally ill patient embody values of an open and democratic society which would justify a limitation of the right to life in circumstances where a person is little more than alive [emphases added].”
Legal academics Pieter Carstens and Debbie Pearmain make the same point about the constitutional right to life (section 10 of the Constitution) being pivotal to the constitutionality of assisted dying.
In the case of termination of pregnancy, the right to freedom of choice and the right to bodily integrity are justifiable limitations to any other right that may be infringed by such an act, provided there is compliance with all regulations.
The anomaly is that, given a right to life, there is no right to die that would be the equivalent of the right to abortion. One could say that having a right to life does not entail that one has a duty to live, regardless of circumstances.
Carstens and Pearmain put the constitutional position of assisted dying as follows: “[L]egalising euthanasia in South Africa, in the constitutional paradigm, will only be possible if such a practice is regarded as a justifiable and reasonable limitation on the right to life in terms of section 36 of the Constitution. Conversely, the criminalisation of euthanasia will imply a justifiable limitation to the right to dignity, freedom of bodily integrity and privacy… [A] central tenet of contemporary South African medico-legal doctrine is the notion of patient autonomy, that is, the right of a competent adult to determine what shall be done to his or her body.”
This right to personal autonomy in South Africa has its legal roots in both the common law and certain constitutionally protected rights to dignity, privacy and freedom
