In the final analysis, at issue is the ethical imperative that law and public policy in the democratic state should balance responsibly respect for personal conscience (individual autonomy) with the pursuit of the public good (state interest).
Controversy should not deter us from exploring public-policy options with intellectual honesty. Following the first democratic election of 1994 and the adoption of the new Constitution in 1996, we have made a fresh start that enabled us to be bolder than most other states in rewriting some of our society’s ground rules.
Among others, we decriminalised termination of pregnancy (abortion) and abolished capital punishment, both in the face of majority popular opinion, but faithful to the ethical demands of the Constitution.
Our point of departure should be the ethical values in the Bill of Rights of the Constitution which recognise not only the right to life, but also that every person has inherent dignity and has a right to have that dignity respected, as well as other related constitutional rights.
Although the question regarding the constitutionality of assisted dying has not been decided by the Constitutional Court yet, it would be fair to say that quality-of-life considerations and the right to dignity should inform the content of the right to life, and therefore end-of-life decisions.
So, the key question is: Can our constitutional rights be interpreted in such a way that assistance with dying – assisted suicide and voluntary euthanasia – could, or even should, be decriminalised within clearly defined parameters?
Significantly, Carstens and Pearmain conclude their discussion of the legal position in respect of assisted dying as follows: “[T]he underlying values, spirit and purport of the applicable sections of the Constitution [sections 10, 12 and 14], seem to be supportive of the introduction of voluntary euthanasia in South Africa.”
Reopening the Legalisation Debate
The question is: Do we want to remain silent about the criminality of these practices, or is it better to confront their legality head-on, given our constitutional rights?
There are strong arguments on both sides, and they should be heard in public.
Internationally, this debate has been advanced considerably, albeit in quite different ways, since the publication of the SALC Report in November 1998 – in the United States, the Netherlands, Belgium, Luxembourg, Switzerland, the United Kingdom, and Canada.
Evidently, the trend is towards careful, measured liberalisation of the law.
Mindful of Judge Chaskalson’s views about the limited relevance of public opinion for constitutional interpretation, some anecdotal evidence suggests that in South Africa the time is ripe to reopen the public debate about decriminalising or legalising assisted dying, kept on hold since 1998.
It is probably fair to say that sensitive people, who come to know the tragic circumstances in which assistance with dying is contemplated, increasingly believe that we need to create the space for individuals, as a matter of clear public policy, to be assisted with their dying.
It should be everyone’s personal, free choice, within clearly defined boundaries. Each person should be allowed to decide for themselves if their suffering is unbearable or their dignity lost, and whether they wish to end their lives. And the law should set the boundaries within which such decisions can be made responsibly.
Opponents of liberalising our law in this regard can, quite rightly, insist that no pressure or duress should taint a free and informed decision about one’s own continued existence. But they should also accept that others may make personal choices of which they disapprove, provided they are respectful of the law.
Refusal to decriminalise assisted dying could lead to inconsistencies that are unjust and lack compassion. For example, a ruling by the Constitutional Court case of Soobramoney has the effect that the state, in certain circumstances, may be inconsistent if it denies a request for assisted dying.
The appellant, in the final stages of chronic renal failure, claimed that he was entitled to emergency dialysis, given the constitutional right to life (section 11) and right not to be refused emergency medical treatment (section 27(3)). The court rejected this application on the grounds that withholding life-prolonging treatment, or rationing care, is compatible with a constitutional human-rights approach, given scarce resources.
Withholding dialysis, a scarce resource, led directly to the appellant’s death. But given that the state can legitimately withhold resources necessary for life, it would be inconsistent, as well as cruel, if the state were also to deny the “condemned” man’s request for assistance with dying so that he could die sooner and, perhaps, with less suffering.
On what grounds can the state sanction death when it is a bad for the appellant, but deny it when it is a good, especially if the state has made death the only option?
Similarly, the SALC Report refers to an example of a person, bitten by a dog with rabies, who is in the final stages of an irreversible and unbearable state of pain and suffering, and is legally and mentally irreversibly incompetent.
Unlike a person in a persistent vegetative state, this person cannot die a natural death without intractable and unbearable suffering. Surely, any legal regime that denies this person active assistance with dying is inhumane in the extreme.
So, the question is: Should the law make provision for competent persons freely to choose that their lives be terminated, and for assisting incompetent persons with dying in the terminal phase of their illness?
If not, how could our law force people to die in inhumane and undignified circumstances merely to satisfy abstract legal rules, even with optimum terminal pain management? In addition, given that a denial of assistance with dying might be unconstitutional, the justification for reopening the debate about legalising assisted dying needs no further argument.
The SA Law Commission Draft Bill
We have a good point of departure for such a debate about legalising assisted suicide and voluntary euthanasia, namely, the SALC Report that puts forward three options, having received extensive submissions in response to its earlier draft report.
The SALC supports Option 1, maintaining the status quo in terms of which assisted dying is unlawful. Options 2 and 3 are formulated in the End of Life
