The legal position regarding non-voluntary euthanasia needs to be clarified. Non-voluntary euthanasia of incompetent adults as well as non-voluntary euthanasia of seriously and irreversibly defective newly-born infants are arguably more controversial than voluntary euthanasia.
In a request for assistance with dying, should the illness at issue be a terminal illness or should an “intractable and unbearable illness” also be a ground for a request, that is, “a bodily disorder that (1) cannot be cured or successfully palliated, and (2) that causes such severe suffering that death is preferable to continued life”?
Significantly, both Options 2 and 3 of the SALC Report’s draft legislation refer to “terminal or intractable and unbearable illness”. So the question is: Should a request for assistance with dying also be an option for persons who are neither terminal nor in physical pain? Among others, this question relates to (1) persons who have a terminal disease but are not yet in the terminal phase, for example, an ALS patient, and (2) persons suffering from depression, a dementing disease or mental disorder but are nevertheless competent to decide about their own continued existence. Significantly, neither Option 2 nor Option 3 – that would decriminalise assisted dying – insists on a patient being terminally ill but also recognise “intractable and unbearable illness”.
Strictly legally enforced safeguards to prevent undesirable consequences or abuse of decriminalised assisted dying would need to be carefully formulated. In addition, slippery-slope considerations that might be peculiar to South Africa would need to be debated head-on, for example, South Africa’s multiculturalism- and multilingual-population constitution and consequent possible breakdowns or misunderstandings in communication; educational deficits of many citizens that might limit full understanding of the implications of practices of assistance with dying; differential access to scarce, quality healthcare resources and consequent issues of distributive justice; and history of racial discrimination and consequent distrust and elevated risk of abuse.
Who should assist with dying? Why should not close family or friends get directly involved, while still maintaining medical professional oversight and complying with all other safeguard provisions? Both Options 2 and 3 require that only medical practitioners may carry out the request.
The legal position of mature, competent minors in respect of assisted dying would need to be clarified. Option 2 is open for patients over the age of 18, but, significantly, Option 3 does not have this limitation.
In summary, we have very persuasive ethical and constitutional grounds to debate and seriously consider the inclusion of assistance with dying – assisted suicide and voluntary euthanasia – in comprehensive end-of-life decision-making legislation, together with provisions clarifying unambiguously the legal position in respect of comfort care, withholding and withdrawal of life-sustaining decision making, and advance directives.
Conclusion
This Paper argues for statutory legal clarity and reform in respect of the following four end-of-life decision-making practices, each involving a moral right of a terminally ill person, and a corresponding moral obligation of interested parties, such as caregivers, family, and the state:
Terminal pain management – The right to be free from unnecessary suffering;
Withholding and withdrawal of potentially life-sustaining treatment – The right to a natural death;
Advance directives – The right to future control over one’s body; and
Assisted dying: assisted suicide and voluntary euthanasia – The right to assisted dying.
Whereas the first three are relatively uncontroversial and should be guided by the applicable standard of care for responsible medical practice, South African law is not sufficiently clear to provide adequate comfort and protection to medical practitioners and substitute decision makers.
This can be rectified by tabling a comprehensive end-of-life decision-making bill before Parliament, thus creating an enabling environment for all decision makers in the tragic but inevitable circumstances that are a natural part of life.
The fourth, assisted dying (assisted suicide and voluntary euthanasia), is unlawful in South Africa and can only be decriminalised through legislative reform.
There are very strong arguments to suggest that such legislative change would be consistent with the letter and spirit of the Constitution’s Bill of Rights, if not required by it, as was the case with abortion.
In sum, there should be a public debate on end-of-life decision-making, resulting in a comprehensive end-of-life decision-making bill, along the lines of the draft bill, End of Life Decisions Bill 1998, included in the SALC Report of 1998.
It is quite understandable that some would argue that we should not legislate in this area because all possible situations can be handled by means of the other three options, rendering assisted dying redundant.
The counter-argument, however, is persuasive: people justifiably want greater control over the time and manner of their death and, for example, elect not to die in a drug-induced state of semi-consciousness or unconsciousness.
They regard doing so as an assault on their autonomy and dignity, and simply require compassionate recognition in their dying distress. And, crucially, with justification, they do not regard such recognition of their autonomy as anti-community or selfish.
Those who find such assistance with dying an affront to their personal conscience and religious beliefs should consider that we live in a constitutional democracy which seeks to balance individual and state interests.
Consequently, what some regard as unethical may not be unlawful. On the contrary, there may be an ethical duty to decriminalise what some regard as unethical. This is part of the trade-off of a peaceful coexistence in a heterogeneous society.
And even though our democracy is young and still taking shape amidst great challenges, we have been brave and progressive in many other areas of social reform. There is no reason why it should be any different in respect of end-of-life decision-making.
Finally, the following 10 statements summarise key elements of the ethical perspective of this Position Paper:
Life is finite and reaches a point where death is a good (benefit) rather than a bad (evil), unless one dies of natural causes before reaching that point.
We exercise control over our bodies and healthcare throughout our lives, and it should be no different at the end of life.
We have a moral and legal
