Should euthanasia / assisted suicide be legal in SA?

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In 2015 the High Court of South Africa handed down a judgment to allow Stransham-Ford, who was terminally ill, to end his life with the help of a medical professional who is willing to do so. In Stransham-Ford v Minister of Justice And Correctional Services and Others, the Applicant relied on several sections in the South African Constitution, but most importantly on:

  1. Section 10: Human dignity – “Everyone has inherent dignity and the right to have their dignity respected and protected.”
  2. Section 12: Freedom and security of the person –

12(1) Everyone has a right to freedom and security of the person which includes the right –

(e) “Not to be treated or punished in a cruel, inhuman or degrading way.”

12(2) Everyone has the right to bodily and psychological integrity, which includes the right –

(b) To security in and control over their body.”

Fabricius, J considered all the above factors and stated that: “…Applicant had merely or solely expressed his subjective view of dignity and his medical condition, whereas the values of the Constitution had to be looked at, and determined objectively. There are two answers to this submission: of course, a Court must, as a practical necessity look at the subjective views of – and the condition of – a person who complains that his constitutional rights have been affected. In the present context one would then ask, whether, from a constitutional policy point of view, the complaint is justified.”

Stransham-Ford’s legal team also argued that there is no difference between assisted suicide and taking a person off life support.

It was further argued by Stransham-Ford’s legal team that Death is part of life and quoted the American Supreme Court in Cruzan vs Director, Missouri Department of Health, et al 497 US 261 (1990) 343 that, “dying is part of life, it is completion rather than its opposite. We can, however, influence the manner in which we come to terms with our mortality”.

A very interesting point to take note of is the South African Law Commission’s views that were discussed by Fabricius, J: “…The norms of the Constitution should inform the public, and its values, not sectional, moral or religious convictions. I agree also that sacredness of the quality of life should be accentuated rather than the sacredness of life per se, contrary to what Counsel for the Respondents and the amici submitted. It is noticeable, unfortunate and disturbing that from a philosophical point of view and jurisprudential point of view (often they overlap, sometimes they do not), societies in various parts of the world acquiesce in thousands of deaths… People die of AIDS, from malaria by the hundreds of thousands, from hunger, from malnutrition and impure water and insufficient medical facilities. The State says that it cannot afford to fulfil all socio-economic demands, but it assumes the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain, and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner. The Commission’s report deals with these examples and asks of course the appropriate questions. The Commission said that a dying person is still a living person, and one must not forget that and he is entitled to the rights of a living person. Their draft proposals, in their view, balance the rights of patients, providers and the State. Another aspect is that of personal autonomy. The irony is, they say, that we are told from childhood to take responsibility for our lives but when faced with death we are told we may not be responsible for our own passing. There are many other ironic considerations in this context. One can choose one’s education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practice birth control, and one can die on the battlefield for one’s country. But one cannot decide how to die. In this context the Commission says, and I agree with it, that belief or moral doubts of third parties is not the main point in this context at all. The choice of a patient such as the present, is consistent with an open and democratic society and its values and norms as expressed in the Bill of Rights. There is of course no duty to live, and a person can waive his right to life. With reference to the Soobramoney decision supra, they say that the withholding of dialyses of the kidneys led directly to the Applicant’s death in that case. The irony again is that the State sanctions death when it is bad for a person, but denies it when it is good. (At least according to Applicant’s Counsel).”  

Despite the above Fabricius, J  states that he still needs to comply with the constitutional imperative and make an order based on it.

An order was made that, Stransham-Ford was terminally ill but a mentally competent adult and that he has freely and voluntarily requested the Court to authorize that he be assisted in an act of suicide and that the medical practitioner that is willing to assist him, is not acting unlawfully, and hence, shall not be subject to prosecution.

There are many people that have would have different views on whether assisted suicide should be legal in South Africa or not, whether it be on social or religious views. Euthanasia is still illegal in South Africa and only time will tell whether the Law of South Africa will be developed in such a way to make provision for assisted suicide.

Reference List:

  • Stransham-Ford v Minister of Justice And Correctional Services and Others (27401/15) [2015]

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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