Euthanasia, with its etymology rooted in the Greek language, meaning "good death", is a contentious as well as paramount conversation that needs to be had in South Africa. Euthanasia, also known as mercy killing, can be defined as "the act of putting to death painlessly or allowing to die, as by withholding extreme medical measures, a person or animal suffering from an incurable, especially a painful, disease or condition".
Where does South Africa stand?
In South Africa, the Constitution of the Republic of South Africa, 1996, is the Supreme Law of the Land. This means that all subsequent laws or conduct that is inconsistent with the Constitution are invalid. The obligations imposed by the Constitution must be observed.
At present, euthanasia is unlawful and falls squarely within the realm of murder and/or culpable homicide as per our common law. However, with the amount of rapid developments surrounding this delicate topic, such as Dignity SA, an online campaign founded by Sean Davison, who performed euthanasia on both his mother and a close friend, as well the judgment handed down by Justice Fabricius in the High Court case Stransham-Ford v Minister of Justice and Correctional Services and Others, it is an unavoidable tête-à-tête that we need to have within ourselves and with the rest of the country, albeit sensitive and uncomfortable.
Our Constitution states the following in its preamble: "…We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations."
The Bill of Rights in Chapter 2 of the Constitution then goes on to afford rights to all human beings, including the right to life, the right to dignity and the right to autonomy. Therefore, euthanasia boils down to an interpretation and balance of these rights.
The right to life – what does it mean?
The right to life is not synonymous to the obligation to live. Had this been the case, suicide would be illegal. This is further demonstrated in the case Soobramoney v Minister of Health, Kwazulu-Natal, where a man suffering with renal failure was in desperate need of renal dialysis treatment to survive. He turned to the court for help when a government hospital denied him treatment on the basis that his condition did not meet the "eligibility requirements". He relied on his right to life entrenched in the Constitution, however the Constitutional Court made it clear that the right to life did not foist a duty on the state to provide lifesaving treatment to a dying patient. Hence, the right to life is not an unconditional commitment to continue living. It is on this basis that people should be able to relinquish their right under certain circumstances.
In addition to the above, one has to ponder on what "the right to life" really means. Is it merely biological, in that as long as you are breathing (naturally or artificially) it cannot be taken from you, or is there an element of quality of life attached to this right?
This is where a balance needs to be struck, between the right to life as well as the right to dignity, which are both inherent rights protected to the fullest extent. Interpreting these two rights hand-in-hand as opposed to pinning them against each other, will demonstrate that euthanasia performed under the correct circumstances upholds both of these rights and should be legalised.
In terms of the Animals Protection Act 71 of 1962, it is regarded as compassionate to euthanise an animal that is severely ill or seriously injured. For many people, this is considered a final act of love, to end the pain and suffering of a life that they adored and cherished. However, when the same concept is applied to human beings, it becomes the complete opposite – a cruel, inhumane act.
Milan Kundera, a French author, once said: "Dogs do not have many advantages over people, but one of them is extremely important: euthanasia is not forbidden by law in their case; animals have the right to a merciful death."
Current court cases
In 2015, the matter Stransham-Ford v Minister of Justice and Correctional Services and Others was brought by urgent applicant in the North Gauteng High Court, for the applicant, a practicing advocate of the High Court, to be euthanised. He was suffering with stage four cancer and only had a few weeks left to live.
Unfortunately, the applicant passed away from natural causes. A few hours later on the very same day, 30 April 2015, Fabricious J handed judgment down, granting the applicant's request for assisted suicide. Leave to appeal to the Supreme Court of Appeal was granted and the Supreme Court of Appeal set-aside the High Court judgment due to it being procedurally defective, one of the procedural defects being that judgment should never have been handed down due to the applicant passing away, which ceased the cause of action.
Assisted suicide has since been brought back into the spotlight in our courts. In August 2017, Dr Sue Walter, a palliative specialist, who had been diagnosed with a terminal illness herself, lodged an application in the South Gauteng High Court. She approached the courts to ask for legal permission to end not just her life, but a life of one her patients as well, who also had been diagnosed with a terminal illness.
The developments and outcome of this application are being anxiously anticipated, because the judgment will set a precedent for all similar matters going forward, and clarity will finally (hopefully) be shed on the legality of euthanasia.
Euthanasia in other countries
Euthanasia is legalised in at least 11 foreign states/countries and there are three legal requirements that need to be met before one can "qualify" to request euthanasia: It must be the patient's own decision; the patient must be suffering from a terminal illness/disease; and the patient must be in a sane state of mind. A further procedural requirement is that the request for euthanasia must be reviewed by an independent source.
In many respects, the discomfort brought to people by the simple thought of euthanasia can be likened to the same discomfort brought by the thought or discussion of abortion, which has been legalised by The Choice of Termination of Pregnancy Act 92 of 1996.
It is morally and religiously challenging. However, just like abortion, although there are thousands of people who are against it, that is not a good enough reason to take a woman's rights to autonomy and reproduction away.
The way forward
Part of living in a democratic country means the freedom to make choices about the way in which you live, think and feel, within the boundaries of the law, of course. Ones rights should only be limited to the extent in which they infringe on those of another. Just because abortion is legal, does not mean that it needs to be practiced by those who are against it. The important, underlying principle here is the fact that one can choose whether to make use of it. Further, it is an infringement on someone else's rights, to have religious or moral beliefs of another forced upon them. We are all free to our own beliefs, values and conscious, thus the more honourable position people should take regarding their stance on euthanasia should be pro-choice.
Legalising euthanasia will also confine the practice to limited circumstances and in that way, it will be a manageable act with clear cut rules, criteria and requirements. Legal directives give effect to democracy, and even if those who are pro-euthanasia are the minority of the population, being in a democratic era provides for the acknowledgement of minority views.
If a doctor diagnosis a patient with a terminal illness and reaches the conclusion that the treatment would be in vain and that death is inevitable, then the patient should be allowed to choose to participate in active euthanasia. At present, a patient may refuse medical treatment, even if it results in his/her death, provided that he/she is in a sane state of mind. In a way, this amounts to granting a patient the (indirect) right to die.
A development of our law is urgently needed in this regard, to uphold the values and rights enshrined in the Constitution. Each active right granted in the Constitution comes with a passive right.
The right to freedom of expression is granted, however, one may choose to stay silent. The political right to support any political party of one's choice does not mean that it is unlawful to abstain from voting. The right to religious observances does not punish those who are not religious. Thus, the right to life should, by implication and in the converse, grant people the right to die. The freedom of making individual decisions, especially decisions that do not infringe the rights of another, should be valued.
By Ashleigh du Sart, candidate attorney at Hogan Lovells (South Africa), Supervising partner: Ayanda Nondwana