What is assisted dying? Why is it an issue on our social agenda? And what needs to be done about it?
Our physical bodies make everything we value possible and give meaning to our lives – enjoyment of relationships, family, friendships, work and nature. So life is good, and death is bad because it destroys what makes a good life possible. But death is inevitable; it is a part of life.
Dying is not the same for everyone. Some may die peacefully of old age or disease, without pain and suffering; others may die suddenly because of a trauma or accident; and yet for others dying may be protracted, and accompanied by great suffering and loss of dignity.
We do not know what our destiny is – any one of us may die with great suffering. If one does not believe that extreme suffering serves a religious purpose why should one suffer unnecessarily towards the end of one’s life? After all, throughout our lives we try to mitigate suffering, why then would we not do so when death is inevitable and the only end to suffering.
Some therefore choose to end their suffering by ending their lives. And in doing so, they seek assistance from others. Not only is terminating one’s own life not easy – all sorts of things can go wrong and some methods are undignified and disturbing to others – but we seek solidarity with others in our hour of need, not abandonment.
This is why some wish to choose to be assisted with dying, that is, when a competent person who suffers intractably and unbearably, freely chooses death and is assisted by another person to end their life. It has two forms: assisted suicide, when person A supplies the means to person B who then self-administers the means and dies as a consequence; and voluntary euthanasia, when person A supplies and administers the means to person B, who dies as a consequence.
Several jurisdictions worldwide have decriminalised one or both of these forms of assisted dying.
There are ethical arguments for and against assisted dying. Thus, for example, those for it cite autonomy and dignity as justification, while those against cite the will of God and the slippery slope (unintended bad consequences or abuse). These ethical debates are interminable and will never lead to general agreement.
Fortunately, however, what counts in a constitutional democracy like ours is the ethics of the law that governs assisted dying. Assisted dying constitutes the common-law crime of murder, although there are exceptions, as pointed out by the Supreme Court of Appeal (SCA). But is this tenable, given the Bill of Rights of our Constitution of 1996? Prominent constitutional lawyers believe not. And a full bench of the SCA believes that our common law might very well change, following the Canadian example.
Two cases are pending in the South African High Court (North Gauteng and the Western Cape), and the next 18 months might prove to be decisive in the legal debate. Among others, rights in our Constitution’s Bill of Rights will have to be interpreted in so far as they apply to assisted dying – rights to life, freedom of choice, dignity, respect for bodily and psychological integrity, and healthcare.
We have a progressive constitutional order. Social practices that the majority might not support are legal in South Africa, because the values and principles underlying our legal edifice, including our Constitution, allow them.
Parliament has a moral duty to debate assistance with dying. It is exactly 20 years since the South African Law [Reform] Commission submitted its final report on end-of-life choices to Parliament, which has lacked the political will to act, and successive ministers of health have hidden behind personal, cultural and religious persuasions that are irrelevant to constitutional interpretation.
It is time that the rights of a class of people – those dying in great suffering – are recognised. They do not have the political power of trade unions to claim employment rights, nor of women to claim reproductive rights. Their plight is an egregious injustice that should be put right.
Willem Landman
Member, Executive Committee, DignitySA
Professor Extraordinaire, University of Stellenbosch