For each one of us, life is finite. But we do not know how we will die. We are fortunate if we die peacefully, surrounded by loved ones. Or suddenly and unexpectedly of natural causes.
However, for others dying involves protracted, unbearable suffering. Modern medicine, a marvel capable of prolonging life, inadvertently made dying for them more difficult.
In Mike van Graan’s one-man play, To Life, With Love, currently running at the Baxter Theatre until October 25, actor John Maytham’s character illustrates the predicament of those who die a difficult death. The main character’s wife, who is enduring excruciating suffering without any hope of recovery, pleads with her husband to help her hasten her death.
Our common law, however, does not allow us to help others die a quicker, and thus gentler, death, regarding it as murder, no different from killing in cold blood. It puts a blanket prohibition on assistance with dying, whatever the patient’s tragic circumstances and personal preferences, and whatever the helper’s compassionate motives.
But this stands in direct, stark opposition to the foundational values of our Constitution.
The Constitution’s unfulfilled promise
The case for decriminalising and legalising assisted dying is fundamentally a constitutional one, rooted in Sections 10 and 12 of the Bill of Rights: the rights to human dignity and freedom and security of the person, which includes the right to bodily and psychological integrity. Quite simply, the Constitution supersedes common law.
Our courts, notably in the two Stransham-Ford cases, have already grappled with this tension. While the Supreme Court of Appeal (SCA) set aside the North Gauteng High Court’s ruling on procedural grounds, it pointed out that there is “deficiency” in our law that will be “rectified” when a comprehensive case is brought before a court.
When that happens, we can be sure that the court will apply the constitutional rights of human dignity, autonomy and respect for life, among others, to assisted dying.
First, a person’s human dignity is severely diminished when they lose control over the manner of their dying irrespective of the circumstances. Second, the inability to make a rational choice about one’s destiny represents a final erosion of autonomy. Third, the right to life is a right not to extended biological life as such, but life capable of typically human quality interwoven with human dignity.
A palliative care continuum
The argument that assisted dying is unnecessary – a poor substitute for accessible, high-quality palliative care – sets up a false dichotomy.
We unreservedly champion the expansion and proper funding of palliative care across South Africa. Palliative care, with its holistic approach to managing pain – physical, spiritual, and psychosocial – is a fundamental right that should be integrated from the point of diagnosis, not just at the final stage of life.
However, even the best palliative care, administered by the most compassionate professionals, cannot eliminate all suffering for every patient in the manner they prefer. A small minority of individuals suffer from terminal conditions where pain persists as unbearable and intractable despite the best modern medicine can offer. For them, assisted dying is the compassionate conclusion, the desired endpoint, of the palliative care continuum that embraces assisted dying in the appropriate circumstances.
Navigating societal fears
Legal recognition of the supremacy of constitutional imperatives over assisted-dying common law will be long and arduous. Since Parliament has, for 30 years, failed to pass assisted dying legislation, the courts – quite likely, eventually, the Constitutional Court – will have to instruct Parliament to discharge its responsibility.
Despite the Constitution’s supremacy, there are critics who raise understandable fears: a “slippery slope” towards non-voluntary euthanasia; coercion of the elderly or vulnerable; the impact on the doctor-patient relationship; and the capacity and fairness of our healthcare system.
Significantly, these are arguments not against the principle of choice, but about effective regulation. Legislation must be premised on strict eligibility criteria and robust safeguards. For example, candidates must be competent; initiate a request; make their request free from duress; have a terminal or irremediable condition; and suffer intractably and unbearably. These facts must be confirmed by independent medical assessments. Requests must be repeated over a prescribed time, and there should be ample opportunities to opt out.
In this regard, we can learn from many foreign jurisdictions that have practised assisted dying, some over decades, including countries in Latin America that are our socio-economic peers.
It is reassuring to know that the fundamental values of our Constitution are no different from those embedded in world religions as well as cultural beliefs we hold dear. Thus the Constitution is seamlessly consistent with deeper understandings of, for example, Christian charity and African Ubuntu.
A call for moral courage
There is no persuasive moral or legal reason not to write the next chapter of South Africa’s world-class, progressive constitutional jurisprudence – consider the abolition of capital punishment and corporal punishment; legalisation of termination of pregnancy and same-sex unions; and progressive labour practices.
We can now close the circle of our moral courage by recognising “the last right” as constitutionally mandated, thus superseding our common law that considers assisted dying – in all its forms and without any qualification – as a crime of murder.
* Professor Willem Landman is the co-founder of DignitySA. He was the founding CEO of EthicsSA (2000-2010) and is currently an Independent Non-Executive Director of the Ethics Institute of South Africa (EthicsSA) and professor extraordinaire of philosophy at the University of Stellenbosch (since 2000).
** The views expressed do not necessarily reflect the views of or Independent Media.
