DignitySA’s legal challenge to the prohibition on medically assisted dying has reignited a long-overdue debate. Ten years ago, the Supreme Court of Appeal (SCA) scrapped a high court ruling that would have protected advocate Robin Stransham-Ford’s physician from prosecution for helping him die. But as Stransham-Ford died two hours before the judgment was handed down, the SCA overturned it on technical grounds, and the deeply emotive question of legalising assisted dying was left unresolved.
Now the non-profit DignitySA has revived the subject, with the launch last week of a legal challenge to the way the common law criminalises assisted dying, which it argues is at odds with several constitutionally enshrined rights, including those to dignity and bodily integrity. It has consequently asked the high court to declare the prohibition unconstitutional and unlawful and to direct parliament to pass legislation that will enable medically assisted dying ― both self-administered and administered by a healthcare professional.
DignitySA’s central premise is that it is an act of care and compassion to fulfil a request for death from a competent adult who is terminally ill or enduring terrible suffering, and that to deny this wish is cruel and inhumane. It readily concedes palliative care services in South Africa are inadequate and is advocating for this aspect of end-of-life care to be strengthened hand-in-hand with the introduction of voluntary assisted dying, following the lead of countries such as Canada and Australia. It makes the point that assisted dying is not only for wealthy countries, as it is permitted in several Latin American nations, including Cuba. And it acknowledges that care must be taken in drafting laws and regulations to ensure there are suitable guardrails to protect vulnerable people from being pressured or coerced into ending their lives.
Compelling as its arguments may be to its supporters, DignitySA’s case is likely to be fought all the way to the Constitutional Court. Justice & constitutional development minister Mmamoloko Kubayi and health minister Aaron Motsoaledi ― cited as first and second respondents respectively ― have yet to make public statements on the matter. Motsoaledi, who was health minister when Stransham-Ford’s case was before the courts, previously expressed strong opposition to assisted dying, arguing it was open to abuse. He also maintained it is at odds with African culture, and that it was for God, not doctors, to end a person’s life.
The case is also likely to face stiff opposition from the Palliative Care Association of South Africa, which has consistently argued that the government should be putting its efforts into expanding the country’s woefully inadequate palliative care services, rather than developing laws that it fears will replace proper care for the terminally ill and put vulnerable people at risk.
Almost 30 years ago, the South African Law Reform Commission laid the groundwork for medically assisted dying, recommending legislative reform to enable what was then termed “voluntary euthanasia”, with strict safeguards against abuse. Its work was shelved by former president Thabo Mbeki’s administration and the government has shied away from the issue ever since, despite tackling difficult conversations on same-sex marriage and abortion. Those are both issues that many people oppose yet are now legal thanks to the human rights enshrined in the constitution. It is now time for the courts, not the moralists, to decide whether to add assisted dying to that list.
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