The politics of death

2015-05-08 07:56
An unidentified member of rights group Dignity South Africa places placards reflecting some of its terminally ill members outside the high court in Pretoria. For the first time in South Africa, Judge Hans Fabricius last Thursday ruled that Robin Stra

An unidentified member of rights group Dignity South Africa places placards reflecting some of its terminally ill members outside the high court in Pretoria. For the first time in South Africa, Judge Hans Fabricius last Thursday ruled that Robin Stra (AP)

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THE decision coming from the court in the Robin Stransham-Ford assisted-dying case has rekindled the embers of an issue that has been on the back-burner of South African legislation for far too long.

On an international scale, the ­issue is gaining momentum and ­legal credence through the various court cases and legislative instruments which have acknowledged an individual’s right to choose the time and manner of his or her death, within a clearly defined set of circumstances.

The right to life is at the core of an individual’s basic human rights, with other rights defining the ­quality of such life.

Thus, when the notion of voluntary euthanasia is considered, we find ourselves ­asking the question: does the right to life trump the right to death?

Proponents of both the sanctity of life viewpoint and the sanctity of choice viewpoint, have equally forceful reasons and justifications why their stance should prevail. What needs to be acknowledged is that in law, there exists a legal ­presumption in favour of life. Thus, under normal circumstances, and in the absence of any indication to the contrary, it is presumed that an individual would choose life over death. All legal presumptions are rebuttable, and in the case of ­Stransham-Ford, the same premise existed. Had he not made his wishes known, and had he not embarked upon seeking the aid of the court to realise his wishes, the presumption that he would have wanted to continue to live (regardless) would have prevailed. Any unnatural endeavour to end his life prematurely would have been met with the full measure and vigour of the criminal justice system. The task before the court was to consider communal ­legal interests, in the light of the constitutionally guaranteed rights to personal autonomy and self-determination.

The major objections to the ­legalising of voluntary assisted euthanasia arise in the following.

• Morally, religiously, philosophically and socially, our society ­recognises that human life merits special protection. “Because life is God-given and we merely hold it in trust, we should not then interfere with it or put an end to it.”

• There have been vast advances in the medical field, particularly as regards palliative care for the terminally ill patient. The choice is no longer between the continuation of futile treatment and total cessation of all care. It is possible to discontinue treatment, but to relieve or even eliminate pain, and thus ease the transition from life to death.

• Legalising voluntary assisted euthanasia will lead to abuse.

Those in favour of legalising voluntary assisted euthanasia argue the following.

• Social views on what life is, are evolving. More emphasis is placed on quality of life as opposed to mere existence. Legalising voluntary assisted euthanasia will not mean that terminally ill patients must be euthanised against their religious convictions or other wishes. Legalising it will allow the patient to choose, freely and voluntarily.

• Palliative care involves the use of narcotics to which the patient may eventually develop a tolerance, and generally, as the illness progresses, it becomes necessary, steadily and substantially, to increase the dosage. Pain relief may occur, but at the cost of the patient being somnambulant and unaware of what is going on around him or her. He or she may have life, but what of the qualify of that life?

• Legislation which regulates and demarcates the requirements and criteria for a patient who requests voluntary assisted euthanasia will prevent abuse and mala fides. This is evident from legislation that has emerged in other countries. In the United States, the state of Oregon has enacted legislation in this regard, which has safeguards against abuse and misuse.

This is a complex and controversial matter, and as such, unanimous support on either side of the debate is unlikely, if not impossible.

That being said, South Africa is a constitutional democracy, and all laws must be in keeping with the spirit and purport and objects of the Bill of Rights. It has been argued that suicide is not a criminal offence, and thus, there is nothing precluding terminally ill patients from taking their own lives, by their own hands. Although this premise is true, the other truth regarding the inhumane facets of suicide cannot be ignored.

Ultimately, what the legalising of voluntary assisted euthanasia will do is ensure a humane, peaceful end for the patient who requests it, and qualifies for it. The decision handed down by the court is one that is necessary so that the Constitutional Court can deliberate on the issue.

The decision as it stands applies specifically to Stransham-Ford, and in the absence of a decision from the Constitutional Court and legislation being enacted, every person who seeks to end his or her life through voluntary assisted euthanasia will have to bring an application to the high court.

Voluntary assisted euthanasia is not legal, and anyone (doctors or family members included) who ­assists a person to commit suicide at their request, will be prosecuted for murder.

• Suhayfa Bhamjee is a senior law lecturer at the University of KwaZulu-Natal

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