DignitySA has launched a high-stakes bid to legalise medically assisted dying in South Africa, arguing that the prohibition is at odds with rights enshrined in the constitution, including those protecting human dignity and bodily autonomy.
The non-profit organisation (NPO) filed an application in the high court in Pretoria on Wednesday, seeking to have the laws criminalising medically assisted dying declared unconstitutional and invalid. It also asked the court to direct parliament to enact appropriate legislation legalising assisted dying within two years, and to suspend the declaration of invalidity during this period.
“We are asking the court to recognise that a person’s human dignity is severely diminished when they lose control over the manner of their dying,” said DignitySA founder and chair Willem Landman.
South Africa’s laws make it illegal for a health practitioner to assist a terminally ill patient who wishes to end their own life. Medically assisted dying is also at odds with the Health Professions Council of South Africa’s (HPCSA’s) guidelines, which deem it to be unethical and unprofessional conduct.
DignitySA has been advocating for the legalisation of medical assistance in dying for the past 15 years, arguing that many terminally ill patients face a torturous last chapter because current legislation regards the act of stepping in to help someone who wishes to end their own life as murder.
It is pressing for both self-administered and practitioner-aided medical assistance in dying to be legalised.
Its case comes a decade after advocate Robert Stransham-Ford’s failed attempt to legalise medically assisted dying. In 2015, Stransham-Ford applied for a high court order to allow a doctor to administer a lethal agent to end his life. He died two hours before the court ruled in his favour, and the order was subsequently overturned by the Supreme Court of Appeal (SCA) on technical grounds. The SCA did not make a finding on the legal status of medically assisted dying.
DignitySA is seeking to scrap the legal barriers that prevent a healthcare practitioner from helping a terminally ill patient who requests assistance in dying, arguing that the ban infringes on the constitution’s enshrined rights to bodily and psychological integrity, including the rights to: security and control over one’s body (sections 12 (1)) and 12 (2); dignity (section 10); equality (section 9); and life (section 11).
We will need very well thought-through legislation that will ensure medical assistance in dying is never thought of as a substitute for providing healthcare or palliative care.
— DignitySA director Joseph Raimondo
The prohibition on medically assisted dying forced patients to endure unnecessary pain and indignity, Landman said in court papers. He detailed 11 cases, including that of the late IFP MP Mario Oriani-Ambrosini, who was diagnosed with terminal lung cancer and shot himself.
The prohibition on assisted dying had an arbitrary effect, said Landman, as the ability to end suffering depended on the nature of the patient’s condition or their financial status. While some patients could end their own lives, others were physically unable to do so without assistance and faced the danger of placing another person at risk of criminal charges if they sought help.
Only the wealthiest patients could travel to countries such as Switzerland, where medical assistance in dying is legal, he said.
Drawing on expert reports on countries that have already introduced laws permitting assisted dying, Landman said there was no evidence that vulnerable or marginalised people were coerced into assisted dying, or that the thresholds for access had been lowered over time.
Medically assisted dying is legal in a growing number of Western European countries, including Switzerland, Belgium and the Netherlands, in Cuba, Peru, Colombia and Ecuador, and in parts of the US, Canada and Australia.
Many people opposed to assisted dying argued that it was “unAfrican”, but helping a person who wished to die was fully in line with African values, said DignitySA director Vuya Ilengou. “We grow up with compassion, with love, with empathy and with ubuntu,” she said.
Fellow director Joseph Raimondo said legalising assisted dying would require strict eligibility criteria and safeguards to protect vulnerable people from potential abuse. “We will need very well thought-through legislation that will ensure medical assistance in dying is never thought of as a substitute for providing healthcare or palliative care,” he said.
DignitySA cited the minister of justice & constitutional development, the national director of public prosecutions, the minister of health and the HPCSA as respondents.
Neither minister was immediately available to comment.
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