Unpacking the ethical controversy of assisted dying in SA

In South Africa, the debate on euthanasia, its morality and legal implications surfaced again as Prof Sean Davison, a campaigner for assisted dying in South Africa, recently completed house arrest for his role in the deaths of three people. Controversy persists on whether aiding someone to end their life is lawful and ethical or translates to murder, reports Elsje-Marié Jordaan.

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The co-founder of Dying with Dignity SA (DignitySA), a non-governmental organisation that aims to decriminalise assisted dying (AD), Prof. Sean Davidson, was convicted in 2019 for the premeditated murder of three individuals who he helped die. He was released from house arrest in June after serving three years of his eight-year sentence.

For Davison, the thought of euthanasia only arose when his terminally ill 85-year-old mother begged him to assist with her death. Davison said that at the time, she was incapable of ending her own life after a failed five-week hunger strike. He travelled to New Zealand and assisted her by helping her consume a lethal dose of morphine in a glass of water, which she was too weak to hold.

Following a trial in the Dunedin High Court in New Zealand, Davison was convicted under laws prohibiting assisted suicide for his mother’s assisted death and sentenced to five months house arrest in 2010, Daily Maverick reported.

After publishing the book, Before We Say Goodbye, in 2010, Davison was bombarded with similar stories. This made him aware that a change in legislation is necessary.

“We (South Africa) have one of the most liberal constitutions in the world. Our constitution protects our dignity in living; since dying is very much a part of our life, the constitution should really cover death as well,” Davison said.

Davison explained that fighting for the legalisation of AD is about freedom of choice and the right to have a dignified death.

“We tend to think most elderly deaths are peaceful, but in fact, they are not. This issue is about giving a person the option of assisted death if they need it,” Davison said.

Davison argued it was time the law changed to recognise compassion – where euthanasia is not confused with murder, Daily Maverick reported.

What is assisted dying (AD)?

AD consists of euthanasia, physician-assisted suicide (PAS) and assisted suicide (AS), according to a 2021 article by Blake Martin, lecturer in law at the University of Witwatersrand.

It is important to know it is only AD if specific criteria are met, of which the most important are competence, voluntariness, and suffering, Prof. Willem Landman, an executive member of DignitySA, independent non-executive director of the Ethics Institute of South Africa (EthicsSA), and professor extraordinaire of philosophy at the University of Stellenbosch, said.

According to Martin, all active forms of AD or euthanasia are considered illegal and constitute the crime of murder in South Africa.

Thus, in the 2019 conviction, Davison had no choice but to plead guilty to avoid trial, even if he believed that he was not a murderer, Daily Maverick reported.

Countries other than New Zealand and South Africa seem to have a more liberal view of the matter. In 2022, several countries amended their laws concerning AD, including Australia and Italy (see map). The question proponents ask is: why not South Africa?

Since its legalisation in the Netherlands during the early 2000s, laws on assisted dying have been revised in several countries. Sources: AFP, BBC, Catholic News Agency, DutchNews.nl and ProCon. GRAPHIC: Elsje-Marié Jordaan

Assisted dying and the law

Lena Chencinski said in her thesis on euthanasia, published in 2022 that lenient sentencing had been a norm in cases combining the ethical issues of murder and compassion. This was the case with Davison, who could have served three life sentences, but instead served three years in house arrest, Chencinski said.

In 1998, the South African Law Commission published a report titled the Law Commission Report on Euthanasia and the Artificial Preservation of Life, stating for individuals who experience severe pain in which medication proves inadequate, a medical practitioner may increase the dosage with the secondary effect of shortening life.

The report suggested three possible plans for moving forward: upholding the status quo, the decision made by the medical practitioner or the decision made by a multi-disciplinary panel.

Ultimately the report was shelved by parliament. Landman said several definitions in the Draft Bill needed clarification in the book Physician-Assisted Suicide: What are the issues, published in 2001. This includes terms like “informed consent”, “terminally ill” and “chronic pain”. There also needs to be further clarification between PAS and volantary active euthanasia.

According to Landman, the constitutional rights supporting the argument for AD are:

• The right to dignity (Sec 10)
• The right to freedom and security of the person (Sec 12[1]), which includes the right not to be treated or punished in a cruel, inhumane, or degrading way (Sec 12[1][e]);
• The right to bodily and psychological integrity (Sec 12[2]), which includes the right to security of and control over one’s body.

Although euthanasia and assisted suicide are illegal by common law, the proponents argue this is unconstitutional. Martin highlights that protecting human dignity is fundamental to the constitution and that the values of the constitution, if properly understood, legitimise the decriminalisation of active voluntary euthanasia. However, not everyone agrees with this interpretation of the law.

“There can be no mercy or dignity in murder,” Philip Rosenthal, co-ordinator of the Euthanasia Exposed Network, a network of South Africans opposing AD, said. Rosenthal believes that “dignity”, as written in the constitution, cannot be interpreted in a way that justifies ending someone’s life.

Rosenthal said that the media is biased, perpetuating a certain narrative that an opinion is popular, even if most of the population disagrees, “as was the case with legalising abortions”.

He backs these claims with data from the World Values Survey results from 1996 and 2013, stating most South Africans oppose AD. Rosenthal believes this makes it unlikely that the topic of AD will be successful when presented to the constitutional court.

In contrast, Davison believes that the constitutional court will likely support the right of a suffering person.

Ethics of assisted dying

Opinions are often starkly divided on the subject as some individuals have strong moral and often religious objections.

Landman believes there will never be an agreement on the ethics of AD because points of departure differ radically, “especially when religion comes into the mix.”

In a poll by threestreamsmedia, 20 students of the North-West University (NWU) were asked their opinion on AD. 65% of these students indicated they strongly oppose the idea on basis of moral, ethical and/or religious objections. 20% of students said that it depends on specific circumstances and 15% of students were pro AD.

“It is easy to make the judgement that someone is a murderer when you are not confronted with the specific narrative,” Illani Havenga, honours in corporate communication student, said.

Many of the students who opposed the idea had similar objections as Rosenthal, who said that the “right to die with dignity ignores sanctity of human life”, a concept people across religions and value systems believe in. For Rosenthal, this means that human life is sacred, and only God can end a life.

Landman considers this an incoherent argument because it has cruel consequences, irreconcilable with a compassionate God. He argues this assertion assumes there is a God,  it is possible to determine His will and that AD goes against this will. Landman believes that if we were not to “play God” by determining our time and manner of death, we should not intervene with medicine, surgery or therapies.

A first-year education student, who prefers to remain unnamed, said: “We show mercy towards dogs and cats by relieving their suffering, but somehow when it comes to humans we have this sudden ethical consciousness. It has nothing to do with sanctity of life and everything to do with getting that morality gold star.”

Davison believes the matter is private between individuals and their god; what is essential is that the intention is kindness.

Another concern Rosenthal has is that self-regulating bodies, as suggested by proponents of AS, would allow doctors to euthanise whomever they consider a burden or in unbearable pain. Desynthesised doctors will have no concern for the sanctity of life, Rosenthal said. He added that elderly, terminally ill and disabled people would “feel pressured” as they feel concerned about the burden they put on others.

CitizenGo Africa, a religious activist group, agrees that legalising euthanasia would expose vulnerable people to death they would not consent to, as doctors will be at liberty to terminate life. This is comparable with what happened in Nazi death camps.

However, Landman said, “the Nazis were motivated by neither mercy nor respect for autonomy … Thus, the Nazi analogy is wholly inapt”.

Landman adds that evidence from jurisdictions that legalised AD does not support the assumption of so-called abuse.

Proposed safeguards

In a book End-of-Life Decisions, Ethics and the Law published in 2001, Landman proposes legal safeguards to prevent abuse. The patient needs to:

• Be terminally ill
• Be in extreme suffering
• Be older than 18 years and mentally competent
• Have been a adequately informed
• Have had an opportunity to re-evaluate their request
• Have no other way of releaving suffering

Other safeguards proposed by Landman include consulting with an independent physician, prohibiting non-physicians from ending a life and an opt-out conscience clause for physicians.

Davison adds there will be a mental competence assessment. “The most important safeguards will ensure that the person made the request voluntarily, without any family coercion,” he said.

Rosenthal finds these safeguards inadequate. He added that the pro-movement continually adjusts and broadens its own criteria. “Davison is not a doctor, but assisted individuals in dying.”

Medical view

If a doctor were to assist a patient, they would face criminal charges and be barred from practising by the Health Professionals Council of South Africa (HPCSA), GroundUp reports.

Dr Kurt Maart, chair of the Tygerberg Clinical Ethics Committee, said in an interview with threestreamsmedia that consequences for medical professionals who assist patients in dying are common knowledge and thus a deterrent to entertaining any request. Withdrawal of treatment, however, is not seen in the same light as assisted suicide and is guided by hospital-endorsed protocol, according to Maart.

“To my knowledge, we do not get requests for euthanasia or assisted suicide,” Maart said.

Dr Elsabè Bornman, deputy director at the NWU School of Nursing, said that as euthanasia is unlawful, it is difficult to determine if it is a popular request as it is usually not made public.

Rosenthal believes that people who make these requests public want attention in a last attempt to have some purpose.

With all the legal and ethical controversy, it remains to be seen if the constitutional court would legalise AD if ever approached with the concept again.

“This is going to be a long journey – but when you’re seeking a law change you have to be prepared for the long haul,” Davison said.