South African Government drags its feet on legalising assisted suicide

Anglican Archbishop Emeritus Desmond Tutu. (Photo: Gallo Images / Brenton Geach)

By Drew Forrest

11 Jul 2021

Twenty-two years ago the Law Commission called for Parliament to investigate euthanasia and assisted suicide. Nothing has happened since — in fact, the government seems intent on blocking progress. Drew Forrest reports on South Africa’s continued denial of ‘the last right’.

Drew Forrest has been working as a journalist for 40 years, with stints at Business Day, Mail & Guardian, Times of Swaziland and the amaBhungane Centre for Investigative Journalism. He has been a deputy editor, political editor, business editor and labour editor, among other positions. Author of a book on cricket, The Pacemen (Pan Macmillan 2013), he has also edited several non-fiction books. He is the managing partner (editorial) of IJ Hub, a regional training offshoot of amaBhungane.

A university professor cleaning toilets in government offices? Sounds like Mao’s Cultural Revolution! It couldn’t happen here, with our world-class judiciary and democratic constitution…

Oh, yes it could. It is precisely the situation of Sean Davison, who works at the University of the Western Cape.

Right to die activist Sean Davison during his 2019 murder trial in Cape Town. (Photo by Gallo Images / Netwerk24 / Jaco Marais)

According to his friend and colleague Lee Last, Davison travels every Monday morning to the correctional services department building in Cape Town, where for four hours he cleans toilets, empties rubbish bins and mops floors.

Davison has served 400 hours of a community service sentence imposed in a plea bargain in 2019. As he is under three-year house arrest, he can leave home only to scrub toilets and go to work.

His crime? Out of pity, he assisted in the suicide of three friends desperate to head off intolerably painful or humiliating deaths. They begged him to apply his expertise as a biotechnologist; their families pleaded for him not to be jailed.

“He’s taken the sentence in his stride, he’s got no complaints,” said Last. “He’d much rather clean toilets than rot in jail.” Indeed, the judge could have given him three life sentences for murder.

For decades, suicide has not been a crime in South Africa. But paradoxically, helping someone do it, even with the best of motives, is murder under the common law.

Davison refused to be interviewed, saying his sentence bars contact with the media. But it certainly looks as if he is being vindictively demeaned. Why is this highly qualified scientist not teaching maths and science to schoolchildren in Khayelitsha?

The criminalisation of the morally upright was one of the most objectionable features of apartheid, and an unambiguous call for the law to change.

There are other signs that the government is waging an undeclared war on assisted dying.

As soon as a citizen asks the courts to sanction physician-assisted suicide (where the doctor supplies the means but the patient does the deed) or physician-administered euthanasia, it springs into action, splashing out scarce public resources on a legal counter-attack.

This is in marked contrast with the rest of the democratic world, which is moving in the opposite direction (see sidebar).

In a case currently before the North Gauteng High Court, Dieter Harck and Sue Walter are seeking the legal right to choose assisted dying when their illnesses become unendurable. Harck has motor neuron disease, which could eventually suffocate him and Walters has terminal cancer.

In response, the justice minister, Ronald Lamola, has briefed expensive advocates to oppose their plea (Harck and Walters’ lawyers are acting pro deo).

In 2015 his predecessor, Michael Masutha, opposed a similar application by advocate Robert Stransham-Ford, who was dying, excruciatingly, from prostate cancer. Masutha lost in the high court, but instantly went on appeal. This time he got his way, principally because Stransham-Ford died just before the ruling (see a report on the ruling here and the judgment here).

A member of lobby group Dignity SA, Professor Willem Landman, took aim at the appeal court’s “technical” judgment, saying there had been insufficient activist engagement with the vital human rights and constitutional implications of the case.

Constitutional rights at stake

Harck and Walter’s plea is about far more than personal suffering; they argue that the constitutional rights to dignity and self-determination mean they should be able to choose when and how to die.

The Constitution requires the law to be reshaped in questions such as same-sex unions and abortion. But from assisted dying the government seems to shrink in atavistic horror.

In 1997, President Nelson Mandela asked the SA Law Reform Commission to explore a range of end-of-life issues, including euthanasia and assisted suicide. The commission recommended three options: keep the status quo; legalise and let hospital ethics committees decide; or make the decision a private matter between patient and doctor.

It also wrote draft legislation, which it handed to former health minister Manto Tshabalala-Msimang.

The commission’s report and draft law were never tabled in Parliament. There have been no public hearings, as there were on abortion. Nothing has happened on what some call “the last right” for 20 years.

Why?

Tshabalala-Msimang may have dropped a hint when she allegedly branded assisted dying “medicine for the rich”. Given that an overdose of barbiturates is far cheaper than protracted end-of-life care, this makes no sense. Was she saying, in code, that this is a concern only for white South Africans?

There was a further pointer in a televised debate between Landman and former health minister Aaron Motsoaledi, when the latter insisted euthanasia “is against our [presumably African] culture”.

“Culture” is a slippery term: South Africa accepts same-sex unions; Uganda punishes gay sex with a 14-year jail sentence. Which is the authentic champion of “the African way”?

Everyone, regardless of colour, dies — often miserably. And not all Africans agree that their culture prohibits medical curtailment of life in all cases.

One of Davison’s most steadfast supporters has been that global standard-bearer for compassionate faith, Desmond Tutu, who is known to support assisted dying both personally and theologically, as the will of a merciful God.

Anglican Archbishop Emeritus Desmond Tutu. (Photo: Gallo Images / Brenton Geach)

Another influential black voice, SA Human Rights Commission head Tseliso Thipanyane, has publicly proclaimed that the constitutional rights of dignity and “of every individual to control of his or her own body” are a clear basis for euthanasia or assisted suicide.

Landman believes there is far more support among black South Africans than the government realises, and that a referendum along New Zealand lines might show this.

But the crisp point is that South Africa is a Rechtsstaat: it is the Constitution, not this or that culture, that must decide.

For some, the termination of pregnancy, civil unions and the abolition of capital punishment are anathema. But by creating “an overarching legal community”, the Constitution makes it possible to press ahead with such reforms.

Landman said he put this to Motsoaledi, who did not reply. Daily Maverick also put questions to justice ministry spokesperson Crispin Phiri, who acknowledged receipt, but provided no answers.

Tutu’s stance underlines the point that religious opposition is not automatic: it is the shibboleth mainly of hardline Catholics and evangelical Protestants, who also shudder at abortion. Of eight US states that allow assisted suicide, not one is in the “Rapture-ready” Deep South.

In fact, most objections seem to start with amorphous religious-cultural emotion, which then casts about for rational support. And to spare tender consciences, we move into a realm of contorted hair-splitting and casuistry where moral distinctions are gossamer-thin.

It is legal in South Africa to withdraw or withhold life support where the patient has given an advance directive or further treatment is futile. This is known as a living will. “Palliative sedation”, through increasing doses of pain-killing drugs that may hasten death, is also allowed. So is “terminal sedation”, where a pain-stricken patient is knocked out and, if life support is withdrawn, may starve to death.

What, in reality, is the difference between euthanasia and death via an incremental morphine overdose? Or by pulling the plug? Either way, the doctor precipitates the end of life.

Some question why the terminally ill don’t take their own lives, rather than asking a doctor to do it for them.

What if the patient is physically incapable, fearful or lacks the know-how? More to the point: why should the terminally ill not exercise their constitutional right to a peaceful and dignified death, with a doctor at hand and their family members around them?

The mainstay of the opposition case is the “slippery slope” argument, which holds that voluntary euthanasia can weaken judicial restraints, paving the way for involuntary killings à la Third Reich.

The Netherlands as a model

Wherever it is legal, assisted dying is highly regulated. The Netherlands sets five statutory conditions: hopeless and unbearable suffering; a fully voluntary patient request (mandatory parental consent for children); the patient understands his/her illness and options; consultation with a second physician; and a suitable medical procedure administered or overseen by a doctor.

Classed as unnatural, the death then passes to a review committee, which refers errant doctors to the prosecuting authorities.

There is a clear dividing line between Dutch and Nazi euthanasia — the patient’s informed and explicit consent. Why, logically, does that have to slide towards coercion?

Facilitated dying has been lawful in the Netherlands for 37 years and entrenched in statute since 2002. In 2017 the five review committees reported that nine doctors (0.3%) were referred to the authorities after 3,136 assisted deaths that year, mainly because a second physician was not consulted.

A 2009 study found there had been no rise in involuntary deaths over two decades and no increase among the aged, poor, handicapped or ethnic minorities.

Critics claim the Netherlands showcases the “slippery slope” in practice, as euthanasia numbers have climbed annually and the initial facility for terminal cases has expanded to include the mentally ill, demented and old people who feel their lives are “complete”.

But these all require the same consent — in fact, researchers say Dutch doctors are increasingly guided by their patients. The real explanation is that the suicide taboo has faded over time, while more and more people are demanding self-determination in the supremely personal matter of their own death.

Assisted dying in any form is banned throughout Africa, but South Africa does not have to march in lockstep. Why not blaze a constitutional trail, as on gay rights and other contentious issues?

The state’s obstructive rearguard action is both inhumane and pointless. “Sooner or later they’ll have to confront the tension between the common law and the Constitution,” said a source familiar with the Harck case.

“They can chop off the dragon’s head, but there’ll be another… and another…”

International trends

From a tiny spring in Switzerland during World War 2, assisted dying has grown into a broadening international current.

For two decades a destination for “suicide tourism” by foreigners, Switzerland was joined by the Netherlands in the mid-80s.

The trend is clear: in the United States physician-assisted suicide (PAS) was legalised first in Oregon (1994), then in Washington state (2008), de facto in Montana (2009), in Vermont (2013), California (2015), Colorado (2016), District of Colombia (2016), Hawaii (2018) and New Jersey (2018).

Social democracies lead the way: euthanasia is legal in the Netherlands, Belgium, Luxembourg, Spain and Canada. PAS is allowed in Austria and is under active discussion in Germany, Portugal and Italy. Like Switzerland, Croatia permits it for “unselfish motives”.

Euthanasia is permitted in Colombia and has been debated in parliaments across South America. PAS was recently approved by New Zealand and the Australian states of Victoria, South Australia, West Australia and Tasmania. DM/MC

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International trends