Judge calls on MPs to look at stalled ’98 euthanasia bill
PARLIAMENT should give "serious consideration" to introducing a draft law legalising euthanasia.
In a written judgment explaining his reasons for allowing Robin Stransham-Ford to have the assistance of a doctor to help him die, Pretoria High Court Judge Hans Fabricius suggested the bill presented for debate be based on the Law Reform Commission report on assisted suicide and viewed through the lens of the Constitution’s Bill of Rights.
But Judge Fabricius conceded he could not tell the government what to do.
In 1998, then president Nelson Mandela asked the Law Reform Commission to research "assisted suicide and the artificial preservation of life". It did extensive work on the issue and found in favour of assisted suicide and wrote a draft bill to legalise it.
The bill was submitted to then health minister Manto Tshabalala-Msimang in 1999, but nothing further happened.
Judge Fabricius said had Stransham-Ford’s application for assisted suicide not been so urgent due to his impending death, he would have expected the Department of Justice to explain "what its policy on the draft euthanasia law was and what it intended doing about the commission’s proposals".
In his 60-page judgment he pointed out that at the time the Department of Health had agreed that terminally ill people who wished to die could do so with the help of a doctor.
The commission drew up safeguards that would ensure that only terminally ill adults who were mentally competent could request euthanasia. An adult also needed time to change his or her mind, had to ask for euthanasia repeatedly and prove this was a voluntary decision.
Stransham-Ford referred to the commission’s safeguards in his affidavit and proved he met all the criteria.
Substantiating his judgment, Judge Fabricius said the "norms of the Constitution should inform the public … rather than religious or moral ideas".
"The applicant’s rights which were sacrosanct to him, could not be sacrificed on the altar of religious self-righteousness."
He quoted former Justice Kate O’Reagan who ruled that the right to life was not separate from the right to dignity. This meant the Constitution’s right to life could not be used to deny Mr Stransham-Ford’s request to be allowed a dignified death.
The state argued the right to life meant euthanasia was illegal and unconstitutional.
Judge Fabricius found it contradictory that humans could choose whether to marry, what to study and even choose to refuse medical care but "could not choose how to die".
He questioned how "humans could tolerate a horrendous murder rate in many countries including ours, and yet allow a government to refuse a suffering person a dignified death".