Picture: THINKSTOCK
Picture: THINKSTOCK

"PRIVATISE people" and "I am not a national resource" proclaimed libertarian bumper stickers in response to the persecution and prosecution of the late Dr Jacob Kevorkian, the world’s best-known assisted-suicide practitioner.

"Nationalise people" is the unstated slogan of the opposing side, the people who called Kevorkian the "Doctor of Death". Authoritarians want a "nanny state" to force us to be healthy and alive, even if we prefer unhealthy lives or death. Health Minister Aaron Motsoaledi epitomises this view.

These opposing paradigms define those who eulogise or denounce last week’s assisted suicide judgment. Judge Hans Fabricius ruled in favour of an application, opposed by the government and the Health Professions Council, to allow assisted suicide. The applicant, Robin Stransham-Ford, died hours before the ruling. That would normally render the issue "moot" in that there was no longer an applicant with a right to die. The ruling was justified as being in the "public interest" and "interests of justice".

There is much confusion regarding the principles involved, starting with the extent to which media coverage and expert comment confused and conflated euthanasia and assisted suicide. These two acts differ profoundly. The former is where one person kills another deliberately, which is murder. Circumstances, such as compassion, or the alleviation of intense suffering, might justify a light sentence, but it remains deliberate killing. Assisted suicide, on the other hand, is where someone helps another to kill themselves. It is the difference between shooting someone and giving them a gun to shoot themselves. As suicide is lawful, prohibition of assisted suicide is uniquely anomalous. It is the only situation where it is unlawful to help someone do something lawful.

There are compelling arguments for and against euthanasia and assisted suicide. The practical case against both is that allowing them creates the risk of vulnerable victims being killed or encouraged to commit suicide by people with questionable motives, such as wanting an inheritance, life insurance payout or evasion of custodial duties.

The most common argument for both is that it is often inhumane to extend life. The libertarian argument is that people should have dominion over themselves, and that the only legitimate thing for the law to do is ensure genuine freedom of choice. Prescribed formalities can minimise the risk of people in bad faith inducing vulnerable people to commit suicide or caregivers to commit euthanasia. Fabricius wants legislation to that effect.

My wife and others associated with hospice counsel terminally sick people. They witness the extreme suffering of people who want to "die with dignity". An earlier court ruling took the first step by recognising the right to withhold care.

Both judgments raise serious rule-of-law concerns. They run the ominous risk of making, rather than applying law. Such "judicial activism" is encouraged by Parliament’s inclination to blur boundaries by delegating law-making and judicial functions to the executive branch of government.

Lawyers with whom I spoke are unaware of a judgment against assisted suicide, yet it was presumed unlawful in the old SA. If someone who assists suicide is guilty of murder or culpable homicide, it does not make sense for courts to condone it. There are, however, constitutional justifications for assisted suicide. According to the first section of our Constitution, SA is founded on "human dignity … and the advancement of human rights and freedoms". Under section 11, "everyone has the right to life". Section 12 forbids being "treated … in a cruel, inhuman or degrading way" and says "everyone has the right to freedom and … control over their body".

To force people to live or be healthy, as our health laws increasingly do, violates these values.

Louw is executive director of the Free Market Foundation.

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