Euthanasia or Murder? What the law says about Euthanasia
On the 31st of January 2024, Carol de Swardt, a South African citizen, underwent euthanasia in Switzerland after a decade long battle with skin cancer, depression, and an amputated leg as a result of medical negligence. Under South African law, it is illegal for terminally ill patients to consent to euthanasia. Additionally, any medical practitioner who assists a patient through euthanasia will be criminally charged with murder, despite the patient agreeing to the practice.
There are two forms of voluntary euthanasia which can determine the legality of the practice, namely, active, and passive euthanasia. Active euthanasia involves a medical practitioner providing a lethal substance or instruction to a patient, directly contributing to ending their life. Passive euthanasia is when a medical practitioner hastens the patient’s death by removing something keeping the patient alive. Currently, only voluntary passive euthanasia is allowed in South Africa, whereby the patient consents to having life support withdrawn.
The rights to life and dignity are protected in the Constitution and were reinforced by the case of S v Makwanyane and Another (6 June 1995), where the Constitutional Court held that the right to life does not only include the right to keep someone alive, but also includes the right to treat a person in a dignified manner. Although this case deals with the abolishment of the death penalty in South Africa, it has resulted in voluntary active euthanasia being deemed unlawful.
Currently, the law does not permit the practice of euthanasia however, in 1994, a report titled “Euthanasia and the Artificial Preservation of Life” was published by the South African Law Commission. In this report, the South African Law Commission gave recommendations on allowing for some sort of patient autonomy, however, the Commission did not make recommendations on whether voluntary active euthanasia should be legalized. Subsequently, there has not been any substantial push by parliament to make the Report an act of law.
The current legal position on the legality of euthanasia was challenged in the case of Stransham-Ford v Minister of Justice And Correctional Services and Others (4 May 2015). Mr. Stransham-Ford, who was suffering from stage 4 cancer at the time, applied to the High Court to have a medical practitioner either administer or provide him with a lethal substance to allow him to end his life. Two hours after Mr. Stransham-Ford passed away, the Court granted an order declaring that the medical practitioner would not be acting unlawfully in assisting Mr. Stransham-Ford to end his life. Due to the fact that Mr. Stransham-Ford passed before judgment was made, the Presiding Judge had to rescind his judgment, resulting in the practice of active euthanasia remaining illegal. Additionally, the Supreme Court of Appeal held that there was not a proper examination as to the current legal standing on the practice of active euthanasia. The unfortunate passing of Mr. Stransham-Ford prevented a landmark case from coming into fruition and sparking movement in the discussion on the legality of active voluntary euthanasia.
As a result of this, terminally ill patients, such as Carol De Swardt, are unable to seek help and have no other humane option other than to seek euthanasia in other countries such as Switzerland. Additionally, medical practitioners will be held criminally liable for their involvement in active euthanasia. A discussion regarding voluntary euthanasia within Parliament is yet to be had due to the legal and moral implications that may arise, however, the rights to a quality of life that is dignified, and freedom of choice for terminally ill patients should at the very least be acknowledged. With more countries beginning to reconsider the legality of voluntary active euthanasia, it is possible that South Africa’s stance on the practice may change in the future.
Written by : Greg Barnett