Decriminalising voluntary active euthanasia through the recognition of fundamental human rights : a comparison of South Africa and foreign jurisdictions

Abstract

‘If death is in a patient’s best interest, then death constitutes a moral good’. Euthanasia, a concept initially thought of merely as a medical procedure that serves as the literal ‘kill switch’ in determining the extinguishment of life. It may not be perceived by many as exercising one’s freedom of choice and, furthermore, the right to life. However, the concept of euthanasia integrates numerous fundamental rights simultaneously on an intricate level within South Africa’s legal system. Therefore, seeking clarification on whether or not voluntary active euthanasia should be implemented as a legal form of euthanasia is of paramount importance in giving effect to numerous fundamental human rights of which everyone is afforded. Delving deeper into understanding the complexity of rights to be affected in such a medical procedure, it is essential to distinguish between the various forms of euthanasia. In addition to this, the focus is to be drawn as to why the decriminalising of voluntary active euthanasia is to be advocated for in South Africa. The action and ability to provide informed consent serve as the founding premise in separating the two main categories of euthanasia, namely voluntary and involuntary euthanasia. The importance of informed consent will further be discussed at length, emphasising the reasoning as to why involuntary euthanasia will never be an acceptable practice under South Africa’s current constitutional dispensation. This, in turn, draws focus to voluntary euthanasia in the form of active and passive application. Currently, the only form of euthanasia recognised and afforded limited protection and application under South Africa’s legal regime is voluntary passive euthanasia. Although, this seems to function as the exception rather than the rule. A causal link exists between euthanasia and the right to life, as outlined in the Constitution. This link, which the Courts deem steadfast in upholding, is functioning in a sense that ironically prevents the full accessibility and enjoyment of the right. Since the right to life has not been expanded upon in the Bill of Rights, incorporating other rights, such as the right to freedom and security of the person, is needed to understand the various aspects of a person and their body to which protection is afforded. This creates a problematic area of application in so far as the right to life and freedom and security of the person. For this reason, the central premise of this academic piece will focus on the right to life. Furthermore, it will be argued that under strict and regulated conditions, the termination of this right should function as an exception to the absolute nature of the right. In essence, decriminalising voluntary active euthanasia in South Africa’s legal system.