Petition for personal autonomy in South Africa

Way back in my first blog post I tried to make the point that rights were something that could not be taken from you but which you could relinquish voluntarily. This was because although they are afforded to empower each individual to live their own life to force people to abide by certain rights when they do not want them actually undermines their entire purpose. There were a few possible cases which I had in mind when I wrote that and I want to say a little bit more about one of them today, the right for someone to choose when they want to end their life.

The right to life is incredibly important as it serves to protect each individual. However sometimes that right can be taken too far, when people turn that right to life into an obligation to live and enforce their decision on another person regardless of what suffering it may cause them. To put it bluntly that just isn’t their decision to make. It’s your life and so long as you do not harm anyone else you should be free to live or die as you please, especially if you are facing inevitable suffering or unbearable conditions.

For some people the idea of months of a drawn out painful death are, unsurprisingly, less desired than the chance to say goodbye to their loved ones and end their life on their own terms, peacefully and pain free. Why should a person have to endure years of lying motionless in a bed when they loose all muscular control just because someone else wants them to? People should have the option to go when they feel it is their time without being stigmatised for it. In some cases that may also require assistance.

The debate over assisted dying/euthanasia has been rekindled in South Africa after the return of Sean Davison. He served five months in prison in New Zealand after helping his mother to die. Davison has now helped found DignitySA to help campaign for reforms over assisted dying in South Africa. To start with they have a petition on Change.org, which I would encourage you to sign.

While the issue might have flown under the radar in South Africa, the topic has been given attention in a number of countries. In the UK, author Terry Pratchett, who has been diagnosed with alzheimers, has advocated for assisted suicide on a number of public platforms such as his Richard Dimblebey lecture in 2010 and controversial 2011 documentary Choosing to Die. The latter of which involves footage of an assisted death performed at the Dignitas clinic in Switzerland, where assisted suicide is legal both for citizens and foreigners. Switzerland has had assisted suicide for a number of decades and public support for the practice is still strong. The Dignitas clinic is also where Eric MacDonald’s wife went to die. He has subsequently started a blog named Choice in Dying “to explore issues related to choice in dying and the right to die.”

This is different to saying that someone, such as a doctor, can choose to euthanise someone else. This is saying that people should have the choice to end their own life. No one else can make that choice for them. So how do you feel about the topic? Should people be allowed to choose their own end? Is there a reason to let them suffer when they would choose not to?

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One thought on “Petition for personal autonomy in South Africa

  1. It’s interesting, I think, to trace some of the legal history which has given rise to the position we find ourselves in today.

    In the 13th century in Anglo American common law systems it was an offence to take your life in order to avoid conviction and punishment. The penalty for the offence was that your property would be confiscated and declared forfeit to the State. This punishment was soon extended to sane persons who took their own life.

    The attitude in England was evidenced by Blackstone, the famous legal scholar, who wrote that suicide was “self-murder” and therefore punishable. He ranked it amongst the highest crimes and labelled it pretend heroism which was in fact real cowardice. People destroy themselves to avoid those ills which they had not the fortitude to endure.

    So one view was that only the State had the right to kill you (as punishment for crime) and it was unlawful to deprive the State of that opportunity and another view was that those who committed suicide were cowards who should toughen up. Quite why one should have to endure suffering does not seem to have been addressed.

    This common law position was taken up in America but over time the penalty for suicide (forfeiture of property) was dispensed with for two main reasons: first it was realised that by taking property one was punishing the innocent family and not the offender and, secondly, it was thought that the love of life was so strong in humankind that there was no need for a deterrent for this kind of crime. It was still treated as a wrong and there was certainly no right to take your own life. It was because suicide was a felony, that assisting another to commit suicide was punishable.

    Recognising dignity and autonomy are recent innovations in the law, comparatively speaking, and it was through a recognition of these concepts that the law evolved to the point of drawing the distinction between refusing life-saving medical treatment, which is generally permissible in most societies, and taking active steps to end your life. One must bear in mind that administering medical treatment which the patient does not want or consent to amounts to an assault in law.

    The US Supreme Court has specifically considered whether it was constitutional to prohibit assisted suicide and found that it was. One of the factors which influenced its decision was the centuries long legal doctrine and practice on this issue. This is a fallacious basis for the finding, in my view. A lengthy pedigree doesn’t make a thing right and the world today may be (and probably is) a different one with a different set of value choices to the world in which the common law rule originally developed.

    The second basis for the decision was the old chestnut the sanctity of life. This view is premised on the belief that life has value in and of itself and that a society can choose to protect life in the same way it can choose to protect red squirrels, Brenton Blue butterflies or the textile industry. Once it’s chosen to protect it, you can’t destroy it just because it happens to be within your power to do so. This reason is an incomplete reason. If my seed silos are being raided by squirrels it would be fair for me to ask the State for an explanation as to why the squirrels must be protected. I may disagree with the reasons they give me, but they must be able to articulate reasons which leave me saying, “Yes, I see how you came to that conclusion, even though I don’t agree with the conclusion myself.” It isn’t an answer for the State to say “The Squirrels must be protected because it is important to protect them.” That’s my difficulty with sanctity of life – it asserts that life is worth protecting but doesn’t tell us why.

    These are the only two rationales which have as their underlying premise the contention that life should be protected by the State in and of itself. All the other rationales which follow are reasons why this choice should not be permitted to society even if the State had no interest in protecting life.

    The third basis for the decision was that suicide is a symptom of a medical disorder and one cures it by treating the disorder, not removing the symptom. In other words, treat the depression or the pain, as the case may be. This characterisation of suicide may or may not be correct, I don’t know. But what if you can’t treat the disorder? What if the sufferer refuses treatment for the disorder as they are legally entitled to do? Again, I find this rationale unpersuasive.

    The fourth basis was a need to protect the integrity and ethics of the medical profession – taking life being incompatible with the role of a doctor. This argument is a stronger one than the preceding ones. If some doctors choose to assist in suicides it affects the perception the public has of all doctors, and those doctors who regard it as incompatible with the role they see themselves fulfilling have a legitimate interest in asking to be protected from this effect. The State has an interest in ensuring that there is a body of professionals who are trusted by the public to attend to their health needs. This is a problem which is not without a solution, however. If there is a cogent reason to say doctors should not be involved in taking lives the market will soon fill the gap by means of a set of professionals who fulfil this function, whether subject to State regulation or not. In other words, once you take a policy choice to permit assisted suicide, you can protect the ethics of the medical profession. So this is not a reason not to take the policy choice.

    The fifth and sixth bases cited by the court are related: these are the needs to protect vulnerable groups such as the sick, elderly and the poor from abuse, undue influence, neglect and the like and the slippery slope fear of where the road of permitting assisted suicide will ultimately take us. Slippery slope is a nonsense argument here. The law permits what it permits. If the next step society wants to take is a step too far the law will prohibit it. The vulnerability of those at the end of life is a different matter. Who is to say that this desire you feel to spare your loved one’s suffering is not in part motivated by your own desire to end this distressing part of your life? We’re saying, in other words, that because we cannot distinguish a genuine desire to die from an imputed desire to die, no-one should be permitted to die. This is dog-in-the-manager thinking because it has the result that even when confronted with a genuine case where there can be no question of undue influence, improper motive or the like we still deny that person the right to choose. The real problem here, as I see it, is a legislative one. The law makers would not be able to frame a law which would ensure that only the genuine cases get through. Genuine desire is like pornography – hard to describe but you know it when you see it. To overcome this rationale one has to shift the debate from the assertion that assisted suicide should be allowed to showing how it could be achieved while meeting the State’s legitimate concerns.

    But South Africa is not America and our legal problem has an additional difficulty. Arguing that people should be entitled to take their own life depends on a society which values individualism and individual autonomy. This is largely the Western legal model. The South African value choice is a different one. Our Constitutional Court has held that the value underlying our constitution is a communitarian philosophy of human interdependence, respect and concern. It is group solidarity and collective unity. Now whether you agree with this view of society is not the point. As a matter of law, our Constitutional Court has held that this is the value choice which South Africa has made. This means we cannot approach this question as a legal matter from the position of personal autonomy, but rather from the point of view of considering whether the decision serves the communitarian philosophy as, on this approach, you may be required to stay alive despite your suffering because of some value which that provides to me by virtue of our interdependence.

    It’s a legal-philosophical problem I’d love to see our legal minds grapple with.

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