In a democratic society such as ours, it should not be up to bureaucrats and politicians to decide whether assisted dying is wrong or right, says Bernadette Wicks.
Do we have the right to die?
That’s the question at the heart of a bold constitutional challenge to South Africa’s laws against assisted dying for terminally ill patients by Johannesburg doctor Suzanne Walter and retiree Diethelm Harck, to be heard next month in the Johannesburg high court.
We don’t have the explicit right to die in that it’s not expressly set out in the Constitution. But Walter and Harck’s argument is that it’s implicit in other rights – like the rights to dignity, to equality, not to be treated in a cruel, inhuman or degrading way and, in fact, to life.
And so it must be.
The Constitution effectively affords us the right to live our lives on our own terms. And if Walter and Harck – who are both terminally ill themselves – want to be able to end their lives on their own terms, then who are we to deny them that?
The argument against assisted dying is rooted in the right to life and the obligation that it places on us a society to preserve life. But the right to life cannot merely be the right to exist.
One poignant line in Walter and Harck’s papers reads: “Death is an inextricable part of life and affords the plaintiffs the right to live a life which they attach individual meaning to.”
The words “individual meaning” here are important.
In “How We Die”, medical ethicist Dr Sherwin Nuland – who was in fact opposed to assisted dying – wrote:
“The belief in the probability of death with dignity is our, and society’s, attempt to deal with the reality of what is all too frequently a series of destructive events that involve by their very nature the disintegration of the dying person’s humanity. I have not often seen much dignity in the process by which we die.”
Nuland was seeking to dispel the notion of dignity in death. But at the very least, assisted dying can afford us the opportunity to lessen the indignity of dying.
In 2014, Brittany Maynard became the face of the right to die debate in the US after she was diagnosed with an aggressive brain cancer and chose to move to Oregon, where assisted dying is legal, to end her own life before the disease took her. She spent her final months lobbying for legalisation in other parts of the country and in the wake of her death, her husband took up the cudgels. He has since explained her decision not as a choice between life and death but rather like this:
“She was only choosing between two different methods of dying. One method would be gentle, peaceful. The other would result in being tortured to death by the increasingly intense symptoms she was already experiencing: unrelenting pain, nausea, sleep deprivation, seizures, and impending blindness and paralysis.”
Some argue it’s a “slippery slope” and that “If assisted dying for terminally-ill patients were made lawful, what next?”
But even if it were to pave the way for assisted dying for patients suffering from non-terminal but nonetheless debilitating physical or even psychological conditions – like it has in the Netherlands – this wouldn’t necessarily be a bad thing.
Local philosopher David Benatar uses South Africa’s old apartheid laws to illustrate this point.
He imagines an opponent of apartheid lobbying for the abolition of separate entrances to the post office for blacks and whites.
“A defender of apartheid might resist that move by pointing to the possibility of a slippery slope: ‘If we abolish separate entrances,’ that defender might say, ‘we shall soon find that people of different races are permitted to marry one another, and before we know it, there will be no more apartheid.’ It should be readily apparent that, even if the defender of apartheid is correct that the stated trajectory is a likely consequence of abolishing the separate entrances, that consequence would not be a noxious slippery slope,” Benatar writes.
We should be embracing a more progressive approach to assisted dying in a democratic society.
Because in a democratic society, at the core of the debate is not whether something as personal as assisted dying is right or wrong, it’s who gets to decide that. And the answer should be the individual.
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