Right to live life on own terms is constitutional – why not death?

That’s the question at the heart of the bold constitutional challenge to South Africa’s laws against assisted dying for terminally ill patients that Johannesburg doctor Suzanne Walter and retiree Diethelm Harck have launched, set to kick off today.

We don’t have an explicit right to die in that it’s not expressly set out in the constitution. But on Walter and Harck’s argument, it’s implicit in other rights – to dignity, to equality, to not be treated in a cruel, inhuman or degrading way and, in fact, to life.

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 – want to be able to end their lives on their own terms, who are we to deny them?

The argument against assisted dying is rooted in the right to life and the obligation that it places on us as 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” 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.”

But at the very least, assisted dying can afford us the opportunity to lessen the indignity in it.

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, and 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, following her
death, her husband took up the cudgel.

He has since explained her decision: “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…”

Some argue: “If assisted dying for terminally ill patients were made lawful, what next?”

Even if it were to pave the way for assisted dying for patients who were suffering from non-terminal but nonetheless debilitating conditions, this wouldn’t necessarily be a bad thing.

Local philosopher David Benatar uses apartheid laws to illustrate this point. He imagines an opponent of apartheid lobbying for the abolishment of separate entrances to the post office for blacks and for 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 beno more apartheid.’ It should be readily apparent that, even if the defender is correct, consequences would not be a noxious slippery slope.”

We should be embracing a more progressive approach to assisted dying in a democratic society.
Because 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.

Bernadette Wicks.

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