Introduce euthanasia bill – judge

Fabricius backs right-to-die ruling by referring to 1998 draft law on issue

PARLIAMENT should give serious consideration to introducing a draft law legalising euthanasia. In his written judgment explaining his reasons for allowing cancer sufferer Robin Stransham-Ford the assistance of a doctor to help him die, Pretoria High Court Judge Hans Fabricius suggested the bill presented for debate should be based on the Law Reform Commission report on assisted suicide and viewed through the lens of the constitution’s Bill of Rights.

But, Fabricius said, he could not tell the government what to do.

In 1998, then president Nelson Mandela asked the Law Reform Commission to research “assisted suicide and the artificial preservation of life”.

The commission did extensive work on the issue and found in favour of assisted suicide and wrote a draft bill legalising it.

The bill, yet to be debated in parliament, was given to then health minister Manto Tshabalala-Msimang in 1999, but nothing further happened.

Fabricius said had Stransham-Ford’s application for assisted suicide not been so urgent due to his impending death, he would have expected the Department of Justice to explain its policy on the draft euthanasia law and what it intended doing about the commission’s proposals.

In his 60-page judgment, he pointed out that at the time the Department of Health had agreed with the idea of allowing terminally ill people who wished to die to do so with the help of a doctor.

The commission drew up safeguards that would ensure only terminally ill adults who were mentally competent could request euthanasia.

Adults also needed time to change their minds, had to ask for euthanasia repeatedly and had to prove they were acting voluntarily. Stransham-Ford referred to the commission’s safeguards in his af- fidavit and proved he met all the criteria.

Substantiating his judgment, Fabricius said the “norms of the constitution should inform the public . . . rather than religious or moral ideas”.

“The applicant’s rights, which were sacrosanct to him, could not be sacrificed on the altar of religious self-righteousness.”

He quoted former Justice Kate O’Reagan who had ruled that the right to life was not separate from the right to dignity.

This meant the constitution’s right to life could not be used to deny Stransham-Ford’s request that he be allowed a dignified death.

The state had argued that the right to life meant euthanasia was illegal and unconstitutional.

Fabricius found it contradictory that people could choose whether to marry, what to study and even to refuse medical care, but could not choose how to die.

He questioned how people “could tolerate a horrendous murder rate in many countries, including ours, and tolerate slaughter on roads and yet we allowed a government to refuse a suffering person a dignified death”.

He agreed with Stransham-Ford’s contention that it was a crime when an owner forced a pet to stay alive when it was suffering severely instead of putting it down.

He argued that people were not treated as well as animals and were forced to stay alive even while in tremendous pain.

Stransham-Ford died on Thursday before the ruling was made.

Because he died before the ruling, Lesego Montsho SC, representing the Director of Public Prosecutions and departments of Health and of Justice, asked that the order be rescinded.

The judge refused to withdraw his order and said an appeal should decide whether his judgment was moot as Stransham-Ford was already dead when it was given.

Montsho said the state planned to appeal, probably in the Constitutional Court.