Abstract
Although consent is a justification ground in South African law, its applicability to cases of euthanasia has been the subject of controversy. It is submitted that relying on the distinction between omission and commission, or causation or intent will not prove useful in justifying mercy killing. In terms of the South African Constitution (and various human rights guaranteed therein), there may be compelling arguments for legalizing euthanasia. For instance, section 10 of the Constitution guarantees the right to dignity. A lack of control over your destiny essentially involves a loss of dignity. Further, the right to dignity and the qualified right to personal autonomy inform section 14: the right to privacy. This right holds that an individual can make certain fundamental private choices without state interference. Surely this would extend to how to end one’s life? This article advocates that a rights-based approach be used to inform the doctrine of consent. This would entail taking the victim’s shared responsibility into account thereby reducing the perpetrator’s fault.
Highlights
In 2002 the European Court of Human Rights weighed in on the subject of assisted suicide in the case of Pretty v United Kingdom.[1]
Such a distinction would not prove useful in South African law due to the existence of intention in the form of dolus eventualis: where the accused foresees the possibility that the prohibited consequence might occur in the same manner that it does and he reconciles himself to this possibility.[81]
It is submitted that the distinction between holding assisted suicide unlawful while recognizing the right to refuse care is based on an important consideration – society’s sense of propriety, most notably its belief that things should happen according to their natural disposition or order
Summary
Consent is a justification ground in South African law, its applicability to cases of euthanasia has been the subject of controversy. The right to dignity and the qualified right to personal autonomy inform section 14: the right to privacy. This right holds that an individual can make certain fundamental private choices without state interference. This would extend to how to end one’s life? This article advocates that a rights-based approach be used to inform the doctrine of consent. This would entail taking the victim’s shared responsibility into account thereby reducing the perpetrator’s fault
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