Abstract
In 2015 the South African judiciary was confronted with the issue of the so-called "right to die", when Robin Stransham-Ford applied to the High Court of South Africa (the North Gauteng Division) for an order to have his life terminated. Although the Supreme Court of Appeal set aside the order (on procedural grounds), the High Court's judgment paved the way towards renewed attention regarding the possible legalisation of euthanasia. A pertinent question arising from this is whether a medical practitioner may be compelled to participate in the administering of euthanasia. Bearing this in mind, this article argues for the protection of the rights of medical practitioners who conscientiously object to participating in the administering of euthanasia, especially where such an objection is based on religious beliefs. From this arises the necessity to investigate the rights applicable both to the medical practitioner and the patient (which focusses on the right to freedom of religion and personal autonomy), the weighing up against one another of the different meanings ascribed to such rights, as well as the postulation of a substantively competitive rationale against the background of the importance and sacredness of human life. This also overlaps with the importance of the endeavour towards higher levels of religious freedoms and consequently of plurality in democratic societies. Applying the proportionality test in the analysis whether a medical practitioner's rights may be reasonably and justifiably limited against the background of administering euthanasia also strengthens the argument for the protection of the medical practitioner's right to object conscientiously to the administering of euthanasia. This, together with the vacuum there is in substantive human rights jurisprudence related to this topic, suggests the importance of this article both for the South African context and beyond.
 
Highlights
In 1998 the government instructed the South African Law Commission to draft a report called the Law Commission Report on Euthanasia and the Artificial Preservation of Life, Project 86
Fabricius J had held that the said ruling served as a basis for the further development of the law regarding euthanasia: The topic is in my view important enough, having regard to the relevant principles contained in the Bill of Rights, that serious consideration be given to introducing a Bill based on the South African Law Commission's Report, which suggested a number of options, but supported the development of the common law in this context
By focussing on the importance and scope of the right to life, the credibility of the medical practitioner's conscientious objection against participating in euthanasia is argued for, which in turn supports his/her right to human dignity, to freedom of religion and to privacy, these being rights that will be discussed below and that will further the argument for the protection of the medical practitioner who objects against participating in euthanasia
Summary
In 1998 the government instructed the South African Law Commission to draft a report called the Law Commission Report on Euthanasia and the Artificial Preservation of Life, Project 86. This report entailed a comprehensive investigation of euthanasia and assisted suicide, and it was addressed to the Minister of Justice, as determined by the South African Law Commission Act, for possible approval.. No further legal development took place until more than a decade later, on 30 April 2015, when the South African High Court (as per Fabricius J) consented to Robin Stransham-Ford's application to the court, allowing a medical practitioner to euthanise him. Fabricius J had held that the said ruling served as a basis for the further development of the law regarding euthanasia: The topic is in my view important enough, having regard to the relevant principles contained in the Bill of Rights, that serious consideration be given to introducing a Bill based on the South African Law Commission's Report, which suggested a number of options, but supported the development of the common law in this context. It is further postulated that an unreasonable and unjustifiable infringement on the medical practitioner's basic rights occurs where the law compels a medical practitioner to participate in the administering of euthanasia
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