Dignity South Africa has launched a legal challenge against laws that criminalise assisted dying in South Africa, with the case now before the North Gauteng High Court.
The organisation argues that the common law prohibition against medical assistance in dying is at odds with the Constitution and that South Africans who want access to this option should have the right to it.
Operations Manager Leigh Mienert says courts had recognised the tension between common law and the Constitution nearly a decade ago.
“In fact, the court determined almost 10 years ago that there is indeed a discrepancy between our common law and our Constitution. We believe that the common law prohibition against medical assistance in dying is actually at odds with our Constitution, and that’s why we’re building the case to say constitutionally, in line with constitutional rights to bodily autonomy, dignity, equality and quality of life, we believe that this is a right that all South Africans who want it should have access to,” says Mienert.
She says the organisation had spent four years preparing the case and was confident it had a strong constitutional foundation, given the rights to dignity, equality, bodily autonomy and quality of life enshrined in the Constitution.
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On concerns about potential abuse, Mienert says evidence gathered from four countries showed that where assisted dying had been implemented, strict eligibility criteria and safeguards were consistently applied.
“This is not just for someone who has lost the will to live. It is for someone facing an irremediable condition, who is facing intolerable suffering and who has the mental capacity to ask for this. Multiple doctors must independently assess it. There are numerous safeguards that can be put in place and absolutely, when law is created for this, those things will need to be identified and legislated.”
She says any South African model should be hospital-based and must never be a substitute for palliative care, adding that access to palliative care should be guaranteed before a person could access medical assistance in dying.
Mienert says public response had been largely supportive, and that people who understood how their concerns about safeguards and palliative care access would be addressed were generally reassured.
“Even if it might not be something that you yourself believe is in line with your beliefs or values, that’s not a reason to deny it for someone else who really wants it.”
Dignity SA framed the case as the final frontier of constitutional rights, noting that over the past 30 years, landmark rights had been secured for South Africans on issues ranging from sexual orientation to healthcare access and the abolition of capital punishment.
The South African Law Commission examined models for assisted dying as far back as 1998, including a hospital-based model that Dignity SA said could serve as a framework for responsible implementation in the country.
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