Decision with respect to legalization of euthanasia lies with the South African Parliament rather than the Judges

Supreme Court of Appeal of South Africa: While deciding the present case wherein the legality of an order by the High Court of South Africa, Gauteng Division, Pretoria to allow physician assisted euthanasia to a dying cancer patient, was debated, the Court held that it is the forte of the Legislature to introduce laws in respect of legalizing physician assisted suicide/euthanasia, and that the present case in not appropriate for the Court to develop the common law of murder and culpable homicide.

The applicant who was dying of cancer, approached the High Court of South Africa, Gauteng Division, Pretoria claiming an order that a medical practitioner could either end his life by administering a lethal substance, or provide him with the lethal substance to enable him to administer it himself, and that in the event if a medical practitioner must end his life, then such medical practitioner would not be subjected to prosecution or disciplinary steps by the relevant professional body. Furthermore the applicant as seeking the above relief as matter of right as enshrined in the Bill of Rights under the Constitution also sought an order that the common law in relation to the crimes of murder and culpable homicide should be developed in terms of Section 39(2) of the Constitution of South Africa. The applicant was allowed by the High Court to go for physician assisted euthanasia; unfortunately however the applicant died 2 hours prior to the passing of the Order. The High Court however refused to recall the Order stating that it’s Order had extensive societal implications, upon which then the State decided to prefer an appeal to the Supreme Court.

Perusing the facts and the arguments for and against legalizing euthanasia, and also looking upon the complexities involved in the issue, the Court discussed the laws, the precedents regarding the issue. The Court further took notice of various countries wherein extensive laws have been laid down in respect of euthanasia, most particularly Netherlands and the State of Oregon, USA. However the Court noted that the separation of powers requires that Parliament should decide any changes on the law rather than requiring judges to do so. The Court further observed that the South African situation, social values and social-economic and political conditions are very different from the jurisdictions where euthanasia has been legalized. The Court also stated that the High Court was hasty in deciding the case and did not properly consider the South African law or international precedent cases and was wrong to assume that the common law on murder needs to be changed to accommodate assisted suicide and euthanasia. [Minister of Justice and Correctional Services v. Estate Stransham-Ford, 2016 SCC OnLine ZASCA 46 : 2016 ZASCA 197, decided on 06.12.2016]

 

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