Paediatric euthanasia : do terminally ill mature minors have the right to die?

Abstract

Euthanasia is a highly controversial and topical issue in South Africa at the moment. Following recent developments in common law, the need for euthanasia legislation in South Africa needs to be considered and further whether such legislation should allow for a mature minor to request euthanasia provided they are considered sufficiently mature to make such a decision. The purpose of this dissertation is to show the need for implementation of euthanasia legislation which would also permit terminally ill mature minors to request euthanasia. This research will involve a rights-based analysis in order to show that a terminally ill mature minor can successfully rely on his or her Constitutional rights to dignity, bodily integrity, privacy, equality, healthcare and freedom to request active euthanasia. There is a duty on the state to protect and promote the rights of terminally ill minors and it can be shown that it does such a minor more harm than good to force him or her to suffer unbearable pain until their natural death occurs. Having shown that minors can rely on the rights above, this dissertation will conduct an investigation of a child’s right to autonomy and bodily integrity in order to show that to limit a child’s right to make decisions about his or her own body is an overextension of legal paternalism. In all matters concerning a child, the child’s best interests are always of paramount importance. The purpose of this research is to show that it cannot be in the child’s best interests to force a terminally ill child to continue to suffer until their natural death despite the child requesting otherwise. In the discussion of paediatric euthanasia, the concept of competence to make a decision will also be considered. It is essential that should a child be permitted to request euthanasia, that child must be sufficiently competent and mature to make the decision to die. Methods of assessing competency and maturity will be analysed in addition to existing legislation, such as the Children’s Act,¹ which specifically provides instances in which a child can make a decision regarding their own body, showing an acknowledgement by the legislature of the need to promote and protect a child’s right to autonomy. The final section of this dissertation considers the foreign jurisdictions of Belgium and the Netherlands in order to critically assess how euthanasia legislation can be implemented with the inclusion of children. These are the only two jurisdictions worldwide which allow for a child to request euthanasia. The South African Law Commission’s report on euthanasia is also considered to contemplate the need for safeguards in respect of euthanasia that will ensure minimal abuse. ² The research is concluded by suggesting safeguards for implementation in legislation which permits terminally ill adults and mature minors to request euthanasia.