MAiD in SA: The Power of Our Constitution

Our previous installment in this MAiD in SA series outlined the ethical debates around medical assistance in dying (MAiD). Fortunately, in South Africa, we have a constitutional democracy, like Canada, where our Constitution provides a way to resolve ethical differences. By contrast, the UK has a parliamentary democracy, where MAiD is currently being decided by the personal convictions that members of the Houses of Commons and Lords happen to have.

In South Africa, we come to an agreement to live by the shared ethical values of our Constitution. The Constitution gives us permission to express ourselves in our own uniquely chosen ways, but only within the limits set by that Constitution.

So, in essence, the Bill of Rights of our Constitution is an ethical document. It proclaims the foundational ethical values of human dignity, freedom, and equality, upon which we agree to build a good society simply by virtue of living under its tutelage.

Our constitutional rights are expressions of these values. These rights guide us to adopt practices even though the majority may not wish to choose them for themselves, such as termination of pregnancy or same-sex unions, or may disapprove of them, such as capital punishment.

Section 38 of our Constitution states that anyone has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The person who may approach the court could be, among others, anyone acting in their own interest or in the public interest. Tellingly, in 2016, in the Stransham-Ford case, the Supreme Court of Appeal held that DignitySA has the necessary standing to act in the public interest.

So, does our Constitution give us permission to adopt the practice of MAiD? In short, what are the ethics of legalising MAiD?

In the Founding Affidavit of our constitutional challenge, DignitySA argues in detail that there are four rights in our Constitution's Bill of Rights that support a constitutional right to MAiD, namely:

1. The right to equality (section 9(1)) requires that the law apply to persons in similar situations in a manner that is not arbitrary or manifests naked preferences; these equality considerations are also applicable to different diseases and different forms of suffering;
2. The right to dignity (section 10) says that each person has inherent worth, and that no person should be treated merely as a means to an end, but only as an end in themselves (centres of value); this right is an expression of the foundational value of dignity that underlies the Bill of Rights and informs the interpretation of other rights and freedoms; dignity in dying requires listening to the one whose life it is;
3. The right to life (section 11) is infringed by a prohibition of MAiD that imposes an increased risk of premature death; it protects a right to a biography (typically human life) rather than mere biology (mere physical existence); and
4. The right to freedom and security of the person (section 12), which includes the right to bodily and psychological integrity, and specifically the right to make decisions about our bodies.

DignitySA believes that the current common law prohibition on medical assistance in dying is in contradiction with these rights that are enshrined in our Constitution and, on 9 April 2026, DignitySA approached the Court to resolve this dilemma. To receive updates about our court case and help us grow our community of compassion, make sure you have signed up as a member of DignitySA and please invite others to do so too.