The right to conscientious objection against administering euthanasia in the context of the right to freedom of religion

[摘要] In 2015 the South African judiciary was confronted with 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 judgement serves as a catalyst towards jurisprudential debate in South Africa regarding the possible legalisation of euthanasia. Adding to the development of this debate is that some months prior to the Stransham-Ford case, the Canadian Supreme Court ordered the drafting of legislation which would offer Canadians the 'right to die' and which consequently included Canada among the ranks of States such as the Netherlands, Switzerland and Belgium. Arising from this is the question whether a medical practitioner may be compelled to comply with the wish of a person where such a person voluntarily and of sound mind requests that his or her life be terminated. Bearing the above in mind, this study argues for the protection of the rights of medical practitioners who conscientiously object against participating (whether directly or indirectly) in the administering of euthanasia. This necessitates an analysis of the rights applicable to all the relevant parties, 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 plurality pertaining to religious rights and freedoms in democratic societies around the world. By examining and comparing the nature and parameters of the various rights that come into play, it also becomes clear, through application of the proportionality test, that medical practitioners should indeed be entitled to, based on their religious convictions, refuse to participate in the intentional termination of innocent human life even in instances where a person voluntarily requests for his or her life to be terminated when such a request relies on the experiencing of substantive pain and suffering and where death is inevitable. This, together with the vacuum there is in sizeable human rights jurisprudence related to the protection of the medical practitioner's religiously fed conscientious objection against the administering of euthanasia, anchors the importance of this study both for the South African context and beyond.

[发布机构] University of the Free State