Dudley's Constitution Seventeenth Amendment Bill: introduction

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
7 September 2007

DUDLEY'S CONSTITUTION SEVENTEENTH AMENDMENT BILL: INTRODUCTION

Chairperson: Ms P Mentor (ANC)

Documents handed out:
Dudley’s Constitution Seventeenth Amendment Bill
Draft Committee Programme
Ms Dudley’s note on the Objective Ordering of Rights
Ms Dudley’s notes on Violence Against Women and Children and Victimisation of Disabled Children

Audio recording of meeting

SUMMARY
Ms Cheryllyn Dudley (ACDP) presented the Constitution Seventeenth Amendment Bill (The Right to Life of the Unborn Child). The objects of the Bill were to amend Sections 11 and section 28 of the Constitution in order to ensure reasonable protection of the right to life of the unborn child. She stressed that the limitations Clause, Section 36 would apply as it did to all other matters in the Bill of Rights. She believed that abortion on demand was unreasonable, inhumane and discriminatory. It was anomalous that the unborn child did not have the right to life, although they were regarded as persons for the purposes of property, inheritance and injury claims. She cited the Pinchin v Santam and Christian Lawyers Association  cases in support of her argument. She said that to interfere unnaturally with a process where a child could be successfully born was in her view incorrect.

Members raised questions around the consultation process followed by Ms Dudley, asked whether there was any indication of a change of attitude to support the anti-abortion groups, and discussed the hearings processes. The adoption culture in different communities was distinguished and Members commented that there was a need for more clarity on the medical terminology, and on the cultural views around the description in gestation terms of embryo, foetus and child. Members agreed it would be necessary to have legal opinion, and suggested also that the views of the Gender Commission be obtained. It was not clear whether a change to the Constitution would automatically render unconstitutional some of the legislation, or whether it would need to be tested. The decisions in the two matters referred to were clarified and explained. The Member was asked to re-examine her proposal, and to clarify and expand on certain aspects. 

MINUTES
Introduction by Chairperson : Procedure
The Chairperson announced that the Committee had been allocated a Legal Officer, who was not present, and a special Researcher. It had also been allocated a media support person.

The Chairperson welcomed Ms Cheryllyn Dudley (ACDP), and explained the rules of Parliament in relation to the Constitution Amendment Proposals. . The Committee would invite the presenter at least once to present the proposal. However, it normally took the liberty, when not happy that all issues had been covered, to invite the presenter also on a second occasion. Much emphasis was placed on the objects of the proposal. It should also be double-checked what the costs to the State would be if the proposal was implemented, (although this was strictly speaking the function of the Speaker’s Office).  The Rules of Parliament laid down that three considerations applied: namely, the cost to the State; if the issue had been covered for consideration somewhere else in the echelons of the State; and whether the Committee had satisfied itself about these issues.

After the proposal was presented, the Committee would call the relevant departments to engage. This matter  resided with the Department of Health, but because it was a constitutional amendment proposal the Committee may call the Department of Justice, and could also call for submissions or engagement from the Justice and Health Portfolio Committees. The Rules of Parliament instructed this Committee to work concurrently with others affected, and also to invite the relevant departments. At these engagements, Ms Dudley may be present but would not be allowed to engage with them.

If the Committee were to approve the proposal, the Rules said that the proposal must proceed from a member’s proposal to a Bill. At that stage it would be taken out of the Committee’s hands and would go back to the Speaker, who would direct it to the relevant Portfolio Committee. If this Committee refused the proposal, that would be the end of the matter. Often, however, the Committee, whilst not supporting a proposal, would realise that it had raised issues that needed to be addressed, and in this case it propose a debate; or redirect the proposal into other amendment processes of the State department.

Constitution Seventeenth Amendment Proposal: Rights of the Unborn Child
Ms Cheryllyn Dudley (ACDP) appreciated the information and asked for guidance when necessary.

Ms Dudley said that her thoughts on this proposal started with the question as to why the unborn child should be regarded as a person, for purposes of property rights, but not as a person for matters of life or limb. That was the echo of the highly logical question asked by the presiding Judge in the Pinchin v  Santam insurance claim. Shockingly, a woman’s right to have her pregnancy terminated did not infringe the unborn child’s right to life, as the Constitution of the Republic of South Africa did not specifically give an unborn child the right to life. Unborn babies were regarded as persons for the purposes of property law or even injury claims, but not persons who were entitled to a life. According to the judgement in the Christian Lawyers Association v National Minister of Health, the Legislature had no intention of protecting the unborn child’s right to life, and purposely excluded it from the Constitution's Section 11, the right to life, and Section 28, which dealt with children’s rights.

Section 12 of the Constitution gave everyone the right to make decisions regarding reproduction and to security in and control over their own body. This further infringed the view that the unborn child’s right to life was entirely dependant on a mother’s womb. These important rights had been carried to the extreme, resulting in absurdity and gross injustice. It was her opinion that this clause should be interpreted in line with the limitations clause - Section 36. Section 36 made sensible provision for the rights, in the Bill of Rights, to be limited by legislation to the extent that it was reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors. It was not reasonable and justifiable to devalue life, and certainly not to the extent where an unborn baby may be expelled from its mother’s womb at up to twelve weeks gestation, for any or no reason at all. Where was the dignity, equality and freedom in allowing unborn children up to twenty weeks gestation to be terminated for social and economic reasons? How was it reasonable and justifiable to deprive fathers of their rights with regard to their unborn children? Could the country agree that eleven to twelve year olds should have the right to abort their babies and the right to be manipulated by other people without even their parents being there as a safeguard?

The Chairperson asked Ms Dudley to give the gist of her proposal in one sentence.

Ms Dudley clarified that abortion on demand was unreasonable, inhumane and discriminatory.

Ms Dudley said that she had held many years of consultation with many Faith groupings, Pro-Life, nurses, doctors. In answer to a direct question from the Chairperson, she noted that she had not consulted with Doctors for Life. Although she had held broad consultation, there were also a number of other organisations she could have included. At the time of dealing with other organisations she had not yet tabled this document.

Ms Dudley elaborated on the financial implications. There was a budget going to terminations of pregnancies and she conceded that if this Bill was passed, then much funding in that area would be released. She noted that in response to government’s call for adoptive parents, there were no longer large numbers of black children waiting for adoption.

The Chairperson asked Ms Dudley who she meant when she spoke of ‘we’.

Ms Dudley responded that this would be organisations on the ground dealing with children, pregnancies, unwanted pregnancies; adoptions; shelters and homes. Some time ago she had been fully up to date about the children needing adoption, but she noted that if she were now asked to present a factual paper on something like that she would rather go back to those people to get the relevant facts.

She believed that the Bill must be dealt with in accordance with the procedure established by section 74(2) of the Constitution since it contained an amendment that sought to amend Chapter 2 of the Constitution.

Ms Dudley commented that abortion amounted to violence against women and children and discrimination against the disabled - for instance by abortion of foetuses known to have Downs Syndrome.

The Chairperson thanked Ms Dudley and reminded her that this proposal was made as an individual Member of Parliament, and that although she could incorporate the views of her own party or civil society, this proposal would be treated as an independent Member’s proposal. The Committee reserved the right to choose who else could be asked to comment, although Ms Dudley could make suggestions in this regard, and also reserved the right to test her interpretation of the court judgments.

Discussion
Mr A Ainslie (ANC) suggested not going into too much detail until the Committee heard from other stakeholders. He asked for clarification on consultation, noting that Ms Dudley seemed to have had a lot of interaction with a range of organisations opposed to termination of pregnancy. He asked if she had also interacted with others who favoured retention of termination of pregnancy.

Mr Ainslie wondered whether a similar measure had been submitted to Parliament since this section of the Constitution was enacted. He noted that when this measure was enacted there was huge debate, discussion and public hearings, which seemed to indicate wide support for permitting termination of pregnancy. He asked whether she had sensed a change of attitude that would support such an amendment to the Constitution.

Ms Dudley said there were different levels of interaction. She was also a Member of the Portfolio Committee on Health so had constant input from the Department and pro abortion groups. She herself went out to test the understanding in her constituency. Her views and those of the ACDP were gained from interaction.

The Chairperson asked whether she was suggesting that the Health Committee only interacted with pro abortion groups.

Ms Dudley replied that until recently that was the case. The hearings around termination of pregnancy legislation were to her mind skewed. There was selective choosing, say twenty of pro-abortion groups, and only a few Pro Life people, who had been hugely intimidated. During the last amendment of the NA, the other extreme was the case; the entire hearing was biased heavily to the pro-life groupings. She said that it was a known fact that at the time of the drafting of the Constitution, when people were asked to make submissions, the halls of Parliament were full of submissions opposing abortion. Nonetheless parliament decided that the people didn’t understand what was good for them; hence protection for the unborn child was left out. Research would show that nothing had changed. There were strong anti abortion sentiments both in 1994 and now. The difference was that people had become despondent as to whether they had a voice or whether they should make submissions.

The Chairperson said that her experience was quite the opposite.

Ms Dudley said that she was not aware of any similar proposals having been put forward.

Mr S Mshudulu (ANC) begged to differ on the question of adoption within communities, and noted that in the traditional Xhosa culture, if a daughter in the family fell pregnant, and no one claimed responsibility, the pregnancy was hushed up. The uncle would be named as father of the child when it was born, and no questions would be asked as all children in the family unit were treated alike. Grandmothers would take over the medical needs of the woman, and would deal with certain things to the exclusion of the men. He said he welcomed the opportunity to discuss the matter, and would have liked to have the legal experts present.

Mr Mshudulu noted that there was always a need to explain what was the intention of the legislation. He believed that a child would have to be explicitly defined, as this could vary in a medical sense from the ordinary dictionary definition. He was not sure that the language was explicit enough. He commented that a person had the right to make decisions regarding reproduction and to security in and control over their own body. This must be seen in context. He thought that the Gender Commission should be asked for its view. Sections 36 of the Constitution was the limitation clause, and here he would also like to have the views of the legal experts, to explain the limitations, as well as the word reasonable. He noted that the clauses dealing with the weighing of the mother’s life or health against the life of her unborn child would also be important areas, as would interpretation of the sections 11 to 28.

The Chairperson asked if all sections impacted upon the constitution.

Ms Dudley said that the Bill arose because there was no protection of the rights of the unborn child in the constitution. Section 36 should be allowed to do its job, and she did not wish to interfere with this. However, the fact that there was no inclusion or recognition of any rights of the unborn child interfered with it working properly

She continued around some of the arguments around the right to life. She stated that the South African law seemed to base the right to abortion on a woman’s rights to bodily integrity. She said that from the time of conception to the time of birth there was no difference in the life – the only real change happened when the baby took its first breath.

The Chairperson asked whether Ms Dudley was still answering Mr Mshudulu’s questions.

Ms Dudley responded that she was arguing around the right to life, and why she believed section 36 to be limiting section 12. She believed that this created an absurdity and the only way to ensure that there was no absurdity would be to provide for the protection of the right to life. Section 36 would then pick up again, and limit situations such as where the life of the child threatened that of the mother.

Ms Dudley continued that arguments about exactly when the foetus changed were needed, but had not been made. From a medical perspective, doctors would say that the genetic make-up of the unborn child would identify it as a separate individual from conception onwards and that dependence on the mother did not infer loss of identity, a fact that the constitution confirmed. If a person was disabled he or she could be dependant on another person, but that did not infer that the disabled person was not a separate identity, and the fact of dependence did not alter that.

The Chairperson was reluctant to allow Ms Dudley to read a lot of documents and asked her to please just answer the question.

Ms Dudley agreed that there was a need to interrogate why the section was not doing its job.

Mr Mshudulu explained that questions asked were to sensitise her around areas of emphasis. Her second approach would be restructuring of her proposal in order to convince the committee. Members were not necessarily accepting the answers but were suggesting these areas as topics that she needed to engage on in the next round.

Adv P Swart (DA) commented that the Constitution was silent on the rights of the unborn child, which was the very reason that permitted parliament to pass legislation to make provision for the termination of pregnancy. The reason for doing away with the death sentence was based on the argument that the right to life was sacrosanct and should not be limited in any case. He asked Ms Dudley whether she thought that a constitutional amendment to include the right to life of the unborn child would make the legislation on Choice of Termination of Pregnancy unconstitutional, bearing in mind that there could be limitations, or whether this would be simply a first step to passing a clause in the Constitution that would then encourage the anti-abortion lobby to challenge the legislation in the Constitutional Court.

Adv Swart fully supported that legal experts must give some perspective on the rights of the unborn child. He described the facts in Pinchin v Santam and noted that in respect of a damages claim for disability suffered by an unborn child Santam had claimed that the unborn child was not a person at the time of the accident that caused the disability. The Court ruled that the unborn child was regarded as already born in terms of its rights, and that the same principle would apply to succession and inheritance rights. However, at that stage twenty weeks gestation was fixed at the stage at which an unborn child be regarded as able to survive on its own. That was no longer the case. It would be very interesting to know whether there were any South African court cases since then that addressed the gestation periods and the ability to survive. Therefore there was an anomaly where the case law made provision for the rights of the unborn child in some areas only, but did not protect the right to life.

In answer to the question whether this proposal, if passed, would render the current legislation unconstitutional, Ms Dudley agreed there would have to be amendments to the current legislation. This was not exactly a first-step approach, as it was more of a watershed approach. A first step would have been, for instance, challenging the right of children of eleven years of age having abortions under the Choice of Termination of Pregnancy legislation. She preferred to attack this at the base level. She believed that there was a fundamental omission in the Constitution in failing to make protection for the foetus. Section 36 would still apply as a limitations clause, and was necessary for protection.

Ms Dudley asked for clarity on the question around interaction or consultation.

The Chairperson explained that a person taking a strong stance either pro- or anti-abortion would be mostly likely to liaise and interact with others who thought similarly. She also noted that a person’s stance would shift according to biological, cultural or legal lines of thinking. At conception the being was referred to as an embryo, as it developed it was called a foetus, and was commonly called a baby when born successfully. In the African culture there was merely an unborn child and a child. A child was understood as one that was born successfully and that would be raised. These concepts must be clarified by Ms Dudley, and she would need to bring supporting documents.

The Chairperson continued that maybe it was time to test the impact of the laws passed. Parliament was busy with a model for testing the impact of the laws passed so far. Even if members did not agree totally with the proposal, it highlighted the importance of Mr Ainslie’s question as to whether South Africa had shifted its attitudes in terms of the issues of abortion or not or whether they were still the same. She stressed that the Committee was not intending to deeply engage on the issues today, but she wanted Ms Dudley to bear in mind the important issue of being able to be born successfully, and to clearly distinguish between that and the legal precedents. 

Mr Gary Rhoda, Parliamentary Researcher, said that it was not quite correct that the legal system recognised an unborn child, as the decision in the Pinchin  matter said that the matter depended upon whether the child was born alive. The making of the award was in fact only done after the child was born. There was no specific provision for rights of the unborn child. The rules of interpretation noted that words would be ascribed their general meaning unless the context or some other specific provision made it clear that there was to be a departure. 

Ms Dudley referred to the child being able to be born successfully. Ms Dudley said that all views would be based on personal experience. It could be accepted that a child “born successfully” could in fact be one where there were birth complications or tragic circumstances. Abortion was not the same as something tragically going wrong. Ms Dudley circulated pictures to make it clear what in fact happened to that unborn child.

The Chairperson related her own experience, which had included a termination of pregnancy on medical grounds, when it was virtually certain that the child would have suffered the severest brain damage. She asked what Ms Dudley was proposing in these kinds of matters, and whether any liability would then attach to doctors or State.

Ms Dudley responded that those were tragic problematic medical circumstances, as opposed to simply stopping the life of a normal healthy baby. Section 36 of the Constitution made provision for the limitation of rights in the Bill of Rights. If there were rights for the unborn child, then Section 36 would apply to these rights to the extent that this was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. In the circumstances described, neither doctor nor State would be liable as they would not have breached the Constitution, read with the limitations clause. The lack of a clause for protection of the rights of the unborn child was currently, in her view, giving rise to absurdities.

Mr Mshudulu explained that he was tempted to go back to some of the debate at the time. He noted that in the townships there were a number of illegal backyard abortions. He noted that legal abortions could not be done without consent. Access to a dedicated ward in hospitals would be restricted. Considerations applied prior to the procedure, and there was credibility of doctors and procedures. He suggested that Members study the arguments and the provisions by the following week. Mr Mshudulu said that questions of morality were difficult. It was difficult to define the character of a person who would consent to an abortion. Some people had no choice because of medical grounds, especially older women, or those with complications during pregnancy that would lead to death of the child or severe disabilities. Rights and choices must be respected. Not having a child because it was a threat to life was understandable.

Ms I Mars (IFP) was very interested in the legal aspects being debated because she thought once the committee started off with emotion, they had to address the consequences that would take them either way. Everyone had memories of people being in the situation where they had illegal abortions. At this stage she wanted to keep to the legal and constitutional aspects and not yet deal with the consequences, although this would have to form part of the discussions at a later stage.

Adv Swart wanted the meeting to leave with a specific frame of mind, and he believed that the sentiments expressed in the culture described by Mr Mshudulu that “your child is my child” were meaningful,  and the culture that took children into families, brought them up, and respected the rights of the elderly was very positive. 

The Chairperson concluded by asking Ms Dudley to re-examine her proposal. Constitutional amendments were extremely serious, and the Committee would have to be quite convinced that a constitutional amendment was absolutely necessary. She noted that because constitutional amendments were so important, the proposals would be fully interrogated. She thanked Ms Dudley for an informative presentation.

Ms Dudley assured the Chair that she was not taking the Constitution lightly. The only reason she brought a constitutional amendment was because it had become very clear to her that this was the way to halt the absurdities and to stop extremes. Basic protection needed to be in place before looking to amending legislation. She reiterated that she was attempting to prevent unnatural interference with a successful birth process. 

The meeting adjourned.