Dudley's Proposal to amend Choice on Termination of Pregnancy Act: Centre for Applied Legal Studies and Commission on Gender Equality submissions

Meeting report

Dudley’s legislative proposal to amend the Choice on Termination of Pregnancy Act (as amended)
The Chairperson explained to all present that the Committee‘s responsibility was, once it had received a private member’s proposal for amendment of legislation, to recommend to Parliament whether it was desirable for the sponsor to proceed with the suggested amendment. He noted that two institutions would be making presentations to assist the Committee in reaching that decision.

The Chairperson noted that the South African Human Rights Commission (SAHRC) would not be making a presentation, as it had received conflicting information as to whether it should give a presentation.

Centre for Applied Legal Studies (CALS) submission
Professor Bonita Meyersfeld, Associate Professor of Law & Head of Gender: Wits School of Law Centre for Applied Legal Studies (CALS) briefed the Committee.

She submitted that the provisions of Ms Dudley’s proposed Bill were inconsistent with the substance and purpose of the primary Choice on Termination of Pregnancy legislation, as amended, (the Act), and were also inconsistent with the broader Constitutional goal of gender equality and the empowerment of South African women.

She outlined that the purpose of the Act was to ensure that South African women had meaningful choices regarding reproduction and that their choice should include a safe termination of an unwanted pregnancy. The goal was also to ensure that equality between men and women was achieved, by dismantling historic structures that prevented women controlling their autonomy, their bodies and their lives. CALS supported the imperative that women’s health should be protected and that the services provided to women should meet standards of effective and meaningful healthcare, in keeping with the Act, and would welcome government’s assistance to advance, and not impede, that right.

She made reference to the proposed amendment to Section 3(1)(h), that service providers must have access to ultrasound equipment, but said that the ordinary termination of pregnancy procedure did not require the use of an ultrasound. Ultrasound equipment may be necessary in cases where the pregnancy was advanced, but, for the majority of terminations that fell within the ambit of the Act, there could be no benefit gained by use of an ultrasound. This was confirmed by practitioners working in maternal health and the provision of termination procedures. The requirement for facilities to have ultrasound machines would therefore impose an unjustifiable and unsustainable financial burden on the organisations that provided terminations, forcing many to shut down. Many of these organisations relied on donor money and were already barely able to meet the needs of the many women who sought their services. This would reduce the number of clinics where women could access safe and legal termination, which in turn would impede women’s access to safe termination, which would be at odds with the purpose of the Act. She stressed again that women’s health professionals did not view the use of an ultrasound as necessary even for the healthy and safe delivery of a foetus.

Professor Meyersfeld pointed out that the closure of clinics providing safe termination of pregnancy would have a detrimental impact on women’s healthcare particularly in rural and impoverished areas of South Africa. Many termination clinics funded reproductive healthcare, not only termination services, in areas where there was a lack of government services, so threats to financial sustainability that might cause closure of these clinics would undermine both the reproductive rights of women and also the ability of poor, disenfranchised women to access health care.

Any reduction of clinics where women could seek safe termination of pregnancy would also lead to a rise in unsafe abortions and maternal mortality. Facilities providing termination procedures spent a great deal of time and resources preventing and intervening in cases of so-called ‘back-street’ or ‘botched’ abortions. Non-professional administration of termination procedures was extremely dangerous, and was particularly acute where medication was used to terminate the pregnancy, rather than surgery. Termination by medication was possible until the ninth week, but after this time only surgery was a safe option. Non-professional service providers were unable safely to determine the most suitable form of termination, with dangerous consequences for the patient.

Professor Meyersfeld then discussed the proposal on pre-procedure counselling requirements, noting that the proposed Bill included a requirement for electronic pictures, diagrams and photographs of the foetus in the counselling sessions. The intention was to ensure that women received sufficient information to make their choices about termination in an informed and educated manner. However, she felt that the use of photographs would not aid information, and might dissuade women from this option. Showing the image of a foetus to a woman considering termination had no bearing on her health or choice, and would serve only to dissuade her on grounds unrelated to her health or well being. This was at odds with the Act, which bound the State to provide reproductive health and safe conditions under which the right of choice could be exercised without fear or harm.

Prof Meyersfeld again stressed that the highest risk in termination of pregnancy occurred when the procedure was performed by non-authorised providers, who were unable to secure the health and safety of the patient. Imposing obligations that would limit or impede access to termination providers would cause more women to turn to unlawful service providers. This was a battle that was fought regularly by authorised practitioners. This Bill would serve to weaken their position. That would be at odds with the Act and with the Constitution’s aim to foster a community based on equality and dignity and to break down barriers that prevented the goal of equality.

Prof Meyersfeld also cautioned of the dangers of delay in access to termination. If Ms Dudley’s proposals were adopted, it would become more time consuming to obtain a termination, which would not be in the interests of the patient’s health or further the purpose of the Act to augment women’s reproductive choices.

She added that the proposals would be inconsistent with international developments. She also pointed out that the Protocol to the African Charter dealing with human rights and specifically the rights of women in Africa required signatory States to respect and protect reproductive health, including the right to decide whether to have children, the number and spacing of children, and access to medical abortion in specified circumstances.

The Member’s proposed Bill also required the provision of counselling, which warned patients against the alleged dangers of breast cancer, depression and future difficulties in conceiving and bearing children. There was no accepted evidence to prove a link between safe and informed termination and the conditions identified in the Bill. Indeed, it was more likely that a woman would experience ill health as identified in the proposal if she were forced to carry an unwanted pregnancy to term.

Prof Meyersfeld said that all health professionals agreed that counselling and education were central to the right to health. CALS supported all government initiatives to enhance the capabilities of facilities to provide counselling not only to women who came for termination, but also on safe sex, the prevention of future impregnation and to ensure that each patient was aware of her legal rights to refuse sex. She, however, believed that the proposed Bill’s counselling requirements were onerous and contrary to the purpose of the Act.

Prof Meyersfeld noted that the explanatory memorandum referred to the modernisation of medicine, which meant that a foetus may be viable after twenty weeks gestation. That, however, was a most rare phenomenon that occurred only in the context of sophisticated private health care, and was not a reality for the majority of women in South Africa, who relied on limited government health care or the provision of services by non-governmental organisations.

The explanatory memorandum also indicated that ‘major financial implications were not expected’. However, Prof Meyersfeld pointed out that a single ultrasound machine cost up to R60 000. Apart from that direct cost, the hidden cost of providing palliative care to women who endured unlawful terminations was currently a drain on the State’s resources and, should the proposed Bill be accepted, this would increase. South Africa was unfortunately one of three countries worldwide to see an increase in maternal mortality, partially attributed to illegal termination proceedings. Adoption of the proposals would increase the 60% to 70% share already held in the termination market by unsafe service providers.

Prof Meyersfeld concluded that CALS would wholly welcome government’s support of those practitioners who provided safe termination based on informed consent, taking into account factors that were reasonable and appropriate and in the interests of the broader goal of meaningful equality, real choice and the recognition that women could and should be free to choose when, if and how to give birth. She reiterated that the proposals neither furthered the goals of the Act, nor was likely to pass Constitutional muster.

Discussion
Ms J Sosibo (ANC) understood from the presentation that nurses and doctors did not approve the use of ultrasound, and enquired if that was because of the high cost of the equipment, or danger to the patient.

Prof Meyersfeld responded that the medical professionals to whom she had spoken would love to work in an environment that had available every possible instrument to further women’s health. She understood that there was no danger in the use of the ultrasound. The point was rather that, as desirable as this equipment may be, it was not necessary for the purposes of providing safe termination, except where the termination was required in an advanced stage of pregnancy, in which case those patients should be referred to fully fledged hospitals with such equipment. The proposals that each clinic or facility must be equipped with an ultrasound machine would not serve any purpose, would deeply drain the resources of those organisations, and might force them to close.

Ms Sosibo was also concerned that people applying for abortions were supposed to be counselled by authorised persons. She asked about the implications of being treated by unauthorised persons.

Prof Meyersfeld responded that counselling was very much part of the Act already. Anyone seeking a termination must be made aware of the nature of the procedure and also the scientifically identified consequences of the procedure. The present informal discussion at clinics explained to patients what instruments would be used, what the procedure was about, explained that the pregnancy would be terminated, and tried to ensure that this was the conscious and informed, not imposed, choice of the patient to proceed with the termination. Although there were instances where counselling may not be properly delivered, she believed the problem lay not with the legislation, but with its implementation. She stressed that a daily battle was being fought to provide meaningful and safe pregnancies or terminations for all South African women.

Mr P Pretorius (DA) noted that the Committee had received a submission from a medical practitioner, strongly arguing the other side from a medical standpoint, and he asked if Prof Meyersfeld could supply written submissions supporting her view on medical grounds.

Prof Meyersfeld replied that she would ask the two individuals, Dianne Cooper and Dr Vivienne Black, to send their written submissions to the Committee.

The Chairperson said he would appreciate any resource documents that might be helpful. He asked whether Prof Meyersveld felt that any amendment to the Act or regulations was required.

Prof Meyersfeld responded that the present Act was a robust, healthy piece of legislation that balanced the rights of women with the interests of society, and it had been carefully crafted. However, she would like to comment about the intervention by government. As was probably the case with all matters of human rights in South Africa, there was a lack of proper implementation and funding for those trying to protect the interests of the vulnerable. She did not believe that there was a need for amendment of Acts or regulations, but rather for practical assistance that would enable objectives to be met.

Mr Pretorius referred to the huge costs of extra ultrasound machines. He asked how many institutions lacked this equipment and how many would need to be installed if the proposals were accepted.

Prof Meyersfeld said she did not have information as to numbers, but, from information she had received from practitioners working in all aspects of maternal health, many institutions were desperate for ultrasound machinery to determine and track pregnancies that were to develop to full term. If ultrasound machines were to be distributed, the first priority would be to place them where they were desperately needed, namely, the centres where women carried pregnancies to term.

The Chairperson thanked Prof Meyersfeld, and said she would be welcome to listen to later presentations by the Department of Health and other stakeholders next week.

Commission on Gender Equality (CGE) submission
Ms Yvette Abrahams, Commission on Gender Equality, outlined the views of the Commission on Gender Equality (CGE). She noted that one of the United Nation’s Millennium Development Goals (MDGs), which were measured annually, included an indicator on the number of married women who would like access to contraception but did not have it, for which sub-Saharan Africa scored the highest in the world. South Africa also had the highest rate of gender-based violence in the world. Between 25% to 30% of all births were unwanted, caused by the very high rate of gender based violence. CGE devoted much time to trying to promote access to reproductive health.

Whilst the CGE took the view that abortion should never be the primary option for preventing unwanted pregnancies, it was nonetheless necessary to include it as one of a range of measures, even as the last resort, to give women reproductive choice. CGE cautioned the Committee not to think of abortions in isolation, but as falling within a broader reproductive health policy. The rise in population growth was linked even to rises in carbon emission and climate change.

The issue of abortion was highly emotive and complex, involving not only the mother and child, but the interests of the whole family and also the community. The choice to terminate an unplanned, undesirable, or potentially hazardous pregnancy was now a legal right. The Choice on Termination of Pregnancy Act, No 92 of 1996, and subsequent amendments, (the Act) ensured that the right to terminate pregnancy could theoretically be claimed by all women, irrespective of age, location or socio-economic status. However, the question was whether that situation actually existed on the ground.

Ms Abrahams noted that certain assumptions were made around legislation. Although the Constitution required that every piece of legislation was adequately budgeted for, that was actually not happening consistently. After eleven years insufficient budget was still allocated to implementing the Domestic Violence Act. The CGE itself, although it had obligations in terms of the Equality Act, had not received a budget to carry out those duties. Inadequate budgets were also provided for implementation of the Criminal Law (Sexual Offences) legislation. Whilst the CGE could support some of the proposals now put forward, it stressed that should the amendments be passed, they would need to be budgeted for and there would need to be follow up by Parliament on proper implementation.

Ms Abrahams said that CGE defined the right to reproductive health care as a two-stage process. Reproductive health care needed to be seen as a holistic set of services. A person should have legal access to the requisite facilities and services, but should also be able, in practice, to actually access this right, and this applied to women in the most remote rural areas. Women’s rights would be enhanced by having ultrasonic facilities and a more informed choice on options (such as adoption), which would promote the Constitutional rights. However, actual full access must then be provided by the Department of Health.  

Ms Abrahams said that evidence showed clearly that as the legal right to safe abortion was increased, there would be a concomitant decrease in the number of deaths due to illegal abortions. This was borne out by indicators in 1999 and 2007. South Africa had one of the world’s highest rates of maternal mortality, and that rate was still rising, so anything to reduce rates of mortality would be beneficial. amongst women would be good. However, the figures provided only recorded deaths, and did not take into account the number of women surviving illegal abortions, who might be left with life long medical problems, such as cervical infections.

Ms Abrahams felt that there were gaps in the legislation relating to termination of pregnancy, which could undermine the provision of access to safe termination as a real right. She urged the Committee to pay attention to these features. Any woman, including minors, could request a termination of pregnancy. That was not yet covered in the Act. The Act also did not distinguish between surgical and medical termination. Terminations due to HIV/AIDS had also not been embraced in the Act. The medical protocol on HIV/AIDS stated that it was not medically advisable that an HIV-positive person should fall pregnant. Notwithstanding this, many HIV-positive women did become pregnant. The question was whether they then had a realisable right to access safe termination, and whether they were fully informed not only of their own health risks, but also that children that were born HIV-infected often showed developmental difficulties, including early learning disabilities. She stressed, however, that the Act had advanced the rights of women to a safe choice of termination of pregnancy. She noted that the private Member’s legislative proposal focused on the sections regulating the facilities that may provide terminations of pregnancies.

Ms Abrahams then noted some proposals made by CGE. She stated that the Act defined the termination of a pregnancy as the separation and expulsion, by medical or surgical means, of the contents of the uterus of a pregnant woman. Furthermore, Section 5 of the Act recognised the need for more specialised medical skills in cases with the potential to be more complicated. Unfortunately those considerations were not embraced in the current Act, more especially in Section 3(1). The CGE therefore recommended that Section 3.1 should distinguish between facilities used to perform medical terminations, and those authorised to perform both medical and surgical terminations.

CGE also felt that Section 3(1)(a) was far too ambiguous and should speak to the requisite levels of medical skills required in facilities that offered both forms of termination. These steps would not only enhance access to high quality services relating to termination, but would also help in reducing maternal morbidity and mortality rates, especially in cases involving minors and where abortions were performed after the sixteen weeks gestation limit.

CGE noted that, according to the Health Systems Trust, the Fourth Interim Confidential Enquiry Report, covering the period from 1998 to 2003,  showed an increase in deaths, from 676 to 1154, which were attributed to non-pregnancy related infections resulting from HIV related diseases. This concern was not addressed by the legislative proposal. CGE also recommended that the legislative proposal should make special reference to counselling and termination, especially in regard to HIV infections, which were the secondary cause of rising mortality rates.

CGE noted the recommendations around ultrasound technology, but pointed out that this was not without its risks, as prolonged exposure of the foetus to ultrasound waves was not encouraged. CGE would support ultrasound imaging if the requisite skills and recommended exposure periods were employed.

CGE summarised that the proposed amendments could be made to be workable, if they were properly written, if proper regulations were in place, an adequate budget was allocated, and if oversight was maintained. Any skilled and qualified counsellor would not recommend anything that could be damaging to women, but if this was not ensured, then the proposals could be subject to misuse. CGE supported counselling, as suggested in the proposals, in regard to breast cancer risks, depression, future complications, and other alternatives. CGE suggested that the Department of Health should take steps to ensure that these rights were realised, especially given that abortions were always traumatic and that if they were not fully aware of all consequences, their rights to informed consent were violated.

Ms Abrahams concluded that the right to improve accessibility to termination of pregnancy remained a problem because the demand for affordable terminations outstripped facilities and medical personnel provided. This was demonstrated by the number of illegally obtained abortions. It was supportive broadly on the proposals and hoped that due consideration would be given to the CGE’s recommendations.

Discussion
Ms Sosibo agreed that abortion must be the last resort. She said the question was whether a person seeking a termination had applied her mind thoroughly to arrive at this last resort, or whether, through lack of counselling by illegal abortionists, they believed they had no other alternative.

Ms Abrahams noted that no research had been done as to why women sought abortions, but pointed out that it would certainly be considered as a last resort when sufficient condoms were provided and when women in the most rural areas had access to contraception. Currently, these options were either not in place or were not realisable – for instance, a 17 year old girl in a remote rural village might be hesitant to ask the nurse, who would know both her and her mother, for the Pill, could fall pregnant through lack of proper contraception and would then travel to the nearest city and have a termination of pregnancy. That was why CGE was pleading that the Committee must look at terminations and reproductive health broadly.

Ms Sosibo also asked whether it would not be the best option to terminate the pregnancy of an HIV-positive women who was likely to die soon and was unsure what would happen to the child on her death.

Ms Abrahams said the legislation did not specifically address that issue, although CGE felt that it should. CGE urged that the proposed amendments should consider the position of HIV-positive women who did fall pregnant despite medical advice, who should have access to safe abortions. She added that other issues, including medical personnel and the health of the mother were also not covered by the current legislation or proposal.

Adv Kamraj Anirughra, CGE, added that the principal Act allowed not only that minors could access termination, but also that they could not be denied this right, even if they had not consulted their parents, and so the situation outlined by Ms Abrahams could occur. However, the Report on Gym-Slip Pregnancies noted that it was likely that many minors of the thousands who fell pregnant had not received the full range of counselling services, and would be ignorant of their other options, using termination as a last resort to contraception. Many minors may also wish to have the terminations done secretly, or simply be ignorant of their rights.

Adv Anirughra felt very strongly that the Member’s proposal was valid and was necessary, and pointed out that thousands of people would be willing to adopt children if a pregnant women decided after counselling not to terminate.

Mr Pretorius commented that this Committee only deliberated on whether to approve the principles behind the legislative proposal, and that any decision on the wording of the legislation would be forwarded to the relevant Portfolio Committee in due course. Mr Pretorius then asked whether the CGE wholeheartedly supported the proposal, or whether it was worried about its practical implications of cost and availability of machinery.

Ms Abrahams said CGE supported the proposals, but with the amendments CGE had put forward.

The Chairperson noted that this presentation would also help the Committee to arrive at a determination.

The Chairperson asked the Department of Justice and Constitutional Development whether it wished to make a submission.

Adv Johan de Lange, Legal Advisor: Legislation Development Division, Department of Justice, confirmed that his Department believed that it did not have the technical expertise to become involved in this area, and would not transgress on the terrain of another State department.

The Chairperson noted that there was no quorum, and therefore the Committee was unable to proceed further. However, he noted that the presentations had been recorded, so that Members who were not present would have an opportunity to study them before arriving at a determination.

The Chairperson asked Ms Sosibo to take the Committee’s concerns about the continued lack of quorum to the relevant Parliamentary authority. This was now the fourth time that the Committee listened to presentations but was unable to deliberate on them. Many new proposals had been submitted to the Committee and therefore there was a need either to reduce the size of the Committee or enable it in some other way to do its work. to enable it to do its work.

Ms Sosibo suggested meeting on Tuesday for the entire day.

Mr Pretorius said Members were challenged for time and that many other committees met on Tuesday, including SCOPA, on which at least three Members of this Committee sat. He suggested sitting after the House had adjourned.

Ms Sosibo said transport would be a problem.

The Chairperson said all possible avenues would be explored, including speaking to the Chief Whip and the House Chairperson, and outlining the history of the Committee.

The meeting was adjourned.