Dudley Proposal: Choice on Termination of Pregnancy Amendment Bill: Further public comment

Meeting report

Dudley legislative proposal to amend the Choice on Termination of Pregnancy legislation
The Chairperson welcomed representatives from the South African Human Rights Commission (SAHRC) and the Department of Health (DOH or the Department) and noted that their comment on the private member’s legislative proposal could assist the Committee in arriving at a well balanced and fair recommendation to Parliament on whether her proposal should be accepted and passed on to the relevant portfolio committee for further debate.

South African Human Rights Commission (SAHRC) submission
Mr Lawrence Mushwana, Chairperson, South African Human Rights Commission, said that a proper written submission would be sent to the Committee; the Commission had only received the invitation to make a presentation in the previous week.

Mr Mushwana said that the Choice on Termination of Pregnancy legislation was intended to protect the rights of women to determine the choices they made regarding their bodies, and to ensure that these decisions were made in terms of the prescribed legislation. The legislation prescribed the time periods within which termination of pregnancy could take place, the precautions that must be taken, and counselling for the patient. Once the legislation allowing legal terminations of pregnancy was passed there was a significant increase in the number of legal terminations, but minimisation of the number of illegal terminations. The Medical Research Council had recently reported a decline in the number of terminations taking place.

The SAHRC remained concerned that in spite of the legislation there were still a number of back-street abortions being performed, especially in the rural areas. This raised the question whether people were sufficiently informed of their rights, and whether the Department of Health had made adequate provision to cover people in the rural areas, which was an area of great need. SAHRC was also concerned that there was a gap between policy and implementation, and recommended that the Department must look into that, and also into providing more of an enabling and supportive environment in the rural areas. Facilities should be visible and that there should be adequate resources. Health care providers should be supported to provide quality termination of pregnancy services.

The amendment being proposed by Ms Dudley was imposing more cautious requirements for additional counselling and additional information, which was currently not provided for in the Choice on Termination of Pregnancy Act (the Act) or the Constitution. The SAHRC appreciated the endeavour to ensure that further information was given. However, in reality, people were already not making full use of the current legislation and there was not adequate provision for people to access the services already prescribed. The Commission was of the  in the Act. The SAHRC felt strongly if the proposal was accepted, that would impose more stringent requirements and would lessen people’s access to the facilities.

SAHRC pointed out that counselling was already taking place. SAHRC did not support the requirement of additional counselling, and also did not believe that a woman seeking a termination should be shown pictures of the foetus, unless she chose to see them. For practical purposes, SAHRC believed that the proposal would hamper access to legislation that was already not being adequately administered, and that adding further requirements as proposed would pose an obstacle to the purpose of the legislation.

Discussion
Ms J Sosibo (ANC) asked whether anything had been done to sensitise rural women about their choices on termination of pregnancy.

Mr Mushwana responded that in 2009 the SAHRC had held a public enquiry into health care services. Despite these efforts it had found that people in rural areas had differing views on termination of pregnancy, and there were also problems in reaching all vast rural areas.

Ms Pregs Govender, Deputy Chairperson, SAHRC, added that the SAHRC’s report on the investigation into health care services was tabled in Parliament, and the onus was on Parliament, which had the mandate and power, to ensure that government enacted the recommendations contained in that report. She recommended that the Committee play an active role in ensuring that the hard work put into that report by SAHRC was brought to fruition.

Ms J Kilian (COPE) did not wish to reopen the question of the definition of a foetus and at what stage it was considered to be viable, but also asked about the rights of the unborn child who was not in a position to seek help for itself. The essence of the legislative proposal was that the notion of informed consent must be captured in the regulations, and the intention was to ensure that whoever processed the termination of pregnancy must ensure that the woman was adequately informed as to what was going to happen and the likely emotional consequences. She found it difficult to accept the premise that if the State could not adequately administer the legislation, it would be protected it from having to enforce basic human rights or having any additional administrative burdens imposed on it. The regulations, although in place, were not being implemented properly. The purpose behind the proposal was that a woman undergoing a termination should be informed exactly of what was to happen to understand the process. She requested that the SAHRC comment on the protection of the rights of the unborn child, and the point that these requirements were already in the Regulations and that the purpose of the amendment was to bring them up into the principal Act.

Mr Mushwana shared the Member’s sentiments about the rights of the unborn child, saying that this was the reason why substantial reasons must be advanced for a termination, and why it was recognised that this should be the option of last resort. It was already of grave concern to the SAHRC that the regulations were not always properly implemented. However, placing this requirement in the principal legislation would worsen the situation. He suggested that instead pressure should be placed on the relevant department to increase proper implementation of the regulations as they stood. The difficulty was that the proposed amendment would make it even more difficult for poor or rural women to access their rights, due to lack of health care personnel, and would thus make the Act inaccessible to the ordinary individual.

Ms Govender referred to the definition of a foetus, and at what stage it was regarded as a viable child. When enacting the original Choice on Termination of Pregnancy Act there had been significant public hearings and debate on this issue, and she had participated in the ad hoc committee hearing the matter. This issue was at the heart of the proposals, and it was important that the motivation behind the proposed amendment be made absolutely clear, whether it was to ensure access to the Act in its fullest sense, or whether it was to shift the right to choice and intentions around access.

Ms Dudley, in making the proposals, stated that her motivation was the number of deaths in South Africa each year resulting from illegal terminations. The latest figures from the Second Confidential Enquiry into Maternal Deaths in South Africa between 1999 and 2001 showed that there was a 90% reduction in abortion-related deaths per year after passing of the Act. This was a significant saving in unnecessary loss of life and it must be remembered that most of the women affected were women under thirty whose lack of choice was significant. Most of those previously affected by having to resort to illegal terminations were poor, black, and living mainly in rural areas or informal settlements. The 90% reduction in deaths was very significant, and spoke directly to the rights enshrined in the Constitution around bodily integrity and gender equality.

Ms Govender added that it was important to emotionally protect and support anyone who had made the painful decision to undergo a termination. Unfortunately, the proposals would not add any support to the woman. The proposal required certain information to be provided, including electronic pictures and photographs of the foetus. That was a very specific emotionally charged piece of information, and she recommended that the Committee must seriously consider the emotional impact of that on the woman or girl who had made the decision to go ahead with a termination.

The proposal also required, under Clause 3(1)(iv), a discussion of the extent of the risks involved, which was stated as including breast cancer. She was not sure whether there was a direct link between termination of pregnancy and breast cancer, and she cautioned that the proposer should make absolutely sure of all facts before making claims about medical issues.

The proposed Clause 3(1)(v) referred to available alternatives to abortion, including adoption and State or other support to the mother. Most women considering a termination would already have considered these alternatives. There was a need to educate healthcare providers to respect the rights of women and girls to make their own decision, and she wondered what sort of information would be provided to persuade those who had already made their decision to change their minds.

Ms Govender concluded that it was important for the Committee to clarify the intention behind the proposal and to consider whether the effect would be to assist the women who were undergoing a termination of pregnancy, or whether it was actually effectively to undermine their rights as already enshrined in the Act. She suggested that the Department of Health should be asked whether the proposals could be effected, and whether they would increase access to poor and rural women. She pointed out that when the original legislation was passed a critical question was to what extent this was not only expanding reproductive choice, but also political, economic and social choices.

The Chairperson asked Ms Govender whether she was suggesting that the Department find alternative ways to implement the current legislation, or whether she was suggesting that the amendment was needed.

Ms Govender responded that the SAHRC did not support the proposal as it would not advance human rights in South Africa.

Mr Mushwana also strongly urged the Portfolio Committee on Health to put pressure on the Department of Health, as it may have not been necessary for this proposal to be put forward if the Department had been implementing the regulations properly. The Department should be pressurised to ensure that the legislation’s intention was being implemented.

Ms Kilian noted a submission made by the Catholic Bishops Conference, which had stated that court judgments had described “informed consent” as meeting four basic requirements – namely, knowledge of the nature and extent of the harm or risk, an appreciation and understanding of the nature of the extent of the harm or risk, consent to the harm or assumption of the risk, and a comprehensive concept around the consequences. She asked the SAHRC to comment.

Mr Mushwana responded that the Act was more elaborate than that. He said that subjecting a woman to that kind of questioning would be too harsh. It would be far too traumatic, for instance, to suggest to a woman  who had been sexually abused that she must carry the child to term to have it adopted. It was already a major decision for a woman to decide on a termination and the SAHRC wished to see the emotional burden reduced.

Ms Govender agreed, saying that there was a difference between being truly supportive of informed consent, and the proposal’s definition, which implied that there would be interrogation, which was neither supportive nor helpful to the woman making the decision.

Mr P Pretorius (DA) asked whether the current Regulations effectively already covered the objectives that the proposal was trying to achieve, and if the SAHRC was saying that it was up to the Department of Health to ensure that the regulations were implemented.

Mr Mushwana responded that one of the reasons advanced for the proposal was to ensure that the regulations were being complied with. He did not see that anything was being done currently to pressurise the Department into meeting its obligations under the Act. If the current regulations were properly implemented there would be a substantial improvement.

Department of Health submission
Dr Nat Khaole, Director: Maternal Child and Women’s Health, tendered apologies for the Acting Director General, who was in Brazil with the Minister of Health.

Dr Khaole supported the statements made by the SAHRC. He noted that the Regulations were passed in 1997. Since then the principal Act had been amended and the amendment passed in 2008 also set out clearly what should be done. One of the provisions was that MECs in the provinces, in consultation with the Minister of Health, could prescribe any regulations. Any new regulations that were needed could therefore be passed at provincial level. This would assist in ensuring that requirements were met and access was given to the most needy.

It was very clear from the preamble to the principal Act that the purpose of the legislation was not to ensure that many terminations of pregnancy in fact occurred. The number of terminations should be dropping, because all issues of reproductive health was interlinked, and women should not fall pregnant if they did not wish to. Dr Khaole had been included in the investigation into healthcare services mentioned by Ms Govender, and had been involved in addressing people in rural areas, and therefore understood the problems. He also noted that when he was a young doctor his first patient death was a sixteen-year-old girl who had had an illegal abortion in a remote area, and had died through loss of blood despite the hospital doing everything it could for her when she was eventually brought in. This was very traumatic for him. He was firm in his conviction that women and young girls should not die because of unsafe abortions.

Dr Khoale agreed that the question of an unborn child and its rights was very emotive. The words “unborn child” implied a viable child that could survive and become a productive member of society. He pointed out that health care providers were extremely sensitive. As a medical doctor, he had been trained in ethics. Knowledge, appreciation and informed consent were required. Information gave knowledge and the healthcare provider gave adequate information to the user of the service, and made sure that she comprehended that information, then there was agreement on the steps to be taken, which did not always mean a termination of the pregnancy. However, the choice, being the last step, was based on the information, on the patient comprehending it, and then giving her informed consent to whatever procedure she wanted.

Dr Khoale commented on access to services. He said that despite the perceptions, the Department of Health had done much, including going around to inform people. The Department had always made it clear that the intention of the legislation was not to increase terminations of pregnancies, but to reduce them, and certainly to reduce illegal terminations. The Department was obliged to exercise the rights of women as provided for in the Constitution, and to uphold, promote and protect the right of access to healthcare services. The Patients Rights Charter was a common standard for achieving that right. The Charter set out the right to a healthy environment, participation in decision-making, access to health care, and knowledge of relevant health insurance/medical aid schemes, choice of health services, treatment by a named health care provider, confidentiality and privacy, informed consent, refusal of treatment, a second opinion, continuity of care, and the right to complain. The Charter also included a list of responsibilities of the patient, and every healthcare provider had to be sensitive to those responsibilities.

Dr Khoale therefore summarised that both government as a whole and the Department of Health had done quite a lot for healthcare access, but he conceded that whether it fully cascaded to all rural areas was another question. The discussions around the principal Act, and its amendment in 2008, had included a full process in which there were also a number of engagements with Ms Dudley at portfolio committee level.

Dr Khoale noted that the principal Act also applied to minors, who were defined as females under the age of eighteen years. The Act already provided that if a pregnant minor sought a termination, a medical practitioner, registered midwife or registered nurse was obliged to advise the minor to consult with her parents or guardian before terminating the pregnancy, but that the termination may not be denied if the minor chose not to consult them. Confidentiality was critical in the process.

Dr Khoale said that the Department was making various recommendations. It believed that the proposals of Ms Dudley could adequately and appropriately be dealt with in the Guidelines or Directives for Healthcare Professionals or Providers conducting terminations of pregnancy, as they were procedural issues, but should not be dealt with in legislation. He confirmed that the Regulations under the Choice on Termination of Pregnancy Act, published under GN R168 in the Government Gazette of 31 January 1997, already broadly provided for the issues that were of concern to Ms Dudley. It appeared to the Department that the proposals were motivated by a single isolated incident in which a health care professional seemed not to have followed the correct procedure, although that procedure was standard, and should already be followed by all health care professionals involved in performing terminations of pregnancy in health establishments. For this reason, the Department could not support the proposed amendment, and in fact considered it unnecessary. He added that all issues had been dealt with in 1996 and in 2007, when the principal legislation was debated.

Discussion
Ms Kilian asked whether Dr Khaole concurred with the statements that it was already difficult to administer the regulations, and making these a component of the Act would place an additional administrative burden on the Department. She also asked if he was satisfied that there was the necessary capacity at the health centres and that there was adequate monitoring as to whether the provisions of the Act were being implemented. She further enquired if the informed consent followed any particular procedure and whether patients signed any forms confirming that they had been informed of all the consequences.

Dr Khaole responded that any health care provider that provided any service under the Act did engage in a process of getting informed consent, and in this particular case they were even more sensitive to patient needs because of the public consultations on the procedure. Even the doctors who provided the service had to undergo the prescribed training.

Ms Kilian added that Ms Dudley was also concerned that government should keep up to date with technological changes, providing scanning machines and the like, and noted that it might become easier for patients to access information in order to make an informed choice. She asked whether that was being enforced.

Dr Khaole responded that technology changed every day, but that did not mean that everybody was competent to use that technology. An ultra-sonogram was a confirmation of a clinical diagnosis. Anyone who decided to proceed with a termination of pregnancy should have considered this, and it was to be dealt with during the counselling. However, as stated earlier, if a minor said she comprehended everything, but still chose not to tell her parents, then that had to be respected.

Dr Khoale added that the Act set out the time periods as part of the progression of the pregnancy. A 20-week foetus was not generally considered viable. A foetus of between 24 and 26 weeks was regarded as a viable foetus in the sense that if properly monitored and nourished out of the uterus, it could survive.

The Chairperson asked about the legality of the proposed amendment.

Dr Khaole replied that the Department of Health did not support the proposed amendment, because it did not add anything, but if anything would compromise access. He pointed out that the further away from urban areas that a woman lived, the more her socio-economic status was compromised.

The Chairperson noted that the Department had gone around the country to communicate with people but asked how effective that communication had been. He also asked whether the Department was currently doing all that it could to implement the legislation properly, if it claimed that the proposed amendment was not necessary.

Dr Khaole responded that at national level the Maternal Health and Women’s Health Cluster monitored and evaluated all programmes around the country. At provincial level the Maternal, Child and Women’s Health units ensured that their counterparts at district level were implementing programmes. Monitoring and evaluation was an ongoing process. There were challenges in service provision, but it was expected that the service managers would inform the doctors where that was the case.

Ms N Twala (ANC) said the public often complained about staff attitudes at the centres where the procedure was performed. She enquired what the Department was doing to address this.

Dr Khaole responded that the Department was aware that there was sometimes obstructive attitudes displayed that hindered access. He said that everyone had the right to hold their own opinion. However, the Department held value clarification workshops, and any instances where poor attitudes to patients were reported were addressed seriously, and could even lead to termination of employment. A health care provider and manager in a facility had a duty to provide services to any patient, because that was the patient’s right. This was an ongoing process that the Department had to deal with.

Other Committee Business
The Committee discussed a proposed media strategy awareness campaign, and also noted a policy proposal for a change of the Rules. The Committee requested that no further details on these should be made public at present.

Review and Adoption of Third Term Programme
The Chairperson noted that since the Portfolio Committee on Health was not able to be present at the current meeting, they would be accommodated at the next meeting on 23 July.

The Chairperson noted that the Committee would most likely undertake a study tour to Australia from 27 August to 3 September, but if this did not happen, then the Committee would proceed with further debate on submissions.

The Committee adopted the programme.

Adoption of Minutes
The minutes of the Committee meeting on 28 May 2010 were adopted, subject to technical amendments.

The meeting was adjourned.