National Health Laboratory Service Amendment Bill: finalisation; Choice of Termination of Pregnancy Amendment Bill: briefing by Ms C Dudley

Meeting report

Opening remarks
The Chairperson noted that the Committee intended to finalise the matter before them, i.e. the National Health Laboratory Service Amendment Bill.  It was an important Bill in the health sector and she believed that the Committee had dealt with all outstanding matters the previous week. Thereafter, Ms C Dudley would present the Private Member’s Bill on Choice of Termination of Pregnancy Amendment Bill.  She asked that the Committee focus on the task at hand.

National Health Laboratory Service Amendment Bill [B15-2017]
The Chairperson indicated that she would go through the Bill clause by clause. There was no comment on clauses 1 to 4.  She pointed out to Members that the changes to the Board in clause 5 had been approved by Members.

Mr A Mahlalele (ANC) referred to clause 6 which made reference to 7d(I – vi), but when one went to clause 7, there was no 7d (i – vi).

The Chairperson asked the Legal Advisor to clarify.

Ms Anthea Gordon, Parliamentary Legal Advisor, explained that the drafting style was different but there was no difference in meaning.

Mr Mahlalele asked for consistency in style.

The Chairperson agreed that the Law Advisor would ensure consistency of style. 

The Law Advisor agreed to make the changes.

The Committee agreed with clauses 8 to 12. The Chairperson noted that the Committee had agreed on the financing mechanism in clause 13 and the amendment had been accepted. Clause 14 repealed Section 20 of the principal Act.  That had been agreed to by the Committee.  In clause 18, the year of the Act had to be changed to 2018.

The Chairperson noted that everything was in line with the decisions of the previous week.  She appreciated the assistance of the parliamentary law advisors in finalising the Bill.

Report on the National Health Laboratory Service Amendment Bill [B15-2017]
The Chairperson read the Report that would accompany the Bill to the National Assembly.  The Report noted that the Portfolio Committee on Health had called for oral and written submissions from the National Education, Health and Allied Workers Union (NEHAWU).  The Committee had considered and deliberated on the Bill.  She noted the correction of the date to 2018.  She did not see a need to read through the clauses which had been amended as the Committee had just gone through the Bill.

Ms S Kopane (DA) asked that the point about the correction of inconsistent numbering be reflected.

Ms C Ndaba (ANC) moved for the adoption of the Report with amendments.  Mr T Nkonzo (ANC) seconded the proposal.  The Committee adopted the Report.

The Chairperson said that the Committee could pat itself on the back for finishing the Bill. It would be a very important Bill in the Health sector as it would address and minimise delays in respect of laboratories.

Presentation by Ms C Dudley MP (ACDP) on the Choice of Termination of Pregnancy Amendment Bill [B34-2017]
The Chairperson indicated that Ms Dudley would make a presentation and then Committee Members would ask questions of clarity and receive responses.  The Committee was not going to discuss the Bill that day.  The Department of Health was in attendance and would be given an opportunity to reflect on the Bill. She noted that it was a Private Member’s Bill.

Ms Dudley thanked the Committee for the opportunity to present the Bill to the Members. The ACDP believed in the sanctity of life and looked forward to the time when the unborn child would be given the protection it deserved.

The Bill did not seek to challenge the Constitution but looked at improving the conditions within the current legislation, without contravening the Constitution. It had been signed off by constitutional experts. The intention of the legislators in 1996 was to increase restrictions on termination of pregnancy in line with the development of the baby in the womb, yet overly broad and vague clauses included in the legislation contradicted and nullified that intention. As the pregnancy advanced, so the foetus should have received more protection. However, certain clauses completely nullified that purpose.

The Bill intended to enhance women’s rights by ensuring that women were in a position to give informed consent and the new clauses gave women the opportunity to apply their minds to the relevant factors.  It proposed mandatory, and not non-mandatory counselling and required that budgets be made available for that purpose. Doctors were not in a position to understand the socio-economic situation of a woman, nor were they aware of what a Department of Social Development could offer a woman.  Such counselling would equip women to make informed choices.  She referred to Section 12 2(a) of the Constitution.
 
Ms Dudley noted that many of the submissions had referred to the costs of ultrasound machines in light of the fact that the Bill required every woman to have an ultrasound before making her decision on termination. She provided details of the cost of ultrasound machines.  At around R17 000 per ultrasound machine for each of the 4200 clinics, the cost would be R 71 million if every clinic or health care centre were to obtain a new one. As ultrasound machines had a lifespan of 15 years, the health budget would need to allocate R 5 million per year out of the R 42 billion annual health budget. That would deal with discrimination as every woman would be able to have an ultrasound.

Ms Dudley stated that submissions were also concerned about mothers seeing a baby on the ultrasound but that would allow a mother a final opportunity to consider whether she would want to keep the baby, although few women changed their minds at that stage.  She noted that 200 000 abortions took place in South Africa annually and many were repeat abortions. More information could help women make better choices. It was believed that if a woman saw the baby on the ultrasound, she would practice safer sex in the future.  Ms Dudley was not in favour of financial concerns being a factor in allowing a termination as society should be able to support a woman in such a condition, but she had decided against changing that clause.

The Bill deleted the reference to “a risk of injury to the foetus” as a valid reason to terminate an otherwise viable baby after 20 weeks as every birth posed a risk to the foetus.  The clause was too vague.

Ms Dudley believed that the Bill presented an opportunity for people of diverse views to improve existing legislation.

Discussion
The Chairperson invited questions of clarity.

Ms Kopane asked for clarity in respect of costing: for the entire Bill to be implemented, what would it cost government? She noted that the critical people needed to do the job were the social workers.  South Africa did not have the appropriate number of social workers. To implement the Children’s Act in South Africa five or six years back, the Department of Social Development had estimated that 60 000 social workers would be required, which the country did not have.  How was Ms Dudley going to be able to ensure that the required social workers were available?  Sometimes, it was necessary to be realistic.

Ms Kopane referred to the desire for each woman to have an ultrasound. The Healthcare system could not afford to modify the clinics.  In Limpopo the incubators did not work, nor could the clinics pay for hypertension medicine.  Patients were sleeping on floors as there were insufficient beds, so how would they make sure that there would be money for ultrasound equipment?  How did she think the machines would be funded? What did she see as the funding model?  In some instances of termination, such as a rape by the parent, there was no need for consultations.

Dr S Thembekwayo (EFF) raised the matter of cases where the pregnancy was due to rape. It was not the same case as a normal pregnancy. She referred to Ms Dudley’s presentation: Concerns expressed in submissions about the fact that the outcome of the ultrasound was that the woman might not
want to go ahead. But if the pregnancy was a result of rape, it could cause more trauma. What about the case where there was an accident?  Would the social worker get there in time?

Mr Mahlalela asked about Ms Dudley’s point that the Bill was constitutional. He said that only the Constitutional Court could determine constitutionality. He thought the Bill was unconstitutional as the Constitution ensured the right of a woman to make an individual decision regarding abortion.  With the ultrasound and counselling, the woman would not get the right to take her own decision concerning re-productivity and her own body. The Constitution required that a woman had to take an individual decision, not one influenced by all the things put in place in that Bill. From that angle, it created an impression that women would not individually be taking their own decisions.

The World Health Organisation, of which South Africa was a signatory, had guidelines on the termination of pregnancy that South Africa had accepted as a country. One of the guidelines stated that requiring third party authorisation was a health system and service delivery barrier that affected girls’ and women’s safe access to abortion and, therefore, should be discouraged. Bringing in a third-party authorisation by including the social worker was bringing in a barrier that was not in line with the guidelines of the WHO.

If the Bill was playing with a woman’s emotions by displaying the foetus before she could make a final decision about abortion; that was creating a barrier to abortion. The presenter was bringing emotions into it before a woman could make decisions about her own life and body, which was creating a barrier.  The WHO stated that the use of pre-abortion ultrasounds was not necessary. Did Ms Dudley want South Africa to act outside of the WHO guidelines?

On the matter of finance, he would not go into detail as everyone was aware of the financial constraints. Ms Dudley was not bringing an amendment to fast-track abortion.  She was creating barriers.  If there was a problem for women in getting a termination, then one could look at the Bill, but the legislation was working, and research showed that there had been a huge reduction in mortality from unsafe abortion. He referred to the research conducted in 2005 by R Jewkes and H Rees, et al on the impact of age on the epidemiology of incomplete abortion after legislative change in South Africa. Poor implementation of the current Act, fears of intimidation, etc., created a challenge to getting an abortion.  The Bill would add another barrier. It was not enabling legislation that would make it easier for women to claim their constitutional rights.  It was not a progressive Bill but added a burden on the health system and made it more difficult for a woman to obtain a termination.

It was unfortunate that it was coming from a pursuant of a particular political ideology. Not everyone was a Christian. Ms Dudley was saying that there had to be consideration of the child, but in which month could one define a foetus as a child?  She had not defined when a foetus became a child. No one could define on the basis of religion. Once one brought religion into legislation, one created a problem. One had to understand that Parliament was a political institution, not a religious institution. It had to be understood in that way.

Dr P Maesela (ANC) asked whether the Bill was looking at abortion from a religious perspective or a political perspective. The discrimination against poor women was condescending and discriminatory.  They were not talking about people, but poor women. Were they looking at the rich and the poor? Was the opinion of a social worker more important than a doctor in respect of abortion?  The people were poor because their primary means of production had been taken away from them through discrimination and other means. They had to be pitied and their lives controlled. Now they were not being talked about as women, but as the poor and everyone was supposed to pity them.  Society was not looking after people, but the poor. What had turned them into paupers in the first place?  If one looked at that, then one could talk about abortion.

Dr Maesela stated that in Job 7.1 it is said that life in the world was a continuous war. All wars were about land. Religious people killed people, women and children daily for no reason except they wanted resources. It was not about one poor miserable baby who would die anyway because it had been born to poor people whose resources had been taken away.  The only thing was death. The poor people were being bombed left and right.  Others were treated as sub-human in their own land. People could not just become religious in one sector and leave the biggest sin of all which was destroying human life. People were destroying human life for no reason other than they wanted the resources for themselves. 

The Committee was there for legislation and not religion. The Constitution had been crafted for the common good of all and everyone had made a contribution, and it could not be amended to suit a particular morality. Scholars created religion. The Constitution could be amended if it was for the benefit of everyone.  It was not the Bible that could not be amended.  Religious texts were intended to make people not to think. Religious people wanted to think for others. The Constitution could be amended.  Once the Members went along the lines of morality, and what was necessary to create human life, then it did not make sense to anyone except those who wanted to craft it. Then it did not make sense to anyone.

The Chairperson noted two things. Dr Maesela had addressed part of her concerns.  In her presentation, Ms Dudley was a bit general on the state of the institutions.  She knew that when the original legislation had been passed, the environment of TOPS had been created in every health sector. The environment was created so that every woman felt free to be counselled and to have a termination.  If the researcher had said that the legislation had not created a positive environment, then the Committee could go through, institution by institution, to see what was happening.  When the original Act had been passed, she had been in a healthcare workplace where it was believed that the Act would change social conditions. There were concerns about the Bill being able to ensure that women were well treated as there had been many burials as a result of backdoor abortions. 

The use of the ultrasound, and playing with the emotions of the women, would lead people back to the backdoor abortionists, which led to burials.  An organisation had told health workers about Christianity, but they had seen the consequences of backdoor abortionists. The cost was important but playing with the emotions would create a barrier that would take the country back to the pre-legal abortion days when women died from septicaemia.  Did Ms Dudley think that the sector was not doing enough? Women with money could ensure that they had safe terminations but not poor women.  Was she presenting the Bill because she thought the current situation was not working?  The Chairperson also reminded Ms Dudley that South Africa was a signatory to the World Health Organisation Guidelines, so how could she introduce barriers?

Ms Dudley stated that her big mistake was not to bring the Bill in its current form. The majority of things that Members were talking about still existed in the Bill.  Up to 13 weeks, there were no questions asked.  The social workers were included from 13 weeks up to 20 weeks as the doctor did not have any idea about the social and economic circumstances of the women.

Members had asked when a foetus became a child. She stated that life existed immediately, as soon as there was a heartbeat and a brain, but a baby became viable at 18 weeks, according to science. Scientific understanding had changed since 1996. The rest of the world was saying that it was barbaric that a baby was put through the excruciating pain of abortion.  What was known in 1996 and what was known in 2018 was very different.  All the Bill did was to add a social worker between 13 weeks and 20 weeks because only a social worker understood the social and economic circumstances and could provide solutions. It could impact a person’s decision. It was extra protection for a person.

The ultrasound scan was important because it was legal for the Department to give a woman a pill and to send her home so that when the foetus came away, in her hands or in the toilet, the woman would see for the first time that there was a head, hands and legs. Women then understood that it was about a life, not a lump of tissue. How terrifying and traumatic. Members talked about playing with a woman’s emotions.  How traumatic if she were to fall pregnant later on with a wanted pregnancy and she saw for the first time what was there.  It was about women being treated as if they were fully capable of understanding.  Women who saw the foetus did not go back for a third and fourth abortion. Everyone talked about those repeat abortions being a problem. But where could one get a better education than by understanding that it was not a lump of tissue, but a developing life and one would take better precautions.  They did not need men pretending to them.

Sonar machines were old basic technology. All clinics should have sonar technology. It was nothing new and crazy that had just landed, from a scientific point of view.  And even for a planned pregnancy, a woman ought to have access to an ultrasound scan. It was basic health stuff. She understood that there were financial considerations, but it was not excessively costly. Even if they put brand new scans in every clinic, they were talking about R 5 million out of a R 47 billion budget.

A foetus was viable at 18 weeks, but nothing was changed in the Bill in respect of the conditions of pregnancy such as malformation or rape, which remained an undisputed reason for an abortion. Rape was a reason to abort at any stage.  Any birth carried the risk of possible injury such as a bruise on the cheek or a dislocated shoulder. Right up to the birth of the child, that child could be destroyed by chemicals and pulled out bit by bit.  That was what the world found barbaric.  Not a malformed child, a child of rape or a child with mental difficulties, but a viable child.  Science had proved without a doubt that babies experienced excruciating pain.

Concerning a woman’s choice, women should be permitted to make an informed decision. Women were not little children to be told what to do.  It was traumatic for women. But did women have to face that trauma because no one dared to tell them?  Many women did not change their minds about that abortion but few of those women came back for a second or third abortion.

Why should a woman not have an ultrasound? The WHO did not want to allow women to know what was going on in their bodies. Why was it different for other medical procedures where one had to be fully informed before giving consent for a procedure? There had been no change in the maternity mortality rates of women in South Africa. There were fewer women dying from backstreet abortions but the mortality of women and children in the country had not decreased.

Nothing had been changed in the legislation up to 13 weeks or up to 20 weeks, except adding the sonar and social work. A risk of injury during birth was insignificant. Killing a baby because it might be injured when it was born was overkill.  The changes were there to protect a mother in a time of turmoil and who needed help in dealing with the situation, particularly if there were financial and social factors that seemed insurmountable.  Ms Dudley was not hiding the fact that every child should be protected, regardless of the financial standing of the parents. She stated that there were different religious perspectives, for example Islamic people. South Africa was a very religious country, but people had different views. But people did find super liberal laws offensive. People could go to hell if they wanted to, but they had to bear the consequences.

South Africa was a signatory to the International Criminal Court (ICC) but had had no problem in not going there anymore. Why be tied to countries that had written the WHO guidelines when those were the same countries that had wanted to cull the population in Africa at some point? Why be tied to them?

She found it awful to think of ‘one miserable baby’.  Even if one baby could be saved, that was worth it.  She had not mentioned the word ‘poor’ in her presentation. The lack of social workers was perceived as a barrier, but she believed that the country would do everything it could to get more social workers.  Ultrasound was not a barrier to those who went ahead with a termination, and it referred only to abortions after 13 weeks.

The Chairperson reminded the Members that the Committee would be engaging further in a future meeting. She stated that Ms Dudley had responded to their questions, although some responses had been unsatisfactory, and other questions had not been responded to. She noted that it was a highly emotive subject. When the original Act had been passed, some health workers had refused outright to counsel women about abortions.  The Committee would come back to the issues.

Dr Maesela said that discrimination against babies conceived by women in low income families or challenging financial circumstances meant poverty to him.

Dr Thembekwayo said that when Ms Dudley came back, she should not use the same tone of voice in which she had responded to their questions. It should not be repeated. She had also used words that Members found unacceptable.  She had to go back to Khayelitsha and then come back and tell the Committee about the results there because he did not know who the presenter was representing.

Mr Mahlalele said that it was unfortunate that Ms Dudley had become emotional and that had put Members in a very difficult situation. It was as if she was debating a matter in the House.  She should have been presenting her case so that the Members would buy her story.  She could not bully Members and get them to agree by force as she intimidated them. It was not correct.  She could not push the thing in their throat by intimidating them. It was as if they had to take it whether they liked it or not.  She had not presented factual arguments.  She could not say that South Africa should ignore the WHO.  South Africa was part of the world. South Africa was not living in an isolated situation like a lonely tree in a desert, as expressed by Stalin, and so what happened in the world had huge implications for South Africa. South Africa was part of the global community and what happened there, affected everyone.  South Africa could not reject matters that had been debated in the global forum.  Her attitude was not right, and that made it difficult for the Members to think positively about anything that she uttered.

Ms Dudley stated that she had appreciated the Members’ passion and honesty in responding to her presentation of the Bill. She was sorry that the Members had not wanted the same passion from her. She apologised to anyone who had taken offence.   However, as the comments had not been factual, she had been unable to respond factually.  She had hoped that the Members would appreciate her honesty and emotion in the same way that she had respected their passion in their responses. She took the point.

The Chairperson said that the more Ms Dudley spoke, the more she pushed some issues.  The responses from the Committee had been general but factual because the majority of Members had worked in the health field.  They were the ones with the facts.  It was an emotive subject and she hoped that when they came back, the tone would have changed because Members had the responsibility to raise their issues but how could they raise them in terms of her response?

The Chairperson suggested that the Committee could discuss the Bill at a later date and then arrange for a response to Ms Dudley.  She also suggested that the Department of Health prepare a response to the Bill and present to the Committee.

The meeting was adjourned.