A summary of this committee meeting is not yet available.
Meeting reportHEALTH PORTFOLIO COMMITTEE
13 November 2007
CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL: PUBLIC HEARINGS
Chairperson: Mr L Ngculu (ANC)
Documents handed out:
Choice on Termination of Pregnancy Amendment Bill [B 21-2007]
Draft Report Submissions on Termination of Pregnancy Amendment Bill [B21-2007]
Justice Alliance of South Africa submission
Doctors for Life International submission
Women’s Health Research Unit submission
Christian Action Network submission
South African Medical Association submission
Christian Lawyers Association of South Africa submission
Democratic Nursing Organisation of South Africa submission
Submission by Marijke Alblas, Medical Practitioner
Audio recording of meeting [Part 1][Part 2][Part 3]
Choice on Termination of Pregnancy Amendment Act No. 38 of 2004
Executive Summary of the Constitutional Court ruling
Audio recording of meeting
The Choice on Termination of Pregnancy Amendment Act was declared invalid by a Constitutional Court ruling in 2006 that concluded that insufficient public participation had occurred in the National Council of Provinces (NCOP) process. The Amendment Bill was introduced to the National Council of Provinces in June 2007 and passed by the NCOP without amendments. The Committee was briefed on the contents of the Bill in October 2007, at which time certain Committee Members insisted that public hearings be conducted.
The Committee received over 100 written submissions on the Bill. The committee heard eight oral presentations on the first day of public hearings. Presenters included the Justice Alliance of South Africa, Doctors for Life International, the Women’s Health Research Unit of the University of Cape Town, Christian Action Network, the South African Medical Association, the Christian Lawyers Association of South Africa, the Democratic Nursing Organisation of South Africa, and Dr Marijke Alblas in her personal capacity. The topics of discussion covered mandatory counselling, informed consent, consent by minors, conscientious objection, performance of TOPs by trained registered nurses, and penalties available under the Act. A second day of public hearings would also be conducted.
The Chair began the meeting with a reminder that the thrust of the Constitutional Court’s ruling went to the passage of the Choice on Termination of Pregnancy (CTOP) Amendment Bill of 1996, not to its substance or the validity of the Act itself. He asked that comments be restricted accordingly, rather than going into the substance of the principal Act. He stressed that the Constitutional Court took issue with the amount of time that was allowed for members of the public to make submissions and participate in consultation about the amendments. The Chair pointed out that the number of submissions received during the initial consideration of the amendment was 58; whereas for the current consideration the Committee has received more than 100. He thanked the members of the public for their submissions and their presence at the hearings.
Ms C Dudley (ACDP) asked for a clarification of the Chair’s comment about considering process but not substance. She inquired whether the Constitutional Court in issuing its ruling would have seriously expected Members of Parliament to hold hearings and not consider the substance of the proposals.
The Chair explained that his comment was a reminder to keep the thrust of the ruling in mind because views would be coming from many eminent people in the course of the hearings.
Mr M Walters (DA) interjected that his understanding of the reason that the ruling did not discuss the substance of the Act was because that was not what was taken to court; the case presented issues only of lack of consultation.
The Chair stated that Mr Walters’ position was his opinion about the court’s ruling. Mr Walters stated that the Chair had also expressed his opinion, to which the Chair responded that he was only expressing the ruling of the court.
The Chair emphasised that the Constitutional Court had given Parliament a deadline of February 2008 to complete the consultative process with respect to the Bill. This view was confirmed by Mr M Ncolo (State Law Advisor). If the process was not completed by that time, the order of invalidity would become effective and the Bill would be removed totally from the register of Bills in Parliament. He was however certain that Parliament would be able to meet the deadline.
Mr Walters raised the possibility that Parliament could request an extension from the Constitutional Court and asked for an opinion on that option from the Department of Health. The Chair responded that there was no need to raise obstacles to their success now and that if the Committee does the work before them there would be no need for any extension.
Justice Alliance of South Africa (JASA) submission
Mr J Smyth (Honorary Director, JASA) thanked the Chairperson for arranging the public hearings. JASA also made submissions during the provincial public hearings. The public was grateful for the opportunity to present their views also to the National Assembly in view of the course the bill took in the National Council of Provinces (NCOP). He wished to raise two issues arising from the course the bill took in the NCOP and against the background of the outcome of the Constitutional Court case. First, he stressed the duty on all legislators to meaningfully consider all input, not merely to deal with what was offered on clauses already drafted. He stated that, by implication, the Constitutional Court’s judgment underlines the need to looking at all input when a bill was controversial. He pointed out that two other bills that were considered in the same case, one involving dental technicians as well as another. In the case of the other two bills, the Court stated that because they were not controversial, the legislature did not have the same duty to conduct public hearings. Mr Smyth opined that what was controversial about the bill was what was not included in it. He stated that almost all the submissions offered suggest that additions were necessary to make the CTOP Act work properly; that in his opinion was the source of the controversy. The checks and balances within the CTOP Act must work properly, meaning that termination of pregnancy (TOP) can be done only under certain circumstances. Those checks and balances were being ignored, that situation presents a classic opportunity for the legislature to amend the Act to prevent further abuses and to thereby uphold the rule of law.
Mr Smyth alluded to five areas of concern identified by the Department of Health (DoH) in a meeting with the NCOP Social Services Select Committee on 11 September. He reminded the committee that during the original consideration of the amendments, there were nearly 100 hearings held in the provinces, and negotiating mandates were submitted to the NCOP Social Services Select Committee. The DoH was asked for their input, which led to the identification of five areas based on the submissions: counselling, conscientious objection, informed consent of minors, records of third trimester abortions, and offenses and penalties. The five areas identified illustrate the point that he was making about the need for the committee to consider fresh clauses to validate the original Act and make it work properly.
First, the original Act provided that the state shall promote counselling, and specific regulations have been made pursuant to that section. However, Mr Smyth suggested that the provisions regarding counselling were not working because the law does not place the onus for conducting counselling on a particular person or group. As a result, TOPs were taking place without adequate counselling being done. The lack of counselling in turn affects a woman’s ability to give informed consent; she does not understand what was happening and has no opportunity to ask questions. JASA believes that an amendment should be inserted placing the onus on the health worker who performs the TOP to either personally do counselling or ensure that it has already been done before the procedure was performed.
Mr Smyth moved to the discussion of conscientious objection. Conscientious objection was part of the rule of law enshrined in the Constitution, and when Parliament passed the principal act, a separate provision on the issue of conscientious objection was considered unnecessary because protections were already contained within the Constitution. He stated that such as clause was necessary and supported the assertion by referring to calls received from health workers who have faced unfair discrimination for conscientiously objecting to assisting in the performance of TOPs. As a result of these communications, JASA feels that the constitutional provisions were not sufficient to protect the rights of these workers.
As recently as 22 June, the Labour Court of Appeals in Charles v Gauteng Health Department handed down a judgement stressing the need for the Minister to provide certainty in this area of the law. He noted that the case involved a nurse who was put under pressure to do something against her conscience. JASA asked if there was any better way for the Minister to provide certainty than inserting a conscientious objection clause into the Bill.
The third point identified by DoH revolves around minors and informed consent. Mr Smyth stated that the provincial legislatures felt strongly about this in the negotiated mandates. He urged that a 12-year-old girl cannot be expected to understand the risks of delayed psychological damage, risk of difficulty in future births or conception, and the potential for increased risk of breast cancer. On the last point, he stated that there was research coming out of the United Kingdom in the last month of a link between abortion and breast cancer referred to as the “ABC” link. He stated that minors need parental help when making the decision to terminate a pregnancy and that allowing a minor to make the choice alone has not been working. To address this problem, JASA proposes adding a provision to the Bill that would require the consent of an adult before a minor could undergo a TOP. In exceptional cases where consent cannot be obtained from a parent, a “judicial bypass” process would be available wherein a minor seeks consent from a judge. In JASA’s view, this affords a cheap and easy way for a minor to obtain consent, and addition of such a provision costs the committee nothing.
Next, JASA urged the inclusion of a clause requiring records to be kept of abortions performed in the third trimester of pregnancy. He noted that it was mandatory for records to be kept of TOPs performed in the first or second trimester but those performed after 20 weeks of pregnancy do not need to be recorded. Such records would permit knowledge what trimester TOPs were taking place. Mr Smyth stated that the law permits a TOP to be performed up to the point that a pregnancy was full term. The law was one of the most liberal in the world but they do not know how many were happening or who was doing them.
Mr Smyth then addressed the issue of penalties within the Bill. He contended that the shortcomings in Section 2 of the Act were highlighted by a guilty please entered in a criminal case in Durban involving the Rose Clinic, where no doctor was involved in the performance of second trimester abortions, as if they were first trimester abortions. He stated that records held by Doctors for Life International indicate that this practice was happening throughout the country. According to JASA, there must be tighter penalties in the Act, including penalties for doctors, to uphold the Constitution and the rule of law.
Mr Smyth stated that the provincial parliaments had considered all of the five areas and submitted negotiating mandates stating that at least some of the identified areas must be addressed in the Bill, but the NCOP disregarded the negotiating mandates from the parliaments, turning 100 public hearings into a sham. The NCOP refused to listen to province legislators and the Bill comes to the National Assembly without amendment. Eight provinces issued final mandates; the only exception was Gauteng. Mr Smyth suggested that Gauteng refused to play along with the process that the NCOP had turned into a sham. Mr Smyth emphasised that JASA has spent many hours drawing up the clauses they were proposing in order to uphold the rule of law and asked the committee to take a different course from the NCOP.
Ms M Matsemela (ANC) inquired whether JASA’s position eroded the judgement of the constitutional court and if the organisation was against the court’s ruling.
Mr Smyth responded that JASA endorses the Court’s ruling in all respects. He stated that JASA saw the efforts of the provinces as an attempt to abide by the Court’s ruling. He noted that in the Eastern Cape alone 40 hearings were held. However, JASA was concerned that the NCOP did not hold any public hearings as required by Section 72 of the Constitution and rejected the recommendation from the provinces.
Ms Matsemela also wished to know what JASA perceives to be main obstacles to the Bill. She also asked for further information about issues that were not within the bill, particularly on the issue of counselling.
Mr Smyth replied that counselling must be adequate and should cover the areas, as the regulations already provide, of the risks a woman faces in undergoing a TOP. He reiterated that the burden of ensuring that counselling was done must fall on a particular person.
Mr Walters inquired whether third trimester abortions were available on demand or only in specific cases.
Mr Smyth responded that the principal act states that after the 20th week of pregnancy, a TOP can be performed if a medical practitioner, after consulting with another medical practitioner or a registered midwife, believes that the continued pregnancy would endanger the woman’s life, result in severe malformation of the foetus, or would pose a risk of injury to the foetus, the pregnancy may be terminated. There was no upper time limit specified in the Act beyond which a TOP can take place.
The Chair asked why Mr Smyth would assume, in light of the language in the Act referring to the 20th week of the gestation period, that the Act gives ad infinitum latitude for termination. He stated that the Act defines the conditions under which a TOP can occur after 20 weeks of pregnancy.
Mr Smyth explained that the language “after the 20th week” can only mean for the remainder of the remainder of the gestational period if two practitioners agree that it can be done.
The Chair pointed to Section 4a and b, which refer to particular conditions that a woman would be facing for a TOP to take place at an advanced stage of the pregnancy. In his view, their inclusion meant that the Act was not as laissez faire as Mr Smyth was implying.
Mr Smyth stated that he was looking at Section 2 of the principal Act, while the Chair was reading from Section 5(5)(b) of the principal Act, which addresses only situations involving a woman who was mentally disabled or unconscious and therefore cannot make a choice. In such a case, special considerations must apply. By contrast, Mr Smyth was speaking of the general case in which the woman was able to consent to the procedure.
The Chair reiterated that the agreement of two practitioners was still required for TOPs beyond 20 weeks.
Mr Smyth responded that JASA’s position was that, for TOPs occurring beyond 20 weeks of pregnancy, records should be kept by the doctors performing the procedure stating which of the three conditions set out in the statute was present. There should be statistics on how many procedures were occurring, when they were happening, and why they were taking place.
The Chair asked if his position was that the clause was necessary because the present law does not require any records to be kept for third trimester abortions.
Mr Smyth stated that Section 7.1 of the principal act, which pertains to notification and keeping of records, only deals with Sections 2(1)(a) and 2(1)(b). Section 2(1)(c), which deals with abortions after 20 weeks, was omitted from this section.
The Chair asked for clarification on whether these procedures exist.
Dr R Mhlanga (Prof of Obstetrics and Gynaecology, University of KwaZulu Natal) responded that there was no such thing as a third trimester abortion. Traditionally, the third trimester meant the period after 28 weeks of gestation. The principal act recognizes that after 22-24 weeks of gestation, the foetus was likely to be viable, so any record of any birth or death after 20 weeks of gestation must be registered with the births and deaths registry. A certificate must thereafter issue whether there was a stillbirth or a live birth with death occurring soon after. He stated that that was the current law and practice within the country.
On the issue of mandatory counselling, Mr Walters inquired whether JASA had calculated the cost of mandatory counselling as well as who would bear those costs.
Mr Smyth answered that JASA had not done any costing but he would submit that it should not dramatically increase costs for a health practitioner to have a 20-minute discussion about the choice to be made, particularly if graphic materials used, such as photographs or a video. He suggested that the a woman could watch a DVD on her own and then have time for questions to be posed to a nurse or other health worker.
Ms M Madumise (ANC) asked whether the contents of JASA’s submission fell within the ambit of the Amendments under consideration. To her it seemed that they were proposing new amendments.
Mr Smyth repeated his earlier comment that legislators must have the benefit of all input to produce the best possible laws. All of JASA’s submissions were designed to produce better laws.
Ms R Mashigo (ANC) asked if JASA’s suggestions being made were based on the experiences within South Africa since the passage of the Act. In her view that was what was necessary to enable the law to improve service delivery. She expressed concern that the recommendations were rooted in what was occurring in first world countries.
Ms Mashigo expressed her strong disagreement with the practice of showing a person who has come for advice graphics rather than talking to her. In her view, that introduces new issues that would divert a person who believes that she was exercising her rights.
Ms Ndabinke (UDM) requested further explanation of the causes of the ABC link.
Mr Smyth explained that during pregnancy the breasts undergo a developmental process to provide lactation. If the process was interrupted by a TOP, the interruption of the natural processes increases the risk of breast cancer.
The Chair asked for further information on the medical evidence Mr Smyth was relying on as there were no references to the research within the JASA submission.
Mr Smyth stated that he has looked at research from the United States, the United Kingdom, and New Zealand in the course of preparing for an upcoming trial. The statistics and reports were not included in the submission because they felt it would be excessive to do so.
Ms Matsemela queried whether information that would not assist in a decision should be provided if it would prevent patients from exercising their rights. She stated that they should not send messages that have not been tested. On the issue of counselling, she asked whether there were any conflicts between the principal act and JASA’s presentation in relation to counselling.
Mr Smyth explained that the major conflict was that the principal act sets out a general duty that counselling shall be promoted but does not place the burden for performing the counselling on any individual. As a result, the counselling was not being given.
Mr Walters returned to the issue of registration of abortions performed after 20 weeks. He asked whether it was necessary to identify whether abortions were taking place beyond 20 weeks and to capture the reason why the TOP was performed if it was the reason for the death.
Mr Smyth was not aware that the omission of the recording requirement for TOPs performed after 20 weeks was deliberate because these events were recorded in the birth and death registry. Despite that, he was still of the opinion that the fact of a TOP should be recorded as well as the reason why it was performed.
Mr Walters inquired into the possibility of counselling being provided via a neutral presentation certified by the DoH to eliminate the introduction of biases either in favour or in opposition to the TOP.
Mr Smyth stated that the term “non mandatory” in the principal act has been interpreted as meaning that a woman need not receive counselling. He opined that Parliament’s original intent in including this language was to prevent introduction of any bias from the health care worker into the counselling. In JASA’s view, an independent body should be providing the counselling, rather that the DoH, the state, or the health practitioner.
The Chair stated that the introduction of subjective views into counselling must be avoided at all costs.
If the committee were to adopt the proposed language set out on page 4 of JASA’s submission, it would require that a woman be told that it was wrong to undergo an abortion. He stated that the risks identified have not been supported by adequate research to justify inclusion of these items. Instead, the Chair was of the opinion that the existing language was superior to the proposed clause suggested by JASA. The Chair then asked if JASA had considered the increased costs presented by requiring an outside body to provide counselling.
Ms Dudley asked for clarity in pointing out risks. Her understanding was that informed consent means all risks were set out so that a patient understands them, not to direct a particular result. She thought that even minimal risks have to be clearly stated to allow a woman to make a knowing decision. She stated that the Chair was surely not suggesting that risks should be concealed, because to do so would place a doctor at risk of being sued.
Mr Smyth replied that regulations already mandate the minimum information that the counselling must contain, including telling the woman about risks associated with the procedure. He stated that recognised risks must be mentioned, though certainly not exaggerated.
Ms Madumise wished to know whether a 12-year-old could exercise her own rights if both of her parents refused to give consent for her to undergo a TOP.
Mr Smyth responded that it would be extremely unlikely that both parents would refuse to give consent without good reason; if there was good reason, the proposed clause sets out an extensive process for dealing with that situation. However, in the cases where this does occur, JASA suggests that a no-cost, private judicial bypass system be available.
Doctors for Life International submission
Dr T Nkuebe (Doctors for Life International) detailed the activities of Doctors for Life International (DFL) including help lines for medical professionals and pregnant women. Dr Nkuebe expressed concern about the constitutionality of the consideration to date on the Bill in the NCOP and the provinces. He requested that the committee recognise conscientious objection as a health care worker’s right, not an option. The Constitution stipulates that professionals employed in South Africa not to be subject to discrimination on the basis of conscience. Other countries such as the United Kingdom, Australia, and Denmark have conscientious objection clauses in legislation that deals with TOPs. DFL believes that South Africa cannot deny this basic right to health care workers, particularly in view of the liberal Constitution of the country. Dr Nkuebe stated that organisations such as the South African Medical Association (SAMA) and the Democratic Nursing Association of South Africa (Denosa) support inclusion of a conscientious objection clause in the Bill. DFL asserted that the majority of health care workers in South Africa feel that arbitrary abortion was the killing of an unborn child. DFL was disturbed that no such clause was yet included in the Bill despite submissions made in the provinces.
Dr Nkuebe then turned to the designation of TOP facilities. DFL does not understand the logic behind which institutions were designated. In the institution where he works, there were many more workers who oppose TOP than who support it. However, because the institution provides maternity and antenatal care facilities, it has been designated as a TOP facility as well. The public was thereby misled into assuming that TOPs were available at this facility 24 hours a day, 7 days a week even though the facility would not have the proper amount of staff on hand to provide services at that level. Dr Nkuebe then raised the issue of the use of misoprostil as a further complication of the situation. The drug was often given to a patient outside of a hospital setting. The patients who receive the drug were usually minimally educated and illiterate. They were told by the health care worked that when bleeding starts, the patient must go to the nearest hospital where the rest of the procedure would be performed. The patient was not told that the health care worker at the hospital may not want to complete the procedure. Dr Nkuebe stated that there was a perception that any institution that provides maternity services would also provide TOPs, creating a situation where health care workers would be forced to complete TOPs despite their personal objections. This presents a problem that could draw litigation against the government. Therefore, DFL suggests that there be a complete separation of maternal and antenatal facilities from TOP facilities. DFL also recommends that research be done on long-term staffing capability before a facility can be designated as a TOP provider.
Dr Nkuebe stated that DFL considered informed consent and extremely important issue because it was a patient’s constitutional right. He was disturbed at the comparison of the decision to terminate a pregnancy with a mammographic test. The consequences of the procedures were vastly different. Proper counselling must be done to prevent the patient from receiving bias, and it must be done at the patient’s level. Informed consent must mean that the patient understands all of the risks involved and still wishes to undergo the procedure at issue. He felt that, particularly in the area of administration of misoprostil, this process was not occurring, even though informed consent was a constitutional right. DFL therefore urged that the act stipulate the precise information that must be provided to a patient.
The last point of DFL’s presentation centred around abortion and minors. He acknowledged the frequent social problems that give rise to unwanted pregnancies in minors and affect the ability to obtain parental consent. However, he stated that child psychology has shown that minors were incapable of understanding the consequences of their decisions, especially reproductive decisions. The ability of a minor to make a decision does not enable them to understand the physical or psychological consequences of that decision. DFL therefore recommends that children be protected from TOPs by requiring that they be supervised by their parents or legal guardians.
Ms Mashigo asked if the language in the principal act stating the need for a health care worker to consult with a parent, guardian, or family member in the case of a minor should be modified.
Dr Nkuebe replied that DFL does not oppose the language in the principal Act requring that the health care worker must consult with the minor’s guardian or parent. They do not want introduction of language that would permit the minor to make the decision without the involvement of one of those adults.
Ms Mashigo inquired how the oath taken by a health care worker and their knowledge that they would be exposed to these procedures from the time they begin their training fit in with the issue of conscientious objection.
Dr Nkuebe agreed that medical doctors and nurses were trained about TOPs in various situations at various stages. However, the central point around which the issue revolves was the question of what was being terminated. Most scientific journals state that it was a full human being or something with the potential of a human being. For most people that elicits a conscientious decision. Scientific journals have shown that human life begins at conception. The training brings in tensions with their beliefs that cannot be separated.
The Chair pointed out that Dr Nkuebe’s view of the time when life begins was a contested view and asked that the matter be left alone lest it distract their efforts. The Chair asked whether the DFL would deny the opportunity to terminate in situations in which an 11 or 12 year old girl experiences an unwanted pregnancy that would hamper her future.
Dr Nkuebe responded that DFL understands the dilemma presented by the Chair’s question and the pain that people who deal with those issues experience. He did not view putting the decision to termination to the child as the solution to the social ills in that situation. He reiterated that giving the responsibility to the minor does not mean that she can understand the decision being made. DFL took the position that energies need to be focused on what was wrong with men who rape children. He asked what a TOP solves in a minor who has been raped and whether it serves to brush aside a larger problem that was then not controlled. Either way, DFL does not believe that that detracts from the issue that, because a minor was not capable of understanding consequences of her decision, so a parent or guardian must be involved.
The Chair stated that the objective reality was that both events would happen because of moral decay and subjective feelings must be subsumed in order to deal with the reality that arises. He returned then to the principal act and asked where the remedies that DFL sought could be found.
Ms Madumise wished to know how a 12-year-old girl who does not terminate a pregnancy would understand the consequences of bringing up the child.
Dr Nkuebe responded that Ms Madumise had posed a difficult question and a dilemma that boils down to basic ethics. He stated that before anyone makes a decision about such a scenario, he or she must privately ask what the minor was aborting. In his view the answer to that question helps to judge what advice should be given to that minor.
Ms Dudley asked whether the law as it stands adequately protects a minor from being manipulated into making a particular decision. She wished to know if there was any requirement for a report to be made if a practitioner thinks that a minor was being abused.
Dr Nkuebe stated that doctors must begin a process of reporting as soon as there was any hint of abuse. He noted that such a process should be starting long before a TOP to investigate suspected abuse and to take action against it.
Ms Matsimela wished to know whether the labour laws do not sufficiently address the rights of health care workers to object to participating in TOPs.
Dr Nkuebe replied that DFL’s experience was of daily phone calls from professionals were experiencing discrimination because of a choice they take from their conscience not to participate in TOP procedures. They were told that they were copouts or that they were dropping work on everyone else. DFL believes that that was the beginning of discrimination. These events were happening in many areas, and some have progressed to become court cases.
Ms Matsimela asked how the principal act could be considered controversial now, as opposed to prior to 1994 when the ability to perform procedures was given only to a particular group of health care workers. She also asked how the many recommendations made by DFL fit into the Bill.
Dr Nkuebe responded that what occurred prior to 1994 does not remove the need to answer the question of what was being aborted first.
Mr Walters asked about the effect of the lack of medical staff on the designation of facilities. He wished to know how the DoH would be able to make pro choice staff available at all times at designated facilities.
Mr Walters asked for additional information on the study cited within the DFL’s report about 100% of women undergoing TOPs suffering depression.
Dr Nkuebe agreed that footnotes should have been provided identifying the sources of the numbers given in the presentation. He stated that he could provide citations to the committee.
The Chair observed that the content of the proposed clause on conscientious objection was not found in either the principal act or the amendment. He noted that when amendments were discussed, new matters should not be introduced. He reinforced the need for references to the principal act or the amendment. He emphasised that the power of public hearings lies in tying issues back to the act itself.
Women’s Health Research Unit (WHRU) submission
Dr Jennifer Moodley (Director, WHRU) presented her background as provider of health services to women as a clinician in KwaZulu Natal. She explained that the WHRU was based at the School of Public Health and Family Medicine in the Faculty of Health Sciences at the University of Cape Town. The WHRU was involved in research, teaching, technical health service support, and advocacy in women’s health.
The WHRU supports the Bill as it addresses shortcomings in access to TOP services. Dr Moodley noted that much has been achieved since the passage of the principal act; since the implementation of the Act in 1997 there has been a significant decrease in maternal deaths from unsafe abortions. A study conducted by the Medical Research Council in South Africa in 1994 stated that 425 deaths occurred from unsafe abortions; in 2006 the Saving Mothers Confidential Inquiry into Maternal Deaths in South Africa reported that 34 deaths had occurred in one year. That represented a 90% decrease in abortion-related deaths. Between 1994 and 2000, the rate of abortion-related morbidity decreased from 15% to 9%.
Barriers to access of early legal services still exist as evidenced by the continued occurrence of unsafe illegal TOPs. One quarter of legal TOPs were performed after 12 weeks of pregnancy, requiring a more complicated and risky procedure. A shortage of resources both in terms of personnel and facilities causes problems in accessing early safe legal services, particularly in rural areas. In WHRU’s opinion, the Bill improves access to safe legal services by empowering provincial Members of Executive Councils (MECs) to approve facilities to perform TOPs. The decentralization of this ability from the national Minister of Health shortens the process of designation of services.
The Bill also allows trained registered nurses to perform TOPs in pregnancies up until the 12th week. Previously this ability was afforded only to registered midwives. This increases the pool of trained providers.
The Bill also allows facilities providing 24 hour maternity services and meeting certain criteria to provide TOPs in women who were up to 12 weeks pregnant without the prior approval of the MEC.
The written submission of the WHRU did not mention the ABC risk because they thought it outside the scope of the amendment. However, since it was raised in prior presentations she would like to provide the committee with further information on that topic. Recent research conducted by a group from Harvard Medical School and reported in the Archives of Internal Medicine studied a group of 105 000 young women who had had either induced or spontaneous abortion. The research reported no incidence of breast cancer in either group. Another study published in 2006 in the International Journal of Cancer was conducted by epidemiologists and specialists from Oxford University. The study looked at 267 000 women and reported no adverse effect of induced abortion on breast cancer risk. A review of 53 studies looking at breast cancer and abortion published in the Lancet concluded that there was no increased risk of breast cancer in women who had had abortions.
Ms Dudley asked whether, in light of the increase in the number of facilities providing services and an increase in the number of abortions being performed, there would be a benefit to increased counselling. She wished to know if WHRU objected to tightening the requirements of counselling by placing the onus on a particular party and by stipulating that risks and choices need to be clearly put.
Dr Moodley responded that the issue of counselling was covered when providers were trained. She stated that WHRU has no objection to clear counselling but does oppose counselling being used to prevent access to services or to advance a particular point of view.
On the issue of conscientious objection, Ms Dudley asked if an increase in the number of facilities and the number of abortions performed would lead to increased pressure on health care workers to provide services to which they object. She queried if the WHRU objected to a clause protecting health care workers in this setting. She stated that the Department has already expressed a belief that no health care worker should be able to avoid participating in the procedures, which adds pressure from the employer onto the health care worker.
Dr Moodley replied that a worker has a right to object to performing the procedure but then must refer the woman to another provider and make provisions for the service to be obtained.
Ms Madumise asked how a duty to refer would fit in when the patient’s right of access information about health services conflicts with the worker’s right to religious beliefs; in the case of conscientious objectors, she wondered which right would weigh more heavily.
Dr Moodley answered that the provider has a right not to be involved but must still honour the oath taken to uphold the client’s health upon entering the health profession by referring the patient to another provider.
Ms Madumise also inquired about the issue of over-the-counter administration of misoprostil. Facilities were faced with the need to treat women who have been given misoprostil but the facilities administering the drug were not accountable for dispensing it.
Dr Moodley responded that the fact that misoprostil was being dispensed and leading to unsafe procedures and increased burdens on facilities highlights the problem of lack of access to services. In the view of the WHRU, the solution to this problem was an increase in women’s ability to access services as provided in the Bill.
Ms Dudley asked whether the evidence that thousands of health care workers were under pressure to perform procedures to which they object shows that the protections within the Constitution were not sufficient.
Dr Moodley replied that medical practitioners should not be coerced to perform procedures but the solution to the problem was not to inhibit access to services. The Constitution must be upheld but a clause that could impede access to services would be a problem as well.
The Chair inquired whether in her view the provision as outlined in the principal act was sufficient, making a separate clause within the Bill unnecessary.
Dr Moodley replied that it was sufficient and there was no need for a separate clause on that issue because it was covered in the Constitution.
The Chair then raised the issue of the dilemma for conscientious objectors presented by administration of misoprostil.
Dr Moodley stated that this highlights the need for better access as was advanced in the bill. She posited that women resort to methods such as misoprostil because of the lack of access to other services.
The Chair asked if the amendment’s inclusion of trained registered nurses as providers of TOPs would help address personnel shortages.
Dr Moodley responded that allowing nurses to perform TOPs greatly increases the pool of providers of the service. Nurses have indicated their willingness to assist previously but were not allowed to do so under the previous law. Therefore, the addition would increase access to services.
Ms Dudley asked if there was an increased risk in allowing nurses to provide TOPs rather than doctors. She stated that health groups had made strong comments against the practice of allowing nurses to perform TOPs.
Dr Moodley replied that a nurse trained to perform TOPs was not a layperson. There were risks associated with any procedure but that risk was reduced by appropriate training.
Prof M Hoffman (WHRU) stated that a study had been published in the Lancet that found a low complication rate in TOPs performed by registered midwives. The study included data from South Africa and it showed no increase in complications when midwives performed the TOP rather than doctors.
Christian Action Network (CAN) submission
Ms Taryn Hodgson (International Coordinator, CAN) stated that though the principal act was not at issue in the hearings, they continue to advocate its repeal and replacement by a human life amendment act. The submission would focus on abuses of Section 2 of the Bill, the need for adequate counselling, and limiting the gestational period at which an abortion can occur. A major concern of CAN was that abortions were not taking place at facilities without emergency equipment prescribed in the Act. They were aware of private practitioners and illegal abortionists who were providing misoprostil and then sending a patient home without any further treatment. CAN was also concerned about medicines dispensed by traditional healers to induce abortions.
CAN advocates a provision specifying that a TOP takes place whenever there was surgical removal of the foetus or medicine that was prescribed regardless of when and where that medicine was taken. The proposed substitution would impose a fine and imprisonment of up to 10 years when a procedure was performed that does not comply with the terms of the Act.
On the issue of counselling, CAN believes that women were not receiving proper counselling. The Act requires that a woman give informed consent, meaning that she must have knowledge and appreciation of the physical and psychological risks during and after the procedure and then consent. CAN supports the proposal that the onus of providing the counselling be placed on the practitioner. Ms Hodgson contrasted the level of detail contained in and the comprehensiveness the national policy on HIV testing and explanation of risks involved with other procedures such as having a tooth pulled. CAN supports revision of Section 4(b) of the principal act to specify the content of the counselling and advocates the use of visual material during counselling. Ms Hodgson stated that large scientific studies have found that women who have abortions were more likely than those who have had live births or miscarriages to become homicidal or suicidal.
CAN was also concerned about the principal act allows abortions to be performed late in the pregnancy in light of advances in medical science with respect to infant survival as early as 21 weeks and 6 days. She produced an object to illustrate the size of a foetus at that stage of gestation. She noted that these has led to a move in Britain to limit abortions performed late in the pregnancy.
CAN also felt that Section 2(3)(c) was contradictory by suggesting that a TOP does not always pose a risk of injury to a foetus.
Dr R Rabinovitz (IFP) asked if Ms Hodgson was aware of any charges filed against a provider for giving over-the-counter drugs such as misoprostil.
Ms Hodgson responded that she was not aware of any charges being filed.
Ms Dudley inquired whether increased access to services would lead to increased pressure on health care workers to perform procedures.
Ms Hodgson replied that CAN supports the insertion of a conscientious objection clause.
Ms Matsemela referred to Sections 2e and 2f of the Bill. She asked what CAN’s critical concerns were with those two sections.
Ms Hodgson responded that the sections that were to substitute for Section 3 of the principal act with regard to places where TOPs could take place. Sections 2e and 2f require that a facility has emergency resuscitation equipment and access to an emergency referral centre or facility and gives access to appropriate transport for an emergency transfer facility should the need arise. Access to medical and nursing staff was also required. Private practices would not have any of these facilities, making procedures performed in a private office dangerous for the woman and the baby if complications occur, regardless of whether the procedure was surgical or medical.
The Chair asked Ms Hodgson if their proposal undermines the goal of opening access to services despite Dr Moodley’s statement that morbidity and death were partly caused by the shortage of facilities and personnel to allow women to access safe legal abortion services, especially in rural areas and that allowing 24 hour services would increase the number of services.
Ms Hodgson stated that emergency facilities were necessary when abortions were performed and those who do not comply with the Act’s requirement of such facilities must be prosecuted. Otherwise women’s lives were being put at risk.
The Chair noted that parliamentary procedure did not allow displays that had not been approved and instructed her to remove it.
Ms Hodgson stated that the object was part of her presentation.
The Chair stated that it must be removed because she did not seek permission from the Chair to display it.
Ms Hodgson asked why she needed permission to show the facts.
The Chair emphasised that no one, whether a Member of Parliament of a member of the public, may display any object, signage, or poster without the presiding person. The Chair strongly cautioned that the procedures of Parliament must be observed by those presenting before it. Ms Hodgson removed the object.
Ms Dudley asked whether Section 6(1)(d) should specifically mention misoprostil.
Ms Hodgson responded that a clarification was necessary that any termination must take place at a facility designated by the Act whether it was surgical or medical
Mr Walters stated that his understanding of CAN’s position was not a call for the removal of Sections 2e and 2f but instead a provision that a facility providing TOPs be able to provide on-site emergency care.
Ms Hodgson confirmed that his understanding was correct. She stated that there were reports of abortions taking place in back street settings, so the law must be given teeth to enable prosecution of individuals, hospitals, or clinics that were operating without correct emergency facilities.
The Chair opined that the teeth CAN was seeking to put into the law were supplied by Section 2(5) of the amendment, which allows the Minister of Health to withdraw the designation of a facility that was not in compliance.
Ms Madumise queried whether the law should specify that misoprostil be available only by prescription rather than over the counter.
Ms Hodgson stated that such a specification was necessary. She went on to note that the Medical Control Council (MCC) has not indicated the use of misoprostil for abortions, so a doctor prescribing it for that purpose can be held liable.
Dr Rabinovitz acknowledged that misoprostil was not indicated for abortions but that it was used because legislation allows it. This prevents any prosecution for its use, despite the possibility of a civil action. She stated that CAN’s position did not relate to the amendment. She asked whether CAN advocated for the term “access” used within the amendment to mean that services must be available in the same place where the procedure was performed or if they could be at a distance but accessible by road or some other means.
Ms Hodgson replied that the Act specifies that the procedure can take place only at a facility that has emergency resuscitation equipment and access to emergency referral services.
Ms Matsemela asked whether Sections 2e and 2f demonstrate that the Constitution takes precedence over any other legislation, specifically section 27. She felt that the issue was adequately addressed within the National Health Act.
South African Medical Association (SAMA) submission
Dr D Bohmela (SAMA) stated that the position of SAMA was unchanged from what was presented to the Gauteng portfolio committee. His oral submission consisted of four parts: legal issues, scientific arguments, issues involving doctors, and issues involving nurses.
With respect to the legal issues, SAMA reaffirms the statement within the Bill of Rights that life was sacrosanct. He noted that constitutional rights can sometimes conflict with each other. Under the common law, constitutional law, and case law, a foetus does not have a legal personality to be protected, so a foetus does not have any constitutional rights in this conflict.
Regarding the scientific issues, Dr Bohmela pointed out that though most religions believe that life begins at conception, the medical definition puts the beginning of life at 10 days after conception. He also noted that most pregnancies that occur end in spontaneous termination, and most contraceptive methods work at some point after conception but before a woman was aware that she was pregnant. A foetus does not become sentient until about 26 weeks after conception. The prevailing medical belief was that at that point it begins to feel pain and become aware of its surroundings. A baby can be born as early as 22 weeks but would have a less than 15% chance of survival. Half of those that survive were brain damaged. Neonatalogists believe that the lungs do not form before 22 weeks, so a baby would not be viable if it was born before that time. The principal act and the amendment bill provide for TOP only before 20 weeks, forming a two-week gap that was beyond the provisions of the act.
The issues involving doctors begins with the area of conscientious objection. The principal act does not specify whether it would allow conscientious objection, but Dr Bohmela opined that the Act tacitly allows the practice because it only obligates a doctor to explain the risks and medical implications to a patient who was seeking to terminate her pregnancy. It does not oblige the doctor to refer patients seeking termination to another competent practitioner or facility.
SAMA supports conscientious objection subject to certain conditions. He did not specify the exact conditions but explained that in principle, they were those that provide alternatives to women who were seeking termination of pregnancy. With regard to interns or doctors in training, SAMA takes the position that they have voluntarily chosen to pursue this vocation; training in TOP was an essential skill that they must have, so there was no ability to conscientiously object to engaging in the training.
Doctors who were entering employment who conscientiously object to providing the service should so state at time of their employment to determine their contractual obligations in that regard. If the contract of employment does not contain a provision forcing them to give services, there was a right to object when the time arises and the facility must make alternative arrangements to provide the service. By contrast, those who were told at the beginning of their contract that they must provide the service may not object; but that was a contractual issue rather than an issue of rights.
On the last issue, regarding nurses, SAMA has no objection to the addition of trained registered nurses to the pool of workers able to provide the service as long as the training required was determined through the engagement of the Nursing Council and Health Professions Council.
Dr Rabinovitz asked Dr Bohmela if the different wording used in the language to be substituted for Section 3 of the Act regarding facilities given access to rather than having certain services available at the site would create confusion in patients about what was available at the facility.
Dr Bohmela responded that SAMA was not bothered by the language per se. However, they were concerned that the language was an attempt to further an imperfect system where services were not in place. However, SAMA’s understanding was that the principle embodied in the substitution as well as the spirit of the wording was in keeping with what SAMA believes should be done.
Ms Matsemela asked whether the definition section of the Act should include language pertaining to interns or doctors in training.
Dr Bohmela stated that SAMA would support such an insertion. He noted that interns would be faced with emergency situations in connection with TOPs, so they must be trained in how to deal with such situations.
Ms S Kalyan (DA) asked if the issue of conscientious objection had impacted the number of people studying or specialising in obstetrics and gynaecology.
Dr Bohmela replied that the matter has not been studied conclusively but SAMA’s professional contacts have not given any indication of such a reduction.
Mr Walters was troubled by Dr Bohmela’s statement that interns know that they would be required to participate in termination procedures when they began their course of study. He questioned how far back in time that logic could be extended into a student’s decision making. He asked Dr Bohmela to explain why these subjects must be included in the training curriculum if an intern can unequivocally state that he or she would never participate in a TOP.
Dr Bohmela responded that abortions do not always present as cold cases or voluntary procedures. Often the situation arises in the context of an emergency or life-threatening situation. In such a case, an intern must provide care, so they must be trained in what to do. He also emphasised the need for a consistent curriculum within the medical schools and the logistical issues that would arise from maintaining separate curricula.
Ms Madumise asked if the right to access to information could conflict with the rights of a doctor who holds certain beliefs. She inquired whether SAMA advocated the ability of that doctor not to refer a woman seeking a termination to another practitioner.
Dr Bohmela replied that any provision for conscientious objection must accommodate continuation of care by also imposing a responsibility to refer a patient who seeks services to another facility or practitioner where the services can be provided.
The Chair asked Dr Bohmela to comment on the use of misoprostil and the dilemma it creates when it was prescribed and forces conscientious objectors to perform procedures to which they object.
Dr Bohmela explained that misoprostil was a prostaglandin that works on two different processes within the body; the main indication for administration of the drug was in a gastrointestinal setting. SAMA does not promote the use of any drug or chemical for indications not registered by the MCC.
The Chair inquired if SAMA supported the major thrust of the legislation.
Mr Bohmela responded that they did.
The Chair then invited the presentation of the Commission on Gender Equality. No representative from the CGE was present at that time.
Christian Lawyers Association of South Africa (CLA) submission
Ms Teresa Conradie (Chairperson, CLA) provided a background of the organisation. Mr Raphulang Ramosa (Board Member, CLA) stated their opposition to both the principal act and the amendment. However, they suggested that the proposed amendments necessarily require a re-examination of the provisions of the principal act.
He urged that the requirements pertaining to counselling must be expanded in light of the proposed allowing of registered nurses to perform TOPs and the proposed extension to MECs of the ability to designate facilities for TOP. He stated that counselling on emotional and psychological effects before and after the procedure was particularly important for minors. He added that minors often do not seek support from their families for fear of admitting that they were sexually active. He mentioned a study conducted indicating that anesthesia was not used during an evacuation procedure; women undergoing the procedure experienced a fair amount of physical pain. Adolescents employ psychological defence mechanisms to cope with emotional pain of terminating their pregnancy. Because of the physical, psychological, and emotional effects, counselling must be mandatory. This would allow a woman to make her decision on a more rational level rather than emotionally.
He noted that the act requires that a woman give informed consent to the procedure, and counselling both before and after the procedure was necessary to ensure informed consent. He reiterated that at common law, informed consent must rest on knowledge, appreciation, and consent. In order to satisfy the requirement of consent, a woman must have full knowledge of and comprehend the nature or extent of the risks involved. She must then subjectively agree to the risks and her consent must extend to the entire transaction.
He stated that the National Health Act contains specific provisions on information to be given to allow informed consent and indicates that a health care worker must indicate to a patient before the termination that she can refuse to undergo the procedure. CLA was of the opinion that information about the full range of options and the physical, psychological, and spiritual consequences of the procedure was necessary to make sure that consent was truly informed. They do not believe that the provision of such information would violate the requirement that counselling must be nondirective. Rather, it would ensure that a proper choice was conveyed. CLA believes that counselling including the information they have described must be mandatory, particularly if procedures were to be conducted by registered nurses.
On the issue of consent of minors, CLA takes the position that an adolescent should be required to obtain the consent of a parent or guardian before undergoing a TOP. Mr Ramosa noted that accepted medical practice requires the consent of a parent or guardian for any other surgical procedure in a minor. The provision contained within their submission was given as an example of protecting minors by preaching a standard that they must obtain consent from a parent. In instances where consent cannot be obtained, such as in the case of an orphan, CLA supports JASA’s proposal of a judicial bypass procedure. He cautioned that Parliament must keep socioeconomic realities in mind. CLA believes that the proposed change would reinforce a perception that abortion was not contraception and that sexual activity should be delayed until the minor was prepared to face the responsibility of parenthood. He stated that if it was easy for a minor to obtain a TOP by removing the requirement of parental consent, the minors would not take responsibility for their sexual actions.
Mr Ramosa cited a study indicating the need for advanced psychiatric counselling in an abortion setting and stated that registered nurses were not currently competent to provide that level of counselling. CLA was concerned that the amendment equates registered nurses with registered midwives. Unless it can be guaranteed that a nurse would have training equivalent to that of a registered midwife, CLA believes that a registered nurse should not be able to perform a TOP in the first 12 weeks of pregnancy without the assistance of a registered midwife. CLA does not believe that this requirement would prevent access to termination services.
Mr Ramosa turned to the issue of facilities that provide 24 hour maternity services being able to provide TOP services for pregnancies under 12 weeks without the approval of the minister. CLA was concerned that the only requirement was notification that the facility exists. He asserted that it was common knowledge was that most TOPs were performed in the second trimester. CLA wished to know how the government would ensure that second or third trimester abortions were not being done in facilities that have not been approved even though approval was still required for the later-performed procedures. CLA feels that there was potential for abuse in the proposed system. Furthermore, CLA notes that the Bill does not specify whether a provincial MEC would confirm whether 24 hour maternity services were actually available in the facilities who seek the exemption. CLA believes that the efficacy of the exemption depends on verification by the MEC, and the Act should delineate the factors that must be taken into account in making the determination that 24-hour maternity services were available.
On the issue of conscientious objection, CLA agreed with the position of SAMA that such a clause should be included but that it must include the availability of services through referral.
Mr Ramosa also pointed to the penalty section of the act deeming the prevention of lawful termination of pregnancy to be a criminal act. CLA was concerned that conscientious objectors could be perceived as preventing lawful procedures from taking place and urged that an express clause concerning conscientious objection should be included in the act to prevent criminal prosecutions against these health care workers.
Ms Conradie noted that no court has ever received evidence on the substance of act. Two cases challenging the substance of the act on constitutional grounds were dismissed on technicalities with respect to the particulars of claim stated in the summons. She did not want the members of the committee to be under the impression that the substance of the act had been tested or endorsed by the courts.
With respect to minors, Ms Conradie noted that 95% of callers to talk shows on which she has appeared have been in favour of requiring parental consent for minors seeking TOPs. She noted that minors were unable to buy liquor or tobacco but they were able to access abortion services without recognition of the physical and mental effects on the minor’s health. In the view of CLA, this undermines a parent’s ability to support a child. The CLA believes that parents and communities should not be allowed to abdicate their responsibility to children and families.
Finally, Ms Conradie stated that the loss of respect for life was rampant in South Africa. She has never heard a woman refer to her foetus or a blob of cells. Allowing a woman to terminate a pregnancy makes it understandable for a father to have less respect for lives taken in the course of committing a crime, in road rage, or in anger.
The Chair instructed the members of the committee to refrain from the debate about sociology of life in South Africa.
Ms Madumise asked about the issue of pain experienced during evacuation of the uterus and how that compared to the pain experienced during labour.
Mr Ramosa stated that his comment was made in the context of requiring that counselling include mention that pain can be experienced during a TOP.
Ms Matsemela wished for Ms Conradie to comment on the point made by Dr Bohmela about the lack of constitutional rights of a foetus.
Mr Ramosa replied that the position that a foetus does not have constitutional rights would change in the faced of increased medical knowledge regarding the point at which life begins and rights attach. Ms Conradie added that a court case brought by CLA in 1998 raised that point. To properly decide whether the constitutional right to life extends to an unborn child would require a court to examine medical evidence that has not been yet been presented in a court case.
Ms Dudley asked if the CLA had identified counselling, conscientious objection and discrimination to health care workers, and the age of consent as major issues presented by increased access to TOP services and increased risk that result.
Ms Conradie replied that Ms Dudley was correct and went on to state that CLA has compassion for all pregnant women and the issues they face.
Mr Walters inquired about the requirement that a midwife and a registered nurse be present rather than a midwife or a nurse. He asked if the CLA had received information that nurses were not receiving training in this regard.
Mr Ramosa responded that the concern stems from CLA’s understanding that the training for nurses was not the same as the training given to midwives. It raises concerns for them of maternal treatment. Because midwives have greater training than registered nurses, they would be able to provide care in instances where induced abortions create life-threatening situations. In such a case, a midwife would be necessary rather than a nurse who has not received proper training for such a situation. However, if the nurses were to receive proper training about these kinds of situations, the involvement of a nurse would be acceptable.
The Chair pointed out that the definitions within the amendment has the same requirement of prescribed training for both midwives and nurses on the choice of termination of pregnancy.
Mr Ramosa stated that as long as the training was akin to that for a midwife, CLA would not have a problem with the use of a registered nurse.
The Chair asked why nurses should be substituted for midwives when the two groups were not the same.
Ms Conradie replied that their fear was that the legislature’s previous exclusion of registered nurses was for good reason that was now being ignored. If registered nurses were now permitted to perform TOPs, there would be no practical differentiation between nurses and midwives.
The Chair stated that a midwife must know more than nurse. A midwife was not necessarily trained for abortion.
Ms Conradie stated that the previous designation of midwives as qualified to perform TOPs indicates a greater level of training that allows her to perform such a procedure. This was beyond the training that a registered nurse would receive.
Ms Madumise asked for clarification of the reason why inclusion of registered nurses would require counselling to be mandatory rather than non mandatory.
Mr Ramosa replied that the issue was with the current wording of the act, which does not specify that counselling was mandatory. Practitioners thus were of the opinion that they need not provide counselling.
The Chair stated that the language “there shall be” was mandatory. The word “non mandatory” precludes the imposition of subjective views; it does not remove the obligation to give counselling.
Mr Ramosa stated that the wording does not convey a mandatory message. He went on to insist that the need to not introduce bias does not remove the need to give a full view of the consequences of the decision. He stated that the issue was with the plain language of the act itself, which implies that counselling was optional rather than mandatory.
Mr Ncolo stated that the language of the clause, in the word shall, was peremptory; there was no choice in whether to give counselling.
Mr Ramosa responded that the problem was not with the word shall but with the word nonmandatory.
Ms Dudley asked if the reality was counselling was not happening and one cause of that was ambiguity within the clause, which the committee now has an opportunity to eliminate through amendment.
Mr Ramosa stated that she was correct.
Ms Conradie added that in the second court case, all the parties including the DoH agreed that the clause should be interpreted as imposing no sanction for the failure to provide counselling.
The Chair disagreed that any court has yet considered the validity of the act.
Democratic Nursing Organisation of South Africa (Denosa) submission
Ms Madithapo Mahsemola (Denosa) stated that she was a nurse who has provided care for women who have undergone back street abortions. She noted that the principal act was passed against the backdrop of the 1994 study stating that 425 women were estimated to have died from unsafe abortion in that year. The study found that 44 686 women had presented with conditions related to incomplete abortions. Of that number, 99% were black women and 34% were unsafe abortions.
Since its passage, the CTOP Act has caused a significant decrease in maternal mortality and morbidity. A reduction in deaths of 91% had been seen by 2004, and Ms Mahsemola noted that the members of DENOSA were largely within the group of women who was affected by the terms of the Act.
Prior to the passage of the Act, nurses had to care for many critically ill women who had undergone back street abortions. Many of these women had long-term effects including total hysterectomies at a young age. Numbers released by the World Health Organisation indicate that the number of abortions performed was largely unaffected by whether it was legal or illegal to perform the procedure. The main difference seen was that legal abortions were performed safely. Global figures for 2003 indicated that 66 500 maternal deaths resulted from unsafe abortions. Only 100 women of the women who died were in rich developed countries, and most of those 100 were women of colour. The conclusion reached was that women were dying from preventable conditions, and access to safe legal abortion was the most effective way to achieve the Millenium Development Goal of reducing maternal mortality by 75% before 2010.
Denosa’s submission was limited to the amendment bill and does not extend to the terms of the principal act. It focuses on the provisions dealing with registered nurses and midwives. The definitions in Sections 1(c) and 1(d) were significant in providing quality patient care. The addition of the prescribed training was critical in the task-shifting component of the registration and in clauses that increase access to TOP.
Denosa acknowledges that some nurses may have conscientious objections to TOP and they should be given the opportunity to refuse to participate in the procedure. However, the nurses who were willing to undergo the training be given the opportunity to do so.
Denosa supported the devolution of the power to designate a facility as a provider of TOP from the national ministry to the provincial MECs and Ms Mahsemola described their reasons for doing so, including the increased capability to collect data to enable evidence based monitoring and evaluation.
Denosa supports the impact of Section 10 to regulate the provision of TOP service and legal action against health care workers who perform the procedures in contravention of the act.
Ms Mahsemola stated that the CTOP Act created the necessary framework for increasing access to reproductive health care services set out in the Bill of Rights. The process followed has been democratic, consultative, and based on research evidence. The legislation has been a critical factor in reducing maternal mortality and in achieving the Millenium Developement Goal pertaining to that issue. It has also been a key tool in the reduction of transmission of HIV and other STIs between mother and child.
Denosa strongly advocates the maintenance of the act and the amendment. They also feel it would be necessary to increase number of people who were trained in the process to prevent a small group of people from being overwhelmingly overworked, which leads to frustration and resignation.
Ms Dudley pointed out that the submission did not mention issues around counselling and the wording of provisions on that issue. She asked whether DENOSA felt that the language was adequate to ensure that the counselling Parliament intended was taking place. In particular she asked for her view on the word nonmandatory.
Ms Mahsemola responded that DENOSA felt that the provisions of the Act on counselling were adequate already because any procedure must be explained before it was done.
Ms Dudley then asked about the issue of reporting of third trimester procedures and whether she felt that such reporting was necessary.
Ms Mahsemola replied that DENOSA felt that third trimester reporting was not necessary because that information was captured in the births and deaths registry.
Dr Rabinovitz asked if the Act could be properly implemented in light of the difficulty in staffing hospitals experienced throughout the country.
Ms Mahsemola answered that the issue of the shortage of nurses in the country was a problem that cannot be easily or quickly solved. She urged that assessment of implementation must be preceded by investigation of the willingness of nurses to provide the service. However, she cautioned that if nurses were not trained to perform safe TOPs, hospital staff would still be impacted because of the increased morbidity and mortality associated with unsafe abortions.
A Committee Member asked if the Department would be required to provide additional staff to provide services if all of the nurses in a particular hospital refused to perform the procedure.
Ms Mahsemola responded that nurses take an oath to assist and save lives. During the process in the provinces, many nurses who were opposed the procedures now support it. She reiterated that not everyone would want to participate, but it was essential to find out who wants to undergo the training and who does not. The difficulty that management faces was insufficient time to inquire into what employees actually want, which leads to misimpressions about nurses and what they were willing to do.
Ms Madumise asked if in her experience as a nurse whether progress was hampered in certain facilities because nurses were deployed in areas where they should not be.
Ms Mahsemola stated that when she worked in the private sector, there was little movement possible outside of going where the shortages are. When she worked in the mining industry, nurses were asked where they wanted to work. In her view, to obtain the best performance from employees, they must be placed where they want to be and where their strong points are. This mindset was now being proposed to the public employers. Difficulties only arise when people were placed where they do not want to be despite undergoing training that costs taxpayer money. If that problem could be addressed, the situation would improve.
Ms Ndabinke wished to know if DENOSA had received any complaints about nurses participating in TOPs despite their objections. and what about minor consent provisions
Ms Mahsemola stated that DENOSA has not received any complaints of coercion to perform TOPs. Complaints revolve instead around workloads being too heavy for people who were trained; that person was then forced to continue working after the end of a shift because no one else was available to provide the service.
Ms Ndabinke inquired on the view of DENOSA with respect to issues of consent by minors.
Ms Mahsemola answered that the question must examine the consequences both of facing TOP and of facing raising a baby when a girl was still growing herself. She thought that research was needed into the consequences of each before the alternatives can be meaningfully assessed. She acknowledged that was is difficult to undergo a TOP but it was also difficult to have a baby.
Ms Dudley wished to know if it would be helpful to have a clause protecting health care workers.
Ms Mahsemola responded that she did not think a clause was necessary because the problem was understaffing rather than conscience. As a professional person, other laws, such as the Nursing Act, state that if a nurse was not comfortable about performing a procedure, he or she has the right to assert that discomfort with the procedure, so a clause was not needed in this Bill as well.
Ms Madumise asked whether TOPs must be recognized as scarce skill.
Ms Mahsemola replied that the specialty recognition was a matter of the level of training. She stated that providers of TOP were performing clinical work, and if the pool of people needs to be expanded, incentives must be provided for people to enter that market.
Ms Madumise inquired whether repeated terminations were an issue in her experience.
Ms Mahsemola answered that she does not view the act was not encouraging women to have repeat abortions or to use TOP as a method of prevention. A woman who uses TOP as prevention was in need of psychological services to the cause of the behaviour because a normal person would use other available methods to prevent pregnancy.
Submission by Dr Marijke Alblas
Dr Alblas was a medical practitioner in a TOP program who has worked with setting up TOP programs in the Western Cape for 7 years. She trains others in performing TOPs. She also performs second trimester abortions with a roving team.
She was in favour of keeping the amendments as they were because they increase access to services. She emphasised the need for accessibility because it allows TOP to occur earlier in the pregnancy. If the procedure was done safely and early on, the likelihood of death was 1 per 100000 procedures. She stated that the procedure was only dangerous if it was done in a backstreet setting.
She expressed her belief that registered nurses were competent to provide terminations before 12 weeks using a safe and simple manual vacuum aspiration procedure that does not involve the use of any sharp instruments. For such procedures, a full discussion of risks for all abortion procedures was not necessary. Similarly, access to emergency services on site was not need for this type of TOP.
She felt that the focus should be on saving lives of women because abortions would take place whether they were legal or not. She echoed that women take medication to induce abortion do so because services were not sufficiently accessible. She stated that experiences in Latin American countries shows that even the use of misoprostil leads to fewer complications than backstreet procedures.
Performing the service earlier on prevents costly and more dangerous later care. She asserted that many women who request a TOP in the second trimester do not come earlier for several reasons. Examples include that they do not realise that they area pregnant, they do not know what the symptoms of pregnancy are, they do not know where they can go to obtain a TOP, they do not know that the procedure was legal in South Africa, or they must save money to pay for transportation to a distant facility. Sometimes facilities have very long waiting lists so women cannot obtain the procedure before they were out of the first trimester. If the pregnancy goes beyond 20 weeks, the TOP was not done unless the woman has one of the conditions specified in the Act.
Second trimester procedures require the involvement of a doctor and can be very expensive. Often doctors were not willing to be involved in second trimester procedures, and auxiliary staff face difficulty for participating in the procedure. She urged the importance of increasing accessibility and providing free access in a state facility rather than requiring a costly visit to a private facility. Many women who seek a TOP were poor and socioeconomics force them to decide to terminate the pregnancy. Increased access to TOP must be combined with a comprehensive contraceptive procedure. Effective family planning remains a large problem. These services must be designed to be woman-friendly.
Dr Rabinovitz clarified that Dr Alblas had worked both in a hospital and in a clinic setting. She then asked if to date, without changes in the amendment, there should have been any hospital that was not able to provide abortion services. She asked if the facilities that would now be able to provide TOPs would be able to maintain the levels of safety that were required.
Dr Alblas said that there were hospitals that were designated but that were not providing the service. She explained that first trimester TOPs do not require a full emergency theatre to be safely performed. Units can be reused and sterilized with a liquid. Their use does not require electricity. Consequently, it was not difficult to provide the service at the primary health care level by registered nurses safely.
Ms Madumise asked for more information about whether misoprostil was meant to be used to induce termination of pregnancy.
Dr Alblas responded that the company that manufactures the medication does not want to be perceived as being involved in providing abortions. The company insists that it was to be used only for ulcers. She stated that off-label use of drugs was common when there was abundant evidence that it can be used safely. However, she cautioned that it should only be prescribed and not simply bought over the counter.
Mr Walters asked if it was necessary to have the capability to perform an ultrasound and if a nurse would be able to accurately assess the gestational stage without ultrasound.
Dr Alblas replied that the use of ultrasound was ideal, but it was not necessary. Part of the training that nurses receive was how to assess gestational age without using ultrasound though a manual examination. She noted that the use of ultrasound can often delay the process because the equipment was not available at a particular facility or there were long waits to obtain an examination.
The meeting was then adjourned.