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Meeting reportHEALTH PORTFOLIO COMMITTEE
14 November 2007
CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL: PUBLIC HEARINGS
Chairperson: Mr L Ngculu (ANC)
Documents handed out:
Uniting Presbyterian Churches of Southern Africa submission
Submission by Lesley Watson
Consultation of Christian Churches submission
ChristianView Network submission
Women’s Legal Centre submission
Planned Parenthood Association of South Africa submission
Submission by Richard Burzelman
Prof Eddie Mhlanga submission
Mosaic Training Centre for Women submission
Health Systems Trust submission
Submission by Nontembiso Madikane
Submission by Brendon Theunissen
Submission by Michael Atkins
Traditional Chinese Healers Association Submission
Ipas South Africa submission
Choice on Termination of Pregnancy Amendment Act No. 38 of 2004
Choice on Termination of Pregnancy Amendment Bill [B 21-2007]
Executive Summary of the Constitutional Court ruling
Audio recording of meeting [Part 1][Part 2][Part 3] [Part 4]
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 and heard eight oral presentations on the first day of the public hearings. On this, the second day, 15 oral presentations were given by the committee. Presenters included the Uniting Presbyterian Churches of Southern Africa, Ms Lesley Watson in her personal capacity, the Consultation of Christian Churches, two sixth grade girls from CBC St Johns School in their personal capacities, ChristianView Network, the Women’s Legal Centre, Planned Parenthood Association of South Africa, Mr Richard Burzelman in his personal capacity, Dr Roland Mhlanga in his personal capacity, the Mosaic Training Centre for Women, the Health Systems Trust, Ms Nontemeiso Madikane in her personal capacity, Ms Wendy Maqala in her personal capacity, Mr Brendon Theunissen in his personal capacity, Mr Michael Atkins in his personal capacity, and Ipas South Africa. As was the case on the first day of hearings, 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.
Presentation of the Uniting Presbyterian Churches of Southern Africa
Rev N van Rooyen (UPCSA) began by noting that the question of abortion is highly emotive and intricate, involving interests of the mother, the child, the father, the family, and the community. The church has wrestled with the issue for a number of years but they realise that their stance must be informed by thorough research and the grace to apply the truth.
UPCSA urged that their submission should not in any way be interpreted as their acceptance of the present terms of the CTOP Act but as a sincere attempt to inform the provincial health committee hearing and limit further injury and abuse of the Act’s provisions. They encourage the government of South Africa to use the considerable resources of the state to improve the lives of its citizens and express its benevolence to all members of the nation. Just legislation must be unambiguous, clearly interpreted, and enforceable. The Amendment Bill raises seven concerns for the UPCSA.
The first concern is in the area of counselling and informed consent. UPCSA stated that women are not being given adequate counselling on the health risks and complications associated with undergoing an abortion. They asserted that they have encountered a number of women who were not given enough information with which to make an informed choice. They noted that some women have died while undergoing legal abortions. UPCSA also stated that immunocompromised women are more susceptible to infections and complications arising from surgical intrusion of an abortion and would generally be healthier and less vulnerable to infection if they had been allowed to give birth naturally at full term.
UPCSA noted that they are dealing pastorally with a number of women suffering from a psychological condition called postabortion syndrome. The women involved were not informed of the possibility of psychological suffering after an abortion. Rev van Rooyen stated that recent research has reported that women who undergo abortions may be develop mental illness.
UPCSA was concerned that the Amendment Bill does not mention several conditions such as rupture of the uterus linked with abortion or the moral responsibility and legal accountability of practitioners to fully inform their patients. They warned that women who have had abortions as well as fathers would soon be seeking compensation like those sought from tobacco companies and mines. Rev van Rooyen likened the UPCSA’s submission to information and medical research demonstrating the link between smoking and several diseases that was deliberately suppressed by tobacco companies that led to large money judgements against them. She cautioned that it could be used in a court case to demonstrate that the government was sufficiently informed of the risks and dangers of its abortion legislation and practices. She asked whether the government making provision for the financial and legal implications of its deliberate actions and urged that the Amendment Bill fix accountability for providing information in practitioners.
The second issue of concern is the designation of facilities. The Amendment Bill proposes a further relaxation of criteria and increases the expectation of the public that all institutions should provide abortion facilities even if it is contrary to the institution’s ethos. UPCSA asserted that abortions require specialised equipment and services from specialists, making a relaxation of the original legislation unadvisable.
The third concern centres around the relaxation of qualifications required for persons practicing abortions. Firstly, there is the widening of the scope of practice for registered nurses to be initiating the abortions. The Amendment Bill would permit a medical practitioner in consultation with a registered nurse to terminate a pregnancy after the 20th week. The implications of this have not been discussed within the nursing profession. UPCSA submits that registered nurses are not adequately trained or sufficiently informed to be able to give a reasonable and accurate diagnosis and prognosis as suggested in the original act. In addition, both registered nurses and midwives are usually under the direction and discipline of the medical practitioner making the initial judgement, so they cannot easily give a truly unbiased and independent opinion. Secondly, the term “prescribed training course” is too vague, and the course is vulnerable to further adjustment and erosion of curriculum standards. A lowering of the standards would increase the exposure and risk to the health and safety of the mother and the abortion practitioner. UPCSA questioned what assurance the government was giving that this training course would cover competence in the emergency resuscitation of the mother and improve the levels of infection control. Rev van Rooyen also stated that a high degree of training is required for surgical interventions, yet the Amendment Bill suggests that registered nurses are able to perform such practices.
The fourth area of concern for UPCSA was the inclusion of a freedom of conscience clause within the Amendment Bill. Rev van Rooyen stated that pressures are increasing on doctors and nurses to coerce them to perform abortions against their religious and ethical beliefs. These health care professionals are experiencing discrimination ranging from suggested disloyalty to the shareholders’ profit motives of private institutions to the suggestion of contravention and denial of the rights of a woman to have an abortion in a state institution. Some have been denied promotion or transferred to other wards against their wishes. She noted that though it has been argued that the rights of such people are enshrined in the Constitution, legal enforcement entails significant financial burdens.
Rev van Rooyen next touched on UPCSA’s perceptions of the terms “severe physical and mental abnormality” and “severe malformation of the foetus” used in paragraphs 2b and 2c of the CTOP Act to allow abortions in the second and third trimester of pregnancy. In their view, these terms are too vague and thus are subject to wide interpretation. She cited the example of a harelip as being deemed an abnormality severe enough to justify an abortion in the second or third trimester in some countries. UPCSA urged the committee to provide a definition for these terms within the Amendment Bill.
The sixth issue pertained to reporting. The reporting of statistics required by paragraph 7.3 of the CTOP Act is presently not being followed. Statistics for 2006 are still not complete. Records are being kept of abortion-related injuries and deaths sustained by mothers and health workers. The Amendment Bill should tighten up the responsibility and accountability for accurate record keeping.
Lastly, Rev van Rooyen discussed the issue of penalties and offenses. UPCSA believes that the stipulated penalties for noncompliance in the Act and Amendment Bill are too light. They are concerned that private institutions conduct TOPs for financial gain and that must be balanced by strict accountability and severe financial consequences if they do not comply with the requirements of the Act.
Ms R Mashigo (ANC) began by stating that the UPCSA’s view of a foetus as a human being entitled to rights under the Constitution was controversial. In her view, only the woman making the choice has constitutional rights that need to be protected.
The Chair cautioned members not to enter into philosophical debates. He reminded those present that the discussion should be limited to the proposals presented.
Ms M Matsemela (ANC) wished to know whether the link between abortion and breast cancer had been tested. On the issue of postabortion syndrome, she wished to know whether any traumatic incident in a person’s life does not have psychological effects that could be considered a syndrome. She also requested for further clarification on the specialized equipment that Rev van Rooyen had stated was necessary for the procedure given Dr Alblas’s statements during the previous day’s hearings that some equipment used for TOPs is cheap and accessible.
Rev van Rooyen stated that others researched and prepared the submission, so she was not able to answer questions about medical issues.
The Chair admonished Rev van Rooyen that the committee expects presenters who appear before them to be experts on the issues they present, and it is very unfair to the committee for her to make a submission on which she could not answer questions. He advised her that if others from her organisation were present, they would be allowed to assist her in addressing the issues raised by the committee, but she could not simply convey another’s view to the committee.
Ms C Dudley (ACDP) asked Rev van Rooyen if she was suggesting that the government was setting itself up for later court cases involving later breast cancer development in women who have had abortions. She then recited several proposed clauses. The first regarded the need for ultrasound equipment. The second set out required contents of mandatory counselling including the use of photographs, pictures, and diagrams; full disclosure of all risks involved in either terminating or continuing with a pregnancy, and discussion of alternatives to abortion including adoption and state or other support for the mother. The third required reporting of information by a person in charge of a TOP facility within a month of the performance of a TOP. The fourth addressed the issue of discrimination toward conscientious objectors. The fifth would make a criminal offense the administration of TOP services without sufficient and relevant counselling beforehand.
Rev van Rooyen stated that the purpose of their submitting paper was to focus on making a difference in the Amendment bill, so Ms Dudley’s words were helpful.
The Chair disagreed that the UPCSA was providing helpful input to the committee. He stated that normally submissions from the public help the committee to improve legislation. He reminded Rev van Rooyen that that is the power of public hearings.
Rev van Rooyen informed the Chair that she had only been asked to make the presentation the day before by those who had prepared it. She stated that they were in Durban, and they had attempted to make the presentation there but were not permitted to do so. She acknowledged that she was out her depths concerning questions and discussion but if she presents to a committee at another time she will do research beforehand and meet with the people who put the submission together.
The Chair agreed that if Rev van Rooyen had done research beforehand, a number of issues would have been elucidated for her so that she would have been able to engage with some of the questions that the committee was raising. He stated that the committee would move on to the next presentation.
Ms Dudley commented that she had benefited from the presentation. She would not be present when the bill was being deliberated, and the presentation allowed her an opportunity to formulate wording of specific proposals to submit to the committee at that time.
Presentation by Ms Lesley Watson
Ms L Watson introduced herself as a teacher of biology who has had much contact with young people. She has heard of some who have had abortions and one who recently died after having an abortion. She also represents Meadowridge Baptist Church, which strongly opposes the CTOP Act in its entirety. She wished to state at the outset that Meadowridge strongly supports the views set out in the submissions of the ChristianView Network (CVN) calling for the repeal of the CTOP Act, though she acknowledged that was not the purpose of the hearing, as well as the amendments proposed by CVN.
Ms Watson alluded to the discussion the previous day regarding the time at which life begins. She stated that a single-celled zygote has as much potential as a 12- or 16-week-old foetus. She said that Nelson Mandela, Thabo Mbeki, and every person in the room was once a single-celled zygote, and untold potential for the future would be destroyed if TOPs continue to be allowed.
She noted that proponents of abortion maintain that an embryo is not a living human being, but a simple heart begins beating by the tenth day and a human heart forms within a few weeks of pregnancy. She stated that a 17-week-old foetus has fingers that can hold the umbilical cord and can suck its thumb, implying that the head and mouth are formed. In her view, that is a far cry from the unformed mass of cells they like to think of that ends up in an incinerator. She insisted that society needs to take responsibility for its actions, and she urged that the fact that an action is possible. She asserted that abortions are available on demand largely to deal with the consequences of irresponsible, uncontrolled behaviour among young people who then have multiple abortions and so are clearly not learning from their prior experiences. She stated that TOP should not be considered a method of family planning, which to her seems to be the rationale behind proposals to extend access into the rural areas. Instead, she felt that the government should be placing its money and efforts into campaigns to promote purity before marriage and faithfulness within marriage. She posited that this would also reduce HIV infection rates and cited an example from Uganda of such a campaign that resulted in a one third reduction in the HIV infection rate.
Ms Watson quoted various verses of the Bible and warned that God removes protection from people who reject divine law. She stated that the forces of darkness are at work in South Africa and that the consequences of the country’s disobedience are all around.
Ms Watson wished to know why Parliament allows double standards she perceives in upholding a woman’s right to terminate a pregnancy but not a medical worker’s right not to perform a procedure if it is against their conscience and to be free from adverse consequences of that decision. She was concerned that much-needed trained personnel would be driven from their area of expertise as a punitive measure.
Ms Watson stated that if abortions are needed, patients deserve to be treated by experts who have had specific counselling and training, which would not include registered nurses. Counselling should be mandatory to prevent decisions from being made in ignorance.
She reiterated the need for adequate monitoring and control of the implementation of the law. Her understanding of the premise behind the original legalisation of TOPs was that before a certain stage, a foetus was not considered to be a human life. However, she asserted that abortions are happening well into the second trimester of pregnancy with no monitoring or control.
Ms Matsemela began by stating her belief that God does not want to take joy out of people’s lives. She wished to know if Ms Watson thought that when a 12-year-old girl falls pregnant, if it was because God wanted to bless her with that situation.
Ms Watson responded that if a 12-year-old is old enough to fall pregnant, she is old enough to give birth. She has the option to give the baby up for adoption. She stated her belief that each person has a purpose and a life should not be ended because it is inconvenient. She proposed that the solution to the problem would be to educate young people about abstinence before marriage. She reiterated her statement that because something is possible does not make it permissible as well as her assertion that TOPs are taking away consequences of decisions and removing responsibility within the society.
Ms Matsemela queried whether Ms Watson would agree that the amendment tries to empower those without proper information and those without knowledge on how to access health facilities in line with Section 27 of the Constitution.
Ms Watson echoed the need for people who do not have proper information to be provided with that information. She agreed that empowerment is essential, which underscores the need for preabortion counselling. She highlighted the provision of information about the stage of development of a foetus as well as family planning options before unwanted pregnancies occur. She did not see a great deal of benefit from postabortion counselling.
The Chair stated that Ms Watson’s suggestions may be appropriate for a perfect world, but the world is an imperfect place. He explained that Ms Matsemela’s question asked what could be done in a situation where a 12-year-old becomes pregnant and wants to terminate her pregnancy to protect her ability to continue with her education and better herself within the society. He noted that at that point, discussions of abstinence are moot.
Ms Watson replied that the girl should have the baby and then continue with her education.
The Chair asked what should be done if the child did not want to pursue that avenue.
Ms Watson responded that many children have continued with their education after giving birth. She felt that society should be teaching that there are consequences to decisions. She stated that parents she encounters at the school where she teaches often do not want their children to have to face any consequences that the school imposes upon them. She believes that this shows a systemic weakness within parenting and society in general. A removal of consequences does not help where young girls are having multiple abortions, showing that they are not learning from their mistakes. Instead, they are finding it easy to take away the pregnancy.
The Chair asked if Ms Watson would advocate the same result if the 12-year-old was using contraception but the method was ineffective. He wished to know if that girl should be permitted to terminate the accidental pregnancy that was unforeseen.
Ms Watson replied that the girl should continue with the pregnancy.
Ms Madumise (ANC) asked Ms Watson if there was a contraceptive or family planning methods that would help health care workers not to have to perform TOPs.
Ms Watson stated that once there is a pregnancy, contraception will not help. It must happen before the pregnancy occurs. She said that too many women are falling pregnant through carelessness or ignorance. Contraception must be more available and accessible to reduce the number of pregnancies.
Ms Matsemela requested further elaboration on Ms Watson’s statement about Parliament operating under a double standard. She asked if Ms Watson was aware that the Constitution takes prevalence over any legislation. She pointed to Section 36 of the Constitution, which discusses the limitation of rights, and asked how a health care worker who is exercises her right to choose a particular profession would not be superseding the constitutional right of the patient by putting her rights above that of the patient.
Ms Watson replied that health care workers are trained and employed to save life and therefore should not be expected to take life in contravention of their right to perform the task they were employed to carry out. She is arguing for people who have conscientious objections and does not believe that their rights should be overtaken. She stated that in such a situation, the facility must find another person to do the task rather than forcing the person to perform terminations against their conscience. She said that she does not consider TOPs or pregnancies to be life-threatening, so a health care worker who chose not to participate in a procedure would be upholding the task they are employed to perform, saving lives, because the mother’s life is not at stake.
Submission by Consultation of Christian Churches (CCC)
Rev P Langerman (CCC) represented a Christian network in Cape Town consisting of major denominations and other Christian organisations. They submit that the scope of the 1996 Act should not be enlarged in terms of more facilities or more staff unless abuses of the present legislation are addressed at the same time. They submit that several clauses should be added to the Amendment Bill.
On the issue of counselling, a section should be added to provide that a provider of a TOP shall ensure that the woman is counselled in a manner which provides a full opportunity for discussion and questions. In every case they wish for the counselling to include information imported by pictures, diagrams, or photographs showing the existing stage of development of the unborn child. The counselling must also set out the risks of continuing the pregnancy set against the risks associated with abortion according to the latest medical science available at the time. Finally, counselling must provide the available alternatives to abortion, particularly the ways in which the state and other agencies will support the mother and child, especially if the child is born with a disability.
CCC proposes these amendments because of Section 4 of the principal act, which provides that the state shall promote nonmandatory and nondirective counselling both before and after the termination. This wording leads practitioners to perceive the onus of providing counselling as falling on the state rather than the provider. In addition, the word nonmandatory is taken to mean that there is no duty on the practitioner, though CCC believes that Parliament must have intended the term to apply only to the woman receiving the counselling in that she need not listen to it if she does not wish to. CCC was also concerned that practitioners would interpret the word nondirective as preventing any mention of risks for fear that it would be perceived as directive. CCC noted that there is no such language contained in government requirements for counselling before HIV testing and felt that the issue of counselling should be addressed in the same manner for women seeking abortions.
On the subject of informed consent, CCC proposed that Section 5 of the principal act be amended to require that every woman give informed consent to each step of the procedure and its consequences. Informed consent must consist of knowledge, appreciation, and consent. Knowledge means that the woman must be fully informed in a manner appropriate to her level of education. Appreciation means that the woman must understand the information as it applies to her specific situation. Rev Langerman explained that the standards they advanced derived from a 1994 case in the Transvaal Supreme Court. The amount of information provided must be adjusted in the case of a minor or a woman who appears to be unconscious or mentally disabled.
CCC is also concerned about the age of consent and believes that the principal act does not adequately address some issues with respect to obtaining informed consent from a minor. Rev Langerman was doubtful that a girl of 16 or even 18 could grasp the risks associated with a TOP procedure or potential long-term effects. He postulated that even if she were able to understand the risks, she would not have the maturity to appreciate the long-term consequences of her decision. Lastly, he stated that the principal act does not address the medical and legal implications resulting from damage to a minor’s health from an abortion performed without the consent or knowledge of a parent or guardian. In the view of the CCC, Section 5 should be rewritten to allow a minor to obtain a TOP only after two counselling sessions that are at least 20 minutes long and seven days apart. Each session should include a visual presentation of the termination and the stage of gestational age of the foetus. Each should also reflect the most recent scientific knowledge on the effects of a termination. A minor should not be able to obtain a TOP without the permission of at least one adult; the adult can be a relative, a judge, or a hospital superintendent.
CCC advocated the removal of the provision in Section 2(c) regarding the performance of a TOP after the 20th week of pregnancy in cases where the continuation of pregnancy would pose a risk of injury to the foetus. CCC did not understand how a termination would not also pose a risk of injury to the foetus.
Next, CCC requested that a conscientious objection clause be added to the principal act providing that a health care worker has no duty by contract or otherwise to perform a TOP procedure except in a life-threatening situation. The burden of proof of establishing a conscientious objection would rest on the person invoking the right to object. CCC disagreed with the proposition that the Constitution and Bill of Rights provided sufficient protection for a health care worker’s rights of conscience because seeking redress in the Constitutional Court is a time-consuming, complicated, and expensive process.
CCC is concerned that there is a gap in the Bill with respect to record keeping, particularly of terminations occurring in the third trimester.
On the issue of offenses and penalties, CCC urges that any person who terminates a pregnancy in contravention of the provisions of Act or at a facility that does not comply with the requirements of the Act can be imprisoned for up to 10 years and fined. Anyone who prevents a woman from obtaining a lawful procedure or obstructs access to an approved facility can face imprisonment of up to two years as well as a fine. They are concerned that the latter clause will be construed as imposing an obligation on a medical professional who conscientiously objects to perform a procedure and seek the insertion of language clarifying that the penalty would not apply in that type of situation. Finally, CCC feels that the Act should attach criminal penalties to medical practitioners who act outside the scope of the Act.
Ms Matsemela asked why the provisions contained in Subsections 6 and 7 of Section 4(3)(c) of the National Health Act regarding full knowledge and consent of a patient who is seeking access to health care facilities were insufficient to address the CCC’s concerns about counselling.
Rev Langerman replied that the issue of the party responsible for supplying the information upon which the knowledge would be based was not addressed within either the CTOP Act or the National Health Act.
Ms Dudley inquired if it was problematic to allow a woman, via the language in the CTOP about counselling being nonmandatory, to refuse to listen to counselling that is provided, which such refusal would not be allowed in a setting of HIV testing or a surgical procedure other than a TOP.
Rev Langerman stated that the issue for the CCC is discerning what the intention of Parliament was in including the language contained in the original act. He stated that they agreed that the provision appeared to be anomalous when compared to requirements in other situations and that it may be in conflict with the provisions of the National Health Act. Their primary position was that whatever the intent behind the inclusion of the term, it could logically apply only to the woman and not to the practitioner.
The Chair asked how the CCC could arrive at the conclusions stated about the possible ramifications of the use of the terms nonmandatory and nondirective within the Act, such as a practitioner assuming that any mention of risks associated with the procedure would be considered directive.
Rev Langerman stated that the word “promote” as used in Section 4 was sufficiently vague to warrant additional consideration of that section.
The Chair replied that the term promote was synonymous with encourage.
Rev Langerman queried whether the state would provide that encouragement in the form of training, particular materials or information, or some other method.
The Chair replied that the term must be read in conjunction with the National Health Act, which is an overriding act in the area of patient rights.
Rev Langerman stated that a statute must be adequate and unambiguous standing alone. He posited that Section 4, when viewed alone, is ambiguous, creating confusion about the implementation of the Act in regard to who is required to provide counselling and what it means for the state to promote the provision of counselling. He stated that there is no such confusion with regard to HIV testing, which he thought could be considered more controversial because of the number of people subject to the testing. CCC wishes similar clarity of who bears the onus of providing the counselling.
The Chair stated that statutes and legislation must not be read in a vacuum. They must be cross-referenced with the Bill of Rights, the Constitution, and other statutes that relate to the same subject area.
Ms Dudley wished to ask a question but the Chair declined to recognise her, stating that he knew what she was going to say.
The Chair informed Rev Langerman that the Committee Members also go to church and are involved in the same issues as the CCC in that they live and work in the same communities as the CCC. He asked the reverend not to put himself on a pedestal and to be modest enough to recognise that the Members are not ignorant in dealing with the issues implicated by the legislation. He stated that it was unfair for the CCC to approach the legislation from their own subjective interpretation of it.
Rev Langerman stressed that he regards the Committee and Parliament as capable, highly intelligent, and involved with the issues presented by the legislation. The intention of the CCC was to present concerns about the legislation. With respect to Section 4, he would take issue with any State Law Advisor who stated that a court interpreting that section would not first look to the wording of the section in isolation to test assertions that it is ambiguous with respect to the responsibility of the state. He submitted that the vagueness was easily addressed by a small amendment.
The Chair then recognised Ms Dudley, who asked if a reference within Section 4 to the applicable section of National Health Act would help solve the problem, assuming that that section addressed the issue raised by the CCC.
Rev Langerman stated that any addition that would bring clarity to Section 4 would be useful.
The Chair stated that the legislation states certain overriding requirements but details as to the specifics are contained in regulations, not the statute itself. He asked for input on the issue from the representatives of the State Law Advisor who were present.
Mr M Motsapi (State Law Advisor) stated that Ms Matsemela was correct that the National Health Act is an overarching statute that applies to all health care situations, so the provisions of subsection 6 to which she referred would always apply to TOP situations. He went on to say that wording of Section 4 clearly puts the onus on a state employee to provide the services described in subsection 6 of the National Health Act. Mr Motsapi compared the wording that appears in the act with the following alternative formulation: the state shall promote nonmandatory and nondirective provision of counselling. According to Mr Motsapi, the alternative would present the problem raised by the CCC, but the wording that actually appears in the CTOP Act cannot be interpreted in the way they say it can.
Mr M Walters (DA) stated that that the CTOP Act provides that counselling is nonmandatory, so the patient need not receive it if they do not want to.
Mr Motsapi replied that the providers must provide counselling both before and after the termination. The words nonmandatory and nondirective mean that providers should not inject their subjective views into the content of the counselling and should not direct the woman on which choice she should make.
The Chair stated that the phrase “promote the provision” was equivalent to “provide.”
Mr Walters responded that if that was the intention, nonmandatory should be changed to mandatory. That is the source of the confusion that counselling does not need to be provided to a woman or girl seeking a TOP. He stated that the word nonmandatory in English means that something does not need to happen.
The Chair stated that there would be no further discussion of the issue. Nonmandatory and nondirective mean that subjective views of the counsellor must be left out of the counselling. If a counsellor subjectively disagrees with a woman’s choice, the operative word of the legislation is still choice. He pointed to the proposed use of photographs and graphics as injecting subjectivity and stated that they would necessarily be directive. The medical practitioner must present full information but not direct that a particular path be followed.
Ms Madumise stated that the day before they were informed that abortion causes cancer and now they are being told that it causes mental disorders. She asked if the study he cited as support for this proposition examined data from South Africa or only from New Zealand.
Rev Langerman responded that he was not aware of any studies of South African women in this specific area or in the field at large, particularly long-term studies like the one in New Zealand which spanned 25 years, a period much longer than that during which the CTOP Act has been in place. He has anecdotal evidence of South African women who were severely traumatised but did not know of any long-term South African research in the area.
Ms Madumise reminded Rev Langerman that abortions existed in South Africa prior to the passage of the CTOP Act and for more than 25 years. Those who were able to obtain legal abortions by going elsewhere did so; the Act now extends the opportunity to obtain safe procedures rather than backstreet abortions to everyone. Backstreet procedures killed those who were not able to leave the country to obtain a safe abortion.
The Chair vehemently reminded Rev Langerman that many black women died from backstreet abortions prior to the passage of the Act. He admonished him that it is an affront to forget that they saw girls bleeding from these procedures when they were at school in the townships while white women had facilities available to them. The Committee Members are presented with the opportunity to present a choice to women that if they want to terminate a pregnancy they can, and they do not want to, they do not need to. They are able to extend to women the right to choose as well as specifying all the other rights.
The Chair then asked for clarification from Dr Alblas or Dr Mhlanga to comment on Section 2(c)(3) pertaining to injury to a foetus the removal of which was advocated by CCC. He asked if a cesarean section was the only option available for terminations taking place after the 20th week of pregnancy.
Dr. Alblas stated that the termination can be done medically by administering drugs to induce contractions and bring about early delivery. Cesarean section is an option but should be used as a last resort.
Dr Mhlanga concurred with Dr Alblas and stated that the issue with terminations done past the 20th week of pregnancy is the potential viability of the foetus. Any birth or delivery would require notification to the births and deaths registry. He agreed that the primary method used for terminating the pregnancy is labour induction. If that method fails or if there is an emergency, such as fits in the mother caused by high blood pressure, a cesarean section would be performed. He went on to explain that the subsection dealing with termination in the event of injury to the foetus applies in cases such as a foetus experiencing distress. Such termination keeps the baby from being subjected to further damage within the mother’s body. It would be placed in an incubator after delivery and would be cared for outside the mother. The purpose behind the language regarding injury to the foetus is to allow the baby to be saved by bringing it outside of the mother’s body.
Rev Langerman apologised to the Committee for any affront or offense and assured that none was intended. He went on to reiterate the CCC’s position that Section 2(c)(3) was strange in that it talked of risk of injury to the foetus in the context of a termination, not a birth of a live foetus.
Dr R Rabinovitz (IFP) explained to Rev Langerman that termination of pregnancy does not necessarily mean to kill the foetus. Termination of pregnancy can also be performed to save a child if the foetus is viable.
Rev Langerman stated that that is completely indistinct and contrary to the impression created by the Chair. The implication of the section as he reads it is that the foetus is being destroyed. According to him, if the foetus is to be saved, there is no reason to include that section within the act at all and the argument for its removal was strengthened.
The Chair read to Rev Langerman the definition of termination of pregnancy: the separation and expulsion by medical or surgical means of the contents of the uterus.
Submission by Schoolgirls from CBC St Johns School
Two schoolgirls in Standard 6 at CBC St Johns School asked for special consideration of their views on the Amendment Bill as it is directed to them and they have the most to gain or lose. They asked for their submission to be considered while the Committee contemplated rules that would affect their lives. They wished to be heard and empowered and implored the Committee to look particularly at issues of informed consent, as they may have to make a decision alone and have not been told of all physical and psychological risks. They request that health care providers be required to tell them exactly what the dangers are. They compared the risks posed by a single cigarette that a minor may not purchase by law with those from a single abortion. They stated that they have not been properly educated on the process of foetal development but rather have been informed that a foetus is only a blob of tissue. They advocated strong penalties to be imposed on providers or clinics who mislead them. They stated that they do not believe that abortion is right and the lack of a conscientious objection clause could affect their decision to enter or not enter into medical professions. They asked to be protected from pressure to make them act against their consciences.
The Chair then invited the presentation of the Health Care Christian Fellowship of South Africa. No representative was present at that time.
Presentation by ChristianView Network (CVN)
Mr P Rosenthal (CVN) presented the position of CVN on the Amendment Bill from four different perspectives: those of the unborn, God, health care workers, and mothers. CVN asserted that alternative positive amendments could be made instead of what is proposed.
The primary group of people affected by the legislation are the unborn. They are in a weak position and need greater protection even than the 12-year-olds previously discussed. The increase in access to services intended by the amendment would impact this group even more.
Moving to the interests of God, Mr Rosenthal stated that racial equality is based on the idea that all people are created in the image of God and the unborn are no different. He stated that TOPs are an attack on the image of God and people should fear that God will be angry as a result.
On the issue of health care workers, Mr Rosenthal stated that the amendment impacts health care workers in two ways to a greater extent than the 1996 Act did. First, deregulation into smaller clinics where there is a smaller amount of staff. Under the 1996 Act health care workers were already being intimidated to participate in procedures against their will or were being refused employment on the basis of their refusal to participate. Nurses were in weak power positions but were unwilling to enforce their rights because they feared that they would not be able to obtain employment with the Department of Health (DoH) after challenging them in court. He stated that the 1996 Act originally contained a conscientious objection clause into 1996 act but it was withdrawn on the grounds that the right to object was already contained in the Constitution so it was not necessary to specify it in the legislation as well. He stated that comments made in the course of the hearing that health care workers give up their rights to object when they enter the profession undermine the position the Department took on the sufficiency of Constitutional protection of those rights. He called for clarification in this area in light of differing interpretations of the situation. He specifically cited difficulties arising from administration of drugs such as misoprostil creating emergency situations in which a health care worker has no choice but to finish the procedure even if they were not involved in prescribing or administering the medication. CVN opposes deregulation to smaller clinics because of the increased pressure it would place on health care workers in those clinics.
Mr Rosenthal then turned to the interests of mothers, who in many cases are pressured into a decision by strong male figures in their families or lives and later regret the decision. CVN does not understand opposition to provision of information in light of statements they have gotten from women about information they did not receive prior to undergoing the procedure. CVN is also concerned that the legislation does not specify what information needs to be provided. Their impression is that procedures are encouraged by medical workers who are seeking financial gain. They contend that counselling is seen in state facilities as superfluous and low-priority and so do not give it. They contend that the information could be provided in the form of a simple pamphlet and an opportunity to talk through concerns with a health care worker.
Mr Rosenthal stated that though he agreed with the Chair’s interpretation of the language regarding the state’s provision of counselling, he did not perceive that it is shared by those in the health care profession. He asserted that clearer wording including specific information to be imparted was necessary to allow a court to decide whether a facility is in compliance. He said that counselling is being treated as analogous to “red” rights which must be promoted but which by their nature are neither absolute nor available on demand. The view of the CVN is that minimum basic information should not be treated in such a way. He stated that enforcement of legislation in other countries specifying what information must be provided has reduced the number of abortions provided in those countries as well as the number of women who later regret their decision. He suggested that the Committee could also put a general statement on this issue into the law and then insert details into the counselling process via regulation.
In general, CVN feels that the 1996 law is wrong. He alluded to Ms Madumise’s earlier comment about the legality of the procedure for some people prior to that time by stating that the availability even on the more restrictive scale after 1975 was also wrong. The degree of the wrong is measured in terms of the numbers of procedures being done.
Mr Rosenthal argued that the entire CTOP Act should be repealed though he acknowledged that was not the purpose of the hearing. He stated that the Committee could still substitute the amendments in the Bill with those proposed within CVN’s submission. The alternative amendments address the issues of counselling, informed consent, the protection of infants who are born alive but then abandoned, parental consent for minors to prevent school counsellors from taking them to clinics for secret abortions, and the prescription of a practice of inserting scissors into the neck of a baby already in the birth canal to suck its brains out.
Mr Rosenthal expressed a concern that people who are engaging in behaviour they think is supported by the state but who later find themselves on trial for doing something wrong. He gave examples of acts done under apartheid or abuse of travel budgets by Parliamentarians as like conduct. He cautioned that these things are against God’s law and those participating will invoke God’s wrath and there will be no government there to protect them from it. He concluded his presentation by restating CVN’s belief that the principal act should either be repealed or the amendments they have set forth be substituted for the ones contained within the Bill.
Ms Matsemela asked whether the deregulation of power to the provinces and other suggested amendments within the Bill will increase the number of trained workers and allowing women to obtain access to services earlier in their pregnancies, thereby improving service delivery.
Mr Rosenthal replied that if service delivery is measured by the number of procedures being performed, the changes will increase service delivery. However, CVN views this as a negative change and believes that allowing procedures to be performed at smaller clinics will increase the number of women who are injured and the number of health care workers who are asked to perform services against their will because of staffing shortages and lack of backup facilities. He stated that those issues are exacerbated by private doctors dispensing misoprostil and then sending women to the clinics.
Ms Matsemela inquired whether the CVN’s concerns about increases in risk of error when nurses perform TOPs rather than doctors was not addressed by the requirement that nurses undergo specialised training before they are able to perform the procedure.
Mr Rosenthal responded that a nurse could never be adequately prepared to do these procedures and deal with all of the complications that could arise. For this reason there are many other procedures that nurses are not allowed to conduct. He postulated that deregulation was occurring for political reasons, not medical reasons. He felt that the same was true for the changes made with respect to informed consent from minors.
Mr A Madella (ANC) asked about a statement contained in the CVN statement indicating that babies born prematurely after a TOP were experiencing discrimination in the level of medical care they received compared with those born at full term.
Mr Rosenthal clarified that the situation to which the submission and presentation referred is one where a baby is born alive after labour induced by misoprostil. The discrimination occurs between babies born alive as result of accidental premature birth and those that are born because of medical abortion. The latter are left in a cold room to die. CVN felt that the legislation should mandate equal treatment after babies are born as well as before.
The Chair noted that Mr Rosenthal was present when Dr Mhlanga explained the phrase termination of pregnancy, so he should not still be operating under misconceptions about what that term means.
Mr Rosenthal said that the term is vague and euphemistic, with no accurate meaning. Every birth is a termination of pregnancy, so the term is a euphemism meant to hide what is being done. He felt that the Bill should be called the Killing of Unborn Babies Bill. He did not agree that Dr Mhlanga’s interpretation of the clause is universal and thought it more likely that it would be used by people who want to kill babies as an excuse to kill handicapped babies in the womb. He stated that he would be happy to propose additional wording to be added to the Bill that contained the meaning set out by Dr Mhlanga and the Chair.
Ms Madumise asked if whether CVN’s position, particularly in their discussion of the interests of the unborn, would in essence make abortion illegal again.
Mr Rosenthal responded that rejection of the Amendment Bill would not make abortion illegal but would keep it from being performed in small clinics and by nurses, though CVN would support the repeal of the 1996 Act and the 1975 Act. He stated that statistics from other countries where screening of the sex of the foetus is available indicate that the vast majority of abortions are of females, resulting in a shortage of female babies. He gave China as an example of a country where this practice takes place. He said that this is the most serious form of gender discrimination and leads to men having difficulty finding wives. He concluded by stating that it is a myth that women in general are in favour of legal abortion. He cited statistics that indicate that the opposition is more widespread among black women than among white women. Mr Rosenthal concluded by stating that it is primarily men who push women into terminating their pregnancy in another form of gender oppression that CVN would oppose.
Presentation of the Women’s Legal Centre (WLC)
Naomi Lince (Branch Manager, Ibis Reproductive Health – Johannesburg Office) presented on behalf of the WLC, as their representative was unable to attend. She stated that her colleague at the WLC had asked her to read an excerpt of the written submission to the committee.
WLC is in favour of the amendment to the CTOP Act. By including the right to terminate a pregnancy within its constitution, South Africa has demonstrated its commitment to women’s health and human rights. WLC is a law centre that focuses on women’s rights and gender equality and has conducted extensive litigation and advocacy concerning the constitutionally enshrined right to access health care and reproductive rights including the right to termination of pregnancy.
The Amendment confers many of powers previously exercised by the minister to provincial MECS. One example is the ability to designate health facilities where termination may take place, a function previously exercised only by the Minister of Health. WLC believes this transfer of authority will improve access for women seeking termination of pregnancy by speeding up the designation process. It is also felt that the amendment will improve service delivery especially in rural areas by enlarging the pool of appropriately trained workers who can provide termination services in the first trimester of pregnancy. One of the problems that South African women face, particularly in the rural areas, is that there is an insufficient number of trained health care providers authorised to perform this service.
Ten years after the implementation of the act, there is excellent evidence that the act has resulted in significant improvements in women’s health and the proposed amendments can only go further in ensuring that women have access to safe abortion services.
The submission is in favour of the amendment in its entirety. She stated that, though it was not included in the WLC submission, she could speak on the issue of a link between abortion and breast cancer or mental illness if the committee wished for further information on that topic. She could also answer questions about the safety of the procedure in general and provide further research to the committee if it would be helpful to them.
Mr Madella wished for clarification on the existence of a positive correlation between abortion and breast cancer and wanted to know if Ms Lince had evidence to the contrary.
Ms Lince responded that a lot of research been done. She also cautioned that research can be done in different ways and with different study designs. Some studies are considered to do a better job of controlling for different factors. For example, in the case of cancer, a researcher would want to make sure that there are not other factors within the environment of the research subject that could be causing the cancer.
On the issue of breast cancer and abortion, several studies have been done. The one that is considered the gold standard was a prospective study that looked at a large group of women from one time point going forward; that study showed no difference in risk between women who had terminated pregnancies and those who had not. Some of the other research that is often cited is thought to have methodological problems.
Ms Madumise asked about one of main points in the written submission, which deals with the difference between the medical and surgical termination of a pregnancy. The principal act provides that termination may take place only in a facility which gives access to medical and nursing staff, gives access to an operating theatre, and has appropriate surgical equipment. She noted that the second requirement posed the largest problem and asked Ms Lince for her advice on how they should deal with that question.
Ms Lince responded that the section of the written submission requesting that specific language be added to the Act that would differentiate between medical and surgical abortions was not included in the oral presentation because WLC had discussed the issue and concluded that this was not appropriate forum to raise the issue. However, they believe that there is a difference in terms of the backup systems that are necessary for the different types of procedures, but they support the amendment as written and do not wish to delay the process by raising that separate issue. Instead, they would hope to be able to discuss it at a later time. She pointed out that guidelines are being developed for medical abortions and offered that it would be more propitious for them to raise the issue when those guidelines are discussed.
Ms Matsemela inquired about the content of the WLC submission regarding the insufficient number of trained health care workers especially in the rural areas. She pointed out that the problem is not limited to the rural areas; there are other settlements within the country where people are living where there are challenges to providing services.
Ms Lince replied that many different groups and regions are experiencing different problems with access; difficulties are not limited to any one group or area. Because of the complexity of the situation, she felt that appropriate advice might require a case-by-case examination rather than any kind of blanket treatment. She gave the example of measures pertaining to increasing the number of providers and noted that those kinds of solutions might not ameliorate other types of difficulties or barriers to access.
The Chair asked for further information about the language of the amendment pertaining to the required facilities and services at a site where terminations are performed. He restated WLC’s position that surgical and medical abortions are different procedures so the requirements for performing them safely are not the same. He suggested that WLC’s proposal with regard to these procedures was a significant departure from the original language and wanted to Ms Lince to further explain that point
Ms Lince explained that because medical procedures are much simpler than surgical procedures, the recommendation of the WLC would be that the physical requirements necessary for the latter are not needed for facilities only providing the former. However, WLC has decided to retract the statement on this issue to avoid delaying deliberation of the current amendment as it stands.
The Chair asked if WLC also retracted their related definitional recommendation.
Ms Lince confirmed that he was correct.
Presentation by Planned Parenthood Association of South Africa (PPASA)
Ms Vivienne Gongota (Campaign Manager, PPASA) explained that PPASA is an NGO focusing on the field of sexual and reproductive health and rights. They work with men, women, and youth in Khayelitsha. Their vision is set forth in the statement that they want to ensure that each and every child in South Africa is a wanted child.
PPASA supports the Amendment Bill. She speaks as well on behalf of youth; PPASA runs a reproductive health clinic in Khayelitsha, and most of the people they encounter there are young people. They do not provide TOPs at that clinic. The activities are limited to education and workshops and counselling for those who want TOPs and refer them to a hospital where they can receive services. She stated that young people do not want to be judged when they go for a TOP. They know why they want to terminate the pregnancy and if they had a choice or other means, they would not undergo the procedure. But if they decide to have a child, they want to be able to love and take care of that child. When these young people look at a child, they do not want to see how they hate themselves or their life experience.
All know that many people in the disadvantaged areas lack information on sexual rights and health, so they do not exercise their rights effectively. As service providers, they all know that there are problems with lack of transport from the community to the clinics, especially in the rural areas. In some areas, if you miss a bus at four in the morning, you will not be able to access your contraceptives. Many young people keep their sexual activity a secret from their parents. Even if a young person is able to access contraceptive services, they may not use them properly, which can result in unwanted pregnancies. These young people ask that they not be judged by people who do not know the circumstances under which they live.
Before the CTOP Act was passed in 1996, children in the townships would sometimes find aborted foetuses in the street. Children were exposed to things that should not be; these things still happen sometimes. Even now, people still undergo backstreet abortions because in some places, like Khayelitsha, the few facilities that provide termination services do not have adequate staff to provide for the size of the population that they serve. One doctor can see as many as 20 patients a day. There are long waiting lists, which mean that women are not able to access services early in their pregnancies.
To improve the TOP program, PPASA supports registered nurses performing TOPs provided that they are properly trained. Nurses should be recruited and counsellors should be trained on an ongoing basis. Adequate counselling would ensure that the after effects on the emotional wellbeing of mother are minimised wherever possible. PPASA also recommends that registered nurses or service providers who oppose TOP should be required to undergo training so that they can learn to respect others’ views and values rather than judging their decisions.
If the Amendment Bill is supported, it will prove that South Africans have access to information and to services on sexual and reproductive health and can make informed choices about their sexual lives and sexual health. They will be free from judgemental statements and stigmatisation. Young people will be able to access services without fear. She reminded the Committee that the South African government in international conferences took a stand that all South Africans shall have access to information about sexual health and to TOP services.
Ms N Nkabinde (UDM) asked about the counselling of women done by PPASA and asked if they felt they were adequately trained to provide that service.
Ms Gongota responded that PPASA provides services on reproductive health at their clinic, so whether a client wants to have information about TOPs, contraceptives, or sexually transmitted infections (STIs), they are provided with counselling and education on those matters. For clients seeking TOP, their counsellors are trained on an ongoing basis so she is confident that they are well trained.
Ms Nkabinde requested specific details about the counselling, such as whether it took place one-on-one and whether counselling continued after a patient was referred to a facility that provides TOP services.
Ms Gongota stated that counselling is provided on an ongoing basis and would not refer a client for TOP without counselling or recounselling that client.
Ms Dudley asked what reporting is done when girls of 12 or 13 years come to the clinic for TOPs. She wished to know whether the South African Police Service, Social Development, or other like groups are informed of such instances as cases of potential statutory rape.
Ms Gongota stated that they have not had any girls that young coming to their clinic for referral for a TOP. However, they have come for contraceptives. In such cases, they receive counselling and education and are advised to bring a parent or guardian into the process. The service provider would also explore each situation for things like statutory rape. She stated that they network with other NGOs and governmental organisations and would make appropriate notification based on the specifics of a particular case. She did explain that services must be provided with or without the consent of a parent.
Ms Madumise asked what services are rendered to male clients other than treatment of STIs.
Ms Gongota replied that they are provided with information on sexual health including provision of condoms and information on HIV. They are encouraged to attend workshops on sexual health. PPASA provides sports and recreational programs and computer classes that are integrated with aspects of education on sexual health to bring males into the PPASA facilities and get them involved in such education. She stated that many men view sexual health as only an issue for women and they are trying to change that mindset by offering integrated services.
Ms Dudley inquired about the content of the counselling that PPASA provides, particularly whether it covered risks of TOP procedures as well as benefits.
Ms Gongota responded that she is not a counsellor, but when PPASA counsellors provide counselling on any issue, they include information about the advantages and disadvantages of different options as well as what to expect even with respect to aftereffects. The counselling goes beyond a description of the process and focuses on emotional as well as physical wellbeing.
Ms Matsemela stated that she appreciated that a clinic in a township was conducting its activities in compliance with Sections 6 and 7 of the National Health Act concerning the total wellbeing of its clients. She went on to ask if a large number of minors coming to the clinic to obtain a TOP.
Ms Gongota replied that no minors have yet come to the clinic seeking TOPs, but they do come to obtain contraceptives. When a minor comes for that purpose, they counsel the person first and encourage them to talk with a parent or relative. They then provide the contraceptives with or without parental consent because they do not want the minor to become pregnant or contract HIV. With respect to TOP, they are grateful that the law does not allow denial of services because of the lack of parental consent but the counselling always includes advice about finding a support network for the minor.
Presentation by Richard Burzelman
Mr R Burzelman (Assistant Director, Sexual Reproductive Health Metropol Region) introduced himself as a registered nurse and midwife working in a TOP program since 1997. He began assisting gynaecologists in theatre at that time, when TOPs were done under general anaesthetic operations. It was a new procedure for everyone at that time. He then moved on to the provincial office where he was in charge of the TOP program for the province, and then he became the Metropol Sexual Reproductive Health Coordinator, a post he has held for the last three to four years. He has also been involved with the training of registered nurses in the Western Cape in one way or another. He has also worked with Dr. Alblas in the evaluation and training of students to see that they are practically proficient. It includes both public and private sector institutions, including Section 21 organisations.
He stated that support is crucial for nurse providers because often they work in isolation in these units, so he or Dr Alblas would provide a link for them whenever they needed advice on surgical difficulty or just to talk to someone. He continues to perform TOPs and he has throughout this time. He is qualified and trained regionally. He has been involved in worked in training for institutions (work groups) or individuals.
He is often asked to look into a problem at an institution with a doctor or nurse who is having a problem; in such a case he performs site visits to see if he can alleviate the tension they are experiencing.
He also gives lectures to first-year students at their residence or technikon. These youth are people that they really need to meet with, but they are often a group that is missed in educational efforts.
Looking back, he has worked closely with all aspects of the TOP program and during that time observed several barriers to the quick and smooth implementation of the CTOP Act. These barriers were mostly resolved with the introduction of the Amendment Bill. At the time of the initial consideration, he felt that the Bill was well addressed in hearings in Parliament. The body of his submission discusses some remaining problem areas.
The first problem area is the issue between registered nurses and midwives. Most registered nurses in South Africa are also midwives, perhaps between 80% and 90%, but others who are not are also very important to their services because they are prepared to work in the area. It is therefore to the advantage of midwives to include registered nurses. Obviously they have not been trained as midwives, so extra attention is need in their training, especially in the field of family planning and contraception. Midwives also don’t know how to do surgical abortions, so they need to be trained. It is a paradigm shift for a nurse to act as a surgeon and to perform a surgical procedure. Doctors and nurses look differently at lines, and it is a paradigm shift for a nurse to become a TOP provider. Nurses are given extra attention, and they have time to complete all the needed training; each person is taken at their individual level and trained for as long as necessary. He is told that they are practically proficient to perform the procedures. However, he reminded the committee that a nurse never works in isolation but rather as part of a group of health providers that forms part of a team. Seldom will there be a situation in which a nurse is working alone, so if adverse reactions to a treatment occur, they have help. Mr Burzelman stated that this type of situation is likely to arise only in a private practice setting. In public facilities and most private facilities, there are always other people around them.
The biggest change for registered nurses is empowerment. These nurses have come a different route or they attended to their personal lives after their training and have come back to work or someone who began in a lower category but has bettered themselves throughout the years. This legislation gives them opportunity to do something dramatic and empowering. It has allowed them to grow professionally and has encouraged them that their lives are not over; they can start again and do more training or a new degree or they can do midwifery. It has had a profound effect on nurses. These nurses will always have a mentor available to them, either at the facility or by phone. In the Western Cape, if someone does not have a mentor on site, either he or Dr Alblas is always available to assist them if they need help.
With respect to the pregnant woman, the emphasis during the training is for a nurse to realise that when a woman is asking for TOP, that situation presents the best opportunity to have a dramatic effect on that woman and her life and the rest of their reproductive life. The crisis situation she faces is a powerful opportunity. Women in that situation really listen and learn a lot through their adverse condition at that moment.
The substitution of Section 3 of the Act was written with a view toward accommodating surgical termination only but it does create problems for the few private providers who are performing medical abortions. They are not a lot of them throughout the country. The provincial MEC for the Western Cape has just decided that such providers do not need to comply with all of the provisions set out in a through k because they are not necessary for medical abortions. They have made a regulation that exempts appropriate facilities from those requirements. He noted that medical abortion can take place only up until about 8 weeks into the pregnancy. It is not intended for large pregnancies. When done early in the pregnancy it is a fairly safe procedure. Medical abortion has not been approved by the national DoH yet, so it does not pose a huge problem at this time, and in his view this particular issue can be dealt with quickly and easily via regulation rather than being addressed in the Amendment Bill.
Mr Burzelman then moved on to the issue of designation of providers of TOP services. He noted that they new system makes designation much quicker. According to numbers produced by IPAS, under the new system designation can occur in three to six months; when designation was being handled within the Ministry of Health, it could take longer than two years with many phone calls and letters required during that time. In the Western Cape, the processing time will normally be closer to three months than six months. This offers a huge advantage. He noted that the Ministers do not designate a facility on request; once a request is received, an inspection team goes to the hospital, which is a barrier to a private practitioner if they don’t have everything together before being inspected. If the conditions specified in sections a through k are being complied with, a recommendation is made to the MEC to designate the facility. The team ensures actual compliance with the requirements of sections a through k; for instance, if a referral is to be made, the method to be followed must be in writing, and the facility must have a direct line to the referring facility and to transport if an emergency occurs. Their ability to do so is not taken on face value only.
In the Western Cape, they also evaluate provides from year after year to ensure maintenance of standards and continuing compliance with requirements. This is especially important in the rural areas, where providers will not perform as many procedures during the year. They need to make sure that proficiency is kept up and provide additional training or opportunities to provide service at facilities seeing more TOP cases.
With regard to the 24-hour provision of maternity services, Mr Burzelman reminded the committee that a TOP is a surgical procedure like any other. No surgical facility conducts procedures 24 hours a day. A process of information gathering must take place including taking of medical history, measuring of basic vital signs, and inquiries about contraceptive practices, which takes time. Few centres can provide services the same day that the mother first comes to the facility. Thus, there is a built-in cooling down period during which a patient can make up her mind or change her mind about having the procedure. He reiterated that there often is not a great deal of time for deliberation so the process cannot go on too long without going beyond the 12 or 20-week mark. However, he stated that the point at which the woman receives counselling is not the first time that she has thought about the pregnancy. Usually, her mind is fairly well made up before she comes to the facility but providers are careful to look for people who area having medical, social, or mental abuse or violence problems they immediately refer the patient. Nurses are usually more likely than doctors to refer a patient or to work with them more, especially if they are relatively new to this kind of service. All students in their TOP training are taught to refer in situations where they feel that something is not right.
On the issue of documentation, he stated that the forms that are commonly used throughout the country are good. One copy is kept in the patient’s record and another is sent to the DoH, which collates information on cases on a monthly basis, including miscarriages that result from natural causes. An anonymous copy that does not provide the patient’s personal information is sent to the national office annually. This practice is mandatory for all facilities and if they do not comply they can be found liable.
With regard to conscientious objection, the national DoH is drafting a document on that issue to be finalized by next year.
He stated that consent is a vital issue to providers because they must make sure that the requested procedure is the course the woman or girl wants to take. This is particularly true in the case of minors because the girl often comes to the facility accompanied by another person, and they must ensure that the choice is truly hers, not someone else’s that is being imposed upon her. Such cases require a lot of extra time and attention, beginning with discussions with a social worker. If the process culminates in a decision from the minor not to terminate the pregnancy, they will honour that decision and send her away regardless of the wishes of the accompanying adult.
He informed the Committee Members that they must realize that live birth is many times more dangerous than a TOP. There are few health conditions that are not improved by a TOP, including HIV and tuberculosis.
Mr Burzelman reminded the Committee that all doctors and nurses are trained to handle emergencies. The onus rests on registered medical providers to maintain their competency to deal with those kinds of situations. Providers do not work in a vacuum and can call on help from others if they encounter a situation that they do not know how to handle. He cautioned against a presumption that doctors will know more than nurses in all situations, as that is often not the case.
Any and every health practicing facility will have emergency drugs and emergency equipment. The drugs and equipment are not difficult to obtain and are also not very expensive. Emergency help is therefore immediately accessible in most circumstances, and he stated that emergencies seldom arise in the TOP context. However, he acknowledged that when things go wrong, they go wrong quickly.
He concluded by stating that he supports the Act as it stands except for the provisions in Section 2.3 regarding surgical abortions. However, he felt that this problem could easily be dealt with via regulation and did not require a change to the Amendment Bill itself. He noted that women are still disadvantaged in their society, so it is of utmost importance to remove barriers to their access to their Constitutional rights, especially the protection of their ability to make decisions concerning reproduction. He stated that reproductive rights are basic and fundamental but are often not available to women in South Africa, particularly poor women or those who were previously disadvantaged. The small group of people who oppose the Act do not have women’s welfare as their primary objective and instead seek to deprive women of their right to make decisions.
Ms Madumise asked Mr Burzelman to elaborate on the reporting system for third trimester abortions.
He replied that documentation for statistics is done. In the Western Cape, any TOPs past the 20th week of pregnancy occur at one of the two teaching hospitals. Consequently, no one that he is aware of performs these procedures without good reason. He reminded that previously HIV infection of the mother was considered a reason justifying termination after 20 weeks. Now, with advances in medical science regarding retroviral drugs and other methods of preventing transmission of the virus from the mother to the child, it is no longer considered a reason for a third trimester TOP. He stated that referral to a tertiary institution is difficult because many doctors working in those centres do not want to take these cases. However, once the referral is accepted in the gynaecological department, the procedure is recorded in accordance with the Act and the reason that the procedure was requested is set out in the forms he described during his presentation.
Mr Burzelman was of the opinion that a specific registry of third trimester cases would be helpful for research purposes and would not be difficult to maintain given the small number of procedures performed. He stated that cases involving minors who have been raped present problems because the girl often does not realise that she is pregnant until the pregnancy is in an advanced stage. In the case of a very young girl, it is often thought that the procedure is necessary because of the effect it will have on the minor for the rest of her life. The statistics are collated and sent to the head office, the head of department, and eventually to the provincial MEC. He feels that the system should capture more specific information so that people will know what is being done.
Ms Madumise wished to know how Mr Burzelman counselled minors who come to him seeking TOPs.
Mr Burzelman reiterated his previous statement that counselling is being done, particularly with respect to contraceptive use. Some institutions, depending on the way they organise their work, are counselling more than one woman at a time. They have just developed a flipchart for reproductive health and use it within the counselling sessions. Though there has been some counselling done en masse, it is mostly conducted on an individual basis. The provider sits one-on-one with the client and asks specific questions about the minors’ previous contraceptive use and overall knowledge of contraception. After collecting this background information, they can explain other methods and help the minor choose the one that is most suitable for her situation. He talked of family planning first because of the importance of that type of counselling. If it is not done properly, the woman will present herself to them again, perhaps for a different type of treatment such as a TOP. They focus a lot of attention on empowering her to understand that she can control her reproductive health choices.
When a woman comes to the facility, they ask questions about why she has come. If she responds that she wishes to undergo a TOP, they inquire and if she has made up her mind. If she gives her answers quickly and with confidence, they can conclude that the person has made up her mind and move on to obtaining her consent to the procedure. The form used is very explicit about the adverse conditions that can result and they emphasise to the client that the procedure is surgical in nature and things can go wrong.
As the confidence and experience of the counsellor increases, the counselling becomes quicker and easier for that person to perform. However, if problems arise that the counsellor does not feel equipped to address, they must refer the patient to a more experienced or trained person. He acknowledged that counselling may not always be ideal but for the most part he feels it is done well.
Ms Matsemela moved to the issue of Section 3 applying only to surgical termination but not medical abortions. She asked Mr Burzelman how the Committee could best address this problem.
Mr Burzelman replied that the Amendment Bill’s delegation of regulation making to the provincial MECs gave a shorter path for a solution to the problem she mentioned. He thought that avenue, or even a regulation from the national ministry, was preferable to changing the principal act because of the time that would be required for changes to be made and to take effect.
Ms Matsemela asked whether Mr Burzelman felt that the amendment in essence and specifically the allowing of registered nurses to perform TOPs strengthened the principal act.
Mr Burzelman stated that the experience during the period that the Amendment was in effect showed that it worked well and was a good act.
Ms Dudley noted that counselling practices in the Western Cape seemed to be moving like clockwork, but she queried whether the wording of the Bill could be tightened up or improved to make the process work as well in other provinces.
Mr Burzelman responded that his reading of the word nonmandatory was that it referred to the client’s ability to refuse information, not the provider’s ability to refuse to give the information. He emphasised that health care workers have an obligation to counsel everyone or face discipline. He felt that people are reading the message in the wrong way. In his opinion, changes in the wording would not have any effect because it would be the same message stated in a different way. He was of the opinion that the difficulty came from a lack of strength in management systems at the facilities, which is being addressed through the efforts of Ipas South Africa to bring it up to par. He cited the improvements that have achieved by Ipas’s efforts in Limpopo. He also referred to difficulties that arise from gag rules that still exist in certain areas though they have been relaxed as well.
Ms Dudley asked whether, in his experience, providers felt that they were free to decline to participate in a procedure or if they were reluctant to do so.
Mr Burzelman stated that in his experience providers have freely expressed themselves when they do not wish to participate in the performance of TOP. His belief is that people who are against the procedure should not be involved because they present a barrier to effective service delivery. Often they treat the patient in an unfriendly way and can drive women away. He stated that resistance to providing the service can arise from two sources. The first is the moral and ethical issues that providers grapple with. The second is that this is a new program and a new job to be done in facilities that are already overburdened. He pointed out that it is difficult to get people to take on additional work without more time or more money available. Consequently, though there are some health care workers who genuinely object because of ethical or religious reasons, that is not always the source of the resistance to providing the services. For those who genuinely object on grounds of conscience, it is not difficult to detect the genuine nature of the objection or to separate them from the practice within the institution. For others, if they receive additional pay, they will come forward to do it. He stated that they can find the work very fulfilling, though it is always sad, because patients who come receive the treatment that they came for.
The Chair stated that they may need to return to the question of applying requirements for surgical facilities applying to private practices or smaller clinics as well as the issue of provision of services on a 24-hour basis in light of Mr Burzelman’s suggestions that the treatment of these issues in the principal act was preferable to what is contained in the Amendment.
Mr Burzelman reiterated his belief that those issues would be better addressed in a regulation, which binds the providers as much as the law does, rather than within the Act itself.
Presentation by Dr Roland Mhlanga
Dr R Mhlanga (Prof of Obstetrics and Gynaecology, University of KwaZulu Natal) began by saying that he had listened with interest on how sometimes fiction and figments of imagination have become understood as facts. He agreed that the issue of TOP is an emotional one that has at its core issues of the beginning of life. It is to be expected that debates will occur. He then introduced himself and set out his affiliations, including his experience at a lay preacher because of a lack of chaplains in hospitals that cater primarily to African patients. His experience in the health field has taught him that men need to do more to promote women’s health. He urged that woman should not be dying unnecessarily and noted that men share responsibility for unwanted pregnancies.
He had received telephone confirmation earlier in the day from the South African Society of Obstetricians and Gynaecologists (SASOG) of their support for the amendment as written. This was a change from their opposition of inclusion of midwives in the principal act. After their experience with midwives over the 10 years of the principal act, SASOG has seen the impact of this practice on saving the lives of mothers. They now support the involvement of midwives and of registered nurses who want to be trained in providing TOP services.
His department supports the delegation of notification to provincial MECs. He noted that it is the provinces that use the statistics in planning and improving service delivery. The statistics look beyond the number of TOPs that are performed to examine where family planning practices are failing. Solutions to those problems must found at the provincial level, so the role of the national authorities should primarily be to collect statistics.
Dr Mhlanga noted that the CTOP Act of 1996 represents one of most dramatic interventions in maternal health in South Africa if not in the world. Even the limited implementation of the Act that has been achieved has resulted in a dramatic decrease in abortion-related mortality and morbidity. It has enabled a change in the mindset of people living in rural areas that now there is a choice for women who experience unwanted pregnancies. The law has also changed the mindsets of doctors and nurses to expand the practice in this area to other practitioners.
He recalled that, when he was training to be an obstetrician, as many as 18 women a day would present to the hospital with septic abortion. Every week at least one of those women would lose her uterus as a result of the condition and every month at least one or two women would die. Since the passage of the Act, so few women are experiencing these problems that doctors in training are not encountering patients with the condition.
He stated that the Act is about the choice to terminate, which is the unnatural ending of pregnancy at whatever stage. Prior to the passage of the Act, doctors were performing caesarean sections in women who were 41 weeks pregnant because it was convenient for the doctor because of any danger to the mother or the baby. The Act now prevents a doctor from engaging in this practice; a valid reason must be present before the pregnancy can be artificially terminated.
He explained that the term abortion referred to a termination of a pregnancy up until the 28th week, which is approximately the start of the third trimester. Terminations performed after 28 weeks are not properly referred to as abortions. With technological advancements, 28 weeks is no longer the starting point of viability; the common understanding now is that a foetus is viable as of 24-26 weeks’ gestation. This is the point used by the World Health Organisation. However, as pointed out in the presentation by SAMA, many babies born within that range will die; those who survive have major developmental disabilities or abnormalities.
Dr Mhlanga noted that terminations within the first 12 weeks of pregnancy are performed for reasons related to the social, physical, or mental wellbeing of the woman. Above 20 weeks, a TOP can be performed either in the interest of the foetus or the mother. Examples where termination is in the interest of the foetus include instances of placental insufficiency, severe high blood pressure (preeclampsia), placenta previa, foetal distress whether labour has begun or not, and ruptured placenta (placental separation). In the last condition, he explained, the baby is in distress and the mother’s blood stops clotting. Examples of termination after 20 weeks that is in the interest of the mother include heart or kidney failure of the mother and fits from high blood pressure that can lead to cerebral haemorrhage or death in the mother. In each of these instances, the Act allows a woman to decide to terminate the pregnancy before the spontaneous onset of labour.
He turned to the issue of the point when viability occurs and noted that it is viewed differently in different parts of the country. For example, in Cape Town, a foetus of .5 kg is considered viable, whereas in other parts of the country the cutoff is 1.5 kg. He pointed out that the CTOP Act point of 20 weeks is sooner than the point of probable viability and that in actuality it calculates to be closer to 19 weeks. He noted that this is earlier than any other measure in use for viability.
He and the groups to which he belongs feel that the Constitution sufficiently addresses the question of conscientious objection. He noted the anomalous treatment of the issue in the area of women’s health. He pondered why it was necessary to spell it out in that context when it was not necessary to do so in other areas where it is also implicated. He gave specific examples including men who receive treatment for STIs contracted from extramarital sex, sex change operations, blood transfusions, and treatment of sex workers. He noted that the Constitution applies to everyone and all situations, so it applies here.
Turning to the emergency setting, he noted that there is no objection to health workers managing attempted suicide, drunk drivers who have injured themselves in motor vehicle accidents. It is not permissible to deny treatment in an emergency setting, and according to the South African Nursing Council and Health Professions Council, a bleeding woman is an emergency regardless of the cause of the bleeding. Any health worker who neglects or refuses to assist is guilty of unprofessional conduct. Dr Mhlanga believed that conscientious objection clauses must be included in all laws for all professions, including police officers or social workers, if one is needed for providers of TOP. To do this clandestinely would undermine the Constitution.
Dr Mhlanga stated that in his view, the current counselling provisions of the Act are adequate. Where such services are available, they are recommended. However, he noted that counselling can take many different forms and come from many different sources, such as in rural areas or among particular groups where relatives, neighbours, and friends provide support for decision making. He noted that the sources outside the health field can often provide more effective support for a particular woman than professional counselling. At minimum, patients must know the advantages and disadvantages as well as the process involved in the TOP. In his experience, health care workers who want to dissuade a patient will tend to perform prolonged ultrasound examinations and to describe foetal development in detail. He noted that such a practice disregards national and international guidelines on the use of ultrasound because prolonged exposure can have adverse effects on the foetus.
On the expansion of the practice to registered nurses, Dr Mhlanga stated that nurses who express an interest should be trained on both termination and contraceptive techniques. If the number of people trained in the latter increase, that will correspondingly reduce the number of terminations performed. He stressed that no one enjoys TOPs; it is a depressing situation for everyone involved, including the health care worker. Everyone wants to prevent unwanted pregnancies, but the reality is that the need for TOPs exists. He urged that training for registered nurses should culminate in a requisite skills assessment and that TOP providers be considered scarce skill providers. Failure to provide support mechanisms for these providers will eventually deprive women of their rights because the high level of burnout in the profession.
Dr Mhlanga also mentioned that though his department supports the recommendations but asked the Committee to reconsider including registered nurses in Section 2(1)(c). He would recommend their exclusion in situations involving terminations past 20 weeks. That section requires a medical practitioner to consult with another medical practitioner or a registered midwife and it would not be proper to require a medical practitioner to consult with a nurse who is not trained in the advanced aspects of obstetrics. They can still be included in nonpregnancy related issues such as HIV, contraceptive counselling, or other support for the woman.
If registered nurses are able to perform these procedures, the lines will be shorter and procedures will not spill over into the period past 12 weeks. He noted that most terminations are still performed before 12 weeks. Only about 18–20% take place past that point, so the registered midwives have been carrying much of the burden so far and would welcome relief from registered nurses.
He also responded to an earlier question to another presenter regarding the recording of terminations above 20 weeks. The Act specifies that those terminations be recorded in the normal way for births or deaths. However, the records would include information on categorisation by birth weight.
Ms Dudley asked about Dr Mhlanga’s statement that counselling is recommended “where such services are available.” She thought this highlighted the problem that counselling is not always available and whether the wording of the Act should be strengthened to provide that they must always be available and must always be provided.
Dr Mhlanga explained that the word counselling in the Act refers to a Western concept that is not applicable in all areas. He stated that in most African communities, when a death happens, there is no psychologist to provide counselling in the manner contemplated in the Act. Once the government tries to have that type of counselling, it is not possible in all situations, but emotional and mental support can still come from community members rather than professional psychologists or other people trained in Western methods of counselling. He noted that none of the ways of dealing with an unwanted pregnancy, from adoption to TOP, will be a cure for the problem; each is just a way of dealing with a bad situation and each can have adverse effects for the mother. He stated that support should come from any source possible. He in particular called on churches and religious organizations to not be so judgmental because excommunication of a woman who has an unwanted pregnancy or a TOP from a congregation can have severe ill effects on the mother’s mental health. Those aspects of the problem led to his statement that when formal counselling is available, it should be used, but other ways of dealing with trauma that are potentially more effective can also be used.
Ms Dudley inquired into Dr Mhlanga’s comment that conscientious objection was not specified in any other area and noted that such a specification was included in the recent civil unions bill, which in her view indicated a trend toward such a provision being included in legislation on a more frequent basis. She referred to information from another presenter that the DoH was developing a clause on conscientious objection.
Dr Mhlanga replied that, in his opinion, health care workers were able to read the Constitution’s provisions on conscientious objection, so further elaboration in the Amendment Bill was unnecessary.
Ms Dudley inquired whether health care workers can be expected to approach the DoH, their employer, about problems of conscience for fear that it will affect their potential for promotion. She cited reports of a large amount of dissatisfaction with the system and noted that it is difficult to obtain remedies for violations of constitutional rights. She thought that a new law would be a simple solution for people who are going elsewhere to try to access their rights or leaving the profession entirely.
Dr Mhlanga answered that health care workers have performance agreements and job descriptions that they discuss with their supervisors. If they cannot use those agreements to address difficulties at work, he does not know what more can be done. A platform has been made and if a worker has problems, they can discuss why goals that have been set have not been achieved. Because of the availability of that mechanism, he remained unpersuaded that a conscientious objection clause needs to be included in the Act.
Ms Matsemela asked Dr Mhlanga to clarify his statements about excluding registered nurses from the consultation provisions set out in Section 2(c)(3). She wished to know if he felt that there was something wrong with the treatment of this issue in the principal act.
Dr Mhlanga responded that there is nothing wrong with the treatment of this issue in the principal act. His opposition is to the inclusion of registered nurses for consultation in cases above 20 weeks because, even with the advanced training they have received, they would not know of important potential complications. After 20 weeks a pregnancy becomes a maternity case or an obstetrics case, which requires consideration by doctors or midwives.
Ms Dudley inquired whether his response to her earlier question highlighted the need for parents to be involved when a minor is seeking a TOP so that they can provide the support he mentioned. She thought that parents were getting away with being easily bypassed. She stated her belief that parents should have to face up to the situation and girls should be required to give their parents an opportunity to provide support because they may not react as badly as the girl fears they will.
Dr Mhlanga asked that the Committee recognise that DoH is asked to pick up the pieces when the rest of society has failed. The Act recognises this reality and does not cater to perfect families. He urged the need for role models with involvement in children’s lives. He stated that parents should be involved where it is possible, but he reminded that sometimes that parent is the same one who raped a child and made her pregnant. He stated that the Act provides an escape from those kinds of situation by bypassing the parents. He urged the Committee to be concerned about the life of the mother, because if she dies as a result of the pregnancy, it is two lives lost.
Ms Dudley asked the Chair for permission to respond to Dr Mhlanga’s response.
The Chair stated that Dr Mhlanga had responded to her question and that he did not wish to spend more time on the issues because there were nine more submissions to be heard.
Ms Dudley went on despite the Chair’s statement to state that Social Development will go to great lengths to bring families together in devastating situations. She insisted that this Act has missed the mark and that more should be done to reconcile the girl with her family. She was vehement that the family should have to know what is going on whether they want to or not. Otherwise the law cuts off the support he referred.
Dr Mhlanga responded that the issues she points out are the reason why counselling is necessary both before and after termination.
The Chair stated that the Committee will have to revisit the Amendment with respect to Section 2(c)(3) and the differentiation between midwives and registered nurses in light of Dr Mhlanga’s comments.
Presentation of Mosaic Training Service and Healing Centre for Women (Mosaic)
Dr M Alblas (Mosaic) explained that Mosaic works to improve quality of life and status of victims of abuse and reduce instances of abuse and domestic violence in the Western Cape. They currently work mainly with women and girls but recently have also added programs for men. They offer an integrated program for survivors and address the symptoms and root causes of sexual abuse and domestic violence. Mosaic also provides TOPs during the first trimester of pregnancy. They are a designated facility where they perform about 60 procedures each month. The centre employs 14 social auxiliary community workers who conduct awareness raising activities about abuse and domestic violence. Messages about sexual health are integrated into their activities. Staff are also trained TOP counsellors.
Mosaic fully supports the amendment and makes a specific recommendation with respect to Section 2. Dr Alblas noted that Mosaic is one of only a few NGOs who provide TOP services in the Western Cape. Mosaic views the Amendment Bill as having the potential to allow greater access to services. In particular, they welcome the inclusion of specially trained registered nurses because it increases the pool of qualified workers and increases safe access to services in the first trimester, which in turn reduces the need for second trimester procedures.
Dr Alblas cited her own experience of working with a registered nurse who has been performing terminations for almost two years. She felt that the woman demonstrated that nurses can be effective in this capacity. She noted that the provision of TOPs in the Western Cape is a nurse-driven activity. Few doctors are involved in providing TOPs in the Western Cape and posited that the results achieved under the Act would not have been possible if nurses were not involved.
Mosaic also had recommendations on the requirement of minimum equipment that must be available at a designated facility. Dr Alblas explained that, at the provincial level, service delivery is often compromised by a lack of adequate equipment as well as failure to adhere to counselling provisions or to provide women with information about their rights. Women’s right to privacy and to access health services are compromised by these practices as well. In the group’s opinion, the DoH should institute vigorous monitoring and evaluation of facilities, including staff appraisals of providers working within this field. Clients should also be aware of processes for filing complaints if they do not receive the services they deserve. Mosaic advocates a process of monitoring the invocation of conscientious objection and the situations of women who have been denied services by conscientious objectors. Currently few nurses are providing services and many of those who do are overworked and face ostracising by their colleagues or in their communities.
Mosaic urged that all clients be provided with excellent care, including good communication. Dr Alblas noted that state facilities are overburdened with patients and that better application of human rights principles of participation and non-discrimination in the health sector, as well as support from the DoH to NGOs in this area, will ease the strain on state facilities.
Mosaic believes that every woman’s reproductive rights should be safeguarded and integrated into treatment at the clinical level. They assert that greater emphasis should be devoted to reproductive rights and TOP education to emphasise healthy practices and reduce incidence of repeat TOPs. Dr Alblas stated that provision of emergency contraception should also be promoted in this effort. Mosaic also urged that practitioners at TOP facilities should be vigilant in spotting and reporting signs of abuse of violence and make appropriate referrals. She finished her presentation by noting that Mosaic supports both the Act and the Amendment Bill and asserted that full implementation of the objects of the CTOP Act depends on adoption of the amendments proposed within the Bill.
The Chair then invited the presentation of Joe Hawkins. Mr Hawkins was not present.
Presentation by Health Systems Trust (HST)
Ms M Stevens (Project Manager, HST) stated that she was making a submission to the Committee both on behalf of her organisation as well as on behalf of herself as an Anglican and a Christian. She noted that she was joined by two colleagues from the community of Masiphumele in the Western Cape, who wished to make a presentation to the Committee after hers was completed.
Ms Stevens began by stating that she trained as a health worker in the 1980s and at that time was opposed to abortion. She felt that she could not support women who recklessly became pregnant and consequently sought termination. However, she quickly lost her arrogance as her training exposed her to the inequitable provision of services within the country, particularly for black women. She was alarmed by the presentations of the various Christian groups that have participated in the hearings before the Committee and hoped that the written submission by the South African Council of Churches would be well reviewed.
Her presentation did not concern the substantive matters addressed in the principal act. She noted that the Amendment concerned issues of access to health systems, which is why HST supports the Amendment.
She alert them to the National Strategic AIDS Plan which complements the Act in its provisions addressing perinatal transmission of the virus. The portions dealing with intervention call for an increase in provision of contraceptives and access to TOPs in public sector facilities as well as development of policy on medical abortion.
Ms Stevens stated that she wished to focus on two provisions of the Amendment concerned with enabling the health system. The first is the decentralization of decision making to the MECs and the second is permitting registered nurses to add to the pool of available workers in this area. During the time that the amendments were in force, there was a decrease in maternal morbidity and mortality. She quoted a statement by the Minister of Health that maternal mortality from unsafe abortion is a social injustice and a violation of the human rights of women and that the DoH has been concerned about the unavailability of safe and legal TOPs in most parts of the country, especially rural areas.
HST submits that the Amendment Bill is consistent with international conferences and protocols on women’s health. She urged the committee to look at legislation recently enacted in Nigeria as well as a law in Mexico City dealing with conscientious objection.
During the 10 years that the Act has been in force, some 529,410 women have accessed TOP services. Their access to safe procedures has resulted in a 91% reduction in maternal mortality from abortions. Ms Stevens expressed concern at the uneven distribution of services provided in different areas of the country, with 40% of TOPs taking place in Gauteng province and 15% occurring in the Western Cape. She noted that only 55-60% of the facilities that have been designated are functional. Though maternal mortality and morbidity from unsafe abortion has been reduced, there has been an increase during the same time period of maternal morbidity and mortality from AIDS. She noted that from 1998 to 2003, the number of maternal deaths from AIDS increased from 676 to 1154. HST urged integration of sexual and reproductive services into HIV treatment and care. Women need to be afforded choices to have a safe delivery of a healthy child or to undergo a TOP.
On the issue of counselling prior to HIV testing compared with that preceding a TOP, Ms Stevens cautioned against the use of graphic images and DVDs which can be patronising to the patient and can lead to counselling at a distance rather than engaging on a personal level with the woman seeking a TOP. In the HIV sector, there are now provisions for provider-initiated testing. In such settings, counselling is recommended but not mandated. Ms Stevens felt that health care practice should respect women’s ability to make up their minds and to decide what is going on with their bodies by providing them with the information that they want but not forcing things upon them.
HST feels that the Amendment Act is about providing access to high-quality terminations. It has been successful even during its short implementation in decreasing maternal health problems. Consequently, HST urges that the Act be maintained and advocates wide dissemination of the provisions it contains.
On the issue of medical abortion, HST encourages finalisation of guidelines by DoH. They feel that these guidelines, once in place, will ease problems of conscientious objection by making certain questions academic and making the health care worker’s participation in the process more removed.
Over the course of the hearings, Ms Stevens was very worried about some of the information that Christian groups had put forth to the Committee as reliable research. She stated that there was no Christian grouping that had presented with which she would want to identify. Many of their submissions have been about making the process of abortion unthinkable and she hoped the Committee would not consider that to be a mainstream Christian view. There has been discussion about bad science and, in some journals and teaching, they are teaching how to review bad Christian science. She stated that the information about a link between abortion and breast cancer is propaganda. She looked over an article advanced by Christian presenters by Patrick Carroll. She indicated that the article was probably a master’s thesis. She noted that it is not preferable to rely on articles written by a single author. She pointed out that the author was funded by a prolife group yet no conflict of interest was disclosed. Ms Stevens urged the Committee to interrogate the soundness of the materials they have been given. She reminded the Committee of research from South Africa cited during the initial consideration of the principal act that the most prevalent psychological reaction that women experienced after TOP was relief. She stated that there is no postabortion syndrome of depression and mental illness.
Ms Stevens then handed over the presentation to her colleagues from the community of Masiphumele.
Ms N Madikane introduced herself to the committee by saying that she has two children and has adopted two orphans. She thinks often about the families of one of her adopted children but she does not know where to find them. She lives in one of the poorest communities in the Western Cape. Many people don’t even know where it is and it is almost forgotten. They have a clinic in the area that gives health services, but it does not provide TOP services.
A group of women from the community formed a women’s organisation to discuss the problems that they face within the community. They work with girls in primary and high school. She noted that these girls often do not know what to do when they encounter problems. In her community, there are many organisations that are run by churches. She stated that the people who run them are good people but they often do not want to help with things they view as disgraceful, such as a fatherless child, even with their own church members.
They recommend the Act as good for their community because it will help reduce the problems they have faced. The community helps many orphans, particularly from Somalia, and she asked her colleague to speak more on that issue.
Ms W Maqala stated that her organisation supports the Amendment Act. They care for 57 orphans and vulnerable children in Masiphumele. She feels that increased access to TOP would keep children from being dumped by their mothers and becoming orphans. She cited a 13-year-old with a child in their community who does not know how to care for the child.
On the viability of adoption as an alternative, she noted that people in her community cannot care for more children because they have no money. The hospital they do have access to is a 5-km walk from their community, making it difficult to take children to receive care.
She also touched on the issue of the withdrawal of support by church groups when a girl becomes pregnant. In such a situation she thought a girl would hurry to terminate her pregnancy before anyone found out so that she could continue to go to church.
Dr Rabinovitz asked about Ms Stevens’ statement that 55% of facilities that are designated are not functioning. She was concerned that the addition of more facilities contemplated by the Act, which would not necessarily be clinics would this open up an uncontrollable situation, with new risks such as sepsis. She queried how these new facilities could be adequately monitored, given the difficulties already encountered in monitoring clinics and hospitals.
Ms Stevens agreed that the health system is in crisis. By denying services to women, they increase the burden of illness. The giving of designation power to MECs is a process of local empowerment and will increase local accountability. The input from the clinicians has been that clinics even in rural areas provide excellent service and are no longer seeing septic abortions. She thinks that accessibility of services and guidelines on the use of medical abortions will reduce the need for complicated surgical facilities. She went on to point out that when a TOP does not always require pristine conditions. In Bangladesh, laypeople perform high-quality manual vacuum aspirations using low input technology that has been specifically designed for use in developing countries.
Ms Dudley stated that she was pleased to see that HST had backed down from calling for mandatory abortions for mothers with HIV.
Ms Stevens responded that Ms Dudley was misinformed about HST’s position on TOP in mothers with HIV. Her understanding was that the source of that misconception was an incorrect headline that appeared in the Cape Argus that was later retracted. HST has always taken the position that women should have a choice on whether to continue a pregnancy even if they are HIV-positive.
Ms Dudley stated that women who are traumatised do not need more trauma, and psychological effects of abortion can come much later in life.
Ms Stevens responded that an unwanted pregnancy is disappointment in whatever context it is resolved. There will always be disappointment and loss felt by the woman; her point is that it is misleading and incorrect to label that as a postabortion syndrome. She noted that there is a great deal of trauma taking place at many levels in many groups and settings. She felt that to put all of society’s evil on the choice to terminate a pregnancy is a great hypocrisy; what is instead needed is an understanding of the complexity and broad experience that we live in. What one person calls misfortune another can call depression.
Ms Dudley stated that Christians do not act out of arrogance but with the best intentions and with passion to avoid people being hurt. She reiterated the need to eventually account for things even if they are legal. She asked Ms Stevens not to continue to belittle the Christian speakers who had appeared before the Committee.
Ms Stevens responded that they differ on matters of their personal faith and told a story from her personal experience about why she hold the views she does.
Presentation by Brandon Theunissen
Mr Theunissen stated that he was making his submission as an individual on behalf of his wife and himself. They maintain contact with an orphanage in Lower Crossroads and foster a 5-year-old boy who is HIV-positive and who was abandoned. He stated that the boy is a dear member of their family and they want to allow him to stand as a man on his own one day. He and his wife are caught up in the issues of AIDS orphans and in the institution of family and in protecting the nation’s children. He stated that the boy was a prime target for abortion before he was born, and his category has been identified as a problem that can be eliminated by TOP. Mr Theunissen stated that the boy’s potential is very real and demonstrates the magnitude of the decisions the Committee is making. He felt that the problem of orphans in South Africa is considerable and is one that society is being tested on, specifically the question of how the society will deal with its weakest members. He and his wife believe that the nation needs to rise up to this challenge.
Mr Theunissen expressed his desire to address two specific areas of the Amendment Bill. First, he asked the Committee Members to ensure that abortion becomes the last of a series of alternatives. He urged that women and girls should be empowered with all that they need to make the choice referred to in the Act. He did not understand the resistance to counselling, which he sees as enriching the ability to make a choice. He felt that it should be done in all cases. Family and community counselling is invaluable and it should not be eliminated for minors by legislation allowing procedures to take place without parental consent. In instances where family and community counselling are defunct, medical counselling can provide something extra to a child who will have to live with the consequences of her decision.
He disagreed with Ms Stevens’ questioning of the research reporting negative consequences. He thought that all research is tainted by presuppositions but that research should at least be noted. He therefore suggested that counselling be mandatory, that it reflect the present state of scientific knowledge, and that it provide contacts in the area where the woman lives on alternatives to TOP. He thought that a woman would be overwhelmed by guilt, pressure, and shame at the time of the decision and that she needs to take a step back to let others help. He felt this was particularly important when the decision is made by a young girl and is the product of pressure from their boyfriends or their families.
Mr Theunissen asked that the Committee make the use of graphical material about foetal development a mandatory component of counselling. In his view, the lady will see these images later, so there is no harm in showing them to her at the time. He also asked that a period of delay of a day or two be built into the decision process.
On the matter of conscientious objection, Mr Theunissen stated that the whole focus of the country for the last 15 years has been to nurture life, to help the downtrodden, and deal with past and present oppression. In light of that focus, he felt that the Act was an anomaly of killing and terminating the weak. He disagreed with Christians who care only about the child and not about the mother. Instead, he insisted that they see the child as well as the mother. He felt that the perceived anomalous nature of the Act warranted spelling out conscientious objection within it and said that the existence of court cases on this issue demonstrate the need to clear up the issue.
The Chair then invited the presentation from South Africa Cares for Life. No representative was present.
The Chair then invited the presentation from South African Catholic Bishops. A woman from the organisation stated that the group had requested time but were not informed that they would be able to make an oral presentation. They had made submitted their position in writing.
Ms Dudley asked if the matter could be checked since they requested to be able to make a presentation but were not notified that they would be able to speak.
The Chair stated that they knew the process and this was not the first time that the group had presented to the Committee.
Presentation by Michael Atkins
Mr M Atkins introduced himself as a self-employed IT consultant, a former maths teacher, and an amateur legal enthusiast. He feels that laws should be written well so that they will be comprehensible and enforceable. He stated that his wife would say that he is picky and pedantic but he has reviewed the Bill and the principal act and had some minor observations to make to the Committee from a standpoint of logic. He acknowledged that the situation has been complicated by the Constitutional Court ruling.
Mr Atkins stated that he was first interested about the status of the regulations passed pursuant to the CTOP Act. As he reads the Bill, if it is passed as it is, the Minister of Health would no longer have the power to make regulations; that power is completely replaced by the power of MECs to make regulations. He formerly worked for a legal publisher, and every act that he has looked at in which the Minister is meant to be able to make regulations, the Bill will specifically refer to that power. Consequently, he felt that the omission of language to that effect in this Bill removes any power of the Minister in this area. He stated that because the Minister operates at the national level and MECs operate only within their respective provinces, so if the status of national regulations would be uncertain if only the MECs held regulatory power. The MECs would have no power to rescind or amend the national regulations, so the existing regulations would have to be repealed before the new Act takes effect, and the MECs would have to act very quickly to ensure that there are no gaps when no regulations are in force.
Mr Atkins felt that the issue was especially important in the area of prescribed training for registered nurses. If there was no provincial regulation on what training was necessary as a prerequisite for performing a termination for even a single day, then no termination by a registered midwife or a nurse would be legal on that day and could even be criminal. He cautioned the Committee not to leave gaps of illegality if powers are transferred to the MECs.
Mr Atkins pointed to the financial implications section at the end of the bill, which states that there are no major financial implications of the Bill beyond a slight increase in the number of terminations performed at each state facility. He stated that the provision of training to registered nurses to allow them to become qualified to perform TOPS would be a significant cost of the Bill in terms of lost salary to the nurses as well as the cost of employing the trainers. He suggested that the Committee should calculate the costs of training and insert that into the financial implications section before presenting the Bill to the full Assembly.
He then stated that a statement contained in proposed Section 3(5) about the Minister of Health performing actions of an MEC if it is necessary did not belong in the section where it appeared. He suggested that the statement should be put in a separate section rather than being a subsection under the heading “Places Where Terminations of Pregnancy May Take Place.” He did not feel that this subsection permitted the Minister to make national regulations because MECs can only regulate with respect to their provinces.
In proposed Section 10(1)(d), he thought that the word “or” should be “and” between the two logical conditions set forth.
Mr Atkins moved to the issue of withdrawal of approval by the MEC. The provisions for withdrawal by an MEC do not provide the specific procedure to be employed, which differs from the system that applied to the Minister in the principal act.
In proposed section 3(1), Mr Atkins felt that the phrase “give access to” was relatively vague, and he felt that in the circumstance that section was intended to address, even that level of vagueness was unacceptable because it permitted extreme interpretations. He felt that the language had to be tightened up to ensure fairness both to the facility and to the woman who is seeking treatment.
On the issue of 24-hour facilities contained in Section 8, he noted that facilities with 24-hour maternity services to not need to apply for approval by the MEC before they can be designated as a TOP provider. Because these facilities still need to provide notice to the MEC that they have 24-hour capability and the relevant statistics, he was puzzled why the approval could not take place at the same time. He speculated that the designation may take a long time, so speeding up the process would be a benefit, but to him it seemed a small gain in reduced paperwork only. He thought that if that was the only reason, the section should be removed because it was not premised on a good enough reason.
Mr Atkins then made a general comment with respect to the safety of the woman. He noted that the preamble to the principal act talks about the safety of the woman. He viewed any attempt to enshrine in legislation standards that must be maintained by facilities providing TOP services are welcomed.
On the issue of a conscientious objection clause, he observed that those who have stated that it need not be included have not raised any arguments about why inclusion would be harmful. He stated that the inclusion of such a clause could demonstrate that the Committee and Parliament took public comment into account and there was no reason not to include it.
On the issue of counselling, the National Health Act requires counselling for all medical procedures, so he thought it would not be advisable for other acts to create confusion in the area. He suggested that the Committee could change the phrase “the State shall promote the provision” to “the State will ensure the provision” of counselling. He stated that this is what is actually going on according to the presentations that have been made.
Mr Atkins moved to a discussion of Object g of the Bill which makes it an offense for anyone to terminate a pregnancy unlawfully or at a facility that has not been approved. He agreed with the insertion of provisions pertaining to enforcement, as they increase respect for the underlying law. However, he stated that if a medical practitioner carries out a termination of a pregnancy after 20 weeks for a reason other than those specified in the statute, that is unlawful under the Act, but the Act provides no penalty for that practice. He advocated the creation of such a penalty.
From his personal experience of his wife’s premature labour, he stated that he felt that facilities for termination should be separated from other services. Women who lose babies or who terminate their pregnancies should not be in the same room as mothers with babies out of respect for both of their perspectives.
Mr Atkins made a final point with respect to conflicting research particularly with respect to breast cancer and the undeveloped issue when a foetus becomes sentient. He suggested that the Committee at a later stage hold hearings or request submission of research from experts both sides of these heated issues.
The Chair observed that Mr Atkins has approached the legislation as though it were a math equation to be solved. He stated that such an approach is not suitable for a Bill dealing with such issues as human life.
Ms Madumise asked Mr Atkins to elaborate on his concerns about regulations and the power of the MECs and the Minister to pass regulations. She read him a section of the Bill that states that MECs must act in consultation with the Minister or with the approval of the Minister and asked why those provisions were not sufficient to allay his fears in this area.
Mr Atkins replied that his fear was not that regulations couldn’t be made properly but that the Minister would no longer be able to originate regulations. His reading of the Bill is that it would only afford the Minister a sort of veto power of provincial regulations rather than an ability to enact regulations that would have national application.
The Chair stated that Section 4 of the Constitution defines in certain concurrent powers; health is among them. Therefore, the national and provincial ministers work in tandem, but the overriding power is lodged in the national minister. Many submissions have noted that the devolution of power will ease problems of lack of access. Allowing MECs to register facilities will increase access to services. He pointed to the principal act, which says that the national minister may pass regulations to achieve the objects of the Act. However, recognition of problems in expeditious access led to the power of registration being given to the provinces to accelerate the process and improve access. The Amendment Act then says that MECs can enact regulations to achieve the objects of the Act but must do so in consultation with the national minister. Thus, the power is delegated to the provincial authorities, but it still resides with the minister who performs an oversight function. The memorandum of the Bill further elucidates this point by referring to actions being taken for purposes of consistency, reflecting a desire to avoid provinces doing inconsistent work. This is ensured by the consultation with the national minister. He admonished Mr Atkins that he must read all of the legislation through a lens of interconnection.
Dr Rabinovitz asked for input from the attorneys present.
Mr Motsapi agreed with the Chair’s interpretation. He pointed to health as an area of concurrent competence between the national and provincial governments. He stated that there was nothing wrong with the current amendment and his certainty that its purpose is to facilitate consistency.
Another state attorney stated that Section 25 of the National Health Act were instructive on this point. He noted that Section 100 of Constitution allows national intervention in provincial administrations in areas where provinces have regulations that do not contradict national policy. The clause of the Amendment Bill was drafted to avoid a situation where Section 100 must be invoked every time there is a regulation that is inconsistent. Instead, MECs must consult with the national minister before passing the regulation to ensure that it is not in conflict with national policy.
Mr Atkins responded that these comments do not address his concern. He is pointing out something within the bill that has not been disproved. If the Amendment is passed as written and incorporated into the principal act, it will no longer that the national minister is able to make regulations. He understood the concept of concurrency and the other issues that had been raised, but, as the Amendment currently reads, the minister’s regulatory power is eliminated. He stated that this will create a problem in the transition and potential time gaps between the passage of the Amendment and the point at which provincial systems are in place that could lead to unintended illegality.
The Chair stated that Mr Atkins was reading the entire process incorrectly because he assumed that the Amendment completely displaces, to use Mr Atkins’ scientific term, the principal act.
Mr Motsapi stated that Mr Atkins was confused because of the use of the word “may” within the principal act, but he explained that the use of that word is standard in many areas of legislation. He reiterated his position that the clause was correct as written.
The Chair stated that Mr Atkins was not confused, he was merely reading the clause in an incorrect matter.
Mr Atkins suggested that the Chair obtain a written legal opinion on the matter.
The Chair stated that was unnecessary in light of the legal opinion just given by the State Law Advisor.
Mr Atkins stated that he was not trying to cause conflict with the Chair; he was instead trying to save the state embarrassment and damages if they were wrong so he advocated that the Chair should further explore the issue.
The Chair said that in his experience he has heard many such threats of legal action. He reiterated that the Constitutional Court did not take issue with the substance of the law but instead with the process employed in its passage. So far, there are two legal opinions that conflict with his individual view and the Chair questioned why Mr Atkins would continue to push his individual understanding. He again advised Mr Atkins that he must read the Amendment in conjunction with the principal act.
Mr Atkins asked if he could respond to the specific remarks the Chair had made.
The Chair asked if any other members had questions before they passed this submission.
Mr Atkins asked permission to make a personal remark. He stated that he was not trying to threaten or be aggressive by alluding to the possibility of future legal actions. He informed the Chair that he would appreciate if he did not belittle the speakers by his references to portions of Mr Atkins’ presentation as being scientific and mathematical. He apologised to the Chair for addressing him in such a manner because he does not want to make an enemy of anyone in the room but he thought that the Chair was incorrectly construing his motives.
The Chair informed Mr Atkins that he listened carefully to Mr Atkins’ own introduction of himself and the attributions he has put on himself during his presentation. He is not belittling him but responding to his self-characterisation. He felt that Mr Atkins, by introducing himself in such high terms and stating what care he takes in going over legislation, implies that the Committee does not do the same things and does not employ the same care in executing their duties as legislators. He noted that the Committee had considered two days worth of public comment in 21 different submissions and had listened carefully to each presenter. He reminded Mr Atkins that public hearings improve their work; the laws that they initially promulgate are not perfect and the public input allows the laws to be made better. He asked Mr Atkins to respect that process.
Mr Atkins stated that he did not want to end the hearings on a sour note.
The Chair stated that he had no ill feelings toward Mr Atkins.
Mr Atkins stated that he appreciated the opportunity to participate in the legislative process and insisted that he meant no disrespect when he called himself pedantic.
The Chair stated he was merely reminding him that the Committee was also diligent and that they go through an extended process of trying to make the end product better. He stated that they were encouraged by the level of public participation that had taken place with respect to the Bill.
Presentation by Ipas South Africa
Ms M Gabriel (Ipas South Africa) introduced herself as a registered nurse and midwife by profession who now works for Ipas, an international organization that works to improve women’s sexual and reproductive health, particularly by reducing the number of abortion-related injuries and deaths.
Ipas has been working in South Africa since 1995, when they lobbied for passage of the principal act. Over the last 12 years, they have assisted with training. The training that they provide is approved by the South African Nursing Council and is quite comprehensive. They also provide technical support or commission research to inform policy decisions. Recent work commissioned included a study performed by the University of Cape Town into the reasons for second trimester abortions and preparation of a conscientious objection manual by a legal group to help facilitation access overall. They still encounter a lot of problems in this area and Ms Gabriel indicated that they have completed the drafting of a national policy that is being considered by DoH and they hope that it will be approved and widely disseminated soon.
She pointed to the same statistics from the World Health Organisation mentioned the day before by Denosa that indicate that the number of abortions performed is the same regardless of whether the procedure is legal or illegal. The only difference is that where the practice is legal, it is likely to be safe, and where it is illegal it leads to maternal injury or death. The statistics from 2003 indicate that in that year 66 400 women died from abortion-related problems. Only 100 of those deaths occurred in developed countries.
She turned to the focus of the Ipas submission which tried to provide a contextual background for the initial passage of the CTOP Act and the implementation of service itself, both in its benefits and impact. It then explained why Ipas supports the proposed amendments.
Ms Gabriel stated that the amendments were an appropriate policy response the results of a 2002 oversight hearing where members of civil society reported that, although TOP is legal in South Africa, women could not access the services guaranteed to them by the Constitution.
Ms Gabriel briefly looked to the history of provision of TOPs in South Africa. She stated that some of the people present would remember what happened with the 1975 act. She mentioned that the Act was very restrictive and prevented many women from getting safe terminations. However, that did not prevent terminations from taking place in backstreet settings. The most compelling argument for passage of the 1996 Act was research done by the DoH and other health organisations in 1994, which indicated that in one year, almost 45 000 abortions were performed despite the restrictions on the practice. She noted that the current figures of about 50 000 abortions per year are very close to the amount being done in 1994, but the procedures now being performed are safe and legal, so lives are saved.
She restated that the government has an obligation to provide safe services to its citizens and that the law came about because of the history that preceded it. She told the Committee that she could tell many stories from the time before the CTOP Act; several people needed to be consulted before a woman could undergo termination, and the perception created was that the service was good enough for certain sectors of society but not others.
In the 10 years since the passage of the principal act, there has been an enormous reduction in women’s suffering. A study performed in 1999 concluded that it was too early to state what was happening in a definitive way but that the preliminary information indicated that 50% of incomplete abortions had been avoided by the availability of safe TOPs. Now the amount of women who are dying from abortion-related problems has been decreased by 91%.
On the international front, South Africa is held up as a model, a country that has saved its mothers that is held up as example. Ms Gabriel noted that countries such as Ethiopia and Mexico have followed South Africa’s lead and been inspired by their experience. She noted that since the passage of the principal act, no deaths have been recorded from first trimester TOPs. All deaths have been of women in their second trimester. She urged the importance of encouraging women to seek services early because that is when the procedures are most safe.
Ipas supports the proposed amendments regarding devolution of designation power to the MECs because it will accelerate the designation process and bring the provision of services to the primary care level. While the Amendments were in effect, Gauteng became a model province by ensuring that all provincial facilities were designated TOP providers. It is Ipas’s hope that other provinces will follow suit. Ipas also supports the submission of statistics to help monitor and improve services.
On the issue of provision of services by registered nurses, Ms Gabriel pointed out that it takes three years to become a registered nurse and only one additional year of training to become a midwife. The additional year primarily focuses on delivering babies. The training that nurses receive on TOPs consists of two weeks of theoretical training with 10 chapters of comprehensive information about sexual and reproductive health, followed by three months of clinical training. For the first 15 cases, all nurses are supervised, and they are not permitted to perform a procedure unassisted until they are deemed to be competent to do so by a doctor or registered midwife. In her view, this training is adequate preparation for the procedures the nurses are performing.
With regard to counselling, Ms Gabriel wanted to restate the importance of leaving the language of the principal act as it is because state-mandated counselling influences more than it informs particularly if visual aids are used.
Ms Gabriel stated that the proposed conscientious objection clause is in line with international clauses. She did not think that the issue was as significant as it was being made out to be, because in order to perform the procedure in the first place, a nurse or midwife must express a willingness to undergo the training. People who object to the procedure can simply not undergo the training. They also conduct workshops for other workers, but it is only to educate them on how to be respectful or supportive to those who are performing the procedures. Ms Gabriel strongly stressed that services must be given in emergency situations. In such a setting, all of the rights of the provider become secondary and the life of the woman must be saved.
In concluding, Ms Gabriel noted that reproductive rights have been given meaning and substance by this law. These rights are constitutionally protected, and the state has a responsibility to provide services that allow the exercise of this right. Women’s lives have been saved, their health has been protected, and their status lifted. The legislation arose against an international backdrop, where in many places the space for exercise of reproductive rights is shrinking.
Ms Gabriel added that it should not be forgotten that women can often be in violent relationships or be pregnant as a result of rape, but unwanted pregnancy can also result from failed contraceptive methods. No method, including sterilisation, is completely effective.
The moment of decision about whether to continue a pregnancy is a moment for the woman alone. Even if they are cautioned that they could die if they undergo a TOP, many would rather die than continue with the pregnancy. She urged the importance of South Africans who do not support the legislation to realise that they must separate their own values and beliefs from the needs of others and respect other people’s rights.
Ms Gabriel listed the many Constitutional imperatives in the Bill of Rights implicated in the CTOP Act, such as the right to equality, freedom and security of the person, access to health care and information, freedom of expression, and freedom of religion. If all of those rights are respected, those who seek TOPs can be treated with dignity. She stated that there is a moral obligation to protect, uphold, and advance the exercise of human rights by all South Africans. She added that observing the proceedings of the past two days was an unfortunate experience for her because some are working very hard and some people are questioning whether the government is doing anything and even who the government is. She concluded that individual people are the government, and if they are not willing to work hard to implement the rule of law, it does not matter how many sets of teeth it has.
The Chair stated that the point that she raised about conscientious objection issue as a nonissue for nurses and midwives because they must initially express a willingness to undergo the training, and conscientious objectors would not express such a willingness. He noted that their submission defined the services that could be provided by registered nurses and limited them to procedures performed in the first trimester. He asked for her to provide further clarity on that point.
Ms Gabriel replied that he was correct about their position and agreed with the statements by Dr Mhlanga that the provision of services by registered nurses should not extend beyond the first trimester. She noted that nurses have three years of training and midwifery requires only one additional year, but that year is critical for a person to provide the full range of obstetric services. Therefore, a nurse with limited training should not be asked to be involved in procedures taking place after 20 weeks.
The Chair acknowledged that the Committee would need to revisit that section.
Ms Matsemela asked Ms Gabriel to comment on Mr Atkins’ point about regulations and the move toward provincial responsibility for promulgating regulations to reduce the time for designation and the requirement of inspection of facilities. She wished to know if, in Ms Gabriel’s view, the word “may” pertaining to the MEC’s consultation with the national minister should be included.
Ms Gabriel replied that she felt that it should be included for the reasons given during Mr Atkins’ presentation. She pointed out that the designation process is different from the area of regulation; in the latter the Minister of Health remains the overseer. However, because the facilities are within provinces it is logical to have the MEC of health inspect the facility and make a recommendation. It was taking a long time for the Minister of Health to address applications in addition to all of the other responsibilities of the Minister. Therefore, Ipas supports the devolution of this responsibility to the provincial level. She also pointed out that data is collected not just for the sake of collecting data but to allow improvements to be made. The process of analysis and implementation of statistics is most effectively and efficiently carried out at the provincial of facility level. Once a year the data is sent to the national level, thus maintaining a link between the provincial and national departments.
Dr Rabinovitz asked for clarification of the requirements for the training for registered nurses, particularly whether the length of the course was a year or some other amount of time.
Ms Gabriel clarified that the course is not a year. It is a short course requiring 80 hours of training, with 40 spent in classroom work and 40 spent in clinical training. The three-month duration of the clinical training stretches or contracts depending on the availability of mentors and trainers as well as the number of cases that present to the facility. She noted that the size of the caseload also varies from province to province, providing the example that the Northern Cape provides only about 1-2% of the TOP procedures performed in the entire country. She stated that all of these nuances impact how long the training for registered nurses can take to complete.
Last year, Ipas introduced trainee evaluation wherein the training process is monitored to ensure that nurses are completing training and beginning to provide service within 6 months. Data from these evaluations shows that 95% of women who received TOPs also received postabortion contraception. This tends to negate the idea that counselling is not happening, because if it was not, it is doubtful that these women would be able to choose a contraceptive method.
She thought it might be helpful to the Committee to be provided with a copy of the training manual and the draft policy on conscientious objection.
Mr Madella asked if there is a significant demand for people performing services who are not trained medical professionals.
Ms Gabriel said that to their knowledge, there is not. In official facilities, only trained professionals are providing services. However, they have seen advertisements of private people offering these services, so they welcome the penalty clause set out in the Bill that will allow provincial health departments to prevent people from taking advantage of the situation.
Dr. Rabinovitz asked if, in Ms Gabriel’s experience, whether contraception is easily available and free.
Ms Gabriel first noted the importance of contraception in breaking the cycle of abortion. In the training they receive, an entire day is devoted to postabortion contraception methods and counselling. Providers of TOPs must offer onsite provision of contraception to women who have received a TOP. After that initial provision, they referred to other facilities if one is closer to their home or where they have already been receiving care, but the initial provision of contraception is given at the TOP facility.
Dr. Mhlanga stated a concern that clinics and tertiary institutions perceive family planning as a service to be provided only at the primary level. Because of that there has been a shift in family planning services away from tertiary or secondary facilities. Hospital managers are not funding the things they perceive to be outside of the scope of the care they provide, and women who are at high risk who come to the facility for another reason cannot obtain advice or service about contraception and may die as a result of the delay. Primary care facilities are sometimes afraid to provide contraceptives between of the potential for interactions with other drugs a woman who is being treated in a tertiary or secondary facility may be taking. Consequently, he asked the Committee to accompany the Amendment with practices to strengthen family planning services.
The Chair stated that all oral submissions have been completed. He thought it was a useful and informative process and stated that it pointed out the need for re-examination of particular issues, including issues involving registered nurses, conscientious objection, counselling, and registration of facilities. He complemented the members on the way that the hearings were conducted and in dealing with public health challenges in the face of overlapping issues of personal faith. He stated that the issue was not about religion but about the extent of their intervention as legislators and policy maker into the significant challenges posed by these issues.
He reminded the Committee Members that the Court has given them until February 18 to act on the Amendment. He felt it would be an abdication of their responsibility to allow the court to make its own determination on the Bill.
The meeting was then adjourned.