The Choice on Termination of Pregnancy Amendment Act 38 of 2004 had been declared invalid by the Constitutional Court in 2006 on the grounds that insufficient public participation had taken place during the National Council of Provinces process. A new Bill was introduced and was now before Parliament as the Termination of Pregnancy Amendment Bill. Version B 21B-2007 had been passed by the National Assembly on 17 January 2007 by 266 votes to 52, with 12 abstentions. The Bill had come before the National Assembly in its last sitting of the fourth term of 2007, but not enough Members were present to constitute a quorum. The Bill had since been referred back to the National Council of Provinces for it to agree to the changes that had been made by the National Assembly’s Portfolio Committee on Health.
The Department of Health gave a briefing on the Bill to the Select Committee and engaged in discussion with Committee Members, who expressed consternation at the delay in finalising it and their view that the Department had not consulted the Committee sufficiently. Some Members also expressed concern that the amendments would impede women’s access to health care when they sought termination of pregnancy. The Committee agreed to meet specially on Monday, 04 February 2008 to discuss the matter further.
The Committee adopted four sets of outstanding minutes (23 October 2007, 02 November 2007, 13 November 2007, and 20 November 2007) with corrections.
The Chairperson welcomed Committee Members, Department of Health delegates, delegates from provincial legislatures, and observers. She thanked Mr B J Tolo (ANC / Mpumalanga) for acting as chairperson during her absence on account of illness, and thanked Members for their support. She also thanked the Committee’s study group.
The Committee expressed its condolences on the death on 19 January 2008 of Mr J O Thlagale (UCDP / North West Province) whose funeral was to be held on 26 January 2008)
Choice on Termination of Pregnancy Amendment Bill (The Bill): Department of Health (DOH) briefing
The Chairperson noted that the Choice on Termination of Pregnancy Amendment Bill [B 21-2007] had been passed by the National Assembly on 17 January 2008 and had been referred back to the National Council of Provinces to agree to the changes made by the National Assembly’s Portfolio Committee on Health. She noted that many of the amendments were technical in nature, and asked that those delegates of provincial legislatures who were present should brief their respective legislatures on the amendments.
Mr Moeketsi Motsapi, Director, Legal Services, Department of Health, confirmed that the amendments were mostly technical amendments, except for clause 7. Mr Motsapi explained that clause 1 was to replace the name of the 1978 Act with the name of the Act of 2005. In clause 9, the reference to 2004 was to be replaced with 2007. Clause 7 referred to the 20th week of gestation, after which only registered medical practitioners or registered midwives could terminate a pregnancy.
Dr Nat Khaole, Director for Women’s Health, DOH, said that registered nurses should not be involved in decisions to terminate pregnancy after the 20th week of gestation. At that stage only registered medical practitioners and registered midwives were deemed to have the necessary knowledge and experience. After the 20th week the decision to terminate would have to be taken by a registered medical practitioner in consultation with a second registered medical practitioner or a registered midwife. Section 2(1)(c) of the principal Act was read out.
Mr T Setona (ANC / Free State) objected to the format of the briefing, and said that it was necessary to have a systematic and informed discussion.
The Chairperson commented on clause 9.
A Member said that it was essential for the Department to provide clear referencing while briefing the Committee, for example, by specifying exactly which Bill was being referred to.
Mrs Nthari Matsau, Deputy Director-General, Department of Health said that she would ask the legal experts in the delegation to continue the briefing.
Mr Motsapi explained that version B 21-2007 was the Bill approved by the National Council of Provinces (NCOP) and referred to the National Assembly (NA) Portfolio Committee on Health. The amendments proposed by that Portfolio Committee were included in version B 21A-2007. Version B 21B-2007 was the Bill that now incorporated the Portfolio Committee’s amendments that was referred to the NCOP. He explained the amendments detailed in B 21A-2007, as follows:
Clause 1 Amendment of Section 1 of Act 92 of 1996
1. On page 2, in line 18, the Department had requested the Portfolio Committee to omit ‘‘1978 (Act No. 50 of 1978)’’and to substitute ‘‘[1978 (Act No. 50 of 1978)] 2005 (Act No. 33 of 2005)’’.
2. On page 2, in line 23, to omit ‘‘1978 (Act No. 50 of 1978)’’and to substitute ‘‘2005 (Act No. 33 of 2005)’’. This corresponded to line 24 of B 21B-2007.
Clause 9 Short title
On page 5, in line 8, the Department had requested the Portfolio Committee to omit ‘‘2004’’ and to substitute ‘‘2007’’.
Mr Motsapi explained that these were just technical errors that the Department had corrected.
Clause 7 Substitution of certain expression in Act 92 of 1996
On page 4, after ‘‘nurse’’ to insert: ‘‘, except in the circumstances contemplated in section 2(1)(c)’’.
Mr Motsapi explained that the purpose of this amendment was to provide that a pregnancy might be terminated, under certain conditions, after the 20th week of gestation by a registered medical practitioner in consultation with a second registered medical practitioner or a registered midwife. This meant that a registered nurse would be involved in terminations of pregnancy only in circumstances contemplated in section 2(1)(b) and 2(1)(c) only.
Mr M Sulliman (ANC / North West) expressed great concern that so much time had been wasted in the consultation process.
Mrs Matsau apologised to Mr Sulliman for the long delay in the process of consultation but stressed that there were circumstances beyond the control of the Department. There had been occasions when the Department had not had the opportunity to discuss amendments with the Committee, because the subject of such amendments was not on the agenda of the Committee, or where amendments were proposed at the end of the consultation process. It had never been the Department’s intention to ignore the Committee, and it would endeavour as far as possible to confer with the Committee on all amendments.
Ms N Mazibuko (ANC / Gauteng) said that it was vital to remember that registered medical practitioners were in short supply in the rural areas, and long queues of patients waiting to see the few available doctors. Thus it might be very difficult to obtain a second opinion from a registered medical practitioner. It was necessary to ensure that women could have adequate access to health care services, and she was concerned that the amendment would prejudice such access. She also expressed concern at the migration of health care professionals to overseas destinations.
Ms H Lamoela (DA / Western Cape) disagreed. She stressed that after the 20th week of gestation, any termination of pregnancy should be performed by a registered medical practitioner or a registered midwife. She asked how a termination of pregnancy after the 20th week of gestation would be registered, and if the term ‘abortion’ would be used.
Mr Setona said that the majority of South Africans did not have ready access to registered medical practitioners for any purpose, and asked how that situation should be addressed. He asked about the medical rationale with regard to the amendment to clause 7.
Mrs Matsau said that as gestation progressed, the process of termination of pregnancy became more and more complex, and termination after a certain point would be beyond the competence of a registered nurse. The Department was aware of the shortage of medical personnel and was striving to obtain sufficient staff. The Department wanted everyone to have equal access. The Department believed that patients’ lives would be endangered if there were blanket approval for registered nurses to carry out terminations in or after the 20th week of gestation. It would be less risky for patients in this situation to travel by ambulance to a hospital.
Professor Ronnie Green-Thompson, Special Advisor to the Minister of Health endorsed Ms Matsau’s comments. Some of the changes that had been made were the result of public opinion and consultations with the Health Portfolio Committee. The process of public hearings would serve to enhance the quality of the Bill. He explained that the Bill sought to ensure quality of women’s medical care and the safety of women. It was much easier to terminate a pregnancy within the first 12 weeks of gestation, when a doctor would not be needed to terminate pregnancy. It was to be hoped that the majority of terminations would be done within the first trimester (first 12 weeks). Between 13 and 20 weeks, more safeguards were required, and termination should be carried out only under defined medical or social conditions affecting the mother and foetus. At that stage rather more expertise was required. The current Bill took those conditions into account. A further level of expertise, including a second opinion of a registered medical practitioner or a registered midwife, and more stringent conditions were required for any terminations to be carried out after 20 weeks of gestation. Moreover, at that stage, diagnostic facilities such as ultrasound would be essential and must be used by the registered medical practitioner. The special conditions were not intended to impede access to termination of pregnancy but to ensure the safety and best interests of patients in the later stages of pregnancy. The Department was already starting to ascertain how to provide sufficient registered medical practitioners in the rural areas. Doctors had been recruited from Tunisia to work in parts of South Africa where there was a shortage of medical staff.
Mr Molusi Ncolo, State Law Advisor, said, with reference to clause 1, that the State Law Advisor was not a legislator; hence referral of the matter to the Portfolio Committee.
Mrs Priscilla McKay, member of the KwaZulu-Natal provincial legislature, asked if there was a point at which no one would consider terminating a pregnancy. She asked what was ‘the cut-off point.’
Dr Nat Khaole said that if there were a problem at the 30th week of gestation, termination of pregnancy would follow a different procedure than the first 30 weeks.
Professor Green-Thompson said that in such a situation it would be a separate medical issue. For example, in the case of an in utero death at 32 weeks of gestation, it would be usual to wait for spontaneous delivery. This was a separate issue from those covered in the Bill. The “cut-off” that Mrs McKay asked about would normally be 24 weeks.
The Committee agreed to meet specially on Monday, 04 February 2008 to discuss the matter further.
Adoption of outstanding minutes and discussion of programme
The Committee adopted minutes of meetings on 23 October 2007, 02 November 2007, 13 November 2007, and 20 November 2007, with corrections.
The Committee held an informal discussion on its programme.
The meeting was adjourned.
Report of the Select Committee on Social Services on the Choice on Termination of Pregnancy Amendment Bill [B21 – 2007] (National Council of Provinces – sec 76), dated 18 September 2007:
The Select Committee on Social Services, having considered the Choice on Termination of Pregnancy Amendment Bill [B21 – 2007] (National Council of Provinces – sec 76), referred to it and classified by the Joint Tagging Mechanism as a section 76 (2) Bill, reports the Bill without amendments.
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