PROPOSAL OF ACDP: SECTIONS 11 & 28 OF BILL OF RIGHTS

In response, the Department of Health submits the following:

I. Section 1 of the Constitution, 1996, states that South Africa is a ... democratic state founded inter alia on human dignity, the achievement of equality and the advancement of human rights and freedoms. Accordingly, the citizens of this country are afforded the rights corresponding to this section. In the same vein, these citizens have responsibilities and can never enjoy these rights if they act in a manner that contravenes the Constitution. If that happens, rights become limited in terms of section 36 of the Constitution. This is just an illustration that rights have corresponding responsibilities.

2. Section 11 protects the right of "everyone" to life. The legislature's intention was clearly to recognise this right in so far as it pertains to a "living everyone". The section would have indicated that pre-natal life is also recognised if this right proposed by the ACDP superseded any other right that the mother has.

Section 28 defines a child as any person under the age of 18 years. Person is not defined, nor is there any expatiation on "age", i.e. when does one start counting. Save to surmise, and correctly so, that counting begins at birth, and that's when rights and responsibilities accrue, and therefore life.

3. Section 27 guarantees everyone the right to access to inter alia health care services, including reproductive health care. Subsection (2) thereof enjoins the state to take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right. Accordingly, the Choice of Termination of Pregnancy Act, 1996 (TOP Act) is a consequence of this section. Had it been an intention of the drafters to recognise the proposed limitation to this right by the foetus' right to life, then that would have been the case.

4. Notwithstanding, we have recognised the fact that termination may not be performed at any time. In fact, the TOP Act serves as a limitation to the absolute right of the woman to decide when she can terminate her pregnancy. This, however, does not in any way provide an inference that rights accrue before birth. The TOP Act therefore regulates circumstances under which termination may be done, thereby confirming the right of the woman to terminate albeit under certain circumstances. Generally, this Act makes termination accessible to woman for pregnancies of up to 12 weeks, and only under special and specific circumstances from week 13. This limitation is "reasonable and justifiable" as envisaged by section 36 of the Constitution. To limit this right even further will invariably encroach on the rights to human dignity, privacy, social and bodily integrity, sometimes psychological integrity.

5. The preamble to the TOP Act has provided an instructive tool to understanding and using this Act. It stems from the fact that a woman has the right "to make decisions concerning reproduction and to security in and control over their bodies". That the Act recognises the "right to access to appropriate health care services to ensure safe pregnancy and childbirth". More importantly, that the "decision to have children is fundamental to women's physical, psychological and social health", That "the State has the responsibility to provide reproductive health to all, and also to provide safe conditions under which the right of choice can be exercised without fear or harm".

6. Regarding the proposals, it is clear that they are based on the misguided and rather unfortunate misreading of the 1998 case. The proposal makes an inference that was never intended. The proposal is premised on the fact that the Court ruled on what the Constitution explicitly makes provision for, and therefore it did not preclude a situation where a foetus would be recognised if and when the Constitution is amended. If it were the Court's intention, it would have made a remark to the effect that the plaintiffs would have succeeded if they were to change the said clauses of the Constitution. In fact, in its closing remarks, though not judgement as such, the Court stated that the nasciturus rule has since 1935 not been recognised in our jurisprudence. This is stated in the case of Elliot v Joiecy (1935) AC 209 (HL), and confirmed in the 1978 judgement of Paton v Trustees of BP AS where it was ruled that the foetus did not enjoy any protection in law against abortion and that the nasciturus fiction could not be invoked to confer such protection. This was an indication that the said Court recognised the right of the woman to decide, as is the case in other countries' laws that we often refer to shape our democratic principles:

7. The Court further made reference to two judgements heard in the German Constitutional Court. The Court stated as follows:

''These two German cases in any event do not support the contention advanced by the plaintiffs (Christian Associations) in their pleadings in the present case that section 11 of the Constitution confers an absolute 'S A right to life on the foetus. Firstly, in the 1975 case the court did not hold that a foetus is a "person", but that foetal life has an "independent legal value" worthy of protection. Secondly, in both the 1975 and 1993 cases, the German Constitutional Court also gave express recognition to the constitutional protection of the woman's right to her own dignity, physical integrity and personal development, and sought to strike a balance between the state's obligation to protect foetal life on the one hand and its obligation to protect the autonomy of the woman on the other" (our emphasis).

8. Hence our submission that the 1998 judgement does not make any suggestion for the qualification of "life" and "child" in section 11 and 28 of the Constitution. The quoted passage above mirrors the precise intention of the TOP Act. As alluded to supra, there are limitations to this right, particularly after the 12th week, but the woman's right is accentuated by this Act, as is required by section 27(2) of the Constitution.

9. In 2004, the Transvaal Provincial Division made a compelling and profound ruling in the Christian Lawyers Association v Min of Health 2004(10 BCLR 1086 (T), that:

"Section 12(2) of the Constitution specifically guaranteed the woman's SR right to bodily and psychological integrity, including the right to make decisions concerning reproduction and to security in and control over their body. The woman was accordingly given the right to determine the fate of her pregnancy (within the limits of the law)."

This is further reinforced by other constitutional rights, being the right to equality and protection against discrimination on the grounds of gender, sex and pregnancy, the inherent right to dignity and to have her dignity respected and protected, the right to privacy, and more importantly the right to reproductive health care.

10. Any limitation of the right constituted a limitation of a woman's fundamental right and was therefore valid only to the extent that such limitation is reasonable and justifiable in terms of the limitation clause. We must here state that section 2 of the TOP Act encapsulates this limitation. Beyond this limitation, we will be infringing on the rights of the woman and such limitation will be impugned. The State cannot unduly interfere with the right to choose whether or not to undergo an abortion.

11. The Canadian Court, in Rodriguez v British Columbia (1993) 17 CRR also confirmed the notion of protecting the autonomy of the woman, so that she has control over her bodily integrity free from psychological and emotional stress. That the right of the woman is paramount and must take prevalence over any other right that another person, including the foetus, may have.

12. In interpreting Article 8 of the European Convention on Human Rights, the European Commission held that although the woman has a right of self- determination, it was permissible for the State to regulate abortion.

13. In the said 2004 decision, the Court ruled that this right is part of the cornerstone of democracy that enshrines the right of all people in the country

This Court further quotes the 1990 decision of Administrator, Natal v Edouard 1990 (3) SA 581 (A) where it was said:

"There is no justification for holding, as a matter of law, that the birth of an 'unwanted' is a 'blessing'. The birth of such a child may be a catastrophe, not only for the parents and the child itself, but also for previously born siblings,"

14. Nowhere does any of the decisions mentioned intimate any need to protect the "right" of the foetus over that of the woman. These are primarily premised on the legal argument that life begins at birth, whence rights and responsibilities accrue, not at conception. In other words, legal personality begins at birth. This is when the child would start to realise the nature of such rights. The TOP Act provides for that right, but further limits it in accordance with section 36, i.e. from week 13.

15. This view was also confirmed by the Fourth World Conference on Women which was held in Beijing. This conference confirmed the Cairo programme's definition of reproductive health, that it includes the right to have control over sexuality, including reproductive health, etc.

15. The proposal submitted would accordingly constitute an impairment of women's right to "bodily and psychological integrity" and more particularly of their right "to make decisions concerning reproduction" and to "security in and control over their body". In the premises, it would be a total disregard of the fundamental rights of the woman to assume and therefore propound that the rights of an unborn being, prevails over those of a person who is capable of taking informed decisions on when she wants to have children. This would be an antithesis to the basic principles founding our Constitution and democracy.

We have also not been made aware how the limitation is to be implemented, i.e. the practicalities around psychological, emotional and financial support for the woman and the baby. The proposal is presumptuous and repugnant to accepted principles of law on the right of women to decide on their reproductive health. It is presumptuous in that the foetus must be presumed as if it were a "child" and the rights kept in abeyance until birth. No mention is made of consequential elements of such protection.