Dudley's Constitution Seventeenth Amendment Bill: discussion

Meeting report

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
14 September 2007
DUDLEY'S CONSTITUTION SEVENTEENTH AMENDMENT BILL: DISCUSSION
 
Chairperson: Ms P Mentor (ANC)

Documents handed out:
Proposal of Ms Dudley: Sections 11 & 28 of Bill of Rights
Committee Minutes : 18 May to 7 September 2007

Audio recording of meeting

SUMMARY
The Chairperson expressed her displeasure and asked for an official recordal of the Committee's complaints relating to frequent last-minute changes of venue and times, and staff inefficiency. She indicated that the matter would be discussed at a meeting on Monday, and she expected action to be taken within ten working days and the Committees informed of what steps had been taken.

The Department of Health briefed the Committee on the legal aspects of the Dudley Constitution Seventeenth Amendment Bill, calling for an amendment of the Constitution to protect the unborn foetus's right to life. The Committee rejected the proposal on the grounds that it was not shown that the socio-economic considerations and other reasons for Choice on Termination of Pregnancy Act had not changed, and that the effect of this proposal would be to render the legislation already passed unconstitutional.

The Committee adopted the minutes of 18 May, 24 May, 19 June,  22 June 27 June, and 22 August 2007 (with the necessary amendments). The Minutes of 24 August could not be adopted as only one person was present who had attended that meeting. The adoption of the Minutes of 7 September was deferred. The Committee announced that the trip to India had been cancelled and a study tour to Brazil was under consideration.

MINUTES
The Chairperson apologised to the Department, and to Members of Parliament and staff, for the fact that the meeting had been scheduled for 09h30 rather than the usual 09h00, and for the fact that the venue was changed by the administrators of parliament. She noted that the Committee had complained before about these administrative matters. She asked that the inefficiencies on the part of the staff be officially recorded; as they hindered the Committee's efficient functioning. This would also be conveyed in a letter to the manager. She stressed also that staff should be in attendance before guests arrived.

Ms Gadijah Abdullatief, Control Committee Secretary, said that she would look into these matters and arrange for the Chairperson to meet with management on Monday.

Mr S Mshudulu (ANC) stressed the importance of preparation. It seemed that there was no monitoring mechanism. The simplest tool in championing office work was the regular updating of the diary. Venues were very important, particularly for people with disabilities. The secretary must check the day before that all equipment was properly functioning. He thought that these would be useful issues to raise at the meeting, and would like to know how was performance measured and how were weaknesses picked up and corrected. .

The Chairperson added that management should supervise the staff. Members of Parliament should not have to deal with the staff on these matters. She thanked Ms Abdullatief for her attendance and indicated that she would be expecting action on her letter (not merely a reply) within ten working days and a communication with all Committees.

Dudley's Constitution Seventeenth Amendment Bill
The Chairperson noted that the Department of Health (DOH) was in attendance. She noted that Ms Dudley was also made aware of the fact that the Department would be briefing the Committee.

The Chairperson noted that she had again applied her mind very seriously to the matter, and had gone through the historic reasons, including the socio-economic arguments, leading to the Choice on Termination of Pregnancy Act. She did not think the socio economic reasons that directed the legislation at the time had changed.

The Chairperson noted that Adv P Swart (DA) had last week posed two questions; whether the proposer envisaged that the constitutional amendment she was proposing would render the current legislation unconstitutional; and whether she was undertaking any lobbying. Adv Swart had his own opinion, but asked Ms Dudley for her opinion. He said that the rights of unborn children were clearly the focal point, but asked whether this was an end in itself or whether the legislation would also be re-examined.

The Chairperson noted that the Committee had examined the proposal in depth, and questions were posed and answered frankly, directly and honestly. The Committee must also look at the effect of agreeing to the proposal, and decide whether anti-abortion lobbying would be desirable.

The Department of Health introduced their delegation as Dr Nat Khaole, Director, Women’s Health; Mr Ronnie Green-Thompson, Special Advisor to Minister of Health; Dr Joyce Marima, Deputy Director, Women’s Health; Mr M Motsapi, Chief Director, Legal Services & Policy, and Mr Joe Kgatla, Parliamentary Officer, Ministry of Health.

Dr Khaole said the Department had decided, because of the nature of the submissions, to read out to the Committee a document summarising the legal aspects arising from the proposal. 

The Chairperson noted that the proposal had come not from the ACDP but from Ms Dudley, and any reference to the party should be changed to the individual.

Mr Motsapi noted Sections 1 and 11 of the Constitution, and said that the Constitution defined a child as "a person under the age of eighteen years". Person and age were not defined and no specific provision was made for pre-natal life, so it assumed that rights and responsibilities accrued at birth. The Choice on Termination of Pregnancy (CTOP) Act was drafted  in accordance with Section 27, and the drafters purposely did not specifically name the rights of the foetus under the legislation, other than recognising that terminations could not be performed at any time, and in fact the CTOP Act served as a limitation to the absolute right of a woman to decide on termination. This did not infer that rights accrued before birth.

Mr Motsapi noted that the preamble to the Act provided an instructive tool. It was his view that the proposals were based on a misreading of the 1998 case. The proposal made an inference that was never intended. The Court in fact stated that the foetus did not enjoy protection in the South African law against abortion, and that the nasciturus fiction could not be invoked to allow such protection. The past Constitutional Court cases of Germany did not hold that a foetus was a person, but that foetal life had an "independent legal value" worthy of protection. In addition these cases, as the South African cases, recognised the right of a woman to decide upon her own dignity, physical integrity and personal development.

Mr Motsapi submitted that the 1998 judgment had not made any suggestion that "life" and "child" should be changed in Sections 11 and 28 of the Constitution. In 2004 the Transvaal Provincial Division, in the case of Christian Lawyers Association v Minister of Health ruled that Section 2 of the Act encapsulated the limitations and to go beyond this would infringe on the rights of the woman, and that the State could not interfere unduly with the right to choose whether to undergo an abortion. Nowhere were any of the decisions saying that there was a need to protect the "right" of a foetus over the woman. Legal personality was recognised as commencing at birth, when the child would start to realise the nature of rights. This view was also confirmed by the Fourth World Conference on Women.

Mr Motsapi stated that the proposal would constitute an impairment to women's rights to bodily and psychological integrity, to their right to make decisions concerning reproduction, and to security in and control over their body. The proposal ran counter to the basic principles founding the Constitution. There was no indication of how the limitation for medical reasons would be implemented, nor of the practicalities around psychological, emotional and financial support for the woman and baby. No mention was made of consequential elements of such protection.

Discussion
Adv P Swart (DA) noted that this was a good document, but took issue with the suggestion by the Department that "The proposal is presumptuous and repugnant", as he did not think that the Department had the right to comment in this way upon a proposal. He requested that the last paragraph from the official presentation be withdrawn.

The Chairperson fully agreed with Adv Swart, and emphasised that this wording was not appropriate to parliamentary proceedings. She stressed that the Committee must say what it thought, not the Department. 

Mr Motsapi apologised, and stressed that he had not meant this as any reflection upon the integrity of the honourable member who made the proposal. This last paragraph would be withdrawn.

The Chairperson noted that the remainder of the input was highly valued and accepted.

Members then proceeded to ask questions on the following broad topics:
 
Nasciturus principle
Adv Swart referred to paragraph 7, highlighting the two German cases, and the "balance between the State’s obligation to protect foetal life on the one hand and its obligation to protect the autonomy of he woman on the other’. He asked for comments on the State’s obligation to protect foetal life; and also explanation of the nasciturus fiction phrase.

Mr Motsapi clarified nasciturus principle, which stemmed from what was referred to as the nasciturus fiction. The foetus was presumed to be ‘a person’ who had the rights and responsibilities that any other living person but those rights were kept in abeyance until birth. They could not be applied until after birth. If one were to interpret the rule strictly, it would mean that rights were being conferred on the foetus while it was as yet unborn, although it could not claim the rights until after birth.

The Chairperson asked if he was then refuting the fiction law.

Mr Motsapi confirmed that he was..

Adv Swart stated that the Committee had discussion on that last week. The proposer had mentioned the case of Pinchin vs Santam. He asked whether the Department was then saying that this case did not in any way make the nasciturus fiction applicable in our law.

Mr Motsapi agreed that the nasciturus fiction was not applicable, and the Department was proposing it should not apply. He could not comment specifically on the judgment as he did not have it with him.

Balance between obligation to protect foetal life and obligation to protect autonomy of woman
Mr Motsapi said that Adv Swart’s question relating to the right of the foetus to life could not be exclusively answered without making reference to the right of the woman to take a decision whether to continue with the pregnancy or not.

Adv Swart said that perhaps his question was not clearly enough phrased. If the nasciturus principle did not apply in South African law, then there were no rights for the unborn foetus,  but referring to "the State's obligation" created the impression that there were indeed rights, because an obligation on the one hand must be matched with a response to the right on the other.

The Chairperson said the Committee would come back to this issue.

Influence of foreign law:
Mr A Ainslie (ANC) noted that the opinion included quite a number of references to foreign judgements, and was curious to know the influence of those foreign judgements.

The Chairperson wished to respond to Mr Ainslie’s question about the relevance of international legal precedent, without affecting the rights of the Department also to answer. She noted that it was important to draw lessons from the world, especially in relation to the Women’s Rights Movement. International lobbying and international cases were often very relevant and very helpful. She was on her way to the DRC to address women parliamentarians from all over Africa on women’s rights, including the productive health rights, and any input from the international perspective on both human rights and legal issues would be vital.

Mr Motsapi explained that cases decided abroad were not taken as automatic precedents to the judgements in South Africa. However, where there was not sufficient precedent in South Africa, or where the subject was one that in other countries had been extensively regulated, the South African judges could look to foreign judgments to assist them in formulating their opinion and made a judgment.

Mr Gary Rhoda, Parliamentary Researcher, added that international foreign judgements had a persuasive value, especially where there were certain gaps in the South African case law. International agreement and international customary law also had persuasive value.

Provisions of the Act
Mr Ainslie also asked for clarification on the special and specific circumstances for abortions after week 13, and up until when abortions would be allowed.

Dr Khaole responded that this was explained very clearly in the Act as to when the circumstances arose and what should be done.

The Chairperson asked for a synopsis of what was in the Act.

Dr Khaole stated that Section 2 said the pregnancy may be terminated upon request by the woman during the first twelve weeks of the gestation period of her pregnancy. From the thirteenth, up to and including the twentieth week of the gestation period, the pregnancy could be terminated if a medical practitioner, after consultation with the pregnant woman, was of the opinion that
1) the continued pregnancy formed a risk of injury to the woman’s physical or mental health; or
2) there existed a substantial risk to the foetus that the foetus would suffer from severe physical or mental abnormality; or
3) the pregnancy resulted from rape or incest; or
4) the continued pregnancy would significantly affect the social or economic circumstances of the woman.

After the twentieth week, a pregnancy could be terminated if a medical practitioner, after consultation with another medical practitioner or a registered midwife, was of the opinion that the continued pregnancy:
I) would endanger the woman’s life;
ii) would result in severe malformation of the foetus; or
iii) would form a risk of injury to the foetus

She said that the termination of a pregnancy may only be carried out by a medical practitioner; except in terms of Section 1(a) - pregnancies up to twelve weeks - which could also be carried out by a registered midwife who had completed the required training.

Amending legislation
Mr Mshudulu asked for confirmation as to whether the Department was busy with amending legislation, and, if so, what impact would it have on the proposal. 

Mr Motsapi responded that there was an amendment bill currently being processed. This Bill sought to devolve the powers of the Minister with regard to the designation of facilities, to the MECs of the provinces. It also listed the requirements under which that designation or approval could be made. It further related to the keeping of records. An important section in the Amendment Bill was the creation of an offence. Currently, if a doctor carried out a termination of pregnancy in a facility that was not designated, that was not taken as an offence. The Bill sought to change this, and noted that the termination of pregnancy could only be performed at a designated facility.

The Chairperson asked whether the Minister was devolving the powers to the MEC or to the Provincial Director General.

Dr Marima responded that the Minister was devolving the powers to the MEC, but what the Head of Health would do was collect statistics and send them to the Director General. She added that the twenty-four hour units must be checked for whether they met the requirements set out in the Act. Previously the Act had referred to "registered midwives" and it was now qualifying this with reference to training of nurses who could provide termination services.

Dr Marima said that the amendment Bill in fact did not contain any new principles that impacted upon this proposal.

The Chairperson noted with interest that ordinary nurses who had undergone training would be allowed to perform terminations. She said that she was interested to comment on this process, and would meet with the Department and the Committee at another level. Members of Parliament had the right to engage in any Committee at any time and this Committee declared its interest, whether or not there was a direct bearing on this proposal, and she had a special interest.

Mr Mshudulu said that the Chairperson could confer with the relevant Chairperson of the Health Portfolio Committee to flag some of the sensitive issues.

Striking a balance
Mr Motsapi noted that the circumstances in which terminations could be performed reflected the attempts to strike a balance between the woman’s right to terminate pregnancy, which was limited by Section 36 and by the circumstances as set out in Section 2. She, by herself, could decide to terminate only up to the twelfth week. From the twelfth week there were specific circumstances under which a woman could terminate. It was not an absolute right, hence his emphasis on the balance between the protection of the foetus and the rights of the woman.

Mr Rhoda stated that the State’s obligation stemmed from the International Covenant on the Rights of the Child . This specifically stated that signatory states had a duty to protect foetal life, but that did not infer that the foetus had any rights. This simply meant that a foetus could not arbitrarily be aborted or injured at any stage in the pregnancy.

Adv Swart wanted to get some perspective on the issue. The setting of twelve weeks was understood, because up to twelve weeks the foetus didn’t have a chance of living outside the woman. He did not see that this proposal should reopen the whole debate that South Africa had already been through. He would have done so if the proposer had produced sufficient new information or data suggesting that South Africans were clearly of the opinion that the whole debate must be re-opened. The whole world had struggled with the concept of rights before birth. The Committee needed to give some time to this without turning it into a full-scale debate pro-and anti-abortion.

Mr R Green-Thompson commented that the last three confidential reports in South Africa recorded that abortion was one of the major causes of death of women. Since the CTOP Act, deaths from sepsis and haemorrhaging resulting from abortions had been reduced.  The recommendation was that the CTOP Act should be more robustly applied by the Department in order to protect those women who still did not have sufficient access to safe abortion. Circumstances which pertained at the time of the passing of that Act had not changed. There were many women who had benefited from the Act, in that neither their lives nor reproductive systems had been adversely affected. He pointed out that illegal abortions could lead not only to death but to other problems of infertility, menstrual disturbance, chronic pelvic pain and continued lifelong loss of mobility.

The Chairperson felt that, given the challenges that the health system was currently facing, the right to termination by ordinary nurses was very worrying. She had been a former teacher and member of the SA Nursing Council, and was particularly active on midwifery issues, and was well aware of the problems of nurses having to deliver a baby, let alone terminate a pregnancy. She said she would be writing to the Department about these concerns.

Dr Marima reassured the Chairperson that a group of registered nurses were already trained, including in aspects of midwifery, and were doing very well and were being monitored very closely.

The Chairperson accepted what the Department was saying but said that self-assessment by the Department was not the same as external assessment. She did not want to open the debate here. She understood and noted the comments about the midwifery training but noted that terminations were dependent upon knowledge of development of pregnancy and delivery processes. She would still raise her concerns with the Department.

Mr Mshudulu added that he had some concerns too, that related not so much to the qualifications of nurses, but the resources of the clinics. He noted that during Health Month he had undertaken an audit of all clinics around Everton. He found that there was one Cuban doctor, despite a dense population and that the clinics were not designed to be clinics. He suggested that perhaps there was a need to have a workshop within the Committee on health issues. In Sebokeng Hospital there was a dedicated ward but access was not always clearly understood. This was a complicated area but it was important to take charge.

The Chairperson asked the secretary to note in the minutes Mr Mshudulu’s proposal to write to the Committee on Health to ask for the opportunity for a joint discussion, and recommendation to arrange a workshop which should also include the Department of Health.

Mr Green-Thompson wished to record the appreciation of the Department on the spirit of the discussion. He assured the Committee that whatever action the Department took was in the interests of quality health care for the citizens of South Africa, and this included the poor and the disadvantaged in the remote areas who had difficulty in accessing ideal levels of service. The Department tried to be as little restrictive as possible, but wanted to establish the dividing line to ensure quality of health care. The reality in South Africa, and other countries in Africa, was that there were not doctors, nor necessarily midwives, employed full time at all the institutions, especially in rural areas.  The Department was trying to ensure that a woman in a rural disadvantaged area who required a termination of pregnancy should not be disadvantaged as opposed to a woman in the city. He assured the Committee that at no stage would the Department risk exposing a woman to an incompetent or unqualified person. Experienced nurses who were able to become competent after additional training would be allowed to perform terminations, but this did not say that any nurse would be allowed to do so. He pointed out that in fact the four year nursing curriculum did include courses on midwifery.

The Chairperson responded that the Committee noted those assurances, but asked that it be borne in mind that not all nurses in South Africa were trained under the new curriculum.

Mr G Magwanishe (ANC) felt the arguments raised by the Department were sufficient to make a decision and proposed that the committee not support the proposal.

Ms I Mars (IFP) agreed with Mr Magwanishe.

The Chair agreed with Mr Magwanishe’s proposal to reject the bill for the following reasons:

1. The socio economic reasons and the reasons that pertained at the time the TOP Act was put in place had not changed;
2. This bill, if enacted, would make the law unconstitutional.

Mr Mshudulu formally seconded Mr Magwanishe's proposal.

The Committee concurred. The Chairperson specifically recorded that the Department’s and the proposing member’s issues had been put before the committee as supporting documents. After consideration of the proposal, comments by the Department, and the supporting documents, the Committee decided to reject the proposal.

Mr Mshudulu suggested that the Committee look also to the stated objects of the proposed Bill; and noted that legal opinion had given the Committee confidence that the protection of the right to life was already  balanced by the existing legislation and that conditions had not changed.

The Chairperson asked Adv Swart together with Mr Ainslie to draft the conclusions of the committee from a legal perspective.

Committee business: Adoption of Minutes.
The Committee adopted the minutes of 18 May, 24 May, 19 June,  22 June 27 June, and 22 August 2007 (with the necessary amendments). The Minutes of 24 August could not be adopted as only one person was present who had attended that meeting. The adoption of the Minutes of 7 September was deferred.  

Trip to Brazil
The Chairperson reported that since the trip to India was cancelled, the Committee would have to look at other options, as the money had already been locked in. The same objects could be fulfilled in Brazil, and preliminary arrangements had been made for the first week in October.

The meeting was adjourned.