SUBMISSION TO THE CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON HEALTH
(NATIONAL ASSEMBLY)
BY
THE CHRISTIAN LAWYERS ASSOCIATION OF
ON
THE CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL (B21-2007)
INTRODUCTION
The Christian Lawyers Association of South Africa is a
voluntary association established in 1992 representing its members, lawyers of
all walks of life who profess the Christian Faith. We would like to express our
appreciation for the opportunity to make a written submission on the Choice on
Termination of Pregnancy Amendment Act 38 of 2004 (hereafter referred to as
“CTOP Amendment Act”). We would also like to request permission to make oral
submissions before Parliament on the scheduled date of the hearings.
We believe that the life of a human being starts at
conception. Abortion (which is what the Principal Act – Choice on Termination
of Pregnancy Act 92 of 1996, and the CTOP Amendment Act facilitate) terminates
the life of a human being. With this conviction, we initiated judicial
proceedings arguing that the right to life as provided for in the Constitution
of South Africa, 1996 applies to the unborn[1]
as well; and have recently argued that, given the adverse physical and
psychological consequences accompanying a decision to abort a foetus, pregnant
girl minors are not capable, without
parental consent or guidance, to exercise an informed decision that is in
their best interest.[2]
We therefore wish to emphasise our continued opposition to the principles underlying
the Principal Act and the Amendment Act.
While we acknowledge that the Principal Act is not the
primary subject of the public consultation process, our concerns in relation to
certain provisions in the Amendment Act will require a reconsideration of
certain provisions in the Principal Act. This will be highlighted below.
SUBMISSIONS
The principal objectives of the CTOP Amendment Act as
we understand them are:
The Importance of
Counselling
If the Amendment Act is to extend the capacity to
perform abortions upon registered nurses, then pre-abortion and post-abortion
counselling must be mandatory.
Section 4 of the Principal Act currently reads:
“The
State shall promote the provision of non-mandatory and non-directive
counselling,
before and after the termination of a pregnancy”
South African medical[3]
and psychological[4] research
studies indicate that patients who undergo abortions are prone to depression,
feelings of guilt, post-abortion syndrome (said to be the emotional,
psychological, physical and spiritual trauma caused by an abortion), anxiety
manifesting itself in sleep and eating disorders and/or abdominal pain. These
studies have noted that the current forms of counselling only inform patients
of the abortion procedures to be undertaken, yet there was a need for emotional
and psychological counselling before and after abortion.[5]
These problems were particularly acute to adolescents (girl minors):
“Research
done by Mpshe indicated that adolescents who terminated
their
pregnancies experienced emotional turmoil related to the process
of
decision-making to terminate, as they feared the reaction of their
family
if they were to disclose to their family that they were sexually
active
and pregnant as a result thereof. They therefore had to keep the
decision
to terminate their pregnancy to themselves. The adolescents
experienced
physical distress related to the procedure of termination
of
pregnancy, as none of the women in this study were given any form
of
anaesthesia. They experienced a vast amount of pain due to the evacuation
of
the uterus. In addition, these adolescents utilised psychological defense
mechanisms
of denial, rationalisation and intellectualisation as a way of
coping
with the emotional pain of having to terminate their pregnancies.”[6]
An abortion may only take place with the informed
consent of the pregnant woman (section 5(1)). Proper and mandatory pre- and
post- abortion counselling is important to ensure that the pregnant woman
exercises an informed consent. Neither the Principal Act nor the Amendment Act
define “informed consent”. At common law, the informed consent requirement
rests on three independent legs of knowledge, appreciation and consent. In Christian
Lawyers Association(2) it was stated
“The
requirement of ‘knowledge’ means that the woman who consents
to
the termination of a pregnancy must have full
knowledge ‘of the nature
and extent of the harm or risk’.
….
The
requirement of ‘appreciation’ implies more
than mere knowledge. The
woman
who gives consent to the termination of her pregnancy ‘must also
comprehend and understand the nature and
extent of the harm or risk’.
…
The
last requirement of ‘consent’ means that the woman must ‘in fact
subjectively consent’ to the harm or
risk associated with the termination
of
her pregnancy and her consent ‘must be
comprehensive’ in that it must
‘extend to the entire transaction,
inclusive of its consequences’.[7]
It is noteworthy that section 7(3) of the National
Health Act 61 of 2003 (an Act meant to “provide a framework for a structured
and uniform health system within the Republic”) defines “informed consent” to
mean
“consent for the provision of a specified health
service given by a person with legal capacity to do so and who has been
informed as contemplated in section 6.”
Termination of pregnancy constitutes a “health
service” in terms of section 1 of this Act; and section 6 obliges a health care
provider to inform a patient of (among other things) -
(a)
the user’s health status except in circumstances where there is substantial
evidence that the disclosure of the user’s
health status would be contrary
to the best interests of the user;
(b)
the range of diagnostic procedures and treatment options generally
available to the user;
(c) the benefits, risks, costs and
consequences generally associated with each
(treatment) option; and
(d) the user’s right to refuse
health services and explain the implications,
risks, obligations of such refusal.
Reading section 6(c) and 7 together means that the
consent of a pregnant woman to an abortion must constitute an understanding and appreciation of the full
nature and consequences of a termination of pregnancy (see wording of
section 5(4)(a) of the CTOP Principal Act).
Pre-abortion counselling must not only include information about choices
and procedure, but also about the consequences (physical, psychological,
spiritual, etc) of a decision to do an abortion. The implication of section
6(d) and 7 read together is that the health care provider must, in her
pre-abortion counselling, also indicate to the patient that she may refuse to terminate her pregnancy, and
convey other options available to her should she do so. Giving a patient
the full range of options and their consequences, including that she may decide
against an abortion, is necessary to ensure that her consent is truly informed.
It does not violate the requirement that the counselling be non-directive
(section 4).
It is our submission that given the physical,
psychological and other abovementioned consequences, a girl minor should not be
permitted to by-pass the consent of her parent(s)/guardian to obtain an
abortion as section 5(3) read with 5(1) & (2). We submit that she should
obtain written consent from her parent/guardian and in the event of her
refusal, she should be required to apply to the High Court, as the guardian of
all minor children. We propose the
following amendment:
5(3). In the case of a pregnant minor, a medical practitioner or
registered midwife, as the case may be, shall, before the pregnancy is
terminated, ensure that:
(i) The minor obtains the written consent of at least one parent or guardian to
the termination. In the event of the minor objecting to such a course, the
medical practitioner or registered midwife shall inform the minor of her right
to apply to the High Court for a judge’s consent in lieu, and shall ensure she
is provided with legal advice and facilities at the expense of the Government
Health service to enable her to apply to the Court.
(ii) The minor has a ‘reflection period’ of at least seven days before she
gives her consent to the termination.
(iii) During the ‘reflection period’, the minor receives a minimum of thirty
minutes professional counselling provided by the Government Health service,
free of charge, and that she is exposed to graphic material explaining what is
involved in a termination of pregnancy, and its long-term effects. Such graphic
material may be provided in either book or video form and shall be designated
by the Minister under regulations made pursuant to section 9 of this Act.
These safeguards would assist in dispelling the existing
perception that abortion is a form of contraception[8]
and will inculcate responsibility in our youths to delay sexual activity until
they are prepared to face the responsibilities of parenthood. Most of the
requests that are made for abortions are made by girl minors who want to
terminate unwanted pregnancies.[9]
If it becomes easy for them to do so, by allowing them to by-pass parental
knowledge and consent, then they will fail to take responsibility for their
sexual behaviour.
The research studies conducted argue for the need of
advanced psychiatric nurse practitioners, who can provide psychiatric and
psychological counselling at all stages of the abortion service. [10]
We submit that given the abovementioned concerns nurses are not competent to do
abortions because they are not adequately trained in providing the necessary
counselling. We are especially concerned that the Amendment Act functionally equates registered nurses to
registered midwives, such that registered midwives are
effectively rendered non-essential in this termination process if registered
nurses are available. {notice section 2(1)(c); (2)(2); 5(4) & (5) where
reference is made to “registered midwife or
registered nurse”}. They can perform an abortion upon request of a woman
during the first 12 weeks of her gestation period without knowledge and/or supervision of either a medical practitioner
or a registered midwife (they can do it alone, simply on the request of the
woman).
A new
inclusion in the Amendment Act is an exemption given to a health facility
offering a 24-hour maternity service. Provided
it complies with the other express requirements, such a facility does not
require the approval of the MEC in performing abortions within the first 12
weeks of a woman’s gestation period {section 3(3)(a)}. Such a facility only
needs to comply with the requirement that its Head (director) notify the MEC
that the facility has a 24-hour maternity service {section 3(3)(b).} This means
that the facility apparently does not need to comply with section 3(1)(k) in
relation to abortions within the first 12 weeks of a woman’s gestation period.
The facility implicitly has approval in relation thereto once it has notified
the MEC as having a 24-hour maternity service. The Amendment Act does not
mention whether approval is needed for second and third trimester abortions
conducted in these facilities. We submit that this must be made clear,
otherwise it may occur that these facilities conduct these abortions without or
even before obtaining the required approval in the Gazette.
From the
research studies considered, it is common that most abortions occur during the
second trimester. If exemption from the approval of the MEC is given to
facilities operating a 24 hour maternity service, how will the government
ensure that second and third trimester abortions will not be performed in these
facilities without such approval?
The Amendment
Act does not mention how or whether the MEC is to determine/confirm that the
facility has a 24-hour maternity service? (there seems to be no express
obligation on the MEC to determine/confirm whether such a service exists in the
facility upon being “notified” by its director). The efficacy of the exemption and its
compliance regulation depends on this determination. The Act must expressly
place an obligation on the MEC to make an effort to confirm that the said
health facility has a 24-hour maternity service; it also must delineate the
factors that must be taken into account in making such a determination. It is for instance unclear what constitutes a
health facility having a 24-hour maternity service.
We
submit that there needs to be a conscientious objection clause for medical
personel who because of their religious beliefs/opinions object to performing
abortions. Such a clause can be worded similar to section 6 of the Civil Union
Act 13 of 2006.
May we
once again express our sincere appreciation for facilitating public hearings in
this regard. National Parliament thereby
demonstrates that the opinions and beliefs of all South Africans are important
and of value to them.
We trust
that our submissions will contribute to extending justice to all in our beloved
country.
____________________________________
TERESA
CONRADIE
CHAIRPERSON
CHRISTIAN
LAWYERS ASSOCIATION
OF
9
November 2007
[1] Christian Lawyers Association of
South Africa v Minister of Health and Others 1998 (4) SA 1113 (T) - Christian Lawyers Association(1)
[2] Christian Lawyers Association of
[3] Antoinette Gmeiner et al, “Emotional support for adolescents who opted for
Termination of Pregnancy”, in Health SA
Gesondheid, Vol 7 (2002), 14; Winnie Mpshe et al, “Experiences of Black
Adolescents who chose to terminate their pregnancies”, in Health SA Gesondheid, vol 7 (2002), 68
[4] Sheila
Faure et al, “Anxiety, depression and self-efficacy levels of women undergoing
first trimester abortion”, (2003) 33 (1) South
African Journal of Psychology, 28;
Van Rooyen et al, “The prevalence of post-abortion syndrome in patients
presenting at Kalafong hospital’s family medicine clinic after a termination of
pregnancy”, (2004) 46(5) South African
Family Practice, 21
[5] Gmeimer
(above n3) 15; Mpshe (above n3);
[6] Gmeimer
(above n3) 15
[7] Christian Lawyers Association(2) (above n2) 515H – 516A
[8] Lang F, “Is
pregnancy termination being used as a family planning method in the Free State”
(2005) 47(5) South Africa Family Practice, 52; Naidoo P et al, “Exploring
unplanned pregnancy amongst university students” (Aug/Oct 2006) vol 42 Social work 341, Mbokane A, “
Contraceptive challenges experienced by women who requested termination of
pregnancy services in the Mpumalanga province” (2006) vol 11 No1 Health SA
Gesondheid, 43
[9] (above)
[10] Gmeimer
(above n3); Mpshe (above n3)