SUBMISSION TO THE CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON HEALTH (NATIONAL ASSEMBLY)

 

BY

 

THE CHRISTIAN LAWYERS ASSOCIATION OF

SOUTH AFRICA

 

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:

  • To extend the capacity to perform abortions to registered nurses who have undergone the prescribed training;
  • To allow all provincial public and private health facilities that have a 24-hour maternity service to terminate pregnancies of up to and including 12 weeks without obtaining approval from their respective Health MECs;
  • To confer the responsibility of the proper implementation or administration of the Act upon Provincial Health MECs and their respective Heads of Department.

 

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]

 

  • Informed Consent

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).

 

 

 

 

  • Minors

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.

  • Registered nurses

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).

 

  • Approval of Facilities having 24 –hour maternity service

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.

 

  • Conscientious Objection

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 SOUTH AFRICA

 

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 South Africa v Minister of Health and Others (Reproductive Health Alliance as Amicus Curiae) 2005 (1) SA 509 (T) - Christian Lawyers Association(2)

[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)