DOCTORS FOR LIFE
INTERNATIONAL
WRITTEN SUBMISSION
IN RESPECT OF THE
CHOICE ON TERMINATION OF PREGNANCY AMENDMENT
TO
THE PORTFOLIO COMMITTEE ON HEALTH
(NATIONAL ASSEMBLY)
8 November 2007
1.
Conscientious
Objection
Neither the
Principal Act, nor the Amendment Act makes any provision for the protection of
the rights of health care professionals with conscientious abjection against
abortion.
The vast majority of health care professionals in
[Section 9(3)] of the Constitution provides as
follows:
“The state may not unfairly
discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language and birth.”
[Section 15(1)] further provides that:
“Everyone has the right to
freedom of conscience, religion, thought, belief and opinion.”
The Choice of Termination of Pregnancy Act is very
controversial in its very nature and disregards very basic scientific truths,
such as that the life of a human being starts at fertilisation.(Annexure A) Health care workers are
intimately aware of this fact and most doctors and nurses have great ethical
reservations against the taking of human life.
It is astounding
that no special effort is made to give effect to the fundamental rights of
these health workers. It is painfully obvious that the Act does not even touch
the issue of freedom of conscience.
Furthermore, many foreign legislatures have already
provided for “conscientious objection” clauses enabling health care
professionals to refuse to do abortion. However, compared to other countries
Recommendations:
It is clear
that the right to refuse to participate in abortion is internationally
recognised. Even though
2.
automatic
designation of facilities
A dilemma has
been created because of facilities being designated without having sufficient
pro-abortion staff who can render abortion services 24 hours of the day, 7 days
a week. The public is then informed that abortion services are available at the
relevant hospital. Because of a lack of pro-abortion staff, pro-life staff with
conscientious objection being forced to into completing the second part of the
procedure. These staff members are placed in an ethical dilemma where they
cannot refuse to assist in these often life threatening emergencies that end up
not just being isolated instances, but (virtually without exception) become a
regular phenomenon at these facilities.
In a recent
decision the Labour Appeals Court said that the rights of health workers are
clear in terms of the Constitution and the Minister of Health must take measures
to give health workers clarity in this regard. (Wilhelmien Charles and
Others v Gauteng Department of Health and Others)
It is the government’s duty to create a conducive
environment for the exercise of a health care worker’s right to conscientious objection.
However, Misoprostol / Mefipristone has created a
peculiar dilemma for health professionals with conscientious objection to
performing induced abortion. Misoprostol / Mefipristone is often given by
another health professional who tells the patient to go to the local hospital’s
casualty department once she starts bleeding. At the hospital, staff with
conscientious objection against abortion, are then forced to complete the
procedure, e.g. by doing a D&C. This blurs the line between taking care of patients
suffering from the complications of an induced abortion, and completing the
second part of the abortion procedure and thus becoming an accomplice.
Section 2 of the Amendment Bill makes provision for
the automatic designation of maternal facilities to perform abortions up the 12th
of pregnancy. This will mean that the public and other health care workers will
assume that all maternal facilities are also abortion facilities. Consequently
many more doctors and nurses will forced to complete incomplete abortions
started elsewhere.
The Amendment Bill will greatly aggravate this
problem and will result expensive litigation against the Department of Health
for the violation of the fundament rights of nurses and doctors who refuse to
do abortion. The only solution is keep maternity wards separate from abortion
facilities in order to protect health care worker’s rights.
Recommendations:
The existing
legislation has created this dilemma and proposed Amendment does nothing to
rectify it – on the contrary aggravates the situation. We therefore call on
this legislature to enact measures that will prevent the designation of any
facility where there is no guarantee that sufficient pro-abortion staff is
available to do abortions 24 hours a day, 7 days a week.
3.
informed
consent
The Principal Act and the proposed amendment fail
to properly circumscribe “informed consent.” In order to give informed consent,
the woman requesting an abortion must be informed of and subjectively
understand the likely complication that normally accompany abortion, as well as
the less likely risks. The woman must also be informed as to the nature of the
procedure she is consenting to. This counselling must be offered before the
procedure is commenced and alternatives must objectively be explained to the
pregnant woman. The most likely and less likely complications are explained
below:
Psychological
Complications
Post Abortion Syndrome is a very
serious condition marked by intense long-term chronic depression, which can
lead to suicide. This condition is related to Post Traumatic Stress Syndrome,
which was first diagnosed among Vietnam War survivors. The symptoms include
profound guilt, grief, nightmares, alcohol and drug abuse and other disturbing
symptoms.
In a post abortion study and discovered that of
women who had abortions:
Physical
Complications
Recognised physical complications include heavy
uterine bleeding, pelvic infections, uterine perforation and cervical injury.
The vast majority of abortions in
This is but some of ample medical complications
surrounding abortion. Women need to be properly informed about this before they
can give informed consent to abortion.
Recommendations:
This
legislature has the duty and mandate to enact measures that will protect
pregnant women against unnecessary harm. Informed consent will only be complete
after a woman subjectively understood and consented to the
4.
abortion
The current Act provides that a minor may decide to
have an abortion without the consent of a guardian or parent. This provision
again ignores the scientifically proven fact that minors lack the cognitive
ability to comprehend the consequences of their decisions – especially when
under pressure. Consequently a minor is incapable of giving informed consent
without the assistance of an adult who can appreciate the consequences of
abortion.
Recommendations:
Considering
the serious physical and psychological complications of abortion, it is
imperative that the informed consent be obtained of any person having an abortion.
Special care must be exercised when dealing with minors. It is this
legislature’s responsibility to ensure the best interests of children who
cannot comprehend the adverse effects of abortion, and is subsequently unable
to make an informed choice.
ANNEXURE A
The Humanity of the Unborn Child
Below are some excerpts of well-known embryology
textbooks on the humanity of the unborn child. This is but some of the amount
evidence that the life of a human being starts at fertilisation.
“The fact is
basic and simple: life begins not at birth, but conception.”
“Life Before Birth” by
Harvard Genetics Professor Ashley Montague
An embryo is
“the human young from the time of fertilisation of the ovum until the beginning
of the third month.”
Encyclopedia and Dictionary
of Medicine Nursing and Allied Health
Fertilisation
is “that wondrous moment that marks the beginning of life for a new unique
individual.
“Biology of Gestation” by
Dr Fridhandler Louis
“The cell
results from fertilisation of an oocyte by a sperm and in is the beginning of a
human being. The zygote thus formed represents the beginning of a new life. “
“Developing Human:
Clinically Oriented Embryology” by Keith Moore (Professor of Anatomy)
“Every time a
sperm cell and ovum unite a new being is created which is alive and will
continue to live unless its death is brought about by some specific condition.”
“Pathology of the Fetus and
the Infant” by Potter EI & Craig JM
ANNEXURE B
CONSCIENCE
Conscientious
objection---
(1) Notwithstanding anything in any other enactment, or any rule of law, or the
terms of any oath or of any contract (whether of employment or otherwise), no
registered medical practitioner, registered nurse, or other person shall be
under any obligation---
(a) To perform or assist in the performance
of an abortion or any operation undertaken or to be undertaken for the
purpose of rendering the patient sterile:
…
if he objects to doing so on grounds
of conscience.
(2) It shall be unlawful for any
employer---
(a) To deny to any employee or prospective
employee any employment, accommodation, goods, service, right, title,
privilege, or benefit merely because that grounds of conscience to do any
act referred to in subsection (1) of this section; or employee or
prospective employee objects on
(b) To make the provision or grant to any employee or prospective employee
of any employment, accommodation, goods, service, right, title, privilege,
or benefit conditional upon that other person doing or agreeing to do any
thing referred to in that subsection.
(Section 46
of the Contraception, Sterilisation, and Abortion Act 1977)
“Healthcare workers may reject a
medical intervention if they believe that it is not in accordance with their
conscience and with international rules of medical ethics. Healthcare workers
must notify the healthcare institute of their conscientious objections.
Healthcare institutes must take these into consideration, but must ensure that
patients' healthcare rights are exercised without disruption. Healthcare
workers may not refuse to provide emergency medical assistance.” (Article 56
of the Health Services Act)
“Physicians may refuse to carry out an
abortion or sterilisation if it is not in accordance with their beliefs and
conscience and it is not a case of emergency medical assistance.”
(Article 42 of the Slovenian Code of Medical
Deontology Practice)
". . . doctors, nurses, midwifes and
social and health assistants, or students in these professions, for whom it is
contrary to their ethic or religious beliefs to perform or assist in induced
abortion, can apply for and be granted exemption."
(Consolidated Act on Induced Abortion,
Section 10(2))
“Neither a physician, nor a nurse, nor a
medical assistant is obliged to co-operate with the termination of a
pregnancy. The physician is obliged to inform a patient interested in
abortion, during the first visit, of his refusal.”
(Art. 348, al. 2, 6° Belgian Penal Code)
". . . a doctor may refuse medical
treatment to a patient except in cases of emergency or humanitarian duty; this
general provision may be relied upon, in prinicple, where the motivations for
refusing to provide a medical treatment is religious or ideological."
(Regulations of Conduct of Doctors, Article 8
Doctors (Council, Discipline and Pension
Fund) Law of 1967 & 1970)
No obligation to carry out abortion
(1) No-one is under a duty (by contract or
by statutory or other legal requirement) to carry out or assist in carrying out
an abortion.
(2) A person is entitled to refuse to assist
in carrying out an abortion.
(Section 55E of the Medical Practitioners
Act 1930)
(7) Subject to subsection (8), no
person is under a duty, whether by contract or by any statutory or other legal
requirement, to participate in any treatment, including any counselling
authorised by this section, to which the person has a conscientious objection.
(8) Nothing in subsection (7) affects any duty to
participate in treatment which is necessary to save the life of a pregnant
woman or to prevent her immediate serious physical injury.
(Section 164 of the Criminal Code Act 1924
(No. 69 of 1924))
Prohibition of public officials and public
authorities from imposition of certain requirements contrary to religious
beliefs or moral convictions.
The receipt of any grant, contract, loan, or loan guarantee under the Public
Health Service Act (42 U.S.C. 201 et seq.), the Community Mental Health Centers
Act (42 U.S.C. 2689 et seq.), or the Developmental Disabilities Services and
Facilities Construction Act (42 U.S.C. 6000 et seq.) by any individual or
entity does not authorize any court or any public official or other public
authority to require -
(1) such individual to perform or
assist in the performance of any sterilization procedure or abortion if his
performance or assistance in the performance of such procedure or abortion
would be contrary to his religious beliefs or moral convictions; or
(2) such entity to -
(A) make its facilities available
for the performance of any sterilization procedure or abortion if the
performance of such procedure or abortion in such facilities is prohibited
by the entity on the basis of religious beliefs or moral convictions, or
(B) provide any personnel for the
performance or assistance in the performance of any sterilization procedure or
abortion if the performance or assistance in the performance of such procedures
or abortion by such personnel would be contrary to the religious beliefs or
moral convictions of such personnel.
(Section 300a – 7b of 42
No person is under a duty, whether by
contract or otherwise, to procure or to assist in procuring the miscarriage of
a woman or girl or to dispose of or to assist in disposing of an aborted foetus
if he has a conscientious objection thereto, but, in any legal proceedings, the
burden of proving such a conscientious objection shall rest upon the person
claiming to have it.
(Section
174(2) of the Criminal Code of the
(5) Subject to subsection (6), no person is
under a duty, whether by contract or by any statutory or other legal requirement,
to participate in any treatment authorised by this section to which he has a
conscientious objection, but in any legal proceedings the burden of proof of
conscientious objection rests on the person claiming to rely on it.
(Section
82(5) of the Criminal Law Consolidation Act 1935)
Conscientious objection to participation in
treatment
4. (1) Subject to subsection (2)
of this section, no person shall be under any duty, whether by contract or by
any statutory or other legal requirement, to participate in any treatment
authorised by this Act to which he has conscientious objection: Provided that
in any legal proceedings the burden of proof of conscientious objection shall
rest on the person claiming to rely on it.
(2) Nothing in subsection (1) of this section shall affect any duty to
participate in treatment which is necessary to save the life or to prevent
grave permanent injury to the physical or mental health of a pregnant woman
(3) In any proceedings before a court in
(Section 4 of
the Abortion Act 1967)
No person is under a duty, whether by
contract or otherwise, to procure or to assist in procuring the miscarriage of
a woman or girl or to dispose of or to assist in disposing of an aborted foetus
if he has a conscientious objection thereto, but, in any legal proceedings, the
burden of proving such a conscientious objection shall rest upon the person
claiming to have it.
(Section
174(2) of the Criminal Code of the
(5) Subject to subsection (6), no person is
under a duty, whether by contract or by any statutory or other legal
requirement, to participate in any treatment authorised by this section to
which he has a conscientious objection, but in any legal proceedings the burden
of proof of conscientious objection rests on the person claiming to rely on it.
(6) Nothing in subsection (5) affects any
duty to participate in treatment which is necessary to save the life, or to
prevent grave injury to the physical or mental health, of a pregnant woman.
(Section
82(5)-(6) of the Criminal Law Consolidation Act 1935)