PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
DRAFT REPORT: SUBMISSIONS CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL [B
21-2007
PORTFOLIO COMMITTEE: HEALTH
1. INTRODUCTION
On 8 and 14 June 2007 the National Council of Provinces and the National
Assembly, respectively, passed resolutions which noted that on 18 August 2006
the Constitutional Court declared the Choice on Termination of Pregnancy
Amendment Act (No. 38 of 2004) invalid, and that the order of invalidity is
suspended for a period of 18 months to enable Parliament to re-enact the statute
in a manner that is consistent with the Constitution. The suspension period
expires on 16 February 2008.
The legislation was deemed to be introduced in the National Council of
Provinces (NCOP), as the First House. The Act, as it now exists, is deemed as
the text before Parliament, as extensive work has been done during Parliament's
previous consideration of the legislation.
2. PURPOSE
To receive submissions on the proposed amendments to the_ Choice on Termination
of Pregnancy (CTOP) Act, 1996. so as to:
·
Amend a definition and to insert others;
·
Empower a Member of the Executive Council to approve
facilities where a termination of pregnancy may take place;
·
To exempt a facility offering a 24-hour maternity
service from having to obtain approval for termination of pregnancy services
under certain circumstances; and
·
To provide for the recording of information and the
submission of statistics; to enable a Member of the Executive Council to make
regulations; and to provide for matters connected therewith.
3. GENERAL ISSUES RELATING TO BILL OVERALL
Conscientious Objection
Connect Network
A specific clause must be added to the principal Act to prevent victimisation
of those that refuse to perform Termination of Pregnancy (TOP).
Judy McComb (and several other individuals)
In the Sister Charles case, the Labour Court of Appeals handed down a judgment
that stressed the need for the Minister of Health to provide certainty
regarding the right to consciously object to conduct a TOP.
The wording of the United Kingdom (UK) Abortion Act 1967, which has reportedly
worked without problems for 30 years, is suggested as an insertion to the TCOP
bill:
"Save in a situation where it is necessary to act immediately to save a
life, no person shall be required under any duty, whether by contract or by any
statuary or other legal requirement, to participate in any treatment authorised
by the principal Act or the Amendment Act (including surgical evacuation which
may follow the procedure) to which they have a conscientious objection on the
ground of religion, conscience or belief, provided that the burden of proof of
such objection shall rest on the person seeking to rely on it."
Health Care Practitioners (HCP), working in the already stressful conditions of
the country's hospitals, have their noble personal objectives of saving lives
compromised by performing TOP on otherwise healthy mothers and babies. Very few
HCP support TOP and provision must be made to formally object to conduct TOP
and prevent coercion in performing or assisting in TOP.
Jayne Bezuidenhout
Many medical students are planning on avoiding specialisation in the field of
obstetrics and gynaecology for fear of having to do TOP. The respondent
strongly urges the inclusion of a conscientious objection clause.
South African Medical Association (SAMA)
The question arises whether a person's right to conscience may be deemed to be
infringed upon if he/she is compelled to inform or counsel a woman seeking a
TOP of her rights under the CTOP Act.
As part of the Obstetrics and Gynaecological rotation, interns are required to
study and acquire skills on terminations of pregnancy. This requirement is
outlined in the Health Professions Council of South Africa's (HPCSA) Handbook
on Internship Training.
Student interns have voluntary chosen their vocation knowing what this would
entail. It is a critical component for their training that they should be
adequately qualified, as well as properly trained to deal with TOP, as part of
the essential skills of doctors and interns in medicine. This is particularly
important in cases such as excessive bleeding or an emergency evacuation of the
uterus, this life-saving skill, may not be refused by interns in respect of
providing emergency treatment. In this regard, it should be noted that interns,
such as doctors, may not object on conscientious grounds to performing a TOP in
an emergency situation.
Interns who refuse to undergo this portion of the required training on
conscientious grounds will thus be prejudiced in terms of successfully
completing their internship, and inevitably their medical degree.
SAMA, therefore, supports preclusion of interns from objecting to performing
training on and conduct of emergency TOP on religious grounds. However, it may
be necessary, prior to accepting this statement, to test this limitation
against section 36 of the 'Limitation of Rights' clause in the Bill of Rights.
It is also submitted that where an HCP applies for a job and it is not an
inherent requirement of the job to perform TOP, then this duty may not be
imposed on such HCP unilaterally, subsequent to being employed. If performing
TOP is an inherent job requirement, the prospective candidates should be made
aware of this when the employer advertises the post.
Xandra Botha
The right to conscientious objection for medical workers must be enforced.
The Christian Medical Fellowship of South Africa
It is suggested that a clause on the conscientious objection be added to the
Amendment Bill. Using the wording of the conscientious objection clause
contained in the UK Abortion Act 1967, which has reportedly worked without
problems for 40 years, the Christian Medical Fellowship of South Africa proposes
the following addition:
"Save in a situation where it is necessary to act immediately to save
life, no person shall be under any duty, whether by contract or by any
statutory or other legal requirement, to participate in any treatment
authorized by the principal Act or the Amendment Act (including any treatment
relating to surgical evacuation of the womb which may follow medical treatment)
to which he or she has conscientious objection on the ground of religion,
conscience or belief, provided that the burden of proof of conscientious
objection shall rest on the person seeking to rely on it".
Doctors for Life
The respondent argues that the right to refuse to participate in the TOP is
internationally recognised. Although though South Africa is a world leader in
protecting and promoting human rights, the submission is of the view TOP is one
area that has been neglected or perhaps avoided. The respondent therefore urges
the Legislature to take specific legislative measures to give proper effect to
the right to conscientious objection in respect of abortion. Clear provision
must be made for health care workers to exercise their constitutional right to
freedom of conscience, as is done in other countries.
Human Life International
The submission suggests that doctors, midwives, nurses and medical students who
do not want to implement TOP should not be compelled to do so in a democratic
nation. It sees this as an opportunity to clear up the current confusion
regarding the rights of health care workers.
Anonymous
It is proposed that the provision of the UK Abortion Act 1967 pertaining to
conscientious objection be inserted.
Lucinda Britt
The submission suggests that a clause on conscientious objection be added to
the Amendment Bill and that the provision of the UK Abortion Act 1967
pertaining to conscientious objection be inserted.
Darrin McComb
The respondent argues that the constitutional right to conscientious objection
should be clearly upheld by the Bill without endangering the health of the
woman seeking an abortion.
Denys Bezuidenhout
The respondent suggests that a clause on conscientious objection should be
added to the Amendment Bill and the provision of the UK Abortion Act concerning
conscientious objection should be inserted.
Graeme Birdsey and Bianca Goodison
No health care worker should be obliged to perform abortions.
Etienne Grassi
The UK Abortion Act 1967 as regards conscientious objection should be inserted.
Consultation of Christian Churches, Frere Hospital (Dr. L Makin), Dr J V
Larsen, Dr Madelain Beerens, Mr Gavin Russel-Rockliff, Mr David te Brake and
Mrs Rosemary Clark
The respondents are of the opinion that the Amendment Bill should include a
clause on conscientious objection whereby the health care professionals will
not be compelled by this Act to conduct an act of abortion if it contradicts
their religious principles as well as their moral values.
St Mark's Cathedral (Rev. Adrian Green), Cape Missions International (Mr
Billy Baker), Mr Walter Blakeway and Mr Dave Smith
The submission opposes the amendment Bill [B21-2007] believing that it is
unchristian because it promotes the carnage of innocent babies.
University of Free State (Prof. H. S. Cronje)
The submission opposes the Bill [B21-2007] alluding that it does not provide
sufficient transparency concerning TOP. It further concedes that there should
be an increased emphasis on contraception such as the sterilisation programme
rather than abortion.
Planned Parenthood Association of South Africa (PPASA) and Mr Anso Turner
The respondents support the amendment Bill [B21-2007] believing that it will
augment the positive impact of the principal Act, which has resulted in
significant improvements in women's health. It further indicates that the
proposed amendments to the Act will further ensure that women have access to
safe abortion services.
Constitutional rights
South African Medical Association
Chapter 2 of the Constitution of Republic of South Africa, the Bill of Rights
in section 11 ensures that "everyone has the right to life". Current
common law, case law and the constitution does not offer a foetus either legal
personality or protection.
Section 9 ensures equality, allowing women equal protection. Section 12 and 15
protect freedom and security of the person and freedom of belief, which include
women's rights to decide on reproduction and TOP and for health care
practitioners (HCP) not to perform TOP. The Access to Information Act (No.2 of
2000) ensures that women have the right to receive all information in respect of
TOP.
Despite the above rights, no right is absolute. In the light of various
conflicting rights, the 'Limitation of Rights' clause in the Bill of Rights
(section 36), permits rights to be limited in certain circumstances and taking
certain factors into account. The right of freedom of religion, belief and
opinion has been limited in respect of HCPs performing termination of
pregnancies. It must, however, be borne in mind that the right has been limited
and not removed entirely.
The ethical imperative is that a doctor may not refuse treatment to a patient
on conscientious grounds if the situation is an emergency as per the
Constitution in section 27(3) which states that "[n]o one may be refused
emergency treatment".
The respondent submit that the institution should ensure that a doctor who does
not have any objection is on call, as far as is reasonably possible, in order
to be requested to come in and perform the procedure. Should the situation be
an emergency, there would be an obligation on the objecting doctor to do
everything possible to stabilise the patient and treat the emergency until such
time that a non objecting doctor arrives to take over the care of the patient.
Clarity is also required on when the TOP actually takes place. This is relevant
as to when the doctor can exercise his/her conscientious objection. Does the
termination commence at the induction phase or at the point of evacuation?
Justice Alliance of South Africa
The NCOP refused to consider proposals in the preliminary mandates and some
final mandates of the Bill, as well as conducting no public hearings for
further amendments to the CTOP Bill. This is in breach of section 72 of the
Constitution. JASA suggests proper consideration of contributions from the
provinces and the holding of public hearings.
4. ISSUES RELATING TO SPECIFIC CLAUSES IN THE BILL
Clause 1: Amendment of section 1 (Definitions)
(a) Gestation period
Human Life International
The respondent is of the opinion that this amendment will mean that the
responsibility for the Act will shift from central government to a Member of
the Executive Council (MEC) of a province responsible for Health who may not be
medically trained. This will result in varying standards of care. In view of
this, it is suggested that government should monitor the impact of the TOP on
women's health very closely and should maintain its responsibility in
overseeing the Act at all levels. The respondent feels that a transfer of
authority would be an abdication of responsibility on the part of the Minister
of Health.
Professor Frank Otto Muller
With modern technology, babies born as early as 21 weeks can survive, which
proves their viability as human beings, the provision in the principal Act
allowing for TOP to take place in late pregnancy is thus of major concern.
Section 2(c)(iii) allows for TOP after the 20th week of gestation in cases
where the continued pregnancy would "pose a risk of injury to the foetus."
This is stated as if the TOP would not cause injury to the foetus and a
caesarean section was not possible. This section should be removed completely.
Dr JV Larson MB ChB, FRCOG
Gestation is defined in the principal Act as 'the period of pregnancy of a woman
calculated from the first day of the menstrual period, which in relation to the
pregnancy is the last."
This definition is dangerously inadequate in practice since it is simply not
safe to assume that the last menstrual period reflects gestation accurately.
This estimate should always (sic) be confirmed by careful bimanual palpation on
vaginal examination in the first trimester and by abdominal palpation in the
second and third trimester. If in any doubt, an ultrasound must be conducted,
and is firmly suggested for all second and third trimester TOP in order to
prevent bad and illegal decisions being made.
Human Life International
The submission argues that an amendment is needed to create more specific
guidelines as to the gestational age at which a baby's life can be ended
"in utero". Theoretically, the South African law does not allow TOP
under certain conditions up to the onset of labour. The respondent calls for an
amendment to put a cap on the gestational age at which TOP can take place.
Dr Jonathan Larsen
The respondent suggests that the wording of section 1 (ii) of the principal Act
should be changed to read:
"Gestation period" means the period of pregnancy of a woman
calculated from the first day of the menstrual period which, in relation to
pregnancy, is the last. The accuracy of the gestation period so calculated must
always be confirmed by vaginal examination in the first trimester and by
abdominal examination in the second and third trimesters. If there is any doubt
as regards the reliability of the date of the last menstrual period, an
estimate of the gestation period by ultrasound examination must be obtained
before the termination of pregnancy. An ultrasound assessment of the gestation
period is always a requirement before embarking on the termination of pregnancy
in the second or third trimester.
The motivation given the respondent is that the application of the definition
of the principal Act in practice has proven to be dangerous and therefore
requires modification. It is simply not safe to assume that the history of the
last menstrual period always reflects the gestation period accurately.
The Christian Medical Fellowship of South Africa
The submission argues that section 2 (1) (c) of the principal Act allows for
the TOP to take place late in pregnancy with no upper gestational age limit in
these indications. It states that with modern technology, babies born as young
as 22 weeks can be and are saved which indicates their viability as human
beings.
In addition, the respondent maintains that section 2 (1) (c) (iii) allows for a
TOP after the 20th week of gestation in cases where the continued
pregnancy 'would pose a risk of injury to the foetus'. It views this section as
"an extraordinary contradiction since the [section] implies that a TOP
will not cause injury to the foetus"
It is proposed that section 2 (1) (c) applies an upper gestational age limit of
28 weeks. It is further suggested that section (2) (1) (c) (iii) be deleted
altogether.
Mary Decker
The submission argues that recent medical advances have shown a greater degree
of development in the foetus at a specific point than was previously understood
to be the case. In light of this, it proposes that the gestational age at which
termination of pregnancy can occur be lowered to take this scientific knowledge
into account.
Rowena Robinson
The respondent is concerned that the principal Act allows for terminations to
take place quite late in pregnancy. The respondent argues that with modern
technology babies, as young as 21 weeks can be saved which indicates their
viability as human beings. The submission argues that section 2 (c) (iii) be
scrapped altogether.
Anonymous
The submission argues that section 2 (b) (iv) is very vague and effectively
allows abortion on demand up to 20 weeks gestation. On one level, it is
contended, all pregnancies significantly affect the economic circumstances of
the women. There is no means test prescribed, no requirements for a social
worker to assess the situation and no definition of what constitutes a
significant effect, so the argument goes. One has merely to say, without any
substantiation, that "I cannot afford this baby" and have it legally
aborted.
It highlights that there are sometimes circumstances where the addition of
another mouth to feed hugely compromises an already distorted social situation
but these need to be defined more clearly. The decision to kill the unborn
child is a huge one and cannot be based on whim. The Act therefore needs to be
amended to clarify what is meant by this clause.
Consultation of Christian Churches, Doctors of Life Organisation (Ms Joanie
Conradie) and Ms Ethel Nair
The respondents are of the opinion that the principal Act allows for
terminations to take place quite late in pregnancy. They further indicate that
Section 2 (c) (iii) allows for a termination of pregnancy after the 20th week
of gestation in cases where continued pregnancy "would pose a risk of
injury to the foetus." They suggest that Section 2(c) (iii) be scrapped
altogether.
(c) Registered midwife
Healthcare Christian Fellowship
Midwives are not properly qualified to conduct the risky operation of Manual
Vacuum Aspiration Abortions. The procedure can damage internal organs, cause
severe bleeding and require emergency hysterectomy.
Mary Decker
The respondent finds the extension of the professionals to perform TOP to
midwives and nurses problematic. She argues that this is inconsistent with the
initially stated intent in making the procedure legal in the first place. She
states that it is extremely worrying as it will mean that women undergoing the
termination of pregnancy will be exposed to greater risk. She therefore
suggests that this modification be retracted.
Darrin McComb
The respondent is of the view that though clause 2 of the Amendment Bill
partially addresses the problem of medical practitioners, registered midwives
or trained nurses who trespass the Act, it is not sufficient. He suggests that
a clause specifically criminalising illegal activity by these parties (such as
performing a termination contrary to or outside of the stipulations
contemplated in section 2 (1) of the principal Act) be introduced.
Judy van Aardt
The submission argues that the extension of the Amendment Bill to nurses to
perform the TOP and the suggestion to make more abortion facilities available
would lead to poorly equipped medical clinics because the Department of Health
(DoH) is struggling to upkeep the ones that already exist. Consequently, she
concludes that more babies will die and more mothers will be killed or injured.
Ipas Women's Reproductive Rights, South Africa"
The submission commends the extension of the application of the Amendment Bill
to cover registered midwives and nurses. It states that a review of the number
of TOPs rendered between February 1997 and 31 January 2006 revealed that 529
410 women accessed safe, legal terminations of pregnancy services. It reports
that 76 per cent of these were provided in the first trimester and primarily
rendered by midwives trained in the Manual Vacuum Aspiration Technique.12 It
further argues that the technique is not only a major cost-saving measure but
has demonstrated the ease with which the capacity to provide safe, efficient
and accessible services is possible.
Graeme Birdsey and Bianca Goodison
Nurses should, by no means, be allowed to perform the termination of pregnancy.
Human Life International
The submission argues that by allowing nurses to perform TOP, the government
will certainly increase the number of those legally entitled to perform the
TOPs. However, it will also decrease the expertise of those performing
abortions.
It is suggested that this amendment be discarded in the interest of women's
safety and nurses who will have an unfair burden placed upon them.
(d) Registered nurse
Healthcare Christian Fellowship & Christian Medical Fellowship
For nurses to conduct TOP after only a short course is a reckless disregard for
the complexities of the female reproductive system. This has and will result in
future serious and life threatening complications for which full medical
training are required to avert disaster. Neither midwives nor nurses should be
allowed to conduct TOP.
Connect Network
Nurses must undergo training on counselling of women to help them make fully
informed decisions.
Provision must be made for the added burden of responsibility placed on nurses
if problems arise when having to use the dangerous abortifacient; Misoprostol,
which is not registered for use by the Medicines Control Council. The use of
un-registered drugs for TOP should be prohibited, especially after the first
trimester.
The proposed increase in TOP providers requires establishment of a strong
structure of debriefing and emotional support for service providers to prevent
burnout from stress.
SAMA
It is imperative to ensure that adequate training and proper qualifications are
undertaken before any HCP (or registered nurse) can perform a TOP at the
various trimesters.
Clause 2: Substitution of section 3 - Place where termination of pregnancy may
take place'
Dr J V Larsen
The respondent indicates that a significant weakness of this clause is that it
still does not draw any distinction between first, second or third trimester of
the termination of pregnancy. He recommends that distinction should be drawn
because the termination of pregnancy in the second and third trimesters of
pregnancy is much more hazardous than in the first trimester. These include
severe rupture of the uterus or the possibility of child birth of a live infant
who needs resuscitation. He further suggests an insertion of clause 3.2 which
should read as:
"Mid trimester and third trimester terminations of pregnancy may only be
undertaken in a hospital with full ultrasound facilities and immediate access
to the services of a specialist such as obstetrician and gynaecologist to
manage potential complications."
Women's Legal Centre and Rev JV Roux
The respondents are of the opinion that the amendment of this clause will
unduly limit access to medical TOPs, especially in the rural areas, where
facilities are under resourced, which will then hinder rural women to have
access to medical abortions.
Connect Network
The omission of the word 'surgical' in the Amendment Bill, entails that a nurse
would be required to take responsibility for the consequences of a dangerous
drug administered in the process of a medical! chemical first trimester TOP in
the patient's home, which has increased risks of complications.
The need for use of ultrasound equipment is to be specified for the designated
facilities to protect nurses from the trauma of unexpectedly performing second
and third trimester TOP for which they are not qualified.
The additional trauma inflicted on women undergoing TOP at 24-hour maternity
services from being surrounded by sights and sounds of full term births must be
considered.
Justice Alliance of South Africa
The scope of the Act should not be increased in terms of more facilities and
staff until, widespread abuses and problems of current legislation are
addressed at the same time.
Mosaic Centre for Women
The amendments allowing for provincial approval and ministerial repeal of undue
executive restrictions are supported as removing red tape for women in
difficult situations. Responsible leadership, however, is essential to ensure that
counselling, informing of rights to privacy and access to information are
enforced. More rigorous monitoring and evaluation must take place and complaint
mechanisms must be clarified.
Christian View Network
The respondent argues that nurses being allowed to conduct TOP in small, iIl-equipped
clinics, means that more babies will die, more mothers will be killed or
injured and more nurses will be pressured to perform TOP. Psalm 41 says
"blessed is he who has regard for the weak". It contends that the unborn
are the weakest of the weak and the way in which we treat those influences the
way God treats us. The respondent argues that we have a duty to speak for those
that cannot speak for themselves.
Healthcare Christian Fellowship
Expanded access to TOP in rural areas, with their lack of communication and
support services in the event of complications, will increase the vulnerability
of rural women. If the CTOP Act is not completely scrapped, the conduct of TOP
must at least be limited to hospitals with full surgical facilities and
sufficient voluntary staff available 24 hours a day. Funds due to be spent on
more facilities should be redirected to improve insufficient programmes
promoting abstinence.
Division of the already limited willing staff over more facilities will serve
to further divide the health force and alienate them from government and their
professions.
Clause 3: Amendment of section 7 - Keeping of Records
Justice Alliance of South Africa
Section 7(1) of the Act must be amended to include "or (c)" after
(b). In order to require that records of third trimester abortions be kept.
Connect Network
Adherence to sections 7(2), (3) and (4) must be monitored to prevent the high
incidence of Maternal and Gestational Age Unknown, being recorded. Requirement
of ultrasound facilities at all TOP facilities would prevent this. Records of
chemical TOP must also be required.
Ingrid Kjonstad and Consultation of Christian Churches
The respondents recommend that section 7(1) of the principal Act be amended as
follows:
"Any registered practitioner, or a registered midwife who has completed
the prescribed training course, who terminates a pregnancy in terms of section
2 (1), shall record the prescribed information in the prescribed manner and
give notice to the person referred to in subsection (2)."
They further recommend that section 7 (2), (3) and (4) of the principal Act
should enhance good record keeping within a prescribed period of one month. In
addition, this contradicts with section 1 0 (2), which makes such delays a
criminal act.
Mosaic Centre for Women
Improved record keeping is supported. Statistics should be made more broadly
available to assist in the Millennium Development Goal of reducing maternal
mortality and morbidity which have already been reduced by 95% and 50%
respectively since the introduction of the CTOP Act in 1996.
Healthcare Christian Fellowship
Significant religious and cultural objections to TOP have meant that neither
patients nor practitioners openly report complications which makes follow up
even in serious cases difficult. No more than normal medical confidentiality
must be required for TOP patients in order to improve records.
Complications and deaths resulting from TOP must be statutorily documented and
be used to evaluate if legal TOP contributes to maternal health or not.
Clause 4: Substitution of section 8 - Delegation of Power
Mosaic Centre for Women
The amendment allowing delegation of power to Director General and Heads of
Departments is supported as it will simplify and accelerate provision of TOP
services. MECs must, however, remain accountable to safeguard against
unnecessary restrictions by state officials.
Clause 5: Substitution of section 9 - Regulations
Mosaic Centre for Women
Allowing the MEC to make amendments to the regulations in consultation with the
Minister is supported as a way of speeding up the legislation process.
Clause 6: Amendment of section 10 - Offences and Penalties
Mosaic Centre for Women
The amendments are supported since they further protect the rights of women to
prevent morbidity and mortality from unsafe TOP. All persons will now be aware
and liable in terms of unsafe TOP and not reporting them.
Justice Alliance of South Africa
Clauses must be included to make it a criminal offence to carry out an illegal
non-consented TOP with a sentence not exceeding 10 years. It must also be made
a criminal offence to willfully or with physical force, prevent a woman or HCP
to carry out a legal TOP and liable if convicted to a fine or imprisonment not
exceeding 2 years.
Proffessor Frank Otto Muller
Section 10(1) (c) stating that any person who 'prevents the lawful termination
of pregnancy or obstructs access to a facility for the termination of a
pregnancy', is guilty of an offence. This has been misinterpreted as a legal
obligation on a HCP to perform TOP when requested. It is suggested that the
section be replaced with: "willfully prevents a woman attending a facility
approved for TOP, in any physical manner willfully prevents the lawful
termination of a pregnancy..." as well as the inclusion of a specific
clause on conscientious objection.
Clause 7: Substitutions of Certain Expressions
Mosaic Centre for Women
Nurses trained specifically for first trimester TOP are welcomed as increasing
the pool of professionals providing such services and reducing the need for
second trimester TOP.
Memorandum: Financial implications for state
Christian Medical Fellowship
There is a failure of the Bill to foresee significant rises in costs. If costs
do not rise, this indicates no increased demand which is certain if access to
TOP is to be made more freely available. Such an increase in costs, to a health
system already crippled with infectious diseases, is not defensible. The implication
of this could lead to costly settlements and a further drain on healthcare
budgets.
The Department of Health
Notwithstanding the expected increase of applications for TOP, which lead to
the slight increase of individual hospital budgets, major financial
implications are not expected. The costs involved should be covered by the
general budget allocated to the facilities.
5. ISSUES NOT DEALT WITH IN THE BILL BUT IN THE PRINCIPAL ACT
Section 4 of the Principal Act: Counselling.
Human Life International
Human Life International believes that the woman should be informed not only of
her rights under the law but also the risks associated with the TOPs, the
reality of the TOP procedures and the nature of the unborn child.13
Consultation of Christian Churches
Counselling should also include:
(i) The increased risk of breast cancer
following an abortion.
(ii) The risk of depression and associated symptoms after a period of years.
(Hi) The risk of difficulties in conceiving, and bearing children in the
future.
The contributing factors of the aforementioned recommended insertions to
section 4. include these difficulties:
a) that practitioners take the view that the onus of providing counselling is
on the State and not on them.
b) that 'non-mandatory' is taken to mean there is no duty on the practitioner,
whereas Parliament almost certainly intended it to mean that a woman cannot be
forced to listen to counselling;
c) and 'non-directive' opens the door even wider for the practitioner to assume
that if a woman asks for an abortion any mentions of the risks involved might
be construed as 'directive'.
In addition, the drafting of section 4 of the principal Act is therefore
considered by the Consultation of Christian Churches uncertain and equivocal because
it contradicts the regulations relating to counselling of persons receiving HIV
testing, which are extensive, specific and unambiguous.
Xandra Botha
The respondent is of the view that counselling must be provided for each and
every pregnant woman before, during and after termination.
Dr Jonathan Larsen
The respondent submits that counselling should be mandatory. He further argues
that legislation should state that a small group format may be used to impart
this information but that one on one counselling is mandatory to assist the
client apply this information personally. Full clinical records of such
interactions should be kept. Additionally, legislation should state that the
contents of such counselling must be made available in a written format to help
people who are too distressed to properly understand what is said to them and
to review it later at home. A normal practice should be that clients are given
at least a week to fully consider the information given to them before
proceeding to termination of pregnancy.
The Christian Medical Fellowship of South Africa and Henri Pickard
The submission argues that section 4 of the principal Act does not define:
·
Who should be held accountable for counselling? In its
present form, it could be either the state or the practitioner.
·
Whether 'non-mandatory' refers to the obligation on
the practitioner to provide counselling or on the patient seeking a
termination.
·
Whether 'non-directive' means that the risk of a
termination, including death, may not be mentioned in case it directs the woman
away from a decision to terminate.
·
For how long after the termination counselling should
continue.
In order to remedy the situation, the respondent suggests
that section 4 be extensively rewritten to clear up any of the present
ambiguities. The amended Act should mandate, at least, but not limited to:
·
The use of the latest scientific evidence when giving
counselling; and
·
The use of visual material, for example, flip-charts
to explain the procedure and the stage of gestational development.
Furthermore, based on published research, counselling must continue for
at least one year of post-termination due to the risks of suicide and homicide
associated with this period. Not doing so implies a lack of compassion for the
woman's plight.
Mary Decker
The respondent proposes that the Bill make counselling mandatory, and is of the
opinion that greater effort is needed to provide adequate pre- and
post-abortion counselling to women undergoing the procedure.
Anonymous
The submission argues that detailed requirements for counselling are part of
the law in many countries allowing the termination of pregnancy. It has been
possible in the National Policy on Testing for HIV to be very particular about
what constitutes adequate pre- and post-abortion and would be a significant
improvement on the Act.
Lucinda Britt
The submission suggests that section 4 be rewritten to allow a minor to have a
termination only:
·
After two counselling sessions at least seven days
apart.
·
The counselling sessions should include a visual
presentation of the termination and the gestational age of the foetus.
·
The counselling sessions should each be at least 20
minutes in duration.
·
The counselling sessions should reflect the latest
scientific knowledge on the effects of a TOP.
Alternatives Pregnancy Crisis Centre
The respondent indicates that section 4 of the principal Act indicates that the
State shall promote the provision of non-directive and non-mandatory
counselling before and after the termination of a pregnancy. The respondent
believes that this is not detailed and comprehensive, because many women are
not receiving adequate counselling. It recommends that section 4 of the principle
be amended to incorporate details on the following information:
a) A person to be held accountable for counselling.
b) Whether the term 'non-mandatory' pertains to the practitioner or patient.
c) What information regarding a termination would be 'non-directive' or even,
'directive'.
d) The period for continued counselling after a termination.
The respondent indicate that although section 5 of the Act deals with mandatory
informed consent, it is highly doubtful that a minor below the age of 16 will
be able to grasp the knowledge of immediate and long term risks involved in a
termination of pregnancy, both immediate and long term entails. They recommend
that section 5 be amended to allow consent for a termination only as follows:
a) After two counselling sessions of at least 20 minutes each and at least 7
days apart
b) Identify counselling sessions that would include clear visual presentation
of the foetus at current gestational age and detailed information about the
termination procedure.
c) Since informed consent stands on knowledge, appreciation and consent and a
minor under the age of 16 is unlikely to have sufficient appreciation, a minor
would need the permission of at least one caring adult that has an existing
relationship with the minor.
In addition, the submission appeals that the principal Act be amended to
protect minors from taking an uninformed or poorly informed decision.
Justice Alliance of South Africa
The respondent requests for an opportunity Committee to make an oral submission
to the Committee, instead of the written submission. As a result, no written
submission has been received from the respondent.
Counselling should be made mandatory by a medical practitioner or midwife or
nurse and include visual and other details of the stages of development of the
foetus, alternatives and risks involved in continuing and in terminating the
pregnancy. The current Act places no specific responsibility or responsible
person.
SAMA
Contention arises when counselling is required by law before and after the
termination of a pregnancy, when a doctor, performing an emergency TOP, is
obliged to perform counseling.
Connect Network
The counselling should be done by a person other than the person performing the
TOP. A period of at least 24 hours should pass between the counselling and the
procedure to allow time for thought. Post-TOP counselling must occur after a
set period, considering established patterns of stress, at a place other than
the place of the TOP.
Mosaic Centre for Women
Violence against women often leads to unwanted pregnancies and HCP and
counsellors must be trained to recognise the signs of abuse and refer clients
to appropriate avenues for support.
Dr JV Larson MB ChB, FRCOG & Michelle Barnard (5th year medical student)
In addition to the above, the statement of 'non-directive' in the principal Act
is uncertain as to whether the risks of TOP- including death- may not be
mentioned, in case it were to direct a woman away from her decision to
terminate. Neither is any mention made for how long after TOP counselling
should continue.
Around the world, large scientific studies are finding that homicide from risk
seeking behaviour and suicide increase drastically after TOP, especially for
very young women15. Women below the age of 16 years have had difficulty in
grasping the risks involved in TOP. especially long-term risks such as
psychological illness and risk taking behaviour. Such risks must be mentioned
in mandatory counselling .
Section 5 of the Principal Act: Consent
Justice Alliance of South Africa
Informed consent should be required and include not only the knowledge provided
by counselling to the woman, but also an appreciation of the information as it
applies to her and also her consent to each step in the procedure and its
consequences.
A minor should be made to consult with one or both parents or guardians and
receive written permission after a minimum of 7 days. If not possible, consent
must be given by a judge. This latter must be accompanied by provision for a
judicial bypass for enabling a minor or HCP to apply to a High Court Judge in
chambers with expedition and without required legal representation or court
fees.
A HCP must consult a second HCP if not satisfied that consent of a minor is
informed and repeat counselling in the presence of minor's parent of guardian.
Only a medical practitioner may perform a TOP on a woman with a mental
disability, or unconscious, with consultation from another medical practitioner
and consent from parent, guardian or curator personae.
Dr JV Larson MB ChB, FRCOG
A minor should be allowed to have a TOP only after two counselling sessions at
least 7 days apart and at least 20 minute in duration. These must include full,
visual and scientific detail. Consent must be given by at least one adult
whether relative, guardian, social worker or HCP, who themselves will not
perform the TOP. Permission other than from parents must be sought only if good
reason exists.
Graeme Birdsey and Bianca Goodison
As is the case with other surgical procedures, teenagers under the age of 18
years should get parental consent.
The Christian Medical Fellowship of South Africa
The submission argues that a decision to terminate without consultation and
adult consent is not empowering to the minor but entrenches her abuse. Around
the world, credible, scientific studies have found that the risks of
psychological damage, substance abuse, homicide, and suicide increase
dramatically after a termination of pregnancy compared to the general
population, those who had live births and those who had miscarriages. This
information needs to be clearly spelled out to the woman seeking a termination
in order for the consent to be fully informed.
Human Life International
The respondent contends that it is highly doubtful that a minor below the age
of 16 years or even 21, for that matter, will be able to grasp the knowledge of
what risks TOP entails; not only the termination itself but also the long-term
effects. It is proposed that a minor should have a termination only with
the permission of at least one adult, whether a relative or an official, such
as a judge or a hospital superintendent.
Bronwyn Lailvaux
The respondent argues that the ability of a minor to have a termination without
any parent's or guardian's knowledge or consent has medico-legal implications
in cases where the minor's health is damaged, perhaps even irreparably, and
these implications are not addressed by the principal Act.
Jenny Wilson [61], Lucinda Britt
It is proposed that a minor should have a termination only with the permission
of at least one adult, whether a relative or an official, such as a judge or a
hospital superintendent.
Doctors for Life
The principal Act and the proposed amendment fail to properly circumscribe
'informed consent'. In order to give informed consent, the woman requesting TOP
must be informed of and subjectively understand the likely complications 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 be objectively explained to the pregnant woman.
6. OTHER ISSUES
Mosaic Centre for Women
The Department of Health should support civil society financially and in
monitoring of government policies and performance in terms of TOP.
Promotion of contraception is the flip side of the coin of TOP and is an
important part of a comprehensive policy and in preventing repeat TOP.
Sanctity of life
Healthcare Christian Fellowship
The termination of life of an unborn child is regarded as equal to that of any
other living person and is against the word of God.
The declining population due to AIDS has increased morbidity and infertility to
such an extent that further decline due to increase TOP is a short-sighted
undermining of the long-term fertility of our nation.
Lesley Watson Biology Teacher, Bergvliet Western Cape and Howard Theunissen
Life begins as a single-celled zygote, and it has as much potential to become a
new organism as a 12 or 16 week foetus. Each of us started as this
single-celled zygote. TOP, available on demand, are largely to deal with the
consequences of irresponsible behaviour amongst the young. All major religions
and many traditional cultures value virginity prior to and faithfulness within
marriage. These should be promoted by government. TOP are merely the symptoms
of the cause which government should focus on, namely the moral degeneration of
society.
Birgit Ballantyne
The strongest bond between humans is that of a mother and child. The state
allowing mothers to kill their babies, supports the breakdown of the family and
thus the most fundamental trust and building blocks of the nation. Allowing
what is otherwise regarded as a criminal offence is not only evil, it also
leads to confusion in the minds of the youth from those who are supposed to
protect them.
Abused and vulnerable women must be supported in other ways than TOP, which
only further decreases their lost self-esteem in a world which values the image
the mother as a nurturer. A referendum should be held which will show that most
South African's are against abortion.
Linky de Jongh
Foetuses feel pain from early on, and it is not for us to play God and allow
them to be killed. We should promote monogamy and not safe sex or TOP.
John Ronning, North Riding
The greatest blot on the great human rights of South Africa is the violation of
the basic right to life of the unborn.
Nita van Der Merwe
The submissions argue that each individual was allowed to be born and live, and
questions how life can be taken away from an unborn child?