COMMENTS BY
THE SOUTH AFRICAN MEDICAL ASSOCIATION
(SAMA)
ON
THE CHOICE
ON TERMINATION OF PREGNANCY AMENDMENT BILL
(As introduced in the National Council of Provinces)(proposed section
76(2));
see Resolutions passed by National Council of Provinces, Minutes of
Proceedings of
National Council of Provinces, 8 June 2007, p 1040, and by National
Assembly,
Minutes of Proceedings of National Assembly, 14 June 2007 p 1095)
(The English text is the offıcial text of the Bill)
COMMENT BY
THE SOUTH AFRICAN MEDICAL ASSOCIATION (SAMA)
ON THE CHOICE
ON TERMINATION OF PREGNANCY AMENDMENT BILL
The South African Medical Association (“SAMA”) is the
Professional Association, cum Trade Union, for doctors in
We wish to submit the following comments on the CTOP Bill
and would urge that our considerations receive the necessary attention prior to
approval and promulgation of the envisaged amendments.
We have divided our submission into the main
challenging areas for the medical profession, and have accordingly expanded
upon those areas individually.
These main areas are basically:-
1.
The right to
life and current CTOP legislation
2.
Conscientious
objection;
3.
Qualifications
to perform terminations of pregnancy
1. THE RIGHT TO LIFE AND CURRENT CTOP LEGISLATION
The
right to life
The right
to life has always been considered to be sacrosanct and is protected in the
Bill of Rights of the SA Constitution. In this regard, the Bill of Rights
contained in the SA Constitution states that : Everyone shall have the right to
life”. Despite this, many of the rights enshrined in the Bill of Rights do
often come into conflict with each other and, therefore, it may be necessary to
strike a balance between such conflicting rights. The most apparent example is
the right of the individual to make decisions concerning reproduction, and the
right to bodily and psychological integrity. This particular right is
reinforced in the CTOP legislation that is currently in effect.
With
respect to pro-life debates relating to the CTOP Act and Bill, one of the main
issues appear to be the “right to life of a fetus”. It is SAMA’s submission
that, current common law, case law as well as the South African Constitution
does not offer a fetus either legal personality or protection. Without going
into details of the various legal debates and provisos, SAMA believes that, legally,
a fetus does not enjoy the constitutional “right to life”.
A sentient human life
Religious and social conservatives
generally believe that life (and pregnancy) begins at conception, whether
achieved through sexual intercourse or in-vitro fertilization (IVF). Most of
these religious and conservative groups define the start of a human person as
occurring at conception.
The medical definition of the start of
pregnancy is about 10 days after conception, at implantation. According to
resources relating to “Stages of Development, from Ovum & Spermatozoon to a
Newborn” (e.g. http://www.religioustolerance.org/abo_fetu.htm)
, the fetus becomes a sentient (capable of perceiving and feeling things) human
life for the first time at 26 weeks or 6 months, and also becomes conscious of
its surroundings at this stage. It is generally accepted that this is when the
fetus will be able to feel pain for the first time, though some pro-life groups
believe that a fetus may experience pain at 7 weeks.
A baby born
during the 22nd week of gestation has a 14.8 percent chance of
survival. And about half of these survivors are brain-damaged, either by lack
of oxygen (from poor initial respiration) or too much oxygen (from the
ventilator). Neonatologists predict that no baby will ever be viable before the
22nd week, because before then the lungs are not fully formed.
From the above, it should be noted that
the stage at which a fetus becomes a sentient human life is way beyond the
stages at which TOPs may be performed in SA, out of volition. In many other
countries as well, this stage is recognized and laws and medical association regulations
generally outlaw almost all abortions beyond 20 or 21 weeks gestation, unless
under exceptional circumstances.
In summary and, since the law on CTOP has
already been in existence since 1997, SAMA would support the current CTOP Act which
has been promulgated in SA. Some concerning aspects relating to the proposed
amendments to the CTOP Act, however, are elaborated on below.
2. CONSCIENTIOUS
OBJECTION
Various
human rights
One of
the major problem areas arise in the event where a Health Care Professional (HCP)
has a religious or moral conviction on the basis of which he/she refuses to
perform terminations of pregnancies. This conviction or belief on the part of
the HCP is a protected right in terms of the Freedom of Religion, Belief or
Opinion clause in the Bill of Rights.
In
considering the CTOP Bill, at issue are also the following rights as they
appear in the Bill of Rights:
Equality: This rights
states that everyone is equal before the law and enjoys equal protection before
the law. Therefore, women should enjoy equal protection and benefit of the law
by way of the CTOP Act
Freedom
and Security of the person: This right protects the bodily and psychological
integrity of women, which includes the right to make decisions concerning
reproduction and to security and control over their body. Once again, this
re-affirms a women’s right to a CTOP
Freedom
of Religion, Belief and Opinion: This rights protects women in making decisions
on TOPs and it also protects the conscience of HCPs not to perform a TOP
Access
to Information: Another aspect to be considered is the right of access to information
where the female individual has the right to receive all relevant information
in respect of the TOP. This again can come into conflict with the right of a doctor
who holds certain beliefs or convictions and does not wish to encourage or
promote terminations of pregnancy.
Other
relevant rights, include the rights to Human Dignity, Freedom of Expression,
The right to Health, etc.
Limitation
of Rights
Despite
the recognition of all the above rights, it should be noted that no right is
absolute. Therefore, in light of the various conflicting rights, a determination
would have to be made as to which right would enjoy preference.
We are
assisted in this dilemma by the Limitation of Rights clause in the Bill of
Rights (section 36) which permits rights contained in the Bill of Rights to be
limited in certain circumstances and taking certain factors into account.
Without elaborating on the process contained in this section, it can be said
that the right of freedom of religion, belief and opinion has, to a large
extent, 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.
Should
doctors be allowed to object to perform TOPs on ‘conscience’
SAMA
supports, basically, the right of doctors to exercise their right to
conscientious objection, as provided for in the right to “Freedom of Religion,
Belief and Opinion”. However, one needs to differentiate between various
instances when a doctor may exercise such rights. The following highlights some
of the moot areas on the matter.
Tacit
Recognition of Conscientious Objection in the CTOP
Whilst
the CTOP Act and Amendment Bill does not impose an explicit obligation on
doctors to perform terminations of pregnancies, the Act requires a doctor to
advise the person requesting the TOP of her rights under the Act (Section 6 of
the CTOP Act). It does not place an obligation on the doctor to refer that
person to a suitable person to perform the termination of pregnancy. The
conclusion can be drawn that, although not explicitly stated, the Act appears
to recognize the right to conscientious objection.
The question,
however, is whether a person’s right to conscience may be deemed to be
infringed if he/she is compelled to inform a women seeking a TOP of her rights
under the CTOP Act. Similar contentious areas arise at Section 4 of the CTOP
Act which states that “Counselling.—The
State shall promote the provision of non-mandatory and non-directive
counselling, before and after the termination of a pregnancy.” Could a doctor,
performing an emergency abortion, be obliged to perform such counseling?
In
light of the above, though it may be said that the right of the doctor who has
a conscientious objection to performing terminations of pregnancy does enjoy a
modicum of protection, this needs to be more clearly defined in the Act. This
protection should be reinforced as far as is legally possible, without
compromising the women’s rights in terms of the CTOP and/or right to emergency
treatment. Therefore it is necessary to include in the CTOP Bill, the specific
circumstances under which a Conscientious Objection may be exercised.
Interns
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 at Para 4.1.14, pg 27:
“4.1
Specific Objectives
…4.1.14
To develop an understanding of the various methods of termination of
pregnancy.”
In
addition to the above, student interns, have voluntary chosen their vocation
whilst knowing what this would or would not entail. It is a critical component
of their training that they should be adequately qualified as well as properly
trained to deal with TOPs. TOP procedures form part of the essential skills of
doctors and interns in medicine. It would be, especially, a life-saving skill
in an emergency. In such cases, interns may not refuse to provide emergency
treatment in respect of a bleeding or an emergency evacuation of the uterus. In
this regard, it should be noted that interns, like other doctors, may not
object on conscientious grounds, to performing a TOP in an emergency situation.
It is
therefore clear that any intern who refuses on conscientious ground to undergo
this portion of the required training will be prejudiced in terms of
successfully completing their internship, and inevitably their medical degree.
SAMA, therefore, supports preclusion of interns from objecting to performing
TOPs 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.
Emergency
TOPs
Also
problematic is the issue of the ethical imperative that a doctor may not refuse
treatment to a patient on conscientious grounds if the situation is an
emergency. However, in this instance the lack of choice on the part of the
doctor is occasioned by ethical principles, as well as to the constitutional
proviso at Section 27(3) which states that “No one may be refused emergency
treatment”.
There
are certain areas of concern in respect of terminations of pregnancies and
conscientious objection in relation to emergencies, namely:
Firstly,
in the event where a doctor is on duty when a patient comes in requesting a
termination of pregnancy and that doctor has a conscientious objection to
performing the procedure. We 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.
Secondly,
clarity is required on the question of when the termination of pregnancy
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?
Contract
of Employment.
It is submitted that
where an HCP applies for a job and it is not an inherent requirement of the job
to perform TOPs, then this duty may not be imposed on such HCP unilaterally,
subsequent to being employed. In the same vein, if performing TOPs is an
inherent job requirement, the prospective candidates should be made aware of
this when the employer advertises the post.
3. QUALIFICATIONS
TO PERFORM TERMINATION OF PREGNANCIES
We note
that the proposed amendment to the CTOP Act is to allow registered nurses to
perform terminations of pregnancies. Previously, the position was that only registered
midwives had the authority to do so.
It is
trite that in order to perform any medical procedure, the registered nurse must
be adequately qualified and properly trained. This principle is contained in
the HPCSA Ethical Rules and is acceptable general practice. Failure to ensure
compliance with this principle could result in members of the public being subjected
to different tiers of health care. For example in rural areas, the individual
may only have access to a health care worker who has minimal or no training and
qualifications in TOP’s. This may jeopardise the well- being of the individual
seeking the TOP, and defeat one of the primary objectives of the CTOP Act to
ensure that women have access to “safe abortions”.
It is
imperative to ensure that adequate training and proper qualifications are undertaken
any HCP (or registered nurse) can perform a termination of pregnancy, at the
various trimesters.
CONCLUSION
We trust that our
submissions and comments will assist in providing beneficial input to the proposed
amendments to the Bill. Once again we
wish to express our gratitude for the opportunity to present our comments in
this regard.
Compiled
by : -
The South African Medical Association
Date: 15
August 2007
Contact person:
Dr Aquina Thulare: Secretary-General