The Women’s Legal Centre (WLC) welcomes the introduction of the Choice on Termination of Pregnancy Amendment Act (the Amendment Act) in the Portfolio Committee for Health. The WLC is a law centre that focuses on women’s rights and gender equality and has conducted extensive litigation and advocacy concerning the constitutionally enshrined rights to access to health care and reproductive rights including the right to termination of pregnancy.

Delegation of power to the Provinces

The Amendment Act came into effect in February 2005. It amends the Choice on Termination of Pregnancy Act (the Act). The Act empowers Provincial MEC’s to designate health facilities where a termination may take place, this function was previously exercised by the Minister of Health. It also confers many of the powers previously exercised by the Minister on Provincial MEC’s. This will improve access for women seeking termination of pregnancy by speeding up the designation process. It will also improve service delivery by increasing the pool of appropriately trained workers who can provide termination in the first trimester of pregnancy. One of the problems South African women face, especially in the rural areas, is that there are insufficient trained health care providers authorised to offer this service.

Designation of facilities:

The other significant amendment is in respect of the facility where a termination is performed. Under section 3 of the Choice Act, surgical termination of pregnancy must be performed at a designated facility that complies with certain requirements. The effect of section 3 of the Amendment Act is to extend this requirement to medical terminations, requiring that both surgical and medical terminations of pregnancy must be performed at a designated facility that complies with such requirements.

The Women's Legal Centre submits that medical and surgical terminations of pregnancy are different procedures and as they are not performed in the same way it is not appropriate to make them subject to the same requirements. The requirements for a facility to be designated for a surgical termination to be performed safely are not necessarily applicable in the case of a facility that conducts only medical terminations. Imposing the same requirements for facilities that perform medical terminations as for facilities that perform surgical terminations will limit access to medical terminations of pregnancy, as the facilities that do only medical terminations may not meet the more onerous requirements.

The WLC is concerned that this approach will limit access to the termination of pregnancy and undermine the constitutional right of women to access terminations by decreasing the number of facilities that can provide the service. We are concerned that section 3 of the Amendment Act which stipulates that a facility must meet certain requirements such as “give access to an operating theatre, have appropriate surgical equipment, in patient facilities” in order to perform medical terminations will unduly limit access to medical terminations of pregnancy where these are not required. This will impact on women in the rural arrears, where facilities are under resourced, who will then not have access to medical abortion services. Parliament needs to be sensitive to the need to avoid a remedy that on the face of it would provide regulation for both medical and surgical terminations, but would do so in a manner that in its context and application would be calculated to reproduce new forms of marginalisation for women accessing termination of pregnancy, especially in the rural arrears.

The WLC is thus not of the view that medical abortions should remain unregulated but rather, proposes that the difference in procedures be taken into account and the manner in which the procedures are regulated should focus on striking a balance between improving access and protecting women’s health.

Recommendation:

Based on the above the WLC proposes the following:

· The definition of termination of pregnancy is deleted as it is in the Amendment Act and replaced with the one in the Choice Act or,

· if the definition remains in the Amendment Act it differentiates between medical and surgical terminations of pregnancy .

LEGAL POSITION OF MEDICAL TERMINATION IN OTHER COUNTRIES

• Research on the international law has been conducted by the Centre and will be made available on request. The research shows how the issue of designation for medical terminations is dealt with in other countries.