SUBMISSION TO THE SOUTH AFRICAN PARLIAMENTARY NATIONAL ASSEMBLY
PORTFOLIO COMMITTEE ON HEALTH
CHOICE ON TERMINATION OF PREGNANCY AMENDMENT BILL [B72-2003]
2-4 AUGUST 2004
Reproductive rights are entrenched in the Bill of Rights, which therefore includes the right and respect to bodily integrity, which includes decisions around reproductive care. The State is committed to gender equality, as evident from the Constitution. Reproductive responsibilities are disproportionately borne by women. Women should be in control of their reproductive rights. Women should be free from violence, coercion, discrimination, intimidation and abuse when making decisions about their reproduction, as this is essential in achieving gender equality. The promotion of the provision of counselling, before and after the termination of a pregnancy, is essential, as it will assist women in making informed decisions about their reproduction, as well as provide emotional and psychological support.
In accordance with its recognition of fundamental human rights, the South African Constitution has in terms of Section 27(1)(a) entrenched a right of access to health care services, including reproductive health care services. Section 27(2) of the Constitution obliges the State ‘to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation’ of the right, amongst others, of everyone ‘to have access to health care services, including reproductive health care.’ Section 27(3) of the Constitution provides that no one ‘may be refused emergency medical treatment.’ Section 28(1)(c) of the Constitution entitles every child to a right to basic health care services.
Much of the phraseology in respect of housing rights in the Constitution (which bears very close similarity to health rights) was the subject of the Constitutional Court decision in Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (hereinafter referred to as Grootboom). In interpreting the term ‘reasonable measures’, the court in Grootboom accepted that there are a wide range of measures that can be adopted by the State to meet the requirement of reasonableness. In particular, it pointed out that in considering a requirement of reasonableness, a court "will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent." According to the court in Grootboom, the central question is whether the measures that have been adopted are in fact reasonable.
However, it did make the following observation in respect of the interpretation of ‘reasonable’:
‘It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right… If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.’
In addition, the court recognized the relevance of the right to equality to socio-economic rights such as health care rights. In Grootboom at para 23, it stated as follows:
‘There can be no doubt that human dignity, freedom and equality, the foundational values of our society, is denied to those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined in Chapter 2 of the Constitution. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential.’
Section 39 of the Constitution provides that the Bill of Rights should be interpreted in a manner which "promotes the values which underlie an open and democratic society based on human dignity, equality and freedom".
The preamble of the Constitution, speaks of the need to "heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. It invites South African to actively engage with the values and rights enshrined in the Constitution, to build a new democratic society, and to "improve the quality of life of all citizens" and to "free the potential of all persons".
This amendment Bill, will assist in improving the conditions under which termination of pregnancies occur, by prescribing conditions and requirements for such facilities, and hopefully reduce the amount of unsafe abortions, by making more facilities accessible for the termination of pregnancies. By substituting "registered midwife" with "registered nurse", will ensure an increase in the availability of human resources to perform termination of pregnancies. These amendments will go a long way in improving the quality of life of all citizens.
INTERNATIONAL STANDARDS IN RESPECT OF REPRODUCTIVE RIGHTS
SECTION 39 OF THE CONSTITUTION
S39 makes the consideration of international law mandatory in interpreting the rights in the Bill of Rights, including the right of access to health care services. International Human Rights has increasingly promoted and protected reproductive rights, as was initially recognised in the Proclamation of Teheran (1968), which pronounced the right to determine freely and responsibly the number and spacing of children, as a basic human right.
The relevance of international law was also acknowledged by Chaskalson P in S v Makwanyane and Another 1995 (3) SA 391 (CC), in the context of section 35(1) of the Interim Constitution, where he observed that both binding and non binding international law may be used as tools of interpretation. This was reiterated by the Constitutional Court in Grootboom. However, the court noted that the weight to be attached to any particular principle or rule of international law would vary. (at para 26)
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), requires all state parties to take appropriate measures to eliminate discrimination against women, and in particular, it guarantees everyone, the right to "…decide freely and responsibly on the number and spacing of their children, and to have access to the information, education and means to enable them to exercise these rights".
In 2000, the Committee on Economic, Social and Cultural Rights adopted General Comment No. 14 which provides extensive detail in respect of the content of health rights and the obligations it imposes on State parties. In particular, in paragraph 12 it notes that the right to health in all its forms and all levels contains certain inter-related and essential elements, the precise application of which will depend on the conditions prevailing in a particular State. These include: availability; accessibility, acceptability and quality health care services. These concepts as they apply to health care services have been explained by the Committee on Economic, Social and Cultural Rights as follows:
Availability: There should be an availability of functioning public health and health care facilities, goods and services as well as programmes in sufficient quantity.
Accessibility: Health facilities goods and services have to be accessible to everyone without discrimination. Accessibility has four overlapping dimensions: non-discrimination and especially access to vulnerable or marginalized sections of the population; physical accessibility particularly for women and older persons; economic accessibility (i.e. affordability) and information accessibility.
Acceptability: All health facilities goods and services must be acceptable i.e. respectful of medical ethics and culturally appropriate including sensitivity to gender and life cycle requirements.
Quality: Health facilities, goods and services must also be scientifically and medically appropriate and of good quality.
The CGE is of the opinion that this issue-specific health legislation, may to some extent seek to give effect to the aforesaid standards.
We believe that this amendment Bill will assist in providing efficient health care services in respect the termination of pregnancies, by empowering the Provincial Member of the Executive Council for Health to designate and approve facilities where the termination of pregnancy may occur, as opposed to the National Minister. We support the principle of uniformity and consistency throughout the various provinces, whereby the regulations should first be approved by the Minister.
We support Clause 1(d) which ensures that the registered nurses, has undergone the prescribed training in terms of this Act.
This submission is aimed at ensuring a constitutionally sound piece of legislation as well as one that is receptive to the health needs of women.
Suraya Williams; Parliamentary Officer; Commission on Gender Equality