COMMUNITY LAW CENTRE
The South African Constitution guarantees all women the right to make decisions concerning reproduction. In addition, all women have the right of access to reproductive health care services. The Choice on Termination of Pregnancy Act 92 of 1996 represents one of the most significant steps taken by the South African government to bring these rights within practical reach.
The introduction of the Act means that all women, irrespective of race, age, geographical location or socio-economic status can access a safe and legal termination of pregnancy. The Act also places an obligation on the State to provide safe conditions under which the right to exercise reproductive choice can be enjoyed without fear or harm.
However, it is important to assess the degree to which the Act has in practice liberalised termination of pregnancy. The number of women accessing termination services is not in itself a sufficient indicator of the efficiency and effectiveness of the Act. Due to a lack of access to termination services, many South African women still are not in a position to fully exercise their right to reproductive choice (despite the existence of this legislation). This ultimately translates into a limitation of these women’s right to equality and their ability to fully enjoy all rights and freedoms guaranteed in the Bill of Rights.
In this submission, we examine the nature and extent of the state’s duties to ensure access to termination of pregnancy services as contemplated in the Act, with specific reference to the allocation of resources to ensure that appropriate facilities are available. We first look at the criteria for designating a hospital or clinic as a facility where termination services may be offered, and examine the discrepancy between facilities that have been designated and those that are actually providing services. The nature of services offered at ‘on line’ facilities are also looked at. We then examine the distribution of designated facilities to establish whether this represents an additional limitation of the right of access to services. Finally, the question of allocation of resources on provincial level is addressed, and recommendations to enhance financial accountability and future monitoring of the Act are put forward for consideration by the Committee.
1. REPRODUCTIVE AUTONOMY AND THE SOUTH AFRICAN CONSTITUTION
The right to reproductive autonomy consists of a ‘bundle of rights’, including equality, privacy, human dignity, life, freedom and security of the person, freedom of religion and health. These rights collectively are fundamental to a woman’s full participation in society and affects the way she realises her full potential in society as an equal citizen.
The right to reproductive autonomy has for the first time in South African history been granted constitutional protection. Section 12 of the South African Constitution secures freedom and security of the person, including the right to ‘bodily and psychological integrity’ which specifically includes the right to ‘make decisions concerning reproduction’. This freedom encompasses a wide range of issues concerning reproduction, ranging from decisions on whether to use birth control, whether to terminate a pregnancy, or how a pregnancy should be delivered. Section 12(2)(a) means that women should be able to make these kinds of decisions without any interference by the state or other parties, such as for instance a spouse or partner. Furthermore, the right can only be optimally exercised in an environment where society provides for the necessary resources and infrastructure to make these decisions.
Section 27(1)(a) guarantees every person the right of access to health care services, including reproductive health care. This section is of extreme importance in the context of termination of pregnancy, since it provides the framework within which women can exercise their right to reproductive autonomy. It is not enough to recognise that women have a right to make decisions regarding their pregnancy: once they have made a decision to terminate a pregnancy, they should also be able to access safe and legal termination services. We argue that without real access to adequate termination services, the right of choice would be utterly meaningless.
2. STATE DUTIES TO ENSURE WOMEN'S RIGHT TO REPRODUCTIVE AUTONOMY
The Choice on Termination of Pregnancy Act not only recognizes women’s right to reproductive choice, but also aims to give effect to their right to access to reproductive health. It states that all persons have the right to ‘[h]ave access to safe, effective, affordable and acceptable methods of fertility regulation of their choice, and that women have the right of access to appropriate health care services to ensure safe pregnancy and childbirth.’
The reliance on the notion of ‘access’ places an important qualifier on the way in which these rights will be realized. Instead of placing a demand on a state to ensure that every citizen enjoys good health or to provide free health care for every person, it merely places an obligation on the state to create an enabling environment so as to ensure that every individual can gain access to health services through their own efforts.
The question which therefore arises is where the boundaries of the state's responsibilities lie. To put it differently: how much do we expect from the South African state in terms of ensuring that the Choice on Termination of Pregnancy Act 'works'?
In order to answer some of the questions regarding the state's duties, section 27(1)(a) should firstly be read in conjunction with section 7(2) of the Constitution, which enjoins the State to 'respect, protect, promote and fulfil' the rights in the Bill of Rights. This means that it is not sufficient for the state to refrain from violation of the right (respecting the right to access to reproductive health care services), but that additional duties are also imposed on the state.
The obligation to protect the right of access to reproductive health care services requires that the state must protect an individual from any interference on the exercise of the right by other individuals or groups.
The obligation to promote and fulfil the right of access to reproductive health care brings the state’s obligation into the realm of positive fulfilment. The state needs to take positive measures, legislative and other, to ensure that access is gained to reproductive health care. There needs to be an effort on the side of the state to ensure that this right is realized. It would mean, for example, that the state has an obligation to remove barriers to safe termination of pregnancies by firstly repealing restrictive legislation and replacing it with enabling measures, including legislative mechanisms for accessing legal terminations. These mechanisms must be underscored by adequate recourse allocation to ensure their implementation. International examples such as India and Bangladesh show that lifting restrictions on abortion is of limited use in the context of a shortage of facilities. In Ghana, where the abortion law was liberalised, and in Togo, where legal restrictions were completely repealed, little has changed because the necessary facilities are lacking.
However, it is a harsh reality is that such positive obligations may place heavy demands on the coffers of the state. Hence section 27(2) of the Constitution, which imposes a specific duty on the state, is qualified as follows:
‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.’
The phrase ‘to the maximum of its available resources’ is also used in international human rights documents. At first glance it may seem as if the terminology ‘within its available resources’ and ‘progressive realisation’ may provide the state with an opportunity to evade its constitutional responsibilities. However, the UN Committee on Economic and Social Rights has interpreted the phrase ‘progressive realisation’ to mean an obligation on the state to:
‘[m]ove as effectively and expeditiously as possible to securing the ultimate goal of providing health care services to everyone.’
The ‘available resources’ qualification acknowledges that very few countries have the necessary resources to meet their social obligations in full, but this does not, however, diminish the states’ obligations. The issue will then be whether there has been a failure to utilise the maximum available resources and whether this can be justified on policy grounds.
De Vos deals with progressive realisation of socio-economic rights by stating that the fact that an obligation may be realised progressively does not mean that the state postpone its obligations to some distant unspecified time in the future. This provision should not in any circumstances be interpreted as implying that the state has the right to defer efforts to ensure full realisation indefinitely. Therefore, the state must demonstrate that it has done its utmost within the constraints of its available resources to realise the rights protected. It is important to note that the obligation to ensure progressive realisation exists independently of an increase in resources.
This means that regardless of constraints on resources, the state will have to demonstrate that it is taking steps to realise the rights in question progressively. In the absence of increased resources this would mean that what is required is at least the effective use of existing resources.
3. LIMITATION OF THE RIGHT OF ACCESS TO REPRODUCTIVE HEALTH CARE SERVICES
If one looks at the right to make decisions regarding reproduction in the United States and Germany, it is significant that it is primarily within the realm of the social and economic dimensions of women’s right to reproductive autonomy where the right has been eroded.
Since the groundbreaking Supreme Court decision in Roe v Wade, several attacks have been launched on women’s right to choose termination of pregnancy, mostly in the form of legislation aimed at circumscribing the right to privacy that forms the basis for reproductive choice in the US. The biggest inroads, however, were made in area of women’s right to access to reproductive health care. In Beal v Doe and Maher v Roe the court upheld Medicaid statutes denying financial assistance for abortions that were not deemed medically necessary. It was found that these statutes did not intrude on the right to privacy since they did not place an obstacle in the way of the right to choose. Similarly, in Webster v Reproductive Health Services, the court upheld a Missouri abortion statute that prohibited abortions in public facilities or by public employees, except when necessary to save the mother’s life.
The effect of these decisions is to effectively restrict women’s access to reproductive health care. They furthermore perpetuate the already intolerable position of the most vulnerable women in western society, namely poor and minority women. Their poverty and their dependence on government funding may lead to lack of control over the reproductive dimension of their lives. A poor woman may choose to terminate her pregnancy because of the fact that childbirth will have an impact on her economic, social or mental survival. If the government, however, is prepared to pay for the childbirth, but not for the abortion, she has no real choice. By upholding a policy that favours childbirth over abortion, the court has permitted the government to use financial coercion to influence women’s reproductive decisions.
In Germany women’s right to reproductive autonomy were encumbered in much the same way, albeit more subtly. After the unification of East and West Germany, the German parliament adopted new abortion legislation in an attempt to bring in line different policies that applied in East and West Germany. Shortly after the bill was approved members of parliament and the state of Bavaria filed suit to invalidate the new legislation on the basis that it violated the right to life of the unborn foetus. The Constitutional Court held that the state has a duty to protect life from the moment of conception and that allowing the woman to choose to have an abortion during the first 12 weeks of pregnancy infringes the constitutional right to life of the unborn child. The court, however, also held that if a woman received proper counselling according to the guidelines laid down by the court, neither she nor the physician performing the abortion would be subject to prosecution. Non-therapeutic abortions would, in other words, be unlawful but not punishable. Since these abortions are unlawful, they cannot be performed in state facilities or paid for with health insurance. The court furthermore stated that indigent women would not be precluded from obtaining an abortion since they could receive money from the social welfare fund to recover costs.
At first glance, the decision by the Federal Constitutional Court seemingly struck a compromise by allowing women non-punishable abortions whilst at the same time upholding the right to life of the foetus. In the same breath, though, it severely restricted women’s access to reproductive health care and to social security. Poor women can recover the costs of an abortion from social welfare, provided they have resources to pay for the termination. Those women that are not on welfare lists but still have a scarcity of resources, as well as middle-income women, are being punished for the decision to terminate their pregnancies since their access to state facilities and health insurance is precluded.
These developments emphasise the importance of intensive scrutiny of the ways in which the South African legislation has been implemented in order to ensure that the aims of the Act are not ultimately frustrated by means of economic or financial restraints.
The Act permits a termination in the following circumstances:
Upon the request of the mother during the first 12 weeks of the gestation period of her pregnancy;
From the 13th up to and including the 20th week of the gestation period of the pregnancy if a medical practitioner, after consultation with the mother, is of the opinion that:
(i) the continued pregnancy would pose a risk of injury to the mother's physical or mental health; or
(ii) there exists a substantial risk that the unborn child would suffer from severe physical or mental abnormality; or
(iii) the pregnancy resulted from rape or incest; or
(iv) the continued pregnancy would significantly affect the social or economic circumstances of the mother.
After the 20th week of the gestation period, if a medical practitioner, after consultation with another medical practitioner or a registered midwife, is of the opinion that the continued pregnancy -
(i) would endanger the mother's life; or
(ii) would result in a severe malformation of the unborn child; or
(iii) would pose a risk of injury to the unborn child.
Section 3, which directly impacts on the concept of access to termination services, reads as follows:
3 Place where surgical termination of pregnancy may take place
(1) The surgical termination of a pregnancy may take place only at a facility designated by the Minister by notice in the Gazette for that purpose under subsection (2).
From the above it is clear that the question of whether or not women will have access to termination services at a specific facility is inextricably linked to the determination of such a facility as 'designated'. Section 3 is therefore one of the pivotal provisions of the Act: the notion of 'designated facilities' provides the gateway to access to termination services.
2. CRITERIA USED TO DESIGNATE FACILITIES
In terms of the Act, the Minister of Health may designate facilities subject to such conditions and requirements as are considered necessary for achieving the objects of the Act. These requirements, which both public and private facilities must meet in order to be ‘designated’, include the following:
Access to medical and nursing staff;
Access to an operating theatre;
Appropriate surgical equipment;
Drugs for intravenous and intramuscular injection;
Emergency resuscitation equipment and access to emergency referral centre or facility;
Access to appropriate transport should the need arise for emergency transfer;
Facilities and equipment for clinical observation and access to in-patient facilities;
Appropriate infection control measures;
Access to safe waste disposal infrastructure; and
Telephonic means of communication.
The term 'access' as used in this context is defined to mean 'access to resources without these necessarily having to be on site at a facility'.
It is not entirely clear how this definition should be interpreted. In its broadest sense, the definition implies that a facility would qualify for designation even if certain resources, eg emergency transport, are not located at the actual site. This means, for example, that a community health centre would ‘qualify’ for designation even if it does not have its own transport for emergency purposes, as long as arrangements to have access to such transport can be made.
It is clear from this definition of access, read with the criteria for designation, that the listed facilities must be present (or at least accessible) at a particular hospital or clinic before designation is possible. This has the important implication that a certain level of expenditure or reallocation of resources is required before designation can be considered. However, once a facility has been designated (and therefore found to be compliant with the stated requirements), one can assume that the necessary resources are in place and that resource constraints should not be an obstacle preventing a designated facility from providing termination services. As discussed below, practical experience has shown that this is not the case. Resource constraints are frequently cited as one of the reasons for failure to provide services at designated facilities. In our opinion, this phenomenon has one of two implications:
There is also an additional question that is currently left open. What are the consequences where a hospital does not meet the criteria as set out above? Does this mean that the facility in question will never become a designated facility? Is there any duty on specific hospitals, provincial health structures or national government to put structures in place in order to ensure the ‘progressive realisation’ of the right of access to services? The Act is silent on this and there appears to be no such positive duty on individual facilities or the Department of Health to ensure that facilities put the necessary structures in place.
D. CURRENT STATUS OF DESIGNATED FACILITIES
The Choice on Termination of Pregnancy Act came into effect on Saturday 1 February 1997, and on Tuesday 4 February 1997 the Minister of Health published a list of hospitals designated to offer termination services. Caution was expressed as to whether services would immediately be available:
‘... lack of resources and resistance among staff will prevent many designated units from immediately offering the service. The number of designated hospitals in some provinces is also limited...’
A comparison of designated public health facilities to public facilities that are ‘on line’ (i.e. providing termination services) reflects a disproportionate access to termination of pregnancy services across provinces, as well as a disturbing discrepancy between designated and ‘on line’ facilities.
In KwaZulu-Natal only 12,5% of designated facilities are providing services. However, in the Free State (which is largely rural) 69% of facilities are online. Despite Gauteng Province providing the highest number of terminations of pregnancy, only 30% of designated facilities in the province render the services. In the Western Province of the 59 designated facilities only 38 are providing the service.
This can be illustrated as follows:
Number of designated and ‘on line’ facilities
Various reasons have been listed for the discrepancy between the number of designated facilities and ‘on line’ facilities:
Lack of staff in general;
Lack of physical space or beds;
Lack of finances;
Overburdened primary health care services;
Conscientious objections (from staff and communities);
No medical back-up for midwives who are willing to do termination of pregnancies.
The significant question is what, if anything, has happened at these hospitals from the period from February 1997 to December 1999 to ensure that the designated facilities can move to the provision of services. In this regard, it is important to note that since November 1997, no additional public health facilities have been designated - however, 28 additional private facilities were designated.
An additional concern is the level of services at ‘on line’ facilities. The following examples illustrate this:
At Empangeni Hospital in Kwazulu-Natal the provision of termination services was up until September 1997 largely dependent on one doctor and his instruments. Initially management at the hospital felt that terminations would be done on a Friday when a gynaecologist was available in theatre should an emergency arise. However, theatre staff indicated they were not prepared to avail themselves. As a result, one doctor provided the service on a daily basis in an unused room using his own instruments and equipment. Whilst he was working at the hospital, many women were therefore able to access a safe legal termination. When he left, women in the area lost this immediate access. Thus, despite being a designated facility, the hospital was not in a position to provide the service to women.
The Rob Ferreira Hospital in Mpumalanga appeared to be the only hospital (as at September 1997) servicing the entire Mpumalanga Lowveld Region. The hospital had to absorb the demand for services in the region, resulting in waiting lists being drawn up. By and large moral grounds were cited as the main reason for other designated facilities in the area not being on line, but the issue appears to be more complex and pertains to an extension of workload (i.e. staff constraints) as well.
In the Western Cape Province George, Oudtshoorn, Eben Donges and Caledon hospitals have stopped providing the service despite having being designated. The reason has been stated to be because a small minority of the staff were willing to provide the service and when they leave the facility the services are suspended until such time as another willing individual can be found.
Vryburg Hospital in the North-West Province was unable to render second trimester services due to capacity constraints (as at September 1997). As a result these women were turned away. The main problems cited were a shortage of staff, inadequate equipment and facilities. In some instances one MVA (Manual Vacuum Aspiration) was available and at another point only 5 out of 10 suction equipment pieces were functional. Prior to September 1997 the service had been functional albeit at a very minimal level. However, by September due to excessive shortage of staff the service had to stop.
It is clear from these examples that even where facilities are listed as being ‘on line’, women don’t necessarily have access to termination services at such facilities. However, Vryburg Hospital has consistently remained on the list of hospitals which are ‘on line’ in spite of the fact that the hospital has been under enormous pressure to provide services and has had to turn women away. In the case of Empangeni Hospital, the lack of instrumentation and equipment in itself begs the question how the hospital became a designated facility in the first place.
The experience at Empangeni Hospital is also instructive in the sense that the hospital felt that the onus was upon the Department of Health to take steps to ensure operationalising the facility. Since the legislation does not place a duty on the Department of Health in this regard there is clearly a gap in the legislation in its current form.
A further question which has a direct impact on the extent of women’s access to termination services is the distribution of designated facilities in terms of rural and urban areas, as well as the level at which services are provided. Access for specific groups, particularly women from rural areas and teenagers, continues to be a problem. This is evident from the information that users of termination services are mainly more educated, have to travel long distances and use private referral to have an termination .
The clear discrepancy between ‘on line’ facilities in urban and rural areas can be illustrated with reference to the Western Cape Province. In the Metropole Region of the 13 designated facilities 9 are online. Of the four that are not providing services, three are in the process of coming ‘on line and one (in Malmesbury) is not ‘on line’. In the West Coast Region, of the eight designated facilities only five are ‘on line’, whilst in the Boland/Overberg Region of the eleven designated facilities only two are ‘on line’. In the Karoo Region only two out of eight designated facilities are providing services.
Number of designated and online facilities in the Western Cape
Facilities ‘on line’
Cape Metropole Region
West Coast Region
Boland/ Overberg Region
Southern Cape/ Karoo Region
By comparison, of the twenty-seven designated private facilities twenty-one out of twenty-seven are ‘on line’. The six hospitals not ’on line’ are in Brackenfell, Mossel Bay, Worcester, Lambrecht, Vredenburg and Claremont. Thus even in the private sector there is an urban bias.
Service provision at a primary health care level may be a key strategy in facilitating access to services. In addition to primary health care facilities being more accessible than secondary health care facilities, the costs of a first trimester termination offered at a primary health care level are significantly lower than at a secondary level. However, by December 1999 there were only four primary health care facilities on line nationally.
In the public sector, where the majority of terminations take place, the service is free for those without means. The message the government appears to be sending is that cost is no longer a deterrent. However, it must be conceded that comprehensive implementation of the Choice on Termination of Pregnancy Act implies considerable state expenditure.
The responsibility for opening facilities to perform termination services has been assigned to the nine provincial departments of health. However, as illustrated above, not all departments are succeeding in putting in place the infrastructure to perform terminations. The reasons for this have to be analysed carefully. Whilst the co-operation of medical and nursing staff is crucial to the success of the Act, it is not the only possible impediment. The allocation of resources needs to be examined in some detail, expressly where this is cited as the reason for failure to provide services at a particular facility.
Due to the fact that resources earmarked for termination services are not specified in provincial health budgets, it is extremely difficult to establish the extent of resources allocated for these purposes on provincial level. The fact that these services are in practice being provided does not imply specific budgetary allocation.
It also appears that the management structures of individual hospitals are given broad powers in terms of allocation of funding. This in theory leaves room for the possibility that at hospitals with conservative management, the resources that are required to ensure that the hospital may qualify for designation, (or where the hospital has already been designated, can actually provide services) may just never be allocated.
Scrutiny of budget and resource allocation becomes more complicated where the designation of primary health care facilities is in question, since such allocation appears to rest with local government (as opposed to provincial) structures.
A study completed after the introduction of the Choice on Termination of Pregnancy Act identified four variables that affect the cost of terminations, namely gestational age; level of care; length of inpatient stay and additional use of drugs to induce termination . Based on these variables, it is possible to calculate the cost of termination services at primary, secondary and tertiary care level for both first and second trimester terminations.
These statistics can also be used alongside the provincial figures as to the number of terminations performed on a monthly/annual basis at the various hospitals. Taking the number of women requesting terminations at the various stages of pregnancy on average and the cost on average, all designated facilities should be in a position to make representations to the Department of Health as to their required budgets in order to give effect to the Act.
At present, the lack of information on the financial aspects of the implementation of the Act makes it is difficult to draw concrete conclusions as to whether or not the South African state is complying with its duties to facilitate access to termination services. From the discussion above, the following tentative conclusions may however be drawn:
We wish to submit the following recommendations to the Committee:
The challenges confronting effective implementation of the Act have to be seen as indicators of the broader systemic barriers confronting health services in South Africa, and solutions have to be found within this existing framework. However, one should always bear in mind that one of aims of the Choice on Termination of Pregnancy Act is to benefit women whose disadvantaged socio-economic position implies that child-bearing is an additional burden rather than a conscious decision. It would be the supreme irony if it were specifically in the economic sphere where the implementation of the Act eventually falls down.