TERMINATION OF PREGNANCY BILL, 1996

1. BACKGROUND/INTRODUCTION

The Termination of Pregnancy Bill was tabled in Parliament on the 17 September 1996, after approval by Cabinet on 3 July 1996. The bill allows for termination of pregnancy on demand up to 10 weeks of pregnancy and thereafter in certain circumstances. It was drafted by the Department of Health and is based on the recommendations of the Ad Hoc Select Committee on Abortion and Sterilisation.

The Ad Hoc Committee on Abortion and Sterilisation was convened in August 1994 to review the Abortion and Sterilization Act of 1975, to receive public comments on these issues, and to make recommendations on the way forward. The Committee, chaired by Dr S A Nkomo, received 452 written submissions and heard oral testimony from more than 100 persons between 9 May and 8 June 1995. On 29 June 1995, the Committee submitted its final report including specific recommendations to Parliament. The Committee recommended that the current Abortion and Sterilization Act be repealed. In addition, it stated that abortion and sterilization were different issues which should be dealt with separately.

The Ad Hoc Committee's report recommended that a new Termination of Pregnancy Act should provide for abortion at the request of the women up to 14 weeks gestational age (this is roughly 12 weeks of pregnancy), and under certain broadly specified conditions between 14 and 24 weeks. Current requirements to consult with two doctors should be dropped and a wider range of health professionals should be trained and authorised to perform abortions to expand access. Voluntary counselling should be available to all women. Partners or parental consent should not be required. Anonymous statistics on abortion should be kept centrally. Finally, health workers with conscientious/religious objections should not be forced to perform abortions, but they must refer women to other health workers who will. The policy process around abortion has taken two full years between the inception of the Ad Hoc Select Committee on Abortion and Sterilisation to the introduction of legislation.

2. CONTENT OF THE TERMINATION OF PREGNANCY BILL, 1996

2.1 Circumstances in which termination shall be done

• Until 12 weeks of gestation, (this is roughly 10 weeks of pregnancy) a medical doctor or registered nurse trained for the procedure can end a pregnancy on request of the woman.

• Between 13 weeks and 20 weeks of gestation (11-18 weeks of pregnancy), only a medical doctor after consultation with another medical doctor or registered midwife can perform the procedure. A pregnancy can only be terminated during this period;

  (1) if the doctor is of the opinion that the pregnancy would be:
    -- a risk to the woman's mental or physical health or
    -- if there is a substantial risk that the fetus would have a severe physical or mental abnormalities.

  (2) if the doctor is advised by the social worker that;
    -- the pregnancy resulted from rape or incest,
    -- the pregnancy was a result of sexual abuse, or
    -- the pregnancy would severely effect the social and economic status of the women.
  

• After 20 weeks termination is allowed only if the woman's life is in danger or in case of severe malformation of the fetus.

2.2 Counselling

The state would provide or facilitate counselling before and after termination.

2.3 Consent

Spousal consent is not required. Minors will not be forced to get consent from their parents, but should be advised by a medical practitioner or midwife to consult with their next of kin before the pregnancy is terminated.

2.4 Notification

All terminations must be recorded by the medical practitioner or registered midwife who performed the procedure. Information must remain confidential. The Director General must be notified of all terminations performed at health facilities, within one month of the termination.

2.5 Penalties

Any person guilty of the following acts will be fined or sentenced for a period not exceeding 10 years:

• Termination of pregnancy contrary to the rules set out by the Bill.

• Preventing termination or obstructing access to services for termination.

• Failing to notify the Director-General of terminations performed at health facilities.

2.6 Conscientious objection

No one will be forced by law to participate in terminating a pregnancy, but they must refer a woman who request a termination of her pregnancy.

2.7 Scale of benefits

The cost of surgical terminations will be treated in the same manner as any other surgical procedures.

3. POTENTIAL ISSUES

Although abortion has proved to be a contentious issue in South Africa, many democratically elected governments have guaranteed women access to abortion, either through constitutional protection, legislation or policy. Some potential issues around the passage of the legislation and the specific content of the bill are highlighted below.

3.1 Voting

In terms of passage of the bill, the most important issue is whether political parties maintain discipline and vote as a block or allow their members to vote according to their conscience. The bill requires a simple majority of votes for passage and the African National Congress (ANC) controls 252 seats out of 400 in the National Assembly and 60 seats out of 90 in the Senate. Thus the most important decision on this issue will be taken within the ANC whether they will consider the bill on the basis of a free vote (based on conscience) or a party vote. If the ANC votes as a block, passage of the bill would appear very likely. The Democratic and National Parties have stated that they will allow their members to vote individually.

The Reproductive Rights Alliance (a broad representative alliance comprising of 20 organisations which support the bill) recently urged the ANC to vote as a party in favour of the proposed abortion legislation because it has presented a clear policy on abortion pre- and post elections. The Alliance is of the opinion that a confused message will be sent out to citizens if no party discipline is imposed on this issue. They feel that many policy issues require moral judgement, but questions of morality are not usually reason enough to hold a free vote. The Cape Times editorial page of 5 July 1996 states that because the matter impinges so directly on religious beliefs and convictions, it cannot be regarded in the same light as other issues determined by legislation. For this reason, the ruling ANC should let personal conscience prevail and allow its members a free vote when the bill is debated in Parliament.

3.2 Referral

The Bill would make it compulsory for practitioners, who have a conscientious objection to abortion, to refer women to another health worker who will perform the procedure. There are widely divergent opinions on this issue. These differences must be addressed during Parliament's consideration of the bill.

• Human rights activists take issue with conscientious objection because medical practitioners are obliged to perform other operations and question why this one should be different.

They fear that providers may abuse this clause.

• Medical practitioners who have conscientious objections, do not want to be forced by law to refer women or participate in some aspects of the treatment. Nurses at one clinic in Gauteng interviewed by The Sunday Times of 9 July 1996 said that they did not want to participate in the procedure or the referral of patients. The Cape Times editorial of 5 July 1996 states that 500 doctors have already given notice that they will neither perform abortions nor refer cases to doctors who will.

3.3 Consultation

The clause on consultation states that the consent of a woman's husband or partner is not required for termination of pregnancy. Different views also exist on this issue.

• The Women's Health Project, the Reproductive Rights Alliance, and the National Progressive Primary Health Care Network (NPPHCN) hold the view that women should be able to exercise their right to make decisions about their bodies and their lives, the number of children they want, and whether they want children at all without having to consult their partners. In good relationships, consultation will take place.

• A Medical Research Council study conducted in 1994 estimated that 44 686 women are being admitted to hospitals with incomplete abortions every year. One reason behind the high number of incomplete abortion may be the fear of the reaction of women's male partners to the pregnancy.

• In other countries like South Africa, laws that have attempted to introduce partner consent have been struck down as unconstitutional.

• Public health educators generally encourage men to participate in decisions regarding reproductive health, but in the Termination of Pregnancy Bill men are excluded from the consultation process. Some men worry that no provision is made in the Bill for situations where a partner may want to raise the child.

4. WAY FORWARD

The Bill has been introduced in Parliament and a tentative time frame for consideration has been drafted. A notice will be published in the Government Gazette on the 27 September. The National Assembly Portfolio Committee on Health and the Senate Select Committee on Health, Welfare and Population Development and Home Affairs will be responsible for reviewing the legislation, consulting with the public, and offering any amendments. The cut off date for applications to give oral evidence will be 07 October 1996. Committee hearings will begin during the week of the 14 October 1996 and the cut off date for written submissions is 16 October 1996.

All Committee hearings should be finished by the 22 October 1996. The National Assembly 2nd reading debate is schedule for the 29 October 1996 and the Senate 2nd Reading Debate on 5 November 1996. Final agreement in the National Assembly and the Senate has to be reached by the 6-7 November 1996. Parliament is scheduled to recess for the year on 08 November 1996. This bill will need to be passed by both Houses before they adjourn for the year if it has to become law in 1996.

PHILAW will continue to monitor the progress of the Termination of Pregnancy Bill and draft periodic updates. If you want more information, contact PHILAW at (021) 696 4873 (PH) or if you want to express your views, please contact the National Assembly Portfolio Committee on Health at (021) 403 3129 (PH) (021) 403 3177 (FAX).

PHILAW is supported by grants from the Henry J. Kaiser Family Foundation and the Health Systems Trust.

Last updated: 14/12/98
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