Date added : 2 April 1997
A LEGISLATIVE UPDATE ON
CHOICE ON TERMINATION OF PREGNANCY ACT, 1996
Introduction
The Choice on Termination of Pregnancy Act (Act 92 of 1996) came into effect as from the 1 February 1997. The amended Choice on Termination of Pregnancy Bill was passed by the National Assembly on the 29 October 1996 and the Senate on 5 November 1996. The national policy process around abortion has taken two full years between the inception of the Ad Hoc Select Committee on Abortion and Sterilisation and the final passage of legislation by Parliament.
The Ad Hoc Committee on Abortion and Sterilisation was convened in August 1994 to review the Abortion and Sterilisation 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 The Committee recommended that the current Abortion and Sterilisation Act be repealed. In addition, it stated that abortion and sterilisation were different issues which should be dealt with separately.
The Choice on Termination of Pregnancy Bill was tabled in Parliament on 17 September 1996, after approval by Cabinet on 3 July 1996. The National Assembly Portfolio Committee on Health and the Senate Select Committee on Health held joint hearings on 14, 15, 16 October 1996. These hearings gave the public an opportunity to comment on the bill. A range of different organisations and individuals gave oral testimonies and a large number of written submissions were received by the Committee. Based on these submissions, the Committees made several changes to the original bill introduced by the Department of Health.
Content of the new Act
- 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 the request of the woman.
- Between 13 weeks and 20 weeks of gestation (11-18 weeks of pregnancy) only a medical doctor, after consultation with the woman, can perform the procedure. A pregnancy can only be terminated during this period if the doctor is of the opinion that:
- there is a risk to the woman's mental or physical health;
- there is a substantial risk that the fetus would have a severe physical or mental abnormalities;
- the pregnancy resulted from rape or incest; or
- the pregnancy would severely affect the social and economic status of the woman.
- After 20 weeks of gestation, termination is allowed only if the woman's life is in danger or in case of severe malformation of the fetus.
The state shall promote the provision of non-mandatory and non-directive counselling before and after termination. 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.
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.
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; or
- failing to notify the Director-General of terminations performed at health facilities.
Amendments to the Bill
A number of changes were made to the Choice on Termination of Pregnancy Bill during consideration by Parliament. These changes were both substantive and technical in nature.
The word "carnal" in the earlier draft of the Bill was changed to "sexual" because more people understand the latter term. The clause, requiring the advice of a social worker to terminate a pregnancy between 13 and 20 weeks was dropped because it would have effectively limited access to termination services for many rural and peri-urban women. The current reality is that there are no social workers in many communities. Parliamentarians felt that this situation should not limit a woman's choices.
In the original bill, the scale of benefits for termination services was deemed to be equal to that of other surgical procedures. After further reflection, this clause was removed because the scale of benefits is more appropriately addressed through Departmental regulations rather than an act of Parliament.
The provisions for counselling in the original bill were amended to allow the Department of Health to work with the many groups, both pro-life and pro-choice, who offered their services during the public hearings. Counselling will be available before and after termination, but it will not be mandatory or directive. This change was made to accommodate those women who do not want counselling.
Finally, the conscientious objection clause has been removed. Health providers will not be obligated to perform this procedure or refer a woman to another provider. The motivation behind this change was to protect the Constitutional right of health providers to the freedom of conscience. Practically, it should prevent certain health workers who do perform terminations from being labelled as "abortionists" by their colleagues who object.
Implementation
The National Directorate of Maternal, Child and Women's Health (MCWH) is responsible for the implementation of the Act and to provide the necessary support related to implementation issues. The directorate is currently developing broad guidelines on the termination of pregnancy for South Africa. They plan to involve all stakeholders in the planning and implementation process. As a first step to involve stakeholders, the Act will be translated into all eleven major languages of the country.
The National MCWH Directorate is also reviewing a comprehensive training of trainers (TOT) programme to carry this process forward in the provinces. Provinces are expected to identify services and draw up a detailed plan on who will be trained, where they will be trained, and when they will receive training. In the future once these plans have been fully implemented, it is envisaged that terminations will be performed at health centres.
Facilities for surgical termination of pregnancy
According to the powers delegated in the Constitution, the provincial departments of health will be responsible for actually providing termination of pregnancy services. The Minister of Health has designated in each province public health institutions where surgical terminations can be performed. Surgical terminations can only take place at public health facilities and private health facilities if they meet the following criteria:
-- 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 facilities;
-- access to appropriate transport should the need arise requiring emergency transfer;
-- facilities and equipment for clinical observation and access to inpatient facilities;
-- appropriate infection control measures;
-- access to safe waste disposal infrastructure; and
-- telephonic means of communication.
Overview of Termination of Pregnancy Procedure
- A woman comes to an accredited public health facility from the list. (See appendix one)
- A health worker determines the pregnancy and gestation age of the fetus
- before 12 weeks gestation age, it is the woman's choice to terminate or not if she meets the criteria
- 13 up to 20 weeks gestation age consultation with a medical doctor is required.
- The medical doctor determines if she is eligible for Termination of Pregnancy
- the reality is that most women present after 20 weeks gestation age.
- Counselling on options including family planning is provided where such service is available.
- If she decides to terminate an appointment is set
- She receives a suppository (misal postil) to induce the termination
- She then returns to the hospital for vacuum procedure to complete the termination, when she begins to bleed
- The woman is discharged after the procedure.
- In some instances the process might not be completed on first presentation. It may take several days to complete.
- The termination is free of charge at accredited public facilities.
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