Volume 4, No. 4
SUMMARY BRIEF
1. Introduction
Until 1996 the Abortion and Sterilisation Act of 1975 was still in force. However in 1996 Parliament passed the Choice on Termination of Pregnancy Act, thereby repealing provisions of the old Act dealing with the termination of pregnancies.
The Sterilisation Act of 1998 deals mainly with the circumstances under which sterilisation, and in particular sterilisation of persons incapable of consenting or incompetent to consent due to mental disability, may be performed. It proposes the repealing of provisions, dealing with sterilisation, contained in the old Act of 1975.
2. The Proposed New Law
The Preamble to the Act recognises the rights of all persons to be informed of and to have access to safe, effective, affordable and acceptable methods of sterilisation regulation. It also recognises everyone’s right to bodily and psychological integrity, including the right to make decisions concerning reproduction and the right to security in and control over their bodies. To ensure that all persons, including persons with mental disabilities, are able to exercise their constitutional rights as far as possible, the Act spells the circumstances under which sterilisation, and in particular sterilisation of persons incapable of consenting or incompetent to consent due to severe mental disability, may be performed.
"Severe mental disability" is defined as a ‘range of functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self care and requiring constant aid and supervision, to severely restrained sensory and motor functioning and requiring nursing care’.
It defines ‘consent’ as agreement ‘given freely and voluntarily without any inducement’, and on condition that the person has been given a clear explanation and adequate description of the proposed procedure, the consequences and risks; that the person has an understanding that he or she may withdraw the consent at any time before the treatment; and has signed the prescribed consent form.
The Act determines, among others, that no person may be prohibited from having sterilisation performed, provided he or she is 18 years or older, is capable of consenting, and has provided such consent. No person capable of consenting may be sterilised without his or her consent.
2.1 Provisions governing persons under the age of 18 years
In the case of persons under the age of 18 years, sterilisation may only be performed if failure to do so would jeopardise the person’s life or seriously harm his or her physical health. In such instances, consent to perform the sterilisation would have to be obtained from the parent, spouse or guardian, who in turn would have to forward the request for sterilisation to the person in charge of the hospital or health facility. Upon receipt of such a request the person in charge of the hospital will have to convene a panel consisting of a psychiatrist or medical practitioner; a psychologist or social worker; and a nurse, to evaluate the request and concur that sterilisation may be performed.
2.2 Provisions governing persons incapable of consenting or incompetent to consent due to severe mental disability
Sterilisation may be performed on any person who is mentally disabled to such an extent that he or she is incapable of:
In such instances, sterilisation may be performed with the consent of a parent; a spouse; a guardian; or curator, provided the request to do so is made to the person in charge of a hospital. As in the case of persons under 18 years, the person in charge of the hospital will have to convene a panel consisting of a psychiatrist or medical practitioner; a psychologist or social worker; and a nurse to consider all the relevant information and concur that sterilisation is the preferred option. The panel must, among others, determine that the person is 18 years or older, unless the physical health of the person is threatened; and that there is no other safe and effective method of contraception except sterilisation. The person performing the sterilisation must ensure that the method of sterilisation has the least health risk to the person concerned.
The Act also stipulates that if the sterilisation is to be performed in a private health care facility, members of the panel, referred to above, may not be employees of, or have a financial interest in that facility.
3. Designation of Facilities and Record keeping
Sterilisation on persons incapable of consenting or incompetent to consent due to severe mental illness, may only be performed at a facility designated in writing for that purpose by the Member of the Executive Council (MEC). The MEC may also determine the conditions and requirements with which a facility has to comply. If such conditions and requirements are not met, the MEC may withdraw any designation after giving reasonable notice of the intended withdrawal to the person in charge of the facility in question.
The person in charge of a facility designated to perform sterilisation, must be notified of every sterilisation performed in that facility and must keep a record of every such sterilisation.
The Act also authorises the MEC to delegate to the head of a provincial health department any power conferred on him or her under this Act.
4. Conclusion
The Sterilisation Act was passed on 18 August 1998, and comes into effect on a date set by the President by proclamation in the Government Gazette.
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