Dr Rosenberg presentation on Baby Savers; Children’s Amendment Bill: Motion of desirability

Meeting report

Opening remarks
The Chairperson welcomed everyone to the meeting, including Dr Whitney Rosenberg, Lecturer of the Law of Persons and Family at the University of Johannesburg (UJ), an expert in research on Baby Savers and the legislation around this initiative. After introductions, the Chairperson invited the Department to make its opening remarks.

Mr Khumbula Ndaba, Acting Deputy Director-General (DDG), greeted everyone and apologised on behalf of Ms Isabella Sekwana, Acting DDG, and Ms Brenda Sibeko, DDG, for not attending the meeting. They were both out of the country.

The Chairperson welcomed Mr Ndaba and invited Dr Rosenberg to proceed with the presentation.

Presentation on proposed legislation on the safe relinquishment of infants

Dr Rosenberg began by expressing her appreciation for the invitation to share her research with the Committee. She outlined her academic and professional credentials and how they aligned with the proposed legislation on the safe relinquishment of infants through Baby Savers. Her research, which she had presented at various conferences locally and abroad, was specifically focused on Baby Savers and Safe Haven laws.

She pointed out from the onset that despite the campaign for this legalisation, child abandonment remained a criminal offence. Therefore, the legalisation of Baby Savers sought not to legalise the abandonment of babies but aimed to prevent the act of unsafe abandonment which often resulted in death. She also explained key definitions in the proposed legalisation, like “relinquishment”. Relinquishment, unlike abandonment, referred to the safe handover of a baby. She said the legalisation of Baby Savers worked closely with prevention and early intervention services. Thus, Baby Savers was a last resort.

The Baby Savers South Africa (BSSA) organisation believed that parents had to carry out their roles and that it was not the goal of the proposed legalisation to take away this responsibility. In light of this, pregnancy counselling and other early intervention services still took precedence above the proposed legalisation. She explained that the proposed legalisation fulfilled the principles outlined in Section 28 (1) (d) of the South African Constitution, which stipulated that children had to be protected from maltreatment, neglect, abuse and degradation.

She outlined some of the life-threatening and violent ways mothers abandoned babies in South Africa. Although some survived, many died. In a study by Naeemah Abrahams and others in 2015, it was found that 5.9 million infants died before their fifth birthday in South Africa. This study found that infanticides were a significant contributor to these trends. Mothers would abandon their babies in hazardous environments which, in some instances, resulted in the death of infants. However, unwanted pregnancies were cited as the most common causes of infanticides and neonaticides. Baby Savers had therefore been introduced to avoid these casualties.

She explained that Baby Savers were boxes attached to a wall, where mothers could place their babies safely. Once the infant was placed inside this secure structure, an alarm was set off immediately. The first Baby Savers in South Africa was created by the Door of Hope Children’s Mission in 1999. Since then, there were about 40 savers in the country and an estimated 460 babies had been saved through this method.

Other countries that had adopted this system and legalised it included the United States of America (USA), Germany, Switzerland, India, China and Namibia. A point of interest was that these countries had adopted the idea of Baby Savers from South Africa, yet South Africa -- the first country to introduce this system -- had not yet legalised it.

She explained that Baby Savers were different from Baby Safe Havens. The latter referred to police and fire stations, as well as hospitals. In this system, babies were handed over to personnel in these departments. Countries like the USA and Namibia had laws that governed these Baby Safe Havens. However, in South Africa, Baby Savers were needed for immediate purposes, given the increased number of unsafe abandonment of infants. Baby Savers could be attached to the wall of a charitable organisation and the baby would be collected by staff employed by that organisation. However, if the Baby Saver was a free-standing unit or a unit at a crisis pregnancy centre, first responders were going to collect the relinquished baby. Here an alarm would be set off, thereby notifying the first responders to attend to the scene and to immediately transport the baby to safety.

Dr Rosenberg outlined some of the leading causes of child abandonment. These included poverty, gender-based violence (GBV), teenage pregnancies and rape. Her doctoral research study entitled “The Legal Regulation of Infant Abandonment in South Africa,” was based on a comparative analysis between Germany, the USA and Namibia. Through this work, she had identified the strengths and weaknesses in their systems, which provided insights into the effectiveness of Baby Savers and how South Africa could legally adopt them.

On slides 21 to 23, she presented her proposed wording of the legislation. She emphasised that if a baby showed signs of abuse during relinquishment, the mother could be prosecuted. Therefore, the objective of the legislation was to prevent the unsafe abandonment of babies which, in effect, prevented the ongoing deaths of babies through abandonment. Finally, slides 30 to 33 of the presentation had questions and recommendations for the Committee.

The Chairperson thanked Dr Rosenberg for her presentation and said the issues raised demanded the Committee’s attention. She invited Committee Members to comment on the presentation.

Discussion

Ms L van der Merwe (IFP) said Dr Rosenberg's recommendations to the Committee were especially helpful. She asked if, in her research, she had found an explanation for why Baby Savers were not yet legalised in South Africa, yet the country was among the pioneers of the initiative? Was there no understanding of the concept, or the need, for Baby Savers, or were the authorities not aware of their existence? She asked her to explain further about the age limits. What was the proposal? She also asked if children safely relinquished through Baby Savers could be reunited with their family members.

Ms L Arries (EFF) asked for clarity on Dr Rosenberg’s proposal that Baby Savers had to be in fire or police stations. In rural areas where, for instance, there were few police stations and almost an absence of fire stations, what was the recommended location of these baby Safe Havens? Further, how many Baby Savers were operating in the country, given the existing high number of abandoned infants?

Ms B Masango (DA) commended Dr Rosenberg for her work. However, in the previous meeting, the issue of Baby Savers had been discussed and was described as a reactionary approach and not a proactive one. She asked Dr Rosenberg to comment on this.

Ms P Marais (EFF) asked for clarity on the criteria that had been used to identify where Baby Savers were supposed to be placed. She gave examples of places where Baby Savers had been installed because they were prone to cases of abandoned babies. However, there were other places like Bloemfontein where abandoned babies were found everywhere. What criteria should be used to install Baby Savers? She also pointed out that the prevention of baby abandonment was compromised by the fact that abortion services were not efficient. It took about three to four months for one to book an appointment to abort. Consequently, some mothers were forced to keep their pregnancies because when the date for their appointment arrived, their window for safe abortion would have lapsed. How could this be improved?

Dr Rosenberg's response

Dr Rosenberg said one of the reasons why Baby Savers had not yet been legalised in South Africa, based on her research, was the lack of awareness about the safe method of infant relinquishment. She found that there was little knowledge about Baby Savers and their functions. This was a challenge also experienced by other countries, because Baby Savers were often perceived as legalising abandonment. This lack of awareness about the aims and functions of Baby Savers created a barrier for legislators. However, in some of these countries, it had later been found that this system was preventative by providing an alternative to women who intended to abandon their babies, to do so safely.

She explained that countries had different stipulations about Baby Savers, one of which was that a baby had to be a year old or younger to be safely relinquished. In South Africa, this criterion would be based on statistical findings. Currently, the country’s statistics indicated that 90% of abandoned babies were under the age of one. Although mothers who relinquished older children did not meet this criterion, it was important to bear in mind that the goal of Baby Savers was to enable the safe relinquishment of babies.

She said it was possible for children to be unified with their parents. In South Africa, there existed a 90-day provisional period where the child could not be placed for adoption. During this period, a newspaper advert would be published, inviting the family of the child to present themselves and claim him or her. She assured the Committee that in the proposed legislation, this system was going to continue to be in place. Other countries had a system where mothers were offered a form that they could submit in the saver at a later time or a number displayed on the Baby Saver which they could call if they wanted to reunite with their children. In the event that they changed their minds, they could claim their children. These things were also legislated upon.

She explained that Baby Safe Havens were different from Baby Savers. Given the unfortunate circumstances that there were few police and fire stations in South Africa's rural areas, Baby Savers was the most effective immediate solution for baby abandonment in the country. However, efforts had to be exerted towards implementing Baby Safe Havens in the future. This involved training hospital staff, police and fire station personnel, on how to receive relinquished babies.

Dr Rosenberg said there were about 40 Baby Savers in the country, and that 460 babies had been recovered through the system. Although this number was not significant, the efficiency of Baby Savers could have been improved by legalising them. Some areas were easier to implement Baby Savers than others, and lack of awareness was the biggest barrier to this. Awareness campaigns worked hand in hand with the legalisation of Baby Savers, because without awareness Baby Savers were going to fall into disuse.

She pointed out that safely relinquishing a baby was different from abandoning it. Therefore, the former was not a crime. She agreed that South African laws concerning abandoned babies were reactionary, rather than proactive. They focused on events that happened after a mother had abandoned the baby. Here she would be prosecuted for child abandonment. Baby Savers, on the other hand, was preventative and proactive in a way, because they shielded mothers from unlawfully abandoning their babies.

She replied that Baby Savers were best installed where there were increased cases of infant abandonment. In doing so, she emphasised again that awareness campaigns had to be carried out to ensure that societies were educated about this facility. Baby Savers worked hand in hand with other intervention and prevention programmes. For example, Baby Savers South Africa networked with crisis pregnancy centres.

She stressed that Baby Savers was a last resort. Family preservation was high on the list, but in the event that pregnancy counselling failed, Baby Savers saved the lives of babies.

The Chairperson thanked Dr Rosenberg for her responses and agreed that awareness was key to the success of the programme. She excused Dr Rosenberg from the meeting.

DSD's response to submissions on Children's Amendment Bill

Adv Luyanda Mtshotshisa, Specialist: Legislative Drafting and Review, Department of Social Development (DSD), outlined the core of the presentation. One of the first items that the Western Cape Commissioner for Children had suggested was the addition of words such as “aftercare,” as shown in the presentation. The Department did not support the submissions based on the adjectives being used in the definition, because they involved loving and understanding. It was therefore difficult for the DSD to agree to the submissions because these words were subjective and difficult to implement. This also applied to the insertion as indicated in the presentation. The proposed definitions were not going to comply with issues of simplicity, precision and clarity as required by the foundational principles of the rule of law.

On insertion 1 (bb), “loving and competent parents, caregivers, legal guardians,” the Department recommended that this was best decided by the courts because the definition was subjective and differed from parent to parent and could not be measured. Therefore, the Department could not include it in the legislation. This was closely related to insertion 18 (2), where parents were expected to love their children. This was difficult to determine or measure and was not clear and precise to qualify in the legislation. Parents had different ways of expressing love to their children.

However, the Department agreed with the proposal to amend insertion 18 (3) (c), because it was a consequential one. It also supported the proposal that “good fathers and good mothers with queer identities” had to be granted equal parenting responsibilities.

The Department did not support the insertion of Clause 12 (11), as the Constitutional Court had already pronounced on it and created a new common law. Other issues where the Department disagreed with the Commissioner included the Bill’s proposed change in Section 178. Although this was a fair recommendation, Section 305 of the Act had similar provisions. It would therefore be repetitive if it was included in the Act again.

Election of Kannaland Mayor

Ms Lindy Sigonyela spoke to the concern about the election of Mr Jeffrey Donson as Mayor of Kannaland, Western Cape. There was general discomfort among the society about his election into this position because of his prior conviction for child rape. The Child Human Rights Defenders, together with the Commissioner for Children, were therefore calling on the Committee to speak out publicly about this matter. The Child Human Rights Defenders were also willing to engage the Committee privately due to fear of being “identified.” She asked if it was possible to invite the Committee’s legal advisor to comment on this matter.

The Chairperson agreed.

Adv Nathi Mjenxane, Parliamentary Legal Adviser, began by apologising to the Committee. He said the legal advisory team was unable to fully support the Committee due to capacity constraints. It dealt with numerous committees, and at some point, was deployed on a full-time basis. As a result, it was not able to join all the meetings of the committees as it would have wished.

The Chairperson asked if Adv Mjenxane was going to be the Committee’s advisor moving forward?

Adv Mjenxane replied that he could not be fully committed to one committee.

The Chairperson asked how many committees he was committed to.

Adv Mjenxane responded that he supported up to nine committees. Despite this number, he supported this Committee but was apologising for not attending all of its meetings. He had been in touch with colleagues during the processing of the Bill. He advised that all submissions made to the Committee in respect of the Bill had to be put before it for consideration, and it had to decide how it wanted to process the submissions. However, those submissions relating to the Bill itself were relevant to the ongoing process in the Committee. Therefore, it had to deliberate on them and decide how it wanted to go forward when dealing with it clause by clause.

Matters arising from public hearings or involving policy, on the other hand, could be dealt with in at least two ways. They could be referred to the DSD because matters of policy were under the direction and control of the Department. Where it involved oversight or the local government, like the Kannaland Municipality case, the Committee could refer the complaint to a relevant sister committee within Parliament. Complaints about Mr Donson’s appointment were beyond the Committee’s scope. It was therefore advisable for the Committee to refer it to the relevant structures.

The Chairperson thanked Adv Mjenxane for his legal advice. She said it was a pity that he was serving nine Committees.

Further discussion

Ms A Abrahams (DA) asked if Adv Mjenxane was not also supposed to advise on the motion of desirability.

Adv Mjenxane replied that Ms Sigonyela was the best person to advise on procedural matters such as the motion of desirability.

Ms van der Merwe asked to elaborate Ms Abraham’s question further. What the Committee was seeking was clarity on whether it was advisable to adopt a motion of desirability before obtaining a legal opinion from Parliament’s legal advisors.

Adv Mjenxane replied that the Committee could decide when to consider the motion of desirability. This could happen before or after receiving legal advice, depending on how the Committee internally decided to arrange itself when processing the disputes. He said questions of clarity were going to continue until the Committee adopted the Bill. Therefore, it was advisable for the Committee not to await legal advice on each and every aspect before it adopted the motion. Legal advice was continuous and was available to the Committee until the end of the process.

Ms Masango thanked Adv Mjenxane for his insight. She said that according to Rule 286 of the National Assembly, signing the motion of desirability implied that the Committee agreed with the principles of the Bill and that it was accepting its needs. She reminded the Committee that when the Bill was tabled in the North Gauteng High Court, the Committee had accepted it. It was therefore its responsibility to ensure that, legislatively, the judgment was responded to because the executive had played its part. She said that the principles of Rule 286 of the National Assembly demanded that the Committee ensure that it tabled and approved the motion of desirability.

The Chairperson agreed with Ms Masango and said she was reiterating what Ms Sigonyela had said in the past. Indeed the Committee, according to Rule 286 of the National Assembly, had permission to discuss the motion but it had not got to the stage of finalising it. The first step was inviting experts in the field of Baby Savers, followed by legal advice.

She asked the Committee to move to the next agenda item.

Adoption of report on Motion of Desirability

Ms Sigonyela outlined the report to the Committee and provided a summary of when the Children's Amendment Bill had been tabled, which was in August 2020. After that, the Committee had invited the DSD in October 2020 to brief it on the Bill. A decision was then reached to advertise the Bill in the national newspapers, to invite the public to make comments on the Bill.

The reason behind the drafting of this legislation was the litigation by the Centre for Child Law against the Minister of Social Development. The North Gauteng High Court had given a ruling and a court order. However, this court order had been extended to 29 November 2022. She explained that the Bill sought to amend about 143 clauses. The report also outlined the principles of Rule 286 of the National Assembly. It stipulated that after two deliberations, the Committee had to consider the motion of desirability on the subject matter of the Bill. If rejected, it had to immediately table the Bill and the report on the Bill. If the motion of desirability was adopted, the Committee had to proceed to deliberate on the details of the legislation to comply with the North Gauteng High Court order or develop a comprehensive legal solution to the challenges in the foster care system. If the Committee agreed with the opinion of the Bill and viewed it as desirable, it had to proceed with the deliberation on the details of the legislation.

Committee matters

The report on the Motion of Desirability was adopted.

The minutes of the Committee's meeting on 23 March were adopted.

The Chairperson said that the Committee would meet again to discuss the clause by clause proceedings of the motion of desirability.

The meeting was adjourned.