MP's Legislative Proposal to Amend Choice on Termination of Pregnancy Act; Prevention and Combating of Trafficking in Persons Bill public hearings: consideration

Meeting report

Research briefing on MP Dudley’s Private Member’s Legislative Proposal to Amend Choice on Termination of Pregnancy Act
Ms Crystal Levendale, Researcher for the Portfolio Committee on Women, Children and Persons with Disabilities, explained to both the Select and Portfolio Committees on Women, Children and Persons with Disabilities that this was not a Bill but a proposed amendment. The proposed amendment was only in terms of section 3 of the Choice on Termination of Pregnancy Act. The Act sought to ensure that a woman or child made a fully informed decision where the termination of a pregnancy was concerned. The gist of the proposal was that the following things had to be included at a facility where a termination of pregnancy procedure would ordinarily take place:
• appropriate surgical equipment,
• emergency resuscitation equipment,
• ultrasound equipment to provide information to a mother on the state of development of the unborn child.

The mother of the unborn child had to be given access to counselling and an opportunity for discussion and questions. Sufficient information including electronic pictures, diagrams and photographs had to be provided to enable the woman or child to understand the development of the unborn child. There had to be a discussion on the extent of the risk involved in continuing the pregnancy as opposed to the risks involved in termination of the pregnancy. The mother also had to be informed about other alternatives such as adoption.

Public submissions made on 28 May and 4 June 2010 to the Private Members’ Legislative Proposals Committee on the proposed amendment were that the provision of ultrasound equipment was costly and would place a financial burden on institutions that provided termination of pregnancy services. Concerns were raised that showing pictures of the foetus to the mother might cause her to go through more trauma. The Centre for Applied Legal Studies (CALS) had pointed out that the proposed provision was in contradiction of the Act. The Centre for Gender Equality (CGE) had said that specific reference to the levels of skills required in facilities that offer termination of pregnancy services, had to be made. The CGE was of the opinion that the proposed amendment was very broad and not specific enough. The South African Human Rights Commission (SAHRC) was of the opinion that the existing Act had to be better implemented and that there was no need for the proposed amendment. Further, it could not be assumed that having a termination of pregnancy procedure would result in depression, breast cancer etc, as asserted in MP Dudley’s proposal for the amendment. Also, the proposed amendment used the term ‘unborn child’ whereas the Act referred to ‘foetus’ which was in line with South African case law. The SAHRC expressed the view that the emotional burden on women must be reduced and not increased. The implications of the proposed amendment if approved could result in secondary trauma for the woman and it could impact on the woman’s right to choice.

Discussion
The Chairperson said that the challenge that the Committees faced was to whom should their questions be posed as the Member of Parliament who proposed the amendment, was not at the meeting.

Ms D Ramodibe (ANC) said there should be more reasons provided that would compel the Committees to consider an amendment. Some of the equipment that the proposal had requested might not be within the budgetary means of some of the institutions. There were vast differences between the proposed amendments and the provisions of the Act.

Ms A Qikani (ANC; Eastern Cape) said that the Act already made provision for the items requested in the proposed amendment for example most of the hospitals already had ultrasound equipment.

Ms P Duncan (DA) said that she agreed with the SAHRC submission that the Act had to be better implemented. She was not in support of the proposed amendment.

Mr D Worth (DA) commented that a lot of abortions did not take place at state hospitals but at private institution like Marie Stopes. It would be interesting to know from these private institutions how feasible the implementation of the proposed amendment would be.

Ms Duncan requested that the Research Unit provide a report with statistics on the reasons women had abortions.

Ms B Mabe (ANC; Gauteng) said that during an oversight visit to hospitals the Select Committee was told by health officials that one of the contributing factors to the infant mortality rate was illegal abortions. There had to be a review of public awareness on the provisions of the Act. The whole Act in fact could be reviewed and public hearings could be held just as was previously done with the Domestic Violence Act. The Act was currently being abused as one had scenarios where 16 year olds were coming in for up to three abortions a year.

The Chairperson pondered if it would not be ideal to request that the Portfolio and Select Committees of Health should hold public hearings since the Act fell under Health. The two Committees on Women, Children and Persons with Disabilities could then be part of the public hearings.

Mr Worth said that opening up the Act to public hearings again would result in a massive influx of submissions and oral presentations. The suggestion was that the public hearings should be restricted to those organisations that were already active in the health care sector.

Mr T Mashamaite (ANC; Limpopo) agreed with the proposal for a review.

Ms Duncan expressed her agreement to the proposal made by Mr Worth. The Committees had to consult with non-governmental organisations (NGO) as well as they were operating on the ground. This would be more preferable as opposed to public hearings. A public participation process would not provide the Committees with what they needed. The Act was indeed being abused.

Ms P Maduna (ANC) said that she supported the view that there should be public hearings.

Ms Mabe addressed Ms Duncan, saying that she did not understand the point she was making, why would the Committee not get necessary information from a public participation process.

M Duncan replied that one could not view the Act from an individual perspective when in fact it was drafted in consultation with many stakeholders. The important thing was to get citizens to know the Act and be well acquainted with it.

Ms Mabe said that she would support the view that the Act fell under the scope of the Health Department but it should be borne in mind that as lawmakers there was an obligation to check that the law was still benefiting citizens. It did not matter if there would be a lot of interest. Time frames could be set to regulate the process.

Ms Ramodibe said that she had reservations on the point put forward by Mr Worth that only specific participants should be invited for submissions. The Committees must be careful about excluding certain organisations as this might cause problems.

Mr Gary Rhoda, Researcher for the Select Committee on Women, Children and Persons with Disabilities, said that there were two issues the Committees had to be aware of. The first was that the Private Member’s Legislative Proposals Committee had requested the Committees to consider and make input on the proposed amendment and its implications for women. The task of the Committees was to write an opinion on the potential implications for women that the proposed amendment would bring, as requested by the Member’s Legislative Proposals Committee. The issue of public hearings and a review of the Act was a whole separate issue.

The Chairperson said that Mr Rhoda was advising the Committees to stick to the task at hand. The Committees should do so. It should consider public hearings and a review of the Act later in consultation with the Health Committee. The Committee should determine if it support the proposal or not.

The matter was put to a vote and the Committee unanimously agreed not support the proposal.

Prevention and Combating of Trafficking in Persons Bill briefing
Ms Kashifa Abrahams, Researcher for the Portfolio Committee on Women, Children and People with Disabilities, said that the three key treaties relevant to the Bill were the United Nations Convention on the Rights of a Child, the African Charter on the Rights of a Child and the Palermo protocol. During the August public hearings on the Prevention and Combating of Trafficking in Persons Bill in the Justice Portfolio Committee, it was submitted that the Bill placed more emphasis on cross-border trafficking than trafficking within the borders of a country. The emphasis was also more on sexual than labour exploitation. A key concern was that the Bill had not been costed. There was less emphasis in the Bill on the protection of victims. The provisions were minimal on housing for the victims and support services for victims had to be strengthened. There were no provisions in the Bill for when a trafficked child reached the age of 18 whilst they were being assisted. The role of the Department of Women, Children and Persons with Disabilities had been omitted from the Bill. No specific department had been identified as lead department to implement and to monitor the legislation. There were no statistics for trafficking and NGOs could not be expected to do this.

There were many recommendations on the issue of forced labour and how this matter had to be expanded in the Bill,as well as trafficking the sale of human body parts. There was a disjuncture on the set amount for fines and the jail term. There also had to be synergy between the minimum sentences in the Bill and the Minimum Sentences Act. The 24 hour rule for the debriefing of victims by officials as specified in the Bill was too short. It was recommended in many submissions that this period should be extended as victims would take longer to recover from the trauma. There was no clear criteria as to what constituted an accredited organisation that was meant to do the reporting on victims that were trafficked. Many of the NGOs that had made submissions were already doing the service and it seemed that the Bill would put an administrative burden on them. There was an absence of victim empowerment programmes. There was no indication as to what the compensation was for children who had been trafficked.

Mr Rhoda added that he did not forsee the practice of ukuthwala being an issue in terms of the implementation of the Bill because it would be up to the courts to decide whether the definition of trafficking encapsulated the practice of ukuthwala. There was no legal definition of ukuthwala. During the public hearings on the Bill, submissions suggested that the practice of ukuthwala had to be dealt with in a separate piece of legislation. The Bill had provisions on service providers such as social services and police assisting victims of trafficking for sexual purposes but it did not refer to a situation where the trafficking was for labour purposes. The Bill did not address the fact that prostitutes were trafficked and yet on the other hand prostitution was illegal under South African law. The Bill made provision for the Minister of Home Affairs to grant a foreign victim of trafficking temporary residence based on humanitarian grounds however there were no set criteria on what these grounds would be or if they would be in the regulations.

Discussion
The Chairperson asked if the argument by the researchers was that ukuthwala was not trafficking.

Mr Rhoda replied that his personal opinion was that ukuthwala did fit the description of trafficking. The Marriage Act even prohibited children younger than 16 getting married without any assistance. However, there had to be separate legislation that dealt with ukuthwala.

Ms Ramodibe commended the researches for their excellent work.

Mr Worth said that the implementation of the Bill was important, for example, there was an absence of costing and there was a shortage of child youth care centres.

The Chairperson commented that the issue of the lead department had to be clarified.

Ms Abrahams suggested that the Department of Women, Children and Persons with Disabilities could take the lead.

The Chairperson responded that she did not agree with the recommendation. There were other implementing departments mentioned in the Bill that could take the lead.

Ms Ramodibe said that there had to be a department that took responsibility for the Bill. One could not have the same issue as with the Domestic Violence Act where there was not a responsible department. The Department of Justice and Constitutional Development had to come out and clarify this matter.

The Chairperson said that the Committees would invite the relevant departments responsible for the Domestic Violence Act in order to gain more information on why that Act’s implementation was not working. and then write to the Portfolio Committee on Justice and Constitutional Development to invite the relevant departments on the Prevention and Combating of Trafficking in Persons Bill for further interaction.

The meeting was adjourned.