Sexual and Reproductive Justice Coalition members apply to join as a friend of the court to ensure that women’s rights to safe and legal abortions are not eroded in South Africa
On Monday, 28 May 2018, members of the Sexual and Reproductive Justice Coalition (SRJC) legal working group applied to be admitted as amici curiae in the matter between The Voice of the Unborn Baby NPC and the Catholic Archdiocese of Durban as Applicants, and the Minister of Home Affairs and Minister of Health as Respondents. The SRJC legal working group includes representatives from the Legal Resources Centre (LRC), Women’s Legal Centre (WLC), Lawyers for Human Rights (LHR), Women in Sexual and Reproductive Health Associates (WISH), Amnesty International, and Legal Academics. In this matter the WLC and LRC are representing the Women’s Legal Centre Trust and WISH. The case was brought in 2017 in the Pretoria Division of the High Court, and seeks to declare certain sections of the Births and Deaths Registration Act unconstitutional as they do not provide ‘bereaved parents’ the right to bury a foetus that has died before the age of viability (26 weeks in utero). This relief could have an impact on the right to access safe and legal abortions.
The applicants are approaching the Court to declare that, where a foetus has died at a gestational age of younger than 26 weeks, the parents of the foetus should be given an option to bury the foetus. This is typically referred to as a miscarriage, or spontaneous death. Currently, in these cases of pregnancy loss there is no option to bury. One may only bury a foetus where the pregnancy loss occurred at or after 26 weeks – this is legally referred to as a ‘stillbirth.’ The Applicants argue that parents should be allowed to bury the foetus irrespective of whether the pregnancy loss was through natural causes or human
intervention, and irrespective of the gestational age of the foetus. To refuse parents this right infringes on their constitutional rights to dignity, equality, privacy, and (as the Catholic Archdiocese argues) freedom of religion.
WLC and LRC’s clients have applied to intervene on the basis that the application does not make it clear whether or not the relief sought by the Applicants must apply within the context of voluntary terminations of pregnancy. Women are given the right to terminate in terms of the Choice on Termination of Pregnancy Act 92 of 1996. The Act gives effect to the constitutionally entrenched rights to bodily and psychological integrity, which includes the right to make decisions on reproduction, and to security in and control over one’s body. These rights expressly recognise and protect the right to make decisions in relation to reproduction. Furthermore, these rights are informed and supported by women’s rights to dignity, equality, privacy, and reproductive health care.
The WLC and LRC will place argument before the Court to highlight the impact of the relief sought by the applicants on women’s right to choose to have a safe and legal termination of her pregnancy, if the right to bury is applied within the context of terminations of pregnancy. We ultimately argue that the relief should not apply to voluntary terminations and, if it is decided that the right to bury does so apply, then appropriate mechanisms must be put in place to ensure that the implementation thereof does not disproportionately infringe on women’s right to safe and legal abortions.
The WLC and LRC recognise the significance of this case for women’s statutory rights to access safe and legal abortions in South Africa. This significance is threefold: a) the experience of women accessing abortion services in South Africa remains riddled with stigma and discrimination; b) within this already-limited context, the relief would be a further hindrance to safe and legal abortion as its implementation would act as a bar to accessing services; and c) national and global standards on sexual and reproductive health and rights dictate that women’s rights in this regard must be safeguarded, realised and respected.
The majority of women in South Africa make use of State-provided health care services, and thus State-provided reproductive health care. These women experience many obstacles when accessing such services. They include: no access to doctors authorised to provide terminations; medical practitioners who refuse to perform terminations; a limited number of facilities at which women can access termination of pregnancy medical services and only 40% of surgical designated facilities are operational; no generic abortion drugs on our essential drug list and staff who are poorly trained, or not trained at all, in providing termination services that are sensitive to the women seeking the termination, and respectful of their constitutional and statutory rights. As a result of this some 50% of abortions are provided in the informal or illegal abortion sector leading to 10% of maternal deaths resulting from unsafe abortions. Adding the option to bury one’s foetus after termination of a pregnancy would only act as an additional obstacle to women within an already difficult, limited, and stigmatic context. In failing to state specifically how the relief will operate in the sphere of terminations of pregnancy, the Applicants offer no concrete assurance that the right to bury will not negatively impact women seeking abortions.
The challenge this case poses to women’s access to safe and legal abortions comes in the wake of broader national and global limitations placed on women’s sexual and reproductive health. This case is brought during a period in which Parliament recently rejected a proposed amendment to the Choice of Termination of Pregnancy Act, brought by a member of the ACDP, that sought to place additional limits on access to abortions free of coercion, judgement, and stigma. The amendment would have required women seeking terminations to submit to ultrasounds and mandatory counselling‚ which could have included forcing women to look at pictures of foetuses.
More controversially, NGOs the world over, who wholly depend on funding, are being forced to choose between being recipients of certain funding and offering any type of services that promotes and strengthens sexual and reproductive rights as a result of the Mexico City Policy – better known as the Global Gag rule. President Trump re-introduced this rule in early 2017, which requires foreign NGOs applying to USAID for funding to certify that it will not be used, among others, for the liberalisation of abortion laws. It is wide and far-reaching in its application, and is a concerted effort on the part of the current American administration to clamp down on women’s rights to make informed decisions regarding their reproductive health, and to access to abortion services.
In light of the current political climate in which sexual and reproductive rights operate, and the continued efforts to limit women’s rights to access safe and legal abortion, the WLC and LRC recognised the necessity for intervention in this case. We will ensure that the Pretoria High Court is fully apprised of the obstacles faced by women when seeking to access abortions in South Africa as they consider granting the relief sought by the Applicants, and its effect on the statutory and constitutional rights of women to access safe and legal abortions.
For further details contact:
• Seehaam Samaai – Women’s Legal Centre – email@example.com
• Marion Stevens – Women in Sexual and Reproductive Health Associates – firstname.lastname@example.org
• Mandi Mudarikwa – Legal Resources Centre – email@example.com