SOUTH AFRICA – Sexual and Reproductive Justice Coalition members apply to join as a friend of the court to ensure women’s rights to safe, legal abortions are not eroded

On 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 fetus that has died… before 26 weeks in utero”. This could have an impact on the right to access safe and legal abortions.

The applicants are approaching the Court to declare that, where a fetus has died at a gestational age of younger than 26 weeks, the parents of the fetus should be given an option to bury the fetus… Currently, in these cases… there is no option to bury. One may only bury a fetus where the pregnancy loss occurred at or after 26 weeks (stillbirth). The Applicants argue that parents should be allowed to bury the fetus irrespective of whether the pregnancy loss was through natural causes or human intervention, and irrespective of gestational age…

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 the Choice on Termination of Pregnancy Act 92,1996. 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… 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 significance of this case for women’s statutory rights to access safe and legal abortions in South Africa 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… 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…

…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 fetuses…

In light of… continued efforts to limit women’s rights to access safe and legal abortion, 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.