Termination of Pregnancy Act
IN FEBRUARY 1997, the South African government put itself at the forefront of reproductive rights when the parliament passed the landmark Choice on Termination of Pregnancy Act (CTOPA).
It is currently one of the five African countries with progressive abortion laws. The hallmark of the CTOPA was the unwavering clarity on the provision of termination of pregnancies (TOPs) at a time when many countries internationally were straying away from the subject. The legislation is credited for advancing sexual and reproductive health rights (SRHR), ultimately reducing maternal deaths by 91% in the country between 1994 and 2001.
The law was reformist in its recognition that the right to terminate was essentially a womxn’s choice alone and this choice was fundamental to her physical, psychological and social health. To this end, the South African government agreed that universal access to SRHR services include family planning and contraception, termination of pregnancy, as well as sexual education and counselling services. This approach is one that regards being healthy as holistic and integrated. It has been over two decades that South African womxn have lived under this progressive legislation.
However, the reality on the ground is a stark reminder of how putting policies in place does not automatically translate to their effective implementation. This, for example, the gap clearly seen in the lack of implementation of the CTOPA.
A 2013 National Department of Health audit recorded a total of 3 880 public health facilities in South Africa. Responding to an Amnesty International request for information in 2016, the department revealed there are only 505 facilities countrywide designated for TOPs, but only 264 provide the service. These are the statistics in a country where 83% of the population depends on the public health system.
Stigma around TOP and unregulated refusal by health care providers to provide safe procedures are a major contributor to the shortage of health facilities providing services, even within the 264 facilities that are legally allowed to provide TOPS.
This refusal by healthcare providers is referred to as conscientious objection and is due to deep-rooted personal beliefs and values. While the CTOPA does not directly address conscientious objection, the basis of the practice is understood to stem from the right to freedom of conscience.
Using this conscientious objection, several healthcare providers refuse to perform abortions. Healthcare providers who object to providing TOP services should refer the patients to another service provider; however, these referrals are often not provided. In a 2017 report titled, “Barriers to safe and legal abortion in South Africa,” Amnesty International mentioned that the lack of clear policy guidelines in health care provision creates a vacuum which is exploited by healthcare workers to conscientiously object in an “ad hoc, unregulated and at times incorrect” manner.
It must be acknowledged that the public health sector is also a challenging space for some TOP service providers to work in. Many doctors and nurses have reported that they are often rejected and isolated by their colleagues who raise the moral argument against TOPs, regardless of its provision within the confines of the law.
The culture of shaming and fear within the TOP provisioning is what fuels the secrecy and taboo-like nature around SRHR. A veil of stigma continues to wrap itself over communities, even in health facilities, the spaces designated to do this work are out of sight.
The secrecy and stigma create access barriers to safe care and therefore lead many womxn and young girls in need of these services to find other means, namely unsafe abortions, that often cost them their health and in some cases their lives. It is because of these whisperings in the community and hushed voices in hospital corridors that thousands of South African womxn are unaware of their right to a legal, safe termination.
They would rather call that number on the pole or go to uMaDlamini who gives you imbiza – a concoction of traditional medicines. Due to the cultural barriers of accessing safe abortions many become desperate and undergo illegal terminations even at 28 weeks of pregnancy, which is illegal by law, but can be done because illegal termination services are unregulated.
Currently illegal terminations are thriving, whether in urban Gauteng or rural Eastern Cape. Go to any city centre, poles on street corners are laden with posters offering, “quick, pain free, cheap TOPs”. Fliers are handed at will in taxi ranks and a quick online search yields hundreds of results. For every legal termination of pregnancy procedure that is done in South Africa, two TOPs are done illegally.
When a womxn is confronted with the decision to terminate, she must have all the information, tools and services at her disposal to help her make an informed choice.
Having a progressive law is futile if the government is not actively engaged in removing all structural barriers to ensure its full implementation. We need all designated public healthcare facilities, with an adequate number of trained healthcare providers, available at all times to provide safe abortions.
All pieces of the puzzle need to be in place so that young girls and womxn get a full range of services when they visit public health facilities. Pre- and post-counselling abortion services are essential so that womxn know what to expect as they undergo this process, as the decision can sometimes be a difficult one.
Again, fixing these structural barriers will be fruitless if young girls and womxn still walk into antagonistic environments in our health care facilities. We need to take some lessons from South Africa’s successful fight against the government in the late 90’s and early 2000’s, specifically in terms of how stigma was dismantled, and use the same process of changing mindsets that was applied in the introduction and distribution of ARVs.
We need youth and womxn friendly clinics to be places of safety rather than spaces of fear and stigma as is the case right now. This includes government taking decisive steps towards regulating conscientious objection by health care workers. As long as there are no clear lines or an effective referral system, we will be unable to improve access to safe services for all our womxn and young girls.
Civil society organisations need to be able to challenge the government to do more in the field of SRHR. Just like it was stipulated in the actual law itself, comprehensive SRHR services, including TOPs are critical and a legally safeguarded right. Now is the time to sound the bells to rejig the focus, and for public education geared towards increasing access to facilities and empowering healthcare workers. It is the time for the government to re-prioritise SRHR, so that when the time comes for womxn to make that choice to terminate, it is informed, voluntary and empowering.
We need to get to the point where MaDlamini refers the young girl to a designated clinic instead of giving her that imbiza. So that when we trace our steps 20 years from now, the passing of this progressive law that put us on the global map, is not in vain and remains a beacon of womxn’s rights and SRHR.
Sibongile Tshabalala is the National Chairperson of the Treatment Action Campaign (TAC). Ms Tshabalala is also a social justice activist on health and rights issues affecting womxn and the poor.