For Immediate Release: 28 May 2018
On Monday, 28 May 2018, The Women’s Legal Centre (‘WLC’) and Legal Resources Centre (‘LRC’) representing Women’s Legal Trust and Women in Sexual Health (WISH) respectively 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 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).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 security in and control over one’s body. These rights expressly recognise and protect the right for one to make decisions in relation to reproduction. Furthermore, these rights are supported and related to the protection and enjoyment of the rights to dignity, equality, privacy, and reproductive health care. The WLC and LRC will place argument before the Court that will highlight the impact the relief will have on a woman’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 pregnancies. We ultimately argue that the relief should not apply to voluntary terminations; and if it is decided that the right to bury does apply to pregnancy loss as a result of terminations 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 recognised the significance of the impact on this case for women’s statutory right to access safe and legal abortions in South Africa. The significance is threefold: a) the current experience of women in 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 access to safe and legal abortion as its implementation would act as a bar to accessing services; and c) the broader national and global movements within the context of sexual and reproductive health and rights dictate that women’s rights in this regard need to be safeguarded and respected. It cannot be gainsaid that majority of women in South Africa make use of State-provided health care services, and thus State-provided reproductive health care. The obstacles experienced by women when accessing these services include no access to doctors who are authorised to provide terminations; medical practitioners who refuse to perform terminations; a limited number of facilities at which women can have access to a termination of pregnancy; and staff who are poorly trained or not trained at all in the providing termination services in a manner that is sensitive to the women seeking the termination, and respectful of their constitutional and statutory rights. Adding the option to bury one’s foetus after termination of a pregnancy would only act as an additional obstacle to women seeking to access a safe and legal abortion within this already difficult, limited, and stigmatic context. The Applicants, in not specifically stating how the relief will operate in the sphere of terminations of pregnancy, cannot offer concrete assurance that the right to bury will not negatively impact women seeking abortions. We are cognisant that 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 has been brought during a period in which Parliament recently rejected a proposed amendment to the Termination Act, brought by a member of the ACDP, that sought to pose an additional limit to accessing abortions free of coercion, judgement, and stigma. The amendment would have required women seeking terminations to first have ultrasounds and undergo mandatory counselling‚ which could have included forcing women to look at pictures of foetuses. More controversially, NGOs the world over, whose existence is dependent upon access to and the provision of funding, are being made to choose between their livelihoods and giving effect to sexual and reproductive rights as a result of the Mexico City Policy – better known as the Global Gag rule. President Trump introduced this far-reaching rule in early 2017, which requires that foreign NGOs applying to USAID for funding 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 their access to abortion services. In light of the current political climate in which sexual and reproductive rights operates, 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.
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