TERMINATION OF PREGNANCY POLICY AND SERVICES: AN APPRAISAL OF THE IMPLEMENTATION AND OPERATION OF THE CHOICE ON TERMINATION OF PREGNANCY ACT (92 OF 1996) by MICHELLE CATHERINE ENGELBRECHT This thesis is submitted in accordance with the requirements for the degree PHILOSOPHIAE DOCTOR In the Faculty of Humanities (Departments of Psychology and Sociology) at the University of the Free State Promoter: Prof HCJ van Rensburg (Centre for Health Systems Research & Development, UFS) Co-promoter: Prof A Pelser (Department of Sociology, UFS) November 2005 DECLARATION I declare that this thesis submitted for the degree of Philosophiae Doctor at the University of the Free State is my own, independent work and has not previously been submitted by me at another university/faculty. I furthermore cede copyright of the thesis in favour of the University of the Free State. Michelle Engelbrecht Bloemfontein November 2005 For Adriaan, my husband ACKNOWLEDGEMENTS Sincere gratitude is hereby expressed to the following persons and organisations for their assistance and inspiration: Prof Dingie van Rensburg (Director: Centre for Health Systems Research & Development, University of the Free State) for his continued patience and guidance, as well as for the various academic and career development opportunities provided to me. His dedication and tremendous work ethic are inspirational. Prof André Pelser (Lecturer: Department of Sociology, University of the Free State) for supervision and support throughout the entire research endeavour. Profs Charles Ngwena (Lecturer: Department of Constitutional Law and the Philosophy of Law, University of the Free State) and Rebecca Cook (Lecturer: Faculty of Law, University of Toronto) for sharing their experiences and insight on numerous occasions. The Health Systems Trust and Ipas for initiating and funding the research projects. The Free State Department of Health for authorising the study and entertaining its findings. The National Research Foundation for the financial support. The health workers, TOP clients and other knowledgeable persons who generously shared their knowledge and experience; without their cooperation and enthusiasm the research would not have been possible. Aubrey and Ann O’Brien, my parents, for the excellent foundation that they gave me in life. [Your love and unwavering belief in me is deeply missed.] Adriaan, my husband, for his support and encouragement to complete the research, and my son, Dylan, for understanding that mommy was busy and not always able to spend time with him. Kevin O’Brien, my brother, for always believing in and supporting me. Francois Steyn, my friend and colleague, for his valuable comments and suggestions. The data gatherers and capturers, in particular Bridget Smit, Corrie le Roux and Mariëtte van Rensburg for their meticulous work. Michelle Engelbrecht Bloemfontein November 2005 i LIST OF ACRONYMS AND ABBREVIATIONS ANC African National Congress ARAG Abortion Reform Action Group CEDAW Convention on the Elimination of All Forms of Discrimination against Women CHC Community health centre CLA Christian Lawyers Association CTOPA Choice on Termination of Pregnancy Act DFL Doctors For Life HPCSA Health Professions Council of South Africa ICPD International Conference on Population and Development Ipas International Projects Advisory Service IPPF International Planned Parenthood Federation MCC Medicines Control Council MDG Millennium Development Goals MEC Member of the Executive Committee MRC Medical Research Council MVA Manual vacuum aspiration NACP National Abortion Care Programme NGO Non-government organisation PAC Post-abortion care PDP Population Development Programme PHC Primary health care PPASA Planned Parenthood Association of South Africa RDP Reconstruction and Development Programme RHRU Reproductive Health Research Unit RRA Reproductive Rights Alliance SANC South African Nursing Council SPSS Statistical Package for Social Sciences STIs Sexually transmitted infections TOP Termination of pregnancy UN United Nations UNFPA United Nations Population Fund USA United States of America USAID United States Agency for International Development WHO World Health Organisation WHO-AFRO WHO Regional Office for Africa ii TABLE OF CONTENTS Acknowledgements i List of acronyms and abbreviations ii Table of contents iii List of tables vii List of figures viii List of maps viii PART 1: CHAPTER 1 RESEARCH PROBLEM AND METHODOLOGY 1. Introduction 1 2. Contextualisation and rationale 2 3. Aim and objectives 6 4. Research strategy and methodology 7 4.1 Design of the study 7 4.2 Analysis of existing documents and secondary statistics (unobtrusive research) 8 4.3 The Free State study 9 4.3.1 Sampling methods 10 4.3.2 Research techniques and instruments 12 4.3.3 Recruitment and training of data gatherers 15 4.3.4 Data gathering and quality control 16 4.3.5 Data analysis 18 4.3.6 Feedback workshops 18 4.3.7 Authorisation and ethical concerns 19 4.3.8 Limitations of the Free State case study 20 4.4 Triangulation of primary and secondary data 21 5. Defining the concepts 21 6. Arrangement of the material 23 PART 2: CHAPTER 2 ABORTION LEGISLATION WITHIN A HUMAN RIGHTS FRAMEWORK 1. Introduction 26 2. Reproductive health and human rights 27 2.1 The right to reproductive health care 29 2.2 The right to reproductive self-determination 30 3. International developments in reproductive rights 31 3.1 Developments prior to the 1994 ICPD 31 3.2 The ICPD and Beijing Conference 33 3.3 Follow-up reviews and beyond 35 4. Overview of abortion legislation worldwide 36 5. International abortion legislation: the USA and Britain 39 5.1 Abortion Law in the USA 39 5.1.1 The Global Gag Rule 42 5.2 Abortion law in Britain 43 6. Abortion legislation in African countries 45 6.1 History of abortion legislation in Africa 45 6.2 Developments in reproductive rights in Africa 46 6.3 Developments in abortion legislation in Africa 48 6.4 Abortion legislation in countries neighbouring South Africa 49 7. Summary 52 iii PART 2: CHAPTER 3 SOUTH AFRICAN ABORTION LAW: THE PERIOD PRIOR TO THE IMPLEMENTATION OF THE 1996 CHOICE ON TERMINATION OF PREGNANCY ACT 1. Introduction 55 2. The provision of reproductive health care prior to 1975 56 2.1 Family planning under the National Party government 56 2.2 The status of black South African women and its impact on family planning 57 2.3 Abortion law prior to 1975 59 2.3.1 The establishment of a select committee to investigate abortion law 60 3. The Abortion and Sterilisation Act of 1975 62 3.1 Provisions of the 1975 Act 62 3.2 Shortcomings of the 1975 Act 64 4. Events leading to the Choice on Termination of Pregnancy Act of 1996 67 4.1 A changing political environment 67 4.2 Establishment of an ad hoc parliamentary select committee to investigate the 1975 Act 69 4.3 Recommendations from the ad hoc parliamentary select committee 73 4.4 The Choice on Termination of Pregnancy Bill 74 5. Views of other interest groups towards abortion and the Choice on Termination of Pregnancy Bill 75 6. Advantages and disadvantages of legalising abortion 77 7. Summary 78 PART 2: CHAPTER 4 THE CHOICE ON TERMINATION OF PREGNANCY ACT (1996): IMPLEMENTATION AND TRENDS, ACHIEVEMENTS AND CHALLENGES 1. Introduction 80 2. The Choice on Termination of Pregnancy Act of 1996 82 2.1 Provisions of the 1996 CTOPA 82 2.2 Key elements of the CTOPA 84 2.2.1 Counselling 84 2.2.2 Minors 85 2.2.3 Designation of TOP service sites 86 2.2.4 Notification and keeping of records 87 2.2.5 Midwifery training 87 2.2.6 Health workers and conscientious objection 89 2.2.7 Offences and penalties 90 2.3 Amendments to the CTOPA 91 3. Implementation and operation of the CTOPA 91 3.1 The first year - 1997 91 3.2 The second year - 1998 93 3.3 The third year - 1999 94 3.4 The fourth year - 2000 95 3.5 The fifth year - 2001 96 3.6 The sixth year - 2002 97 3.7 The seventh year - 2003 98 4. Overview of trends, achievements and failures in TOP – 1997 to 2003 99 4.1 Achievements of the CTOPA 101 4.1.1 Cooperation with private facilities 101 4.1.2 Failure of legal challenges 101 4.1.3 Development of a National Strategic Plan for TOP 102 4.1.4 Values clarification workshops 103 4.2 Impediments to and challenges associated with the provision of TOP services 104 4.2.1 Key findings from the Oversight Hearings 105 4.2.2 Views and conduct regarding abortion 107 iv 4.2.3 Designation and location of TOP facilities 108 4.3 Key recommendations from the Oversight Hearings 110 5. Summary 111 PART 3: CHAPTER 5 THE EMPIRICAL STUDY: VIEWS AND EXPERIENCES OF HEALTH WORKERS AND STAKEHOLDERS 1. Introduction 115 2. Health workers in a position to refer clients to TOP facilities 116 2.1 The respondents 116 2.2 The referral system 118 2.3 Knowledge of the CTOPA 123 2.4 Attitudes towards TOP 126 2.5 Challenges associated with the expansion of TOP services (2003) 129 3. TOP service providers 131 3.1 The respondents 131 3.2 Attitudes toward TOP 133 3.3 Emotional experiences, conduct of and support for TOP service providers 136 3.4 Abortion values clarification workshops 138 3.5 Resources for TOP service delivery 139 3.6 Evaluation of TOP services 141 3.6.1 Counselling 143 3.6.2 Procedures 144 3.7 Evaluation of the physical structure and infrastructure of TOP facilities 146 3.8 Challenges and strengths of providing TOP services 148 4. TOP stakeholders (2003) 149 4.1 The respondents 149 4.2 Achievements of the CTOPA as it applies to women in general 149 4.3 Main impediments to accessing TOP 150 4.4 Recommendations to improve access to TOP 151 4.5 Main challenges regarding access to TOP 151 5.