Joint Press Statement: Women’s Legal Centre, Sexual and Reproductive Justice Coalition of South Africa and Legal Resources Centre

Safeguarding access to safe and legal abortions – Judgment handed down in the matter of Voice of the Unborn Baby NPC and another v Minister of Home Affairs and another

On 26 March 2021, the Pretoria division of the Gauteng High Court handed down judgment in the matter of Voice of the Unborn Baby NPC and another v Minister of Home Affairs and another (Case no: 16402/17), which sought to declare certain sections of the Births and Deaths Registration Act unconstitutional for failing to provide ‘bereaved parents’ the option to bury the fetal remains of a pregnancy loss that occurred earlier than 26 weeks, and irrespective of the manner of the loss.

The Women’s Legal Centre Trust and WISH Associates, represented by Women’s Legal Centre and Legal Resources Centre respectively, applied and were admitted as amici curiae (friends of Court) in the matter to assist the Court in understanding why the option to bury should not extend to abortion service provision in South Africa. In an application filed on 28 May 2018, the WLC and LRC argued that the relief should not extend to abortion services; and if the Court disagreed, then appropriate mechanisms needed to be put in place to ensure access to abortion services are not interfered with when including the option to bury. The primary argument of excluding the option to bury in abortion services was based on the following submissions:

The option to bury in abortion services would invariably impact women’s ability to seek and access these services without fear, stigma, prejudice, and marginalisation. This hinges on the argument that the inclusion and implementation of the option to bury in the current circumstances of service provision would effectively amount to a barrier to access.
Where the relief would adversely impact access to services, this would violate the constitutional rights to freedom and security of the person, which includes the right to bodily and psychological integrity and the right to make decisions concerning reproduction; privacy; equality; dignity; and access to reproductive health care.

Abortion services are governed by a separate legal framework to that of involuntary pregnancy losses (miscarriages and stillbirth). The application by the first applicant did not deal with the effect the relief would have on the Choice on Termination of Pregnancy Act or the provision of services in terms of the Act. The applicants could therefore offer no assurance that the right to bury would not negatively impact the rights of those seeking abortions in South Africa. It was necessary for WLC and WISH to join the matter to ensure that the Court understood the current landscape of service provision in South Africa and recognise that the inclusion of an option to bury in the current landscape would amount to a barrier to accessing services and violate the rights of those seeking the service.

In the judgment issued on 26 March 2021, Justice Mnqibisa-Thusi granted the relief sought by the applicants. She, however, found that the option to bury would not extend to loss of pregnancy in terms of the Choice on Termination of Pregnancy Act. This, therefore, means that where a person utilises abortion services in South Africa, they will not be put in a position to consider whether they would like to bury the aborted fetus.

The WLC, LRC and SRJC (replacing WISH Associates) welcome the Court’s acknowledgement and acceptance of our submissions and the finding that the option to bury cannot extend to abortions. Indeed, this is a relief. Placing undue burdens like fetal burial on women seeking abortion services to deter such women from seeking abortion and other healthcare has caused serious devastation on women’s ability to access safe and legal abortion services and make decisions about their bodies. We have seen the effects of these restrictive measures in countries like the United States of America. As explained in our application in this matter, regressive steps of this nature have serious implications on the constitutional rights of women that our Courts must not accede to.

We are, however, disappointed that the Court failed to ensure this decision is unequivocally reflected in the Order of Court. In addition, after accepting that fetal burial negatively impacts women’s rights to access abortions, the Court failed to pronounce strongly on the dire consequences the option to bury would have had on abortion service provision in South Africa, as set out in our application. In our view, this is a missed opportunity to reflect the current limited, stigmatised, and difficult position of abortion service provision and access that women must navigate in South Africa.

As reflected in our joint press statement of 1 June 2018 following our application to join this matter as amici curiae, women in South Africa continue to face serious barriers in access to safe and legal abortion services despite having one of the most progressive abortion laws in the world. In the near three years since joining this matter, the context of abortion service provision remains unchanged and severely inaccessible for those who require the service. Women continue to face issues of:

Stigma and discrimination when seeking the service at various points of access at health facilities, from security guards to front-desk staff to the medical practitioners providing direct access to the service;
Lack of open and accessible information about where to access abortion services in South Africa;
Poor supplies of reproductive health commodities and regular stock-outs of contraception and medical abortion drugs and
Limited numbers of doctors, nurses and midwives trained and willing to provide the service together with limited numbers of facilities designated to offer the service.

The current context of the COVID-19 pandemic has not improved the experiences of women. A recent study has explained that during the first wave of the pandemic maternal mortality increased by 30% in South Africa. Women, therefore, continue to be disproportionately affected by the challenges faced by our health system specifically in accessing sexual and reproductive health services. They are also disproportionately suffering the burdens of COVID-19 on the healthcare system.

Though the judgment of Justice Mnqibisa-Thusi is a small step in the right direction for our work on sexual and reproductive justice, we continue our joint work safeguarding access to safe and legal abortion services in South Africa. We therefore remain committed and focused on challenging and combatting regressive measures at the domestic and international level aimed at controlling women’s bodies, hindering their ability to make informed choices about their bodies, limiting their ability to decide about reproduction, and realising all their rights generally.

A copy of the judgment and order can be accessed here and here, respectively.

WLC: communications@wlce.co.za

LRC: info@lrc.org.za

SRJC: srjczainfo@gmail.com