REPRODUCTIVE RIGHTS LEGISLATION

Judy Merkel assesses the legislation on reproductive rights over the past ten years and its impact on South African women.

Rights are values and principles such as freedom, equality, respect and dignity that guide communities and societies on how they should behave and treat each other. These are are important because they protect people.

Sexual and Reproductive Rights

Sexual rights include the human right of women to have control r and decide freely and responsibly on matters related to their exuality, including sexual and reproductive health, free of coercion, discrimination and violence. Sexual health includes the enhancement of life and personal relations, not just merely counselling and care of reproduction and sexually transmitted diseases. Reproductive rights include the right of all couples and individuals to decide the number, spacing and timing of their children, and to have the information and means to do so.

The World Health Organisation (WHO) promotes reproductive health as “a state of complete physical, mental and social well-being. not only the absence of infirmity (sickness) in all matters relating to the reproductive system and to its functions and processes”. This implies that people/woman have the right to a satisfying (pleasurable) and safe sex life, to reproduce and to decide if, when and how often they wish to do so. n their narrowest sense reproductive rights demand

pect for women’s bodily integrity and decision-making in n environment that is free from fear, abuse, violence and intimidation. This requires access to voluntary, quality reproductive and sexual health information, education and ices. Reproductive rights concern those rights, which tect the health and well being of both men and women, however they are of fundamental importance for women.

An Enabling Legal Framework

South Africa has historically been notorious for its deliberate denial of its oppression of the masses and its gross violations of basic human rights. Post 1994, the country has become internationally recognised for its seemingly smooth transition to democracy. The Constitution and specifically the values encapsulated in the Bill of Rights have been cited as being one of the most progressive internationally. The South African Constitution sought to democratise and deracialise previous laws of the apartheid regime.

The following are constitutional clauses that speak to sexual and reproductive rights:

Section 9 – the right to equality outlaws discrimination the grounds of pregnancy, sex and gender and provides that all women should have equal benefit and protection

KHANYA: A journal for activists No: 10 October 20 of the law. It means that women cannot be fired from work or expelled from school because they are pregnant. Pregnant women have the right to maternity leave. Gays and lesbians are in- cluded and may not be discriminated against in any way because of their sexuality. People who is HIV positive may not be treated differently or face discrimination because of their status.

With specific regard to termination of pregnancy (TOP), it provides that all women should have equal benefit of the law including access to TOP services. Section 9 (3) says that the State may not unfairly discriminate directly on one or more of the prohibited grounds (sex, gender, conscience, religion). Therefore the state may not discriminate against women on the basis of their conscience and/or their gender.

Section 12 – the right to freedom and security of a person protects the right to bodily and psycho- logical integrity, including the right to make deci- sions concerning reproduction and control over their bodies. No person has the right to abuse you sexually, physically or emotionally, even if you are married. You have the right to decide whether or not to have children. You also have the right to choose whether or not to use contraception and the right to choose the contraceptive method that is best for you.

Section 15 – the right to religion, belief and opinion means that no religion, culture or politi- cal party has the right to try and change or stop the way you think and act in your sexual and reproductive life. For example it gives women the right to freely decide whether or not they wish to terminate or continue a pregnancy.

Section 16 – the right to freedom of expression.

Section 27 – the right to healthcare, food, water and social security means that women have the right to access health care services including reproductive health care. The state is compelled to take reasonable steps to ensure progressive realisation of this right.

Section 32 – The right to access to information means that everyone has the right to information that enables them to make informed decisions and protects women’s rights of access to informa- tion that is held by another person and required for the exercise of their rights.

 

Section 36 – the limitation of rights provides that no right is absolute – that all rights can be lim- ited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity. In terms of women re- questing a termination of pregnancy -TOP – (even if this is against the religious belief of a healthcare provider) the woman must be informed of her rights and referred to a point of access.

 

The Bill of Rights says that everyone has the right to life, which means that everyone has the right to good quality reproductive health, especially women who have the right to choose to become pregnant and to live through a safe and healthy pregnancy and childbirth. The right to privacy and confidentiality means that everyone (including youth) has a right to privacy and confidentiality when dealing with health care workers. A health worker/doctor has no right to tell anyone of your HIV status or if you choose to have an abortion.

 

Religion: A challenge to women’s rights

Organised religion plays a powerful role in challenging the rights of women. It moulds the moral foundations and the social constructions of sexuality. Religious institutions and ideology have institutionalised male dominance in decision- making including reproduction and sexuality. This is done through their continued investment of spiritual authority in a male god, priests, fathers and husbands. The anti-choice lobby uses religion as its bastion to retain the moral high ground, to caricature the pro-choice position and from which it continues its attack on the rights of women, families and minors to exercise choices and entrench democracy at the most fundamental level of the body.

It is therefore essential to protect the gains that have been made and to facilitate effective, prompt responses to legal challenges that seek to violate women’s right to choose.

 

Does a rights-based approach to sexual and reproductive health exist in the public health system?

A person’s health depends on their access to sufficient clean water and sanitation, housing, food as well as health services. Many people currently do not have access to basic necessities, particularly women, poor people, black people and those living in rural areas. Women rely more on health services because of their needs related to child bearing. The public health crisis is generated by high levels of gender-based violence; the rapid spread of HIV/ AIDS, women’s vulnerability to being infected and carrying the burden of care; maternal mortality, unwanted adolescent pregnancies, unsafe abortion and the feminisation of poverty – conditions fuelled by poverty, classism, racism and sexism.

Over the past 11 years the focus of the government has been on policy development that sought to address gender and other inequalities. However, policy implementation has been less successful. Whilst government agencies concentrated on promoting gender equity by increasing the number of black women in decision-making levels, gender equity in delivery to workingwomen has not been significant. Globally we have witnessed a shift towards a neo-liberal policy orientation in which the state is coerced into playing a minimalist role in health, education and welfare services. This makes it difficult to push forward the access agenda (access to information, services and resources necessary to exercise choice). The state and other multi-lateral’s response to HIV/Aids and violence against women has been to promote approaches that focus on improving communication skills, life skills, abstinence, faithfulness and using condoms (the ABC) – all of which do not touch on the underlying unequal gender relations and traditional conceptualisations of sexuality, which have created this situation and allow for it to continue. The responses have been technical or ‘band-aid’ interventions which deal with the consequences rather than the causes.

 

Violence against women

In a sexual and a reproductive health context, violence against women is an obstacle denying women their independence and their right to choose. Violence against women impacts on sexual and reproductive health in multiple ways, and is the cause of most health problems facing women worldwide. Eradication of this violence must become an integral part of efforts to promote the sexual and reproductive health of women.

A study published in the Lancet Journal (2004) on South Africa indicated a link between newly diagnosed HIV infection and experiences of intimate partner violence, male control in relationships, child sexual assault, forced first intercourse and adult sexual assault by a non-partner amongst women seeking ante-natal care in Soweto.

Teen pregnancy also continues to be a major public health concern in South Africa. The results of a survey conducted by the PPASA (2003) showed that approximately 20% of female adolescents and teen parents reported to have been forced to have sex or experienced sexual assault. Out of 291 female respondents, 56.3% reported having had a pregnancy. Only 9.3% reported a termination of pregnancy.

 

Public Campaign Needed

Despite the Choice on Termination of Pregnancy Act, the Study of 2000 into Incomplete Abortions reflected that the number of women accessing unsafe/illegal abortions had not changed. A key point from the study was that women’s lack of information about a termination of pregnancy needs to be improved by means of a public education campaign on abortion rights, providing specific information on who can access which services. A biased focus on reproductive rights and health has resulted in the negation of sexual rights and health which has led to many women and adolescents not being able to access the health system for other sexual health needs, (this includes lesbian women).

 

Conclusion

South Africa faces many competing priorities such as the spread of HIV/Aids, violence against women, high levels of poverty and unemployment. The levels of poverty and structural unemployment in the country continue to characterise a social economic environment in which most South Africans are unable to exercise many, if any, choices. Given the size of the country and the rich cultural and religious character of its communities, a more strategic approach to dealing with the health impact has to be taken. A sexual and reproductive rights orientation has not managed to optimally support communities in grappling with issues of sexual rights, reproductive choice and autonomy. This is often also a direct result of a broader system failure. The upholding of reproductive rights will contribute to gender equity.

Sexual and reproductive rights, health and choice have become a life saving and critical political project in South Africa. The high levels of violence against women and children in this country effectively undermines the paper rights contained in the Bill of Rights, as it fundamentally compromises women’s human rights. It effectively renders women powerless and victims in relation to sexual and reproductive decision-making.

Women’s fear of violence is a significant factor that results in them not negotiating safe sex or talking about their needs and rights in sexual relationships. The alarming spread of the HIV/Aids epidemic on the sub-continent, particularly amongst younger women, points to the critical importance of this work. Communities, and the country as a whole need to understand that highlighting reproductive and sexual rights as a non-negotiable human right has become a critical part of the armour that we need to fight against the epidemic.

 

Judy Merkel is a gender activist and works for the Reproductive Rights Alliance.