Dr Tlaleng Mofokeng

UN Special Rapporteur on the right to health, South Africa

The right to dignity, bodily integrity, equality, safety and security, and health, including reproductive health, are human rights. States must work to ensure that all people, regardless of gender, age, immigration or documentation status, geography or class, are able to access life-affirming and comprehensive health care. No circumstances or interventions should lead to discrimination, obstruction of access to abortion, or complications or death due to unsafe procedures. Reproductive justice is not only about the freedom to choose: it is far-reaching in that it challenges systems of oppression and discrimination.

The stigmatisation of abortion results in women seeking clandestine, quick procedures to avoid discrimination. Their human rights are denied as they are forced to turn to unsafe medication provided by unaccredited suppliers and unofficial services outside functional health facilities. A woman who is pregnant and seeks to terminate that pregnancy is in a vulnerable position because she is likely to receive unfair treatment as a result of making this choice. Many women seeking to exercise this option are condemned by society, political leaders, healthcare providers, workers, elders and even their own families. The oppression of women is deeply entrenched in societies and the imbalance of power between women and healthcare providers further subjects women to paternalistic attitudes. Restrictive and hostile laws, stigmatising attitudes and the threat of violence in some communities leave individuals vulnerable and unable to defend their rights.  

In Malawi, legislation criminalises abortion outright unless it is performed to save a woman’s life. This implies that women must be on the verge of death before they are able to exercise their  human rights. A process was under way in the country in 2015 to draft a bill legalising abortion, but it has yet to be tabled for parliamentary review. Penal codes and legal frameworks that regulate abortion in other African countries are a form of legalised discrimination. For example, in Botswana, the law regulating access to abortion has not been updated since 1964, while in Namibia, the law in effect is based on apartheid legislation of 1975. These legal frameworks must be reformed to align with human rights standards, and laws that seek to punish those who work in the abortion services field or seek access to abortion must be replaced.  

Around the world, there has been a political shift towards lesser support for abortion rights. Increasing resistance from religious and political spheres has seen extremist conservative views become entrenched in Southern and East African countries. The chilling effect of the Global Gag Rule is such that institutions that receive funds from the United States under the President’s Emergency Plan for AIDS Relief (PEPFAR) continue to be contractually bound to abandon work related to abortion provision, advocacy, law reform and information dissemination. The impact of the Global Gag Rule in the developing world is compounded by historical events: countries such as South Africa are yet to recover from the fractures made during the George W. Bush presidency in the provision for sexual reproductive health rights in public health systems.

Currently, the disintegration of abortion from primary health and sexual reproductive health rights, as well as systemic anti-choice positions, are rewarded. This is evident from the fact that organisations secure funds from agencies such as USAID on signing discriminatory clauses.

Despite the Choice on Termination of Pregnancy Act (1996) in South Africa, women there are denied access to abortion services on moral and religious grounds. There are only a few practitioners in public health facilities who provide abortion services and they rely on non-governmental organisations (NGOs) for professional refresher programmes, while private practitioners are challenged by the high cost of rendering the service. Inconsistent support from facility managers and inadequate supplies of equipment and medicine also mean that the few existing providers quickly exhaust their resources.  

The Global Gag Rule is currently being rolled out in public health systems that are already unable to offer timeous and comprehensive abortion care. This restriction causes NGOs and governments to engage in institutionalised discrimination. Therefore, we must not rely on foreign aid for sexual reproductive health rights programmes in developing countries as a start.

The failure of governments to provide safe abortion within a comprehensive reproductive health service package is a form of human rights violation.

The only way to protect human rights and ensure access to safe abortion is to develop a focused action plan for law reform. This plan needs to address the shortcomings in funding models, review and strengthen procurement processes, including medicine registration and controls, improve undergraduate and postgraduate medical training, in combination with ensuring wide dissemination of evidence-based information for the public and unwavering stewardship of sexual reproductive health rights in countries.

If we are to achieve the United Nations’ Sustainable Development Goals, we cannot continue on a trajectory that results in obstructed access to sexual reproductive health care, delayed care, unsafe procedures and complications resulting in morbidities and mortality.

Those who do not want to carry a pregnancy to term have a right to self-determination and dignified, professional medical treatment, and they must be allowed to receive this treatment safely within health facilities.

Abortion is healthcare.