South Africa: Expulsion of pregnant students violated constitutional rights

September 29, 2017

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate at the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for summarizing this decision with Y. Kakhobwe in Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published by Pretoria University Law Press (PULP) in 2017.  228-pages online     Flyer with Table of Contents.     New online edition with links to decisions and analyses.

Head of Department, Department of Education, Free State Province v. Welkom High School & anotherHead of Department, Department of Education, Free State Province v. Harmony High School & another (CCT 103/12) [2013] ZACC 25, 2013 (9) BCLR 989(CC); 2014 (2) SA 228 (CC) (10 July 2013)   Constitutional Court of South Africa  Decision online.    Case summary by G. Kangaude and Y. Kakhobwe.

Two South African high schools had adopted policies that provided for automatic
exclusion of any student from school if it is found that she is pregnant. When in two separate instances the schools applied the policies to pregnant students, the Head of the provincial department of education intervened in the decisions of the school’s governing bodies and ordered them to ignore the pregnancy policy and reinstate the students. The respondents took the matter to the High Court which ruled that this official had no authority to tell the principals not to implement their adopted policy.  The
Supreme Court upheld the High Court’s decision.  The Constitutional Court of South Africa ruled that if school policies were unconstitutional, as these were, the Head of the provincial education department should have intervened, using the proper mechanisms provided by the Schools Act.
The Constitutional Court opined that these pregnancy policies prima facie violated constitutional principles, and violations should be addressed by the scheme of powers under the School Act.  The Court held that, first, the policies unjustifiably discriminated on the basis of pregnancy and sex.  Second, the policies limited the right to education by requiring that the student repeat an entire year.  Third, the policies prima facie violated students’ rights to human dignity, privacy, and bodily and psychological integrity by requiring them to report their own pregnancy or that of others.  Finally, the policies violated the best interests of the child because they failed to take into account the health and other needs of the pregnant student.
The Court did not make a declaration on the constitutional validity of the pregnancy policies since this issue was not placed properly before it, and also because the Court respected the scheme of powers in the School Act. However, the Court ordered the school governing boards to review their pregnancy policies.
The Court’s opinion follows several older African judgments such as Student Representative Council of Molepolole College of Education v. Attorney General [1995] (3) LRC 447), where the Botswana Court of Appeal held that a regulation that required a student to report pregnancy to the authorities, and would be obliged to leave the College or be expelled if this was a second occurrence, was unconstitutional as it was discriminatory on the basis of sex. Similarly, in Mfolo and Others v. Minister of Education,  [1992] (3) LRC 181,Bophuthatswana (South Africa, Supreme Court, Bophuthatswana and General Division), and in Lloyd Chaduka and Morgenster College v. Enita Mandizvidza, Judgment No. SC 114/2001; Civil Appeal No. 298/2000 (Zimbabwe, Supreme Court),   two African Supreme Courts held that regulations that required pregnant students to withdraw from college were unconstitutional.

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Spain: “Gender in Constitutional Discourses on Abortion,” by Blanca Rodríguez-Ruiz

June 29, 2017

Congratulations and thanks to Professor Blanca Rodríguez-Ruiz,  who teaches constitutional law at the University of Seville in Spain, for her useful article, recently published in the international journal, Social & Legal Studies:

Blanca Rodríguez-Ruiz, “Gender in Constitutional Discourses on Abortion: Looking at Spain from a Comparative Perspective,” Social & Legal Studies 25.6 (Dec. 2016): 699-715.
PDF     Download text      Author publications – English and Spanish

Abstract:   In as far as the regulation of abortion deals with issues like how and to what extent can women’s capacity to gestate and give birth be controlled, and by whom, any discourse on abortion necessarily reflects a construction of women’s citizenship, hence of gender.  The question is, which is the ruling construction? Behind non-legal discourses that focus on human life and public power’s duty to protect it, there lies the modern construction of gender that articulates women’s passive citizenship within the state.  This is also true of confrontational discourses that construct women and the foetus as potential adversaries. Both discourses are traditional in continental Europe.  Yet, they are being superseded by an understanding of abortion from the perspective of women’s active citizenship. Spanish Organic Act 2/2010 stands as part of this trend.  Not surprisingly, governmental attempts to reinstate women’s passive citizenship in this matter have met stark resistance.   PDF.     Download text.

Source:  “Regulating Abortion: Dissensus and the Politics of Rights,” ed. Siobhan Mullally,  symposium issue of Social & Legal Studies: An International Journal 25.6 (Dec 2016)       Introduction, pp. 645-650.

See also:
Catherine O’Rourke, “Advocating Abortion Rights in Northern Ireland: Local and Global Tensions,” Social and Legal Studies 25(6): 716-740.  PDF and abstract       Submitted text

Claire Murray, “The Protection of Life During Pregnancy Act 2013: Suicide, Dignity and the Irish Discourse on Abortion“, published in Social and Legal Studies 2016,  25(6): 667-698     PDF and abstract     Accepted text.
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The REPROHEALTHLAW Blog is compiled by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, Canada,  reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.
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“Obstetric violence”: maternal mistreatment in healthcare settings

November 24, 2016

Congratulations to Carlos Herrera Vacaflor, LL.M., a visiting scholar at the University of Toronto’s Faculty of Law, whose article, partly based on his Master of Laws thesis,* was recently published in Reproductive Health Matters’ special section on abuse and mistreatment in healthcare settings.  The author can be reached at charlie.herrera {at} mail, utoronto, ca.

Obstetric violence: a new framework for identifying challenges to maternal healthcare in Argentina, by Carlos Herrera Vacaflor, Reproductive Health Matters 24.47(May 2016):65-73.  Full text and abstracts in English, French and Spanish.

Abstract:  Argentina has recognized women’s right to not be subjected to obstetric violence, the violence exercised by health personnel on the body and reproductive processes of pregnant women, as expressed through dehumanizing treatment, medicalization abuse, and the conversion of natural processes of reproduction into pathological ones.  Argentina’s legislative decision to frame this abuse and mistreatment of women under the rubric of gender-based violence permits the identification of failures in both the healthcare system and women’s participation in society. This article examines how applying the Violence Against Women framework to address issues of abuse and mistreatment of women during maternal health care provides a beneficial approach for analyzing such embedded structural problems from public health, human rights, and ethics perspectives. The framework of Violence Against Women seeks to transform existing harmful cultural practices, not only through the protection of women’s reproductive autonomy, but also through the empowerment of women’s participation in society.

Further Reading:
Obstetric Violence in Argentina: a Study on the Legal Effects of Medical Guidelines and Statutory Obligations for Improving the Quality of Maternal Health,  by Carlos Alejandro Herrera Vacaflor, LL.M. Thesis, Graduate Department of the Faculty of Law University of Toronto, 2015 abstracted here.

International Human Rights and the Mistreatment of Women during Childbirth by Rajat Khosla, Christina Zampas, Joshua P. Vogel,  Meghan A. Bohren, Mindy Roseman, and Joanna N. Erdman,  Health and Human Rights Journal  Article in press online.

Other articles from this issue of Reproductive Health Matters, Vol. 24, Issue 47 (May 2016)

Two South African articles about this emerging issue are now online:

  • Eliminating abusive’care’, : A criminal law response to obstetric violence in South Africa by Camilla Pickles. South African Crime Quarterly 54(2015): 5-16.  abstract and full text
  • Obstetric violence in South Africa,”  by Rachelle Joy Chadwick,South African Medical Journal 106.5 (2016): 423-24. [also reviews concept and term]   2-page text.

Autonomy and pregnancy: A comparative analysis of compelled obstetric intervention, by Samantha Halliday (Routledge 2016) draws on law from the U.K., U.S. and Germany, in “circumstances in which courts have declared medical treatment lawful in the face of the pregnant woman’s refusal of consent.”  Autonomy & Pregnancy book.

Relevant Kenyan and South African decisions are available online, with case summaries prepared for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, forthcoming in 2017.

  • Millicent Awuor Omuya alias Maimuna Awuor & Another v The Attorney General & 4 Others [2015], Petition No. 562 of 2012, (High Court of Kenya at Nairobi (Constitutional and Human Rights Division)). [Detaining women for failing to pay for maternal health services violated their constitutional rights]  Case summary.    Decision online.
  • Ntsele v MEC for Health, Gauteng Provincial Government [2012] ZAGPJHC 208 (South Gauteng High Court, South Africa)  [Medical negligence during labour]  Case summaryDecision online.

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REPROHEALTHLAW Updates

April 21, 2016

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CONFERENCE

“Improving   women’s    journeys    through    abortion,”  12th FIAPAC Conference,   October 14-15, 2016, Lisbon, Portugal.  Pre-conference workshops on values and advocacy on October 13, 2016, on (1) Decriminalization and (2) Surgical abortion in the second trimester.  Francophone session on 16 October.  Flyer online.   Programme.

EDUCATIONAL OPPORTUNITIES

“Global School Health Rights Litigation” intensive course June 13-17, 2016  O’Neill Institute and Harvard FXB  at Georgetown University Law Center in Washington, DC for specialist-level knowledge re litigating health-related rights at the national, regional, and international levels.  Apply by May 1, 2016.  Course details.

LL.M. en Derechos Humanos y Derecho Humanitario (en Espanol), American University Washington College of Law,  Washington DC, USA,  Cursos Virtuales, y Cursos Presenciales.   Informacion.

RESOURCES

Abortion Law in Transnational Perspective, Spanish edition, forthcoming summer 2016 from CIDE/FCE, Mexico City.  Spanish flyer online.

[abortion] The Moral Case for Abortion, by Ann Furedi, Palgrave Macmillan, 2016. Publisher’s webpage.

[abortion] “Zika Virus and Global Implications for Reproductive Health Reforms,” by James G. Hodge, Alicia Corbett, Ashley Repka and P.J.  Judd. (March 9, 2016). forthcoming in Disaster Medicine and Public Health Preparedness  Abstract and 3-page article

[abortion, Brazil]  Reproductive Rights and the Zika epidemic in Brazil, Supreme Court challenge, by Prof. Debora Diniz Portuguese with English subtitles. 30-minute film. Prof.  Prof. Diniz comments in English:  4-minute video

[abortion, Canada – PEI province] In face of lawsuit based on Charter of Rights and Freedoms, PEI drops opposition to abortion, plans to provide access by end of 2016. ARN press release.

[abortion, conscientious objection, Italy and Sweden] “Abortion Inside Swedish Democracy: Paradoxical Secularizations and Unbalanced Pluralisms,” by Melisa L Vazquez, Calumet – Intercultural Law and Humanities Review, 2016, Issue 2: 1-56. Abstract and article.

[abortion, Northern Ireland]  Guidance for Health and Social Care professionals on termination of pregnancy in Northern Ireland. Guidance online.

[abortion, pre-natal testing] “Non-Invasive Testing, Non-Invasive Counseling,” by Rachel Rebouché, Journal of Law, Medicine and Ethics 43.2 (2015): 228-240. Abstract and article.

[abortion, sex selection] “Testing Sex,” University of Richmond Law Review 49.1 ( 2015) 519-577. Abstract and article.

[assisted reproduction]  “Securing the Future of Genetic Enhancement: A Review Essay of ‘Humanity Enhanced’, by Russell Blackford.  Reviewed by Bernard M. Dickens,  Population and Development Review 41(1)(March 2015): 151-68.  Abstract and Review.

“Ethical Issues of Uterus Transplantation,” by Bernard M. Dickens,  International Journal of Gynecology and Obstetrics 133.1(2016): 125-128.  Abstract and Article.

[Ireland]  “Maternal brain death and legal protection of the foetus in Ireland” [case review] by Andrea Mulligan 15.2 2015 Medical Law International  182-195.  Abstract and Article.

[Ireland, maternal brain death] “Horrific court case involving a young pregnant brain-dead woman,” by Kate Butler, Lawyers for Choice. Article online.

[Latin America] IV Legal Conference on Reproductive Rights, held Nov. 2-4, 2015. Video archive  “Relatoria” online.

[Nigeria]   Maternal Health and Millennium Development Goal (MDG) 5 in Nigeria: Any Catalytic Role For Human Rights? (2015). by Obiajulu Nnamuchi, Obiajulu, Miriam Anozie, and Festus Okechukwu Ukwueze, Medicine and Law, Vol. 34, 2015.  [discusses abortion laws and unsafe abortion]  Abstract and article.

[UK, Ireland and Northern Ireland] “How can a state control swallowing?” Medical Abortion and the Law, by Sally Sheldon, March 2016.  Research summary

[United Nations] Report of the Special Rapporteur  on torture and other cruel, inhuman or degrading treatment or punishment A/HRC/31/57 discusses abortion access in paras 42ff.   online in 6 languages.

NEWS

[abortion, Ireland]  Asylum seeker, refused abortion, sues the State.  News article.

[abortion, Mexico – Guanajuato] “Abortion and Human Rights in Mexico…Feminist Approaches within and Around the Law,” by Elyse  Ona Singer, Society for Medical Anthropology, Anthropology News  Article online.

[Nigeria] Case  of Illegal detention and death of woman at hospital heads to High Court of Nigeria.   CRR Press Release.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

FELLOWSHIPS AND JOBS

The Comparative Program on Health and Society at the University of Toronto, Canada, invites applications for 2016-2017.  Complete applications due May 30, 2016.    Doctoral fellowship details: Health and human rights.     Social determinants of healthResearch Associate.

Program Manager, Women’s Health and Equality, Wyss Foundation, Washington DC,  Apply by May 31, 2016.  Job details.

Links to other employers in the field of Reproductive and Sexual Health Law are online here

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here.
TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Removing tension between female autonomy and foetal interests

May 28, 2015

Congratulations to Camilla Pickles, LL.D.,  who recently defended an interesting doctoral thesis at the Department of Public Law, Faculty of Law, University of Pretoria in South Africa.  The author, who can be reached at her firstname. lastname@gmail.com, currently works for the Chief Justice of the Constitutional Court of South Africa.  We thank her for submitting the following abstract:

 Addressing the Tension between Female Reproductive Autonomy and Foetal Interests during Pregnancy and Birth

by Camilla Pickles
LL.D. Thesis presented to the Department of Public Law, Faculty of Law, University of Pretoria.
 


Abstract

This thesis considers different areas of tension developing in South Africa between female reproductive autonomy rights and foetal interests that arise when law reform is proposed which aims to ensure healthy pregnancy and birth outcomes. Four areas are highlighted: prenatal substance abuse; termination of pregnancy; violence that terminates a pregnancy without a woman’s consent; and the extension of legal personhood to the unborn. Ultimately, this thesis explores whether it is possible to tackle these concerns without encouraging an adversarial pregnancy environment.

There are two leading approaches to pregnancy in law: pregnant women are viewed either as single entities (the primary South African position) or two separate entities (the primary position in the United States). This thesis tests the validity of both to adequately tackle the identified areas of concern. Research indicates that these approaches undermine healthy pregnancies or birth outcomes and female reproductive autonomy. The approaches fail to reflect the embodied nature of pregnancy being one that is based on relationship and inseparable connection. The single-entity approach denies the existence of the unborn while the separate-entities approach encourages pregnancy adversarialism.

This thesis reveals that the concerns will never be adequately resolved unless the potential for tension between women and the unborn is removed.   The author proposes a relational approach to pregnancy, centred on fostering relationships, in order to eliminate the potential for tension. She applies the not-one-but-not two approach to pregnancy which recognises that a pregnant woman and her foetus are two separate entities but inseparably linked through pregnancy. This approach focuses the embodied connection that pregnancy represents and the contextual realities in which pregnancy exists.

The author then applies this useful approach to four key areas of concern:
*    prenatal substance abuse;
*    termination of pregnancy;
*    violence that terminates a pregnancy without a woman’s consent; and
*    the extension of legal personhood to the unborn.

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Related publications

  • C Pickles “Personhood: Proving the Significance of the Born-Alive Rule with Reference to Medical Knowledge of Foetal Viability” (2013) 24(1) Stellenbosch Law Review 146
  • C Pickles “Lived Experiences of the Choice on Termination of Pregnancy Act 92 of 1996: Bridging the Gap for Women in Need” South African Journal on Human Rights (2013) 29(3) 51
  • C Pickles “Approaches to Pregnancy under the Law: A Relational Response to the Current South African Position and Recent Academic Trends” (2014) 47(1) De Jure 20

Zimbabwe Supreme Court: State hindered access to emergency contraception, but not abortion

October 29, 2014

Many thanks to our research assistant, Michelle Hayman, a second-year law student, for summarizing this case for Reprohealthlaw subscribers.

Mildred Mapingure v Minister of Home Affairs, No. SC 22/14, 25 March 2014, Supreme Court of Zimbabwe , decision online.

Mildred Mapingure brought claim against the state for damages for physical and mental pain and for maintenance in respect of her child after a series of bureaucratic hurdles stopped her from preventing or terminating her pregnancy caused by rape.

The Supreme Court held that the state was liable for the negligence of the doctor and police officers whose actions prevented Mapingure from accessing emergency contraceptive treatment following her immediate report of the rape and request for treatment.

However, the Court dismissed Mapingure’s claim that the state was liable for the failure to terminate the pregnancy. Patel JA held that according to the Termination of Pregnancy Act, it was the appellant’s responsibility to institute the proceedings for the issuance of a magisterial certificate to allow for the termination of her pregnancy and dismissed her claim that she was following the incorrect advice of state officials. Following this, Patel JA remitted the claim for damages for pain and suffering to the court to determine the appropriate amount of compensation, but dismissed the claim for damages for the maintenance of her child.

The case has received mixed reception among women’s rights organizations. Some have applauded the Supreme Court’s recognition of the state’s failure to provide access to emergency contraceptives as an actionable wrong and for Patel JA’s discussion of Zimbabwe’s international obligations to support the rights of women. Others have criticized the decision for failing to find negligence on the part of the state in impeding termination of the pregnancy, despite the Court’s criticism of the wording of the Act as “ineptly framed” and “lacking sufficient clarity” (28).

Full text of the case is online here.

Detailed case analysis by Godfrey Kangaude and Rudo Chigudu for  Legal Grounds III:  Reproductive and Sexual Rights in Sub-Saharan African Courts, forthcoming 2016.
For summaries of older African cases, see:  Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts, Volumes I and II
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