At SECTION27, we often engage with pregnant women and young children being denied access to healthcare services at hospitals in Gauteng. This is despite that providing free health services to vulnerable categories of persons, like pregnant women and young children, is one of the key tenets of equitable access to healthcare services. In fact, it is a core determinant of priority health outcomes, such as reducing maternal and child disease and death.
Pregnant women and young children have special health needs.
During pregnancy, the physiological changes in a woman's body can be monitored at clinics and community health centres for low to medium-risk antenatal care. Pregnant women can be referred to hospitals for antenatal care when their pregnancies are high risk. For instance, when they are living with unmanaged HIV or when they have high blood pressure. When women with high-risk pregnancies are unable to access the necessary advanced healthcare at the hospital-level, they are unable to monitor the progress of their pregnancy and identify and manage harmful risk factors. For pregnant women, HIV, in the absence of treatment and management, can lead to maternal death and disease, and there is an increased risk of transmitting HIV to an infant.
Inconsistent access to antenatal care can result in the loss of an opportunity to make early critical interventions for managing or treating underlying conditions. By the time pregnant women do present to hospitals, they are in labour and cannot be denied access to emergency healthcare services in terms of section 27(3) of the Constitution. With many of the risk factors being either unknown or unmanaged, the birthing process can lead to additional complications that could put both the pregnant woman and the foetus or infant in grave danger.
The first few years of a child's life include critical stages of development. In the neonatal period (0 - 28 days), an infant with perinatal exposure to HIV requires the administration of Nevirapine within the first few hours of birth to prevent transmission. During childhood, illnesses like cerebral palsy require treatment involving allied medical disciplines, which, if lacking, can lead to developmental challenges for such a child. Often, these services can only be found in a hospital setting, so a failure to grant access to a hospital would be tantamount to a denial of the necessary care.
Maternal and child mortality development goals
Since the advent of democracy, South Africa has sought to improve its maternal and child health outcomes by introducing progressive policies and laws. With the legacy of apartheid, there was scant data on access to healthcare, particularly for the black population. But it was well known that access to health for disadvantaged populations was deficient. There was therefore a pressing need to not only begin to document key statistics on maternal and child health, but also develop strategies to address them and the resultant inequity.
Prior to the finalisation of the Constitution, in 1994, through a notice in the Government Gazette, the National Department of Health established a clear position that all pregnant and breastfeeding women and children under the age of six (expressly including non-South African citizens) were entitled to access free healthcare services. Amid a transition to democracy, this entitlement was deemed necessary to save lives and improve health and well-being.
Globally, maternal and child health had also been a priority. In September 2000, UN Member States committed to achieving Millennium Development Goals (MDGs), which were eight international development goals to improve the material conditions of all persons. The MDGs set an ambitious target that, by 2015, child mortality ought to be reduced by 67% (MDG 4) and maternal deaths by 75% (MDG 5).
In line with existing policy and the global position, the National Health Act, which came into effect in 2003, entrenched in law the right of all pregnant and breastfeeding women and children under six to access free healthcare services.
Since then, South Africa has made noticeable strides toward addressing maternal and infant death and disease. This includes the introduction of a Strategic Plan for Maternal, Newborn, Child, and Women's Health (2012), which identified priority interventions for pregnant women, infants, and children. For pregnant women, the key interventions include basic antenatal care, HIV testing and access to antiretroviral treatment (ART), and access to care during labour. For children, they include monitoring feeding practices, prevention of mother-to-child transmission of HIV, and the early detection of HIV.
More recently, the National Department of Health introduced the South African Maternal, Perinatal, and Neonatal Health Policy (2021) with the aim of reducing maternal and child mortality by 50% by 2020, in accordance with the goal set by the Sustainable Development Goals.
The primary reason for the introduction of the law and policy that placed pregnant women and children at its centre was to transform their quality of life and health outcomes for the better.
The effect of the laws and policies
In order to gauge the success of the laws and policies in addressing maternal and child disease and death, it is necessary to look at the picture painted by the data over the years. In 1998, South Africa's maternal mortality rate stood at 150 deaths per 100 000 live births. By 2009, this rate had increased to 311 deaths per 100 000 live births. The estimated neonatal rates in 1997 were approximately 18 deaths per 1 000 live births, which fell to 14 deaths per 1000 live births by 2009.
By 2020, South Africa's estimated in-facility ratio had dropped to 88 deaths per 100 000, with Gauteng's provincial ratio being 102.9 per 100 000 (the third highest provincial ratio). Most maternal deaths that occur in this country are preventable, with the top causes including high blood pressure, haemorrhaging and infections (including HIV, TB, and pneumonia).
The progress around infant health has also been notable. The drop in neonatal rates was more gradual, and by 2020, they stood at 12.1 deaths per 1 000 live births (Gauteng: 12.8 per 1 000 live births).
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The most marked change in indicators of infant health is the drop in the transmission of HIV from mother to child - the transmission rate has dropped from 32% in 2000 to under 3% in 2021. The HIV epidemic presents a serious threat to development, in particular to maternal and child health. The management of the HIV epidemic has occurred through widespread testing, universal access to ART, and the prevention of transmission from mother to child. These interventions have been critical to addressing maternal and child death and disease.
The progress made has been hard fought. The victories have been underpinned by the implementation of law and policy that was specifically designed to offer universal access to healthcare services for all pregnant women and young children.
A departure from the maternal and child health goals
Despite a clear national and international law and policy direction toward the improvement of maternal and child health outcomes, in 2020 the Gauteng Department of Health introduced a policy that backtracks on the progressive commitment toward the improvement of maternal and child health outcomes and is contrary to national law. The department's Policy Implementation Guidelines on Patient Administration and Revenue (2020 Policy) is being used to exclude certain categories of pregnant women and children from accessing hospital services if they cannot pay upfront and in full. Asylum seekers and the undocumented are the main targets of this differentiation in treatment.
As a result of this departure, SECTION27 and our partner organisations have seen an influx in cases of pregnant women and young children being denied access to free health services. In one case, a boy died after being denied emergency care. SECTION27 is now challenging the 2020 Policy in court.
Most of the migrant health-related requests for assistance that we receive relate to asylum seekers or undocumented persons being unable to access medical treatment at hospitals without first paying the exorbitant deposits, which include R5 000 for an out-patient or an emergency visit and R15 000 for all maternity cases. These deposits are clearly unaffordable for most people.
From what we have seen, what happens after a patient fails to pay these deposits can depend on factors as arbitrary as who the particular patient administration officer is and which hospital the patient attends. If patients are unable to pay these deposits, they can either be turned away, required to pay whatever they have, or they can be required to sign acknowledgments of debt.
In cases involving emergencies, like childbirth, women may be allowed to give birth without having to pay first, but they might be hassled for the fees during their admission. At discharge, they can be told to settle their bills, failing which, they are denied proof of that infant's birth, which has happened at some hospitals in Gauteng. The absence of this proof of birth places migrant infants at risk of being stateless and further places them in a precarious position given the clamp-down on undocumented persons.
In June 2021, with our partner organisations, SECTION27 wrote to the Gauteng health department, the National Department of Health, and the Department of Home Affairs about this troubling practice of withholding proof of birth. We requested that they provide the affected clients with such proof of birth and for the Departments of Health and Home Affairs to inform their administrators of their responsibilities to migrant women and children.
Reasons for free healthcare services
There are clear justifications in public health and in law for why access to free services for pregnant women and young children is critical to preserving life and promoting well-being.
From a public health perspective, the denial of healthcare services affects pregnant women and young children in different ways. As has been demonstrated above, pregnant women and young children have special health needs, which if left unattended can jeopardise the health and life of each of them as individuals and public health at large (particularly in so far as communicable diseases are concerned).
From a legal perspective, the National Health Act already provides that government and public clinics and community health care centres must provide all pregnant and lactating women and children below the age of six (who are not on medical aid) with free health services. This is subject to any condition prescribed by the Minister of Health regarding the categories of persons eligible for such a right. To date, no such conditions have been prescribed. This means that all pregnant and lactating women and children under six, including those who are migrants, are entitled to access free services.
SECTION27's Kholofelo Mphahlele is on @MoutseRadio963 talking migrants in South Africa and their rights to access health care.
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In the law, free access to healthcare services for such persons is a means of securing universal access to healthcare services. The inherent vulnerability of all pregnant and breastfeeding women and young children is incontrovertible. This vulnerability is then exacerbated by the additional vulnerability of migrant persons, particularly those who are undocumented or asylum seekers. To guarantee equitable access, without impediment, it is reasonable to not have a condition for eligibility for free healthcare, particularly a condition that is as hard to enforce as migration and documentation status.
In any case, hospitals are neither the appropriate place to enforce immigration rules nor are their staff the appropriate personnel to engage in such enforcement. There are legal and ethical duties that are placed on hospitals and healthcare professionals regarding the treatment of patients. The discharge of those duties should be their primary responsibility.
Despite the sound basis for access to free healthcare services, we continue to encounter migrant women and young children who are being denied access to healthcare services at hospitals in Gauteng. This is in addition to the victimisation they can face at public health facilities because of their migration and documentation status. Some are turned away at the gates of hospitals simply because they cannot pay for free services while others 'routinely face discrimination and abuse'.
Pregnant and breastfeeding women and young children should have free healthcare services, irrespective of nationality and documentation status. It is an entitlement that our law already affords them and one that we will continue to defend.
*Mahlathi is a paralegal in the Advice Office at SECTION27 and Ndlela is an attorney in the health team at SECTION27.
NOTE: This opinion piece was written by employees of SECTION27. Spotlight is published by SECTION27 and the TAC, but is editorially independent - an independence that the editors guard jealously. The views expressed in this piece are not necessarily those of Spotlight.