Medical Law
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Browsing Medical Law by Author "Badul, Chantal Jacqueline."
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Item Conscientious objection to termination of pregnancy in South Africa: analysing the legislative framework governing the rights of patients and healthcare providers.(2024) Ganesh, Nivida.; Soni, Sheetal.; Badul, Chantal Jacqueline.The termination of pregnancy (TOP), underpinned by international, constitutional and statutory laws, is an essential medical service available to girls and women in South Africa. Health practitioners involved in TOP provision possess the constitutional right to conscientiously object to such services, but this can conflict with the patient’s right to access reproductive healthcare. Therefore, this doctrinal study, through an examination of relevant legal doctrines and other contextual literature, aimed to scrutinise the legislative framework governing the rights of both patients and practitioners concerning TOP and conscientious objection (CO) within the public healthcare sector in South Africa. The findings show that CO primarily relies on the objecting provider's responsibility to refer patients to an alternative and willing provider. However, when considering this duty against the grim backdrop of a dysfunctional and critically under-resourced public healthcare system, undefined or non-existent referral pathways, public health laws incongruent with socio-economic realities, and a lack of policy monitoring structures, it becomes evident that this regulatory mechanism is inadequate to safeguard the rights of the patient. Since CO has the potential to undermine health rights, and social and reproductive justice, targeted advocacy is imperative at legislative, political, social, and health system levels to establish a realistic rights equilibrium within this normative gap. This is a critical starting point in ensuring that girls and women are not unreasonably impeded in their pursuit of TOP care.Item A critical evaluation of the laws pertaining to sterilisations and termination of pregnancies: exposing the gaps and threats.(2021) Mthethwa, Mendy Nolwazi.; Strode, Ann Elaine.; Badul, Chantal Jacqueline.The right to reproductive health, which is the primary focus of this dissertation, is a component of the right to health. This right has been protected for many years, notably in international human rights instruments, and has over time found recognition in the constitutions of various states, including South Africa. The South African Constitution protects the right to self-determination as well as the right to reproductive health care. In addition to the above, the protection of other Constitutional rights such as the right to dignity, the right to life, the right to equality and the right to access to information further strengthen the right to reproductive health care. The legislature has also given effect to these rights through the enactment of the Choice on Termination of Pregnancy Act (hereinafter referred to as the Choice Act), the Sterilisation Act, as well as the National Health Act. Notwithstanding the state’s efforts to comply with international standards, gaps continue to exist in, firstly, the South African legislative framework and, secondly, the implementation of existing reproductive health laws. These gaps have manifested, inter alia, in women having limited access to termination services; the continued threats and subversion of reproductive health rights; as well as the forceful sterilisation of HIV positive women in KwaZulu-Natal and Gauteng hospitals. These gaps, unfortunately, disadvantage the most vulnerable members of society who rely on public health facilities to enforce their constitutional and legislative rights to reproductive health. Persons affected by these gaps and threats often resort to illegal reproductive health services. It is argued, therefore, that the state has a duty to fulfil and protect reproductive health rights to prevent the inevitable consequence of indirect discrimination against poor women and girls caused by these gaps.Item Has the LM and Others v Government of the Republic of Namibia case closed the door on the claim of unfair discrimination by HIV positive women alleging to have been coerced or forced into being sterilised because of their HIV status?: A critical analysis of a possibility of a class action or a public interest action on behalf of South African women living with HIV who have been sterilised without their informed consent.Khumalo, Lindiwe Rosetta.; Badul, Chantal Jacqueline.; Strode, Ann Elaine.No abstract provided.Item Tackling obstetric violence in South Africa through legal reform: exploring an integrated rights-based approach.(2020) Reheman, Zakiyya.; Strode, Ann Elaine.; Badul, Chantal Jacqueline.Abstract available in PDF.