The Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996) is the law governing
abortion in South Africa
Abortion in South Africa is legal on request during the first 12 weeks of pregnancy, and under certain conditions afterwards. Abortion is provided free at government hospitals and a tele-medical or 'pills by post' service is provided bMarie Stope ...
. It allows abortion on demand up to the twelfth week of pregnancy, under broadly specified circumstances from the thirteenth to the twentieth week, and only for serious medical reasons after the twentieth week. The Act has been described by the
Guttmacher Institute
The Guttmacher Institute is a research and policy NGO that aims to improve sexual and reproductive health and rights worldwide. This research organization was started in 1968 and works to study, educate, and advance sexual and reproductive health ...
as "one of the most liberal abortion laws in the world".
History
Before the enactment of the Choice on Termination of Pregnancy Act, abortion was governed by the
Abortion and Sterilization Act, 1975, which only allowed abortions when the woman's mental or physical health was seriously threatened, there was a likelihood that the child would be born with a severe handicap, or the pregnancy was the result of rape or incest. It required the approval of two doctors independent of the one performing the abortion, and in some cases also of a psychiatrist or a magistrate.
The Choice on Termination of Pregnancy Act was introduced in the first
post-Apartheid parliament. It implemented the statement in the governing
African National Congress
The African National Congress (ANC) is a social-democratic political party in South Africa. A liberation movement known for its opposition to apartheid, it has governed the country since 1994, when the first post-apartheid election install ...
' policy framework that "every woman must have the right to choose whether or not to have an early termination of pregnancy according to her own beliefs". Although it was requested that parliament members be allowed to vote according to their personal beliefs, the ruling party ruled that its own members may not vote against the act, and the Act passed by 209 votes to 87 (5 abstained, 99 were absent). It came into force on 1 February 1997.
Provisions
During the first twelve weeks of a pregnancy, an abortion may be performed at the request of the woman. From the thirteenth to the twentieth week, a pregnancy may be terminated if it endangers the woman's mental or physical health, if the foetus may suffer from a severe mental or physical abnormality, if the pregnancy resulted from rape or incest, or if it would significantly affect the woman's social or economic circumstances. After the twentieth week, a pregnancy may only be terminated if it could endanger the woman's life, if the foetus is severely malformed, or if there is a risk of severe injury to the foetus.
An abortion in the first twelve weeks may be performed by a medical practitioner or by an appropriately trained nurse or
midwife
A midwife is a health professional who cares for mothers and newborns around childbirth, a specialization known as midwifery.
The education and training for a midwife concentrates extensively on the care of women throughout their lifespan; co ...
; after twelve weeks it may only be performed by a doctor.
Abortions may only be performed at facilities which meet certain requirements for staffing and equipment, and which have been approved by the provincial
Member of the Executive Council
In South Africa, the Executive Council of a province is the cabinet of the provincial government. The Executive Council consists of the Premier and five to ten other members,'' Constitution of the Republic of South Africa, 1996'', Chapter 6: "P ...
(MEC) responsible for health. Facilities with a 24-hour maternity service and which meet the other requirements do not require the MEC's approval to perform abortions in the first twelve weeks of pregnancy.
An abortion can only be performed with the
informed consent of the woman, and no other person's consent may be required. Even in the case where a
minor is pregnant, she must be advised to discuss it with her parents, guardian or family, but their consent is not required. When a pregnant woman is seriously mentally ill or in a coma, her pregnancy may be terminated with the consent of her spouse or
guardian, or on the authority of two doctors without the consent of the spouse or guardian if there is a serious medical risk.
It is a crime for anyone to perform an abortion without being qualified to do so, or in an unapproved facility; it is also a crime for anyone to prevent a legal abortion or obstruct access to an abortion facility. The penalty is a fine or imprisonment for up to ten years.
The Act repeals the Abortion and Sterilization Act to the extent that it deals with abortion, and also repeals any laws on abortion in force in the former
homelands.
Constitutional challenges
The Christian Lawyers Association and other
anti-abortion groups
challenged the constitutionality of the Act, asserting that it violated the
right to life contained in
section 11 of the
Bill of Rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
. In 1998 the
Transvaal Provincial Division
The Gauteng Division of the High Court of South Africa is a superior court of law which has general jurisdiction over the South African province of Gauteng and the eastern part of North West province. The main seat of the division is at Pretoria, ...
of the
High Court dismissed the case, ruling that a foetus is not a person and does not have a right to life, and that the right to make decisions concerning reproduction, contained in section 12 of the Bill of Rights, protects a woman's right to abortion.
In 2004 the Christian Lawyers Association brought a second constitutional challenge, this time against the provisions of the Act that allow a girl under the age of 18 to have an abortion without the consent of her parents or guardian. The court also dismissed this case, noting that the common-law rules relating to
informed consent mean that a girl who cannot understand the consequences of an abortion is not able to legally consent to one without the assistance of her parents.
Amendment
An amending Act, the Choice on Termination of Pregnancy Amendment Act, 2004 (Act No. 38 of 2004), which came into force on 11 February 2005, amended the Choice on Termination of Pregnancy Act, 1996. The Choice on Termination of Pregnancy Act, 1996 (as amended by Act 38 of 2004), expanded access to abortions, allowed registered nurses, as well as registered midwives, to perform abortions up to the twelfth week of pregnancy. It delegated to the provincial MECs the power to approve and disapprove abortion facilities and the power to make regulations under the Act, powers which had previously belonged to the national
Minister of Health A health minister is the member of a country's government typically responsible for protecting and promoting public health and providing welfare and other social security services.
Some governments have separate ministers for mental health.
Coun ...
. It also introduced the provision exempting facilities with a 24-hour maternity service from needing the MEC's approval to perform abortions in the first twelve weeks.
On 17 August 2006, the
Constitutional Court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
ruled that the Choice on Termination of Pregnancy Amendment Act, 2004 (Act No. 38 of 2004) was invalid, in the case of ''
''. It was invalidated not because of its content, but because Parliament had not allowed for the public participation required by the Constitution; however, the court suspended its order for eighteen months to allow Parliament to remedy the situation. Parliament re-enacted the amendments under a further amending Act, the Choice on Termination of Pregnancy Amendment Act, 2008 (Act No. 1 of 2008), with the required public participation, and this amending Act 1 of 2008 came into force on 18 February 2008.
A later amending Act, the
(Act No. 32 of 2007), further amended the Choice on Termination of Pregnancy Act, 1996 by updating the definitions of "rape" and "incest" making these statutory instead of
common law crime
Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. State laws. They are offences under the common law, developed entirely by the law courts, having no specific ...
s.
A further amending Act, the Choice on Termination of Pregnancy Amendment Act, 2008 (Act No. 1 of 2008), also amended the Choice on Termination of Pregnancy Act, 1996 with effect from 18 February 2008. These amendments further amended definitions, devolved power in relation to making of regulations, relaxed registration requirements for some facilities, provided for records, and related matters.
References
{{Reflist
External links
Choice on Termination of Pregnancy Act, 1996, as amended from Acts Online
Choice on Termination of Pregnancy Act, 1996 as originally enacted
Choice on Termination of Pregnancy Amendment Act, 2004Choice on Termination of Pregnancy Amendment Act, 2008
Abortion law
South African legislation
Abortion in South Africa
1996 in South African law
1996 legislation