• Bonnie Venter

#SafeAbortion: Know Your Rights


February annually marks Reproductive Health Month, and I cannot think of a better way to end off this month than by writing a blog based on one of the greatest reproductive right victories in South Africa, the implementation of the Choice on Termination of Pregnancy Act 92 of 1996 (COTP Act). Finally, the first step had been taken in respecting the self-determination rights of women in the country. Women would no longer be treated as minors regardless of their age or marital status (see my fact here about sterilisation in the past). Nor would they have to bow down to the paternalistic nature of doctors who would make decisions based on their own judgment or opinion.


The COTP Act was passed in 1996 and implemented by 1997. The Act was initially met with much resistance from anti-choice advocates consisting of religious groups as well as professional groups such as Doctors for Life and other campaigners. But, did you realise that abortion was actually legal in South Africa since 1975? It could be said that South Africa was keeping with the times when abortion was first legalised, but this would be incorrect if you take into consideration the history of abortion laws of other countries. Have a quick peek at the infographic below on the history of liberalisation of abortion laws around the world:



Clearly, South Africa was actually lagging behind with reforming their abortion laws.


At first glance the Abortion and Sterilisation Act 2 of 1975 (this act is now invalid) seemed to grant freedom to women and prevent unnecessary abortion-related deaths - in short, the 1975 Act’s goal was to supposedly promote accessible abortions. Unfortunately, due to the strict limitations on when an abortion could be performed, this goal was not realised, and the Act failed miserably.


Consider the following situation: If you wanted to obtain an abortion during this era you would need the consent of three practitioners (the treating doctor and two additional doctors who had to confirm in writing that the abortion falls within the approved categories). In cases where the abortion was sought due to incest or rape the female would need additional consent from the district surgeon. Your request would then be sent to a Pregnancy Advisory Committee who decided whether the abortion may be granted or not. Usually, the process took 7-10 days from the consultation to the decision. An abortion could only be requested if it was a threat to the women’s physical health (or mental – here you would need additional consent from a psychiatrist), the child could be born severely handicapped or was a result of rape/incest/unlawful intercourse. To add to the limitations, an abortion could only be performed in state hospitals. The Act created a significant gap between the reproductive health rights of women in the urban and rural areas as most rural areas only had one or at most two doctors present in a hospital but required the consent of three doctors to have the abortion approved. In some ways, abortion was still as inaccessible for these women as previously when it was deemed illegal.


It’s incomprehensible to think that for two decades this was the only source women could rely on to gain access to safe abortions.

Luckily, the 1975 Act was replaced by the COTP Act, and presently it is still the main piece of legislation which regulates abortions in South Africa. It is worthwhile to mention that minor amendments were made in 2004 by means of the Choice On Termination of Pregnancy Amendment Act 38 of 2004, but we’ll get to that in a bit. First, I want to start with the basics of the TOPC Act:


Why does South Africa allow abortions?

A simple answer to this would be to advance the human rights of women in the country. To be more precise the Act protects and promotes human dignity, equality, security of person, the right to make decisions over your body, the right to be informed and most importantly the right to access safe, effective affordable and acceptable methods of fertility regulation. Recently, controversies have surrounded aspects of access to abortion facilities and information – questions have been raised whether women can genuinely access termination services in South Africa. Even after two decades (actually more like 4 if you include the previous act) women are still not able to access abortion services. Amnesty International found that less than 7% of the country’s 3880 health facilities perform terminations. According to the Department of Health, it amounts to 550 medical facilities. Bhekisisa took this to test, only to discover that only 236 of these facilities could be reached telephonically and only 197 confirmed that they do indeed provide abortion services. Read more about Bhekisisa’s work on abortion here.


When may an abortion be requested?

To understand when abortion may be legally requested the pregnancy needs to be viewed in relation to the gestation period. [Tip: ‘gestation period’ is calculated from the first day of the menstrual period of the women. It differs from a pregnancy calculation as here you will use the last day for the calculation]


During the first 12 weeks of the pregnancy, the abortion may be carried out on a mere request from the woman for any reason. At this stage, the abortion may be performed by a doctor, a trained registered nurse (this is a typical example of a change that the Amendment Act brought about) or a registered midwife. After week 12 it becomes more complicated. From the 13th to the 20th week of the gestation period one doctor must be of the opinion that one of the following criterions are applicable:

  • the continued pregnancy would pose a risk of injury to the woman’s physical or mental health; or

  • the foetus is at risk that it would suffer from a severe physical or mental abnormality; or

  • the pregnancy resulted from rape or incest; or

  • the continued pregnancy would significantly affect the social or economic circumstances of the woman.

After the 20th week, the doctor must consult another doctor or registered midwife and may only perform an abortion if there is a severe threat to the life of the women or foetus or a severe malformation of the foetus.


What about informed consent and age of consent?

When it comes to consent, abortion laws in South Africa have quite a unique character. Most importantly, there is no age of consent for abortions, meaning, any woman of any age may request an abortion.

Minors do not need consent from their parent(s) nor do they need to disclose any information regarding the abortion.

In stark contrast, minors were not allowed to access abortions at all under the 1975 Act. The only time this was allowed was if the minor was considered as an ‘idiot or imbecile’ (yes, unfortunately in the past these were the legal terms for people who were regarded as mentally disabled or ill).

Interestingly enough, the law does create an exception as to when consent will not be required directly from the pregnant female (or may be performed without her consent):

1) when she is in a continuous unconscious state and will most probably not regain consciousness in time to consent to the termination; or

2) when she is severely mentally disabled and is incapable of understanding and appreciating the nature or consequences of the termination.

In both these situations, the termination may be requested by the guardian, spouse or curator up until week 20. But, after week 20 the termination may be performed if two doctors (or one doctor and a midwife) believe that the termination should be performed. The guardian or spouse should be consulted but even if they refuse the health care professionals may continue without their consent. [All the same, grounds as mentioned under ‘when an abortion may be requested’ still apply]


Will a woman be counselled?

Everyone should be offered counselling before and after the procedure. The counselling is not mandatory and cannot be directive. Thus, no female may be forced to attend the counselling, and she should not be told by another whether she should or should not have the abortion performed.


How do I determine if a facility is licensed and allowed to perform abortions?

The quickest way to determine whether a facility is legit is to request the providers Health Professions Council of South Africa (HPCSA) or the South African Nursing Council (SANC) registration number. These numbers can be checked by the HPCSA or SANC to confirm whether the provider is registered.


When it comes to accessing surgical termination (which can be performed from week 4-20) the facility needs to comply with the Amendment Act. Some of the requirements are that there should be access to medical staff and an operating theatre, transport should be available if an emergency transfer arises, appropriate surgical equipment should be used, and the facility must be approved by the Department.


Has the COTP Act ever been challenged in court?

Absolutely, as mentioned earlier, not everyone regarded the COTP Act as a victory. Even today there is still a significant amount of people who do not agree with the fact that abortions are legal and acceptable. The Act was in fact tested shortly after its enactment in 1997 in the case of Christian Lawyers Association v Minister of Health 1998. Here the main argument was that the foetus’ right to life was violated by allowing abortions. The Court did not agree with this argument and stated that a foetus does not enjoy the constitutional right to life and cannot claim rights violation. Judge McCreath made the following remark concerning the right to life (section 11):

‘Moreover, if section 11 were to be interpreted as affording constitutional protection to the life of a foetus far-reaching and anomalous consequences would ensue. The life of the foetus would enjoy the same protection as that of the mother. Abortion would be constitutionally prohibited even though the pregnancy constitutes a serious threat to the life of the mother. The prohibition would apply even if the pregnancy resulted from rape or incest, or if there were a likelihood that the child to be born would suffer from severe physical or mental abnormality.’

By 2004, the Act was rechallenged by Christian Lawyers’ Association v Minister of Health 2004. This time around the constitutionality of women under the age of 18 accessing abortions was challenged. The Christian Lawyers were of the opinion that necessary restrictions should be added such as parental consent and consultation, required counselling or a waiting period. They grounded their argument on the fact that young women under the age of 18 are not capable of making informed decisions on their own. The Court once again rejected this argument and held that it was a constitutional act as a woman under 18 was still expected to have the necessary capacity to provide informed consent. Additionally, a health care professional would determine whether the minor had consent.


Even though it is undeniable that the law has fought an extensive and hard battle to legalise abortion, the question could still be posed, whether safe abortions and information on abortions are indeed accessible to South African women. Women do have the option to access licensed health facilities but yet a significant amount still rather turn to illegal services due to the stigmatisation and humiliation they face. In fact, between 2008-2010 the Department of Health estimated that 23% of maternal deaths were due to unsafe abortions. The actual number of fatalities sadly remains unknown as it is most probably under-reported. When driving to work, I often see flyers promoting same-day abortions at backstreet illegal facilities. Yet, when entering a health facility, I rarely see any educational or awareness material which promotes information on safe termination services.

In 2017 a study was conducted which revealed that 32% of South African women were not aware that abortions are legal.

After almost 40 years of legalised abortion, one would hope that this was not the case. Nonetheless, it is a reality we face and need to work on improving it to ensure that all women are able to make choices about their bodies and reproductive health.

What is your opinion on South Africa's abortion law? Do you think women's rights are being realised ? Would you recommend any changes to the law?The Patient Project would like to know! Share your thoughts with us in the comments below or on our social media pages:

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DISCLAIMER:

The Patient Project is made available for educational purposes only. The website should not be used as a substitute for competent legal advice from a practicing legal professional. The information presented may not necessarily reflect the most current legal developments or judgments. The website materials may be changed, improved, or updated without notice. The author is not responsible for any errors or omissions. All views expressed on the website are the author’s own and do not represent the opinions of any entity with which the author has been, am now or will be affiliated with in the future.

© 2023 Bonnie Venter

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