Abortion

Legal Matters

Before 1996, pregnant women had no clear right to have an abortion.  It was only allowed in very limited instances.  The Abortion and Sterilisation Act, 1975 regulated the termination of a pregnancy and only made provision for strictly defined circumstances in which abortion was allowed

Any abortion that did not fall within these defined cases was a criminal offence.

Before 1996, pregnant women had no clear right to have an abortion.  It was only allowed in very limited instances.  The Abortion and Sterilisation Act, 1975 regulated the termination of a pregnancy and only made provision for strictly defined circumstances in which abortion was allowed.  Any abortion that did not fall within these defined cases was a criminal offence.

Abortion is now regulated by the Choice on Termination of Pregnancy Act, 1996 that changed the position radically.  Every woman now has the right to choose whether she wants to bare a child or not.  The idea is that every woman has the right to choose what happens to her body.  If she does not want to put her body through the whole process of baring a child and giving birth, it should be her choice and no one else’s.  The Constitution guarantees everyone the right to security in and control over one’s body, which also clearly includes one’s reproductive powers.

Therefore, the act provides that any pregnant woman can terminate her pregnancy on demand prior to the 13th week of pregnancy.  She is also the only one that can give permission to abortion.  After the 13th week of the gestation period, abortion is still possible, but only on defined grounds.

Termination of the pregnancy

Any woman may request abortion during the first 12 weeks of her pregnancy.  From week 13 up to and including the 20th week of the gestation period, abortion is only possible if a medical practitioner is of the opinion, after consultation with the pregnant woman, that –

• Baring the child poses a risk of injury to the health of the mother, either mentally or physically.
• The foetus runs a substantial risk of suffering from severe physical or mental abnormality.
• The pregnancy was due to rape or incest.
• The woman would be affected significantly if the pregnancy continued due to her social and economic circumstance.

After week 20, abortion is only possible in very limited instances.  A medical practitioner, after consulting with another medical practitioner or registered midwife, must be of the opinion that by continuing the pregnancy, it would –

• Endanger the life of the mother.
• Result in severe malformation of the foetus.
• Pose a risk of injury to the foetus.

A medical practitioner, as well as a registered midwife may perform abortions before and including the 12th week of the gestation period.  After week 12, only a medical practitioner may perform the abortion.

Consent to terminate

Only the pregnant woman is required to give permission when deciding on termination of the pregnancy.  No one else’s permission is relevant, unless the woman is incapable of giving consent.  Not even in the case of a minor girl.  She doesn’t need the permission of her parents.  In fact, they don’t even have to know about her pregnancy.  Of course there is a duty on the doctor or registered midwife treating her to advise her to consult with her parents, family or friends before deciding on abortion.  But if she wants to keep it secret, there is nothing that prevents her from doing so.

In fact, this is the case with all women deciding on whether to terminate the pregnancy.  She alone can make the decision.  She does not have to involve anyone, not even the father of the unborn child.  She may keep her abortion strictly confidential.

Consent in case of mental disability

If the pregnant woman is mentally disabled to such a degree that she is completely incapable of understanding and appreciating the nature of abortion or the consequences involved thereby, her guardian or spouse may give consent to the abortion.  One of the grounds that were listed for termination after week 13 up to and including the 20th week must also be present.

If her guardian or spouse cannot be found, the curator appointed to her may give consent.  In addition however, two medical practitioners or a medical practitioner and registered midwife must also consent to the abortion.

Consent in case of continuous unconsciousness

The position is exactly the same as described above in cases where the pregnant woman is in such a state of continuous unconsciousness that there is no reasonable prospect that she will regain consciousness in time to request and consent to the abortion.

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