According to the Guttmacher Institute, a nonprofit concerned with reproductive health, South Africa has "one of the most liberal abortion laws in the world." The Choice on Termination of Pregnancy Act of 1996 is the law governing abortion in South Africa. This law allows women to demand an abortion for any reason up until the 12th week of pregnancy. From the 13th until the 20th week of pregnancy, abortion may be requested under one of a broad list of circumstances, and after the 20th week, abortion may only be performed for serious medical reasons.
History and Predecessor
Prior to the enactment of the Choice on Termination of Pregnancy Act, abortion in South Africa was governed by the Abortion and Sterilization Act of 1975, which only allowed abortions in three scenarios: if the mental or physical health of the pregnant woman was threatened, if there was a strong chance that the child would be born with a severe mental or physical handicap or if the pregnancy was the result of incept or rape. In any event, abortion required the approval of two doctors, and neither could be the one performing the abortion. In some cases, it was necessary to have the approval of a court-appointed psychiatrist and/or a judge.
With the first post-apartheid election in 1994 came a series of policy statements put forward by the governing African National Congress. One of these policies stated that "every woman must have the right to choose whether or not to have an early termination of pregnancy according to her own beliefs." As a result the Choice on Termination of Pregnancy Act was put forward in Parliament and passed by a margin of 209 votes to 87 votes. It was signed by the president and came into force on Feb. 1, 1997.
Provisions of the Act
The Choice on Termination of Pregnancy Act removed many of the restrictions placed on abortion by the 1975 law. One of the primary changes was that women are no longer required to seek the signature of two doctors before requesting an abortion within the first 12 weeks of pregnancy. Termination of pregnancy for any reason may be sought during that time period, and may be performed by a medical doctor, although amendments to the act allowed abortions to also be performed by a trained nurse or a midwife. After 12 weeks, only a qualified doctor may perform an abortion. In order to monitor the safety of the woman, abortions may only be carried out at approved facilities that have the appropriate equipment and staff. While the woman seeking an abortion must be of sound mind to consent to an abortion, no other party's consent is required, including the father. These rights extend to minors as well. The health care professional might advise the minor to discuss the abortion with her parents or with the fetus's father, but their consent is not required.
Exceptions and Criminal Offenses
The only exception to the consent rule is that a spouse or legal guardian of a pregnant woman who is seriously mentally ill or in a coma may request that an abortion be performed. Similarly, two doctors may agree to perform an abortion on a woman if there is a serious medical risk associated with carrying the pregnancy to term. It is a crime for anyone who is not qualified to perform an abortion to do so, or for anyone to perform an abortion outside the confines of an approved medical facility. It is also a criminal offense to prevent someone from getting an abortion or to obstruct access to an abortion clinic. Offenders may be fined or imprisoned for up to 10 years.
Amendments to the Act
The Choice of Termination of Pregnancy Act was amended in 2004 to expand access to abortions. Specifically, the amendment allowed registered nurses and midwives to perform abortions during the first 12 weeks of a pregnancy. Moreover, the amendment called for the members of provinces' executive councils -- local government authorities -- to approve the creation and maintenance of abortion facilities. This power originally belonged to the Minister of Health. The amendment also said that any 24-hour maternity center does not need the executive-council approval to perform abortions in the first 12 weeks. While the Constitutional Court ruled the amendment to be invalid in 2006, Parliament re-enacted the amendment as the Choice on Termination of Pregnancy Amendment Act of 2008, which came into force on Feb. 18, 2008.
- Work in Progress -- The Expansion of Access to Abortion Services in South Africa Following Legalization; Frances A. Althaus
- Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996)
- Abortion Reform in South Africa -- A Case Study of the 1996 Choice on Termination of Pregnancy Act; Sally Guttmacher, Farzana Kapadia, Jim Te Water Naude and Helen de Pinho
- Jeffrey Hamilton/Photodisc/Getty Images