Ah, the sticky, controversial topic that hovers around us like a shadow.
This controversy stems from society and its way of life, religion and its beliefs and the law and how it is interpreted.
In the South African legal system, abortion, or the termination of pregnancy, has been governed by legislation from 1975. The legislation which legalized abortions in South Africa was the Abortion and Sterilization Act of 1975. This Act was later replaced by the Choice on Termination of Pregnancy Act 92 of 1996.
There are differences between the two above mentioned Acts. They are as follows:
|Abortion and Sterilization Act||Choice on Termination of Pregnancy Act|
|An abortion was allowed
· when the woman’s mental or physical health was seriously threatened;
· if there was a likelihood that the child would be born with a severe handicap or disability; or
· The pregnancy was the result of a rape or an incestuous relationship.
|A termination of pregnancy is allowed:
· At the request of the woman, during the first twelve weeks of the pregnancy.
· From the thirteenth week up until the twentieth week a termination of pregnancy may be performed if:
– The pregnancy 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 the pregnancy would significantly affect the woman’s social and/or economic conditions.
· After the twentieth week a termination of pregnancy may only be performed 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 had some requirements under this Act and it was as follows:
> It required the approval of two doctors, one independent of the one performing the abortion, and in some cases also the approval of a psychiatrist or a magistrate.
|This Act has a number of requirements to meet:
1. An abortion, in the first twelve weeks, may be performed by a medical practitioner or by an appropriately trained nurse or midwife;
2. After twelve weeks it may only be performed by a doctor.
3. Abortions may only be performed at facilities or centres which meet certain requirements in regards to staff and equipment, and which have been approved by the provincial Member of the Executive Council (MEC) responsible for health.
4. 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.
5. An abortion or termination of pregnancy can only be performed with the informed consent of the woman, and no other person’s consent may be required. Even when it involves a pregnant minor, she must be advised to discuss it with her parents, guardian or family, but their consent is not required.
6. When a pregnant woman is seriously mentally ill or in a comatose state, 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 the possibility of a serious medical risk or the serious medical risk is more likely to occur if the termination of pregnancy does not occur.
|It is imperative to note that under this Act it is illegal and is considered a crime to perform an abortion without being qualified to do so, or to do so 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 in terms of the crimes mentioned above is a fine or an imprisonment sentence for up to ten years.
|The Choice on Termination of Pregnancy 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.|
So, how was the law interpreted in order for this legalization to occur as, in essence, you will be cutting short an individual’s life or possibility to life?
Many argue that the termination of a pregnancy or abortion goes against our Constitutional right to life as defined in section 11 of the Constitution of the Republic of South Africa (RSA), 1996. However in terms of our law only a legal subject may be awarded ANY rights.
What does this mean?
Simply put, a legal subject is any entity, person or organisation – which is also known as a juristic person, which has rights, duties and capabilities.
A legal subject has to be “alive”, hence the saying “legal subjectivity begins at birth”.
If we look at that statement, it will become clear that a foetus cannot be afforded any rights, let alone Constitutional rights, as it is not alive for purposes of the interpretation of “legal subjectivity” as well as who a legal subject is.
If abortion or the termination of pregnancy were to be illegalized, we would be taking away a legal subject’s, a living person’s, rights such as, but not limited too:
- the woman’s right to dignity as defined by section 10 of the Constitution of RSA; and
- the right to bodily and psychological integrity as defined by section 12(2) of the Constitution of RSA.
This was actually supported in the Christian Lawyers Association of SA and Others v Minister of Health and Others 1998 (4) SA 1113 (T) (10 July 1998) case whereby they stated that abortion or the termination of a pregnancy violated the right to life contained in section 11 of the Bill of Rights, however, the Transvaal Provincial Division of the High Court, in 1998, stated 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.”, and thereafter the case was dismissed.
Whilst we may fight for the lives of those who are unable to fight for themselves or have their voices heard, it is sometimes forgotten or overseen that the women carrying those children are individuals whose story is unknown to us.
Religion and society may speak volumes of what should be done and how it should be done and once upon a time, the law and the religion were one, but times have changed and complications are many.
Abortions are not there for the sole purpose of ending a foetus’ potential life or at the disposal of so- called “irresponsible people”. It is there to save a mother who has a complicated pregnancy, or help a young girl who was unfortunately raped, or save a future person who will suffer with disabilities and pain for the rest of his days.
From a legal point of view, an abortion can never amount to a murder, as a murder is, by definition – “the unlawful intentional killing of one human being by another human being” and whilst it is intentional, it is not directed towards another human being, as we have learnt above, a foetus, in the eyes of the law, is not a human being until it is born.
No one wants to have to have an abortion, however, sometimes, circumstances push the decision upon you. We will never know why the decision was made, as we were not the ones forced to make the decision, but we cannot judge those who have made the decision and continue to live knowing that they have experienced or gone through with an abortion.
Let it always be remembered that, United We Stand, Divided We Fall.