Grounds on which abortion is permitted:
To save the life of the woman Yes
To preserve physical health Yes
To preserve mental health Yes
Rape or incest Yes
Foetal impairment Yes
Economic or social reasons Yes
Available on request Yes
A legal abortion must be performed by a physician in a government hospital or other approved medical institution with the permission of the hospital superintendent. Abortion requires the approval of two independent physicians (besides the physician performing the abortion), one of whom must be a psychiatrist if abortion is sought on mental health grounds or a district surgeon if the pregnancy resulted from unlawful intercourse. One of the consenting physicians must have practised medicine for at least four years. The law prohibits consenting physicians from participating or assisting in the abortion. Authority for an abortion on the grounds of rape, incest or intercourse with a mentally retarded woman may not be granted without a certificate from the local magistrate.
REPRODUCTIVE HEALTH CONTEXT
Government view on fertility level: Too high
Government intervention concerning fertility level: To lower
Government policy on contraceptive use: Direct support provided
Percentage of currently married women using
modern contraception (under age 50, 1988): 48
Total fertility rate (1995-2000): 3.3
Age-specific fertility rate (per 1,000 women aged 15-19, 1995-2000): 68
Government has expressed particular concern about:
Morbidity and mortality resulting from induced abortion No
Complications of childbearing and childbirth Yes
Maternal mortality ratio (per 100,000 live births, 1990):
Southern Africa 260
Female life expectancy at birth (1995-2000): 58.1
Up to 1975, abortion law in South Africa was governed by Roman-Dutch common law, which permitted abortion only when the life of the mother would be endangered by continuation of the pregnancy. In practice, however, physicians often performed abortions on other grounds without prosecution by law enforcement agencies. In 1968, for example, it was estimated that at least 28 per cent of therapeutic abortions were performed for reasons other than saving the life of the mother.
In 1975, The Abortion and Sterilization Act of 1975 (Act No. 2 of 1975) was enacted, which extended the grounds under which an abortion could be legally obtained in South Africa. Under the Act, as amended in 1982, abortions could be performed in the following cases: (a) when the continued pregnancy endangered the woman’s life; (b) when the continued pregnancy constituted a serious threat to the woman’s physical or mental health; (c) when there was a serious risk that the child to be born would suffer from a physical or mental defect of such a nature as to be irreparably seriously handicapped; and (d) when the pregnancy was the result of unlawful intercourse such as rape or incest, or with an “idiot or imbecile”. The abortion had to be approved by three physicians and performed in a State-designated institution and was subject to other procedural requirements depending on the indication. For example, when the abortion was requested because the pregnancy resulted from unlawful intercourse, the magistrate in whose district the offence was alleged to have occurred was required to provide the hospital superintendent with a certificate attesting to the fact that the alleged offence was reported to the police, or if no complaint was lodged, that there was a good and acceptable reason for it.
Although the Act in theory legalized abortion under a broad series of indications, in effect, very few legal abortions were performed after its enactment. Estimates are that under 1,000 legal abortions were carried out each year. Most abortions, estimated to be at least 200,000 a year, continued to be performed illegally. Some 45,000 of these resulted in hospitalization due to incomplete abortion and led to 1,500 to 3,000 deaths per year. In addition, the vast majority of these were performed on white women, who made up only a small percentage of the population seeking abortions. The preponderance of white women among the women who obtained legal abortions was evidently due to the strict procedural requirements imposed by the 1975 Act. These worked to the advantage of those with money, skill in dealing with government bureaucracy, and access to urban medical facilities.
This legal situation was dramatically altered in 1994 after the transition from the apartheid regime to full democracy and the victory of the African National Congress (ANC) in the first fully democratic elections in South Africa. The ANC had campaigned on a platform of liberalized abortion and, once it came to power, it proceeded to fulfill its campaign pledge on this issue. After receiving the report of the Ad Hoc Select Committee on Abortion and Sterilisation, appointed to review this matter, the Government introduced draft legislation in Parliament to allow abortions to be performed on request during the first fourteen weeks of pregnancy. The proposed legislation provoked a heated debate between pro-choice and pro-life groups, and the latter held numerous rallies to protest suggested changes. Despite polls indicating that the great majority of the population did not support the legislation and considerable opposition among legislators both within and without the ruling ANC party, the legislation (the Choice on Termination of Pregnancy Act) was enacted in 1996, with almost one quarter of the legislators absent.
In its enacted form, the new abortion law is slightly different from the legislation initially proposed. Like much abortion legislation, it is based on a time-frame model. During the first twelve weeks of pregnancy, a woman may obtain an abortion upon request. From the thirteenth to the twentieth week of pregnancy, an
abortion may be performed in the following circumstances: if a medical practitioner is of the opinion that the
continued pregnancy would pose a risk of injury to the woman’s physical or mental health; if there is a substantial risk that the foetus would suffer from a severe physical or mental abnormality; if the pregnancy resulted from rape or incest; or if the continued pregnancy would significantly affect the social or economic circumstances of the woman. After the twentieth week of pregnancy, an abortion may be performed if two medical practitioners or one medical practitioner and a midwife are of the opinion that the continued pregnancy would endanger the woman’s life, would result in severe malformation of the foetus or would pose a risk of injury to the foetus.
Although all abortions must be performed in government-designated facilities, during the first twelve weeks an abortion may be performed by a medical practitioner or a midwife; after this period only a medical practitioner is qualified to carry out an abortion. While non-directive and non-mandatory counselling is encouraged, it is in no case mandated, and all women requesting an abortion are to be informed of their rights under the Act. As long as the woman is mentally competent, no parental or spousal consent is required, even in the case of a minor. If the woman is mentally incompetent or in a state of continuous unconsciousness, an abortion may be carried out with the consent of her guardian or spouse and the fulfilment of various other procedural requirements. The Act contains detailed notification and recordkeeping requirements and imposes penalties of a fine or up to ten years’ imprisonment on those who perform abortions in contravention of its provisions or who prevent the lawful termination of a pregnancy or obstruct access to a facility for the termination of pregnancy.
The 1996 abortion law is now the most liberal in Africa and, indeed, the world, authorizing the performance of abortions not only during the first trimester of pregnancy on request, but also through the twentieth week of pregnancy on very broad grounds, including socio-economic grounds. Although the preamble to the law stresses that abortion is not considered a form of contraception or population control, it also makes clear that the law is firmly based on a notion of individual human rights. The preamble provides that South Africa’s Constitution protects the right of persons to make decisions concerning reproduction and to achieve security in and control over their bodies; that both men and women have the right to have access to safe, effective, and acceptable methods of fertility control of their choice; and that women have a right of access to appropriate health care services to ensure safe pregnancy and childbirth. It also makes the State responsible for providing reproductive health to all, contraception and termination of pregnancy services, as well as safe conditions under which the right of choice can be exercised without fear or harm.
Nevertheless, opposition to the law has persisted. Shortly after its approval, the Christian Lawyers Association and other right-to-life groups brought an action against the Government claiming that, in authorizing the taking of life, the law violated the right to life of human beings, which, they asserted, starts at conception. They based their claim on Section 11 of South Africa’s new Constitution, which provides that “everyone has the right to life,” arguing that the phrase “everyone” applies to an unborn child. In 1998 in a procedural ruling before trial, the Transvaal Provisional Division of the High Court dismissed the suit (Christian Lawyers Association v. Minister of Health, 1998). It held that there was no express provision in the Constitution, including Section 11, affording the foetus or embryo legal personality or protection and that to interpret “everyone” as encompassing a foetus would ascribe to the word a meaning different from that which it bears everywhere else in the Constitution. Moreover, the Court concluded that to afford the foetus the status of a legal person might impinge on the rights of women that are expressly guaranteed in the Constitution. Although the ruling constitutes a forceful endorsement of the abortion law, the issue has not been fully settled since the plaintiffs have appealed the decision.
After the reform of the law, the number of legally performed abortions rose quickly. Within the first six months (January to June 1997), the number of abortions reported was twice that of the total number legally
conducted during the eight-year period 1984-1991. The abortion rate was estimated in 1997 at 2.7 abortions
per 1,000 women aged 15-44. In October 1999, the National Medicines Control Council announced that abortifacients would be made available in the country in mid-2000.
The South African Government views the fertility rate as too high. It has expressed particular concern about the high level of adolescent fertility and illegal abortion. The Government target is to reduce the total fertility rate from 3.3 births per woman in 1995-2000 to 2.1 by 2010 and to increase contraceptive use from 48 per cent (as estimated in 1988) to 80 per cent of fertile women. The Government supports family planning services, and contraceptives are provided free of charge at all government medical establishments.
Population Policy Data Bank maintained by the Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat. For additional sources, see list of references.