sexual health and human rights in the african region - The ICHRP

Act of 1967. 782 Under English common law as clarified in R v Bourne, 783 abortion
is permitted if it is intended to save the life of the pregnant woman or preserve
her health.
[33] In 1996, South Africa reformed the abortions provisions of the Abortion and
Sterilization Act of 1975 and replaced with the Choice on Termination of
Pregnancy Act. 784 The Choice on Termination of Pregnancy Act constitutes
radical reform of abortion law. The Act seeks to render abortion a fundamental
right of every woman. The transformative premises underpinning the 1996 Act,
as can be inferred especially from the preamble to the Act, are that abortion
services should cease to be the object of restrictive and inaccessible law, but
instead, become an integral part of universally accessible reproductive health
services which the state has a duty to provide within an environment that
recognizes and respects women’s agency. A commitment to provide every
woman with a right to decide whether to have an early, safe and legal
termination of pregnancy is explicitly articulated in the preamble as part of the
philosophy animating the Act.
[34] In terms of its substantive provisions, the Choice on Termination of Pregnancy
Act allows abortion on request in the first twelve weeks of pregnancy. 785 From
the thirteenth to the twentieth week, the Act recognizes socio-economic grounds
as one of the grounds for abortion and does not seek to impose burdensome
certification requirements. 786 Particularly significant in a developing world
context where doctors are generally scarce, is the fact that the Act does not confer
a monopoly on doctors to perform abortion procedures. In the first trimester,
where abortion is available on request, midwives and nurses who have
undergone a prescribed training can, on their own, also perform abortions. 787 In a
developing world setting in which doctors are highly scarce, insisting that
doctors be the only health care professionals who can determine eligibility for
abortion or perform abortion is a sure way of ensuring that safe abortion services
are not accessible to the 90 percent or more of women who rely on the public
health sector for services.
782 CG Ngwena ‘An Appraisal of Abortions Laws in Southern Africa from a Reproductive Health Rights
Perspective’ (2004) 32 Journal of Law, Medicine and Ethics 708 at 710-713.
783 R v Bourne 1 Kings Bench 687 (Central Criminal Court, London).
784 Choice on Termination of Pregnancy Act of 1996 (South Africa).
785 Section 2(1) of the Choice on Termination of Pregnancy Act (South Africa).
786 Section 2(2) as amended by section 1 of the Choice on Termination of Pregnancy Act of 2008. In terms
of mid-level providers, the 1996 Act only recognized ‘registered midwives’. The amendment of the 1996
in 2008 added ‘registered nurses’.
787 Section 2(2) ibid and
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