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

[35] The South African Choice on Termination of Pregnancy Act also recognizes the
capacity of a minor to consent to abortion on her own without the consent or
consultation of the parent or guardian. 788 Where a minor is seeking termination,
there is an obligation on the practitioner or midwife to advise the minor to
consult with a parent, guardian or family member. 789 However, the minor may
choose to do otherwise. Neither parental consultation nor parental consent is a
precondition. The recognition of the capacity of the minor to consent to abortion
on her own under the Act, constitutes a recognition of the evolving capacities of
the child as envisaged by the Children’s Convention. Some pregnant minors may
be living away from home and others may have suffered abuse at the hands of
their own parents or guardians, or may simply be too afraid to involve parents.
Making parental consent or consultation a precondition might serve only to deny
the service to a class that needs it most.
[36] The constitutionality of the Choice on Termination of Pregnancy Act has been
tested in two cases at a High Court level. 790 In Christian Lawyers’ Association of
South Africa v Minister of Health (1998), 791 the plaintiffs sought an order to declare
the Choice on Termination of Pregnancy Act void under the Constitution. They
argued that human life begins at conception and abortion terminates such life.
Furthermore, they argued that section 11 of the Constitution which guarantees
‘everyone’ a right to life, also applies to a foetus from the moment of conception.
The corollary was that a foetus was a bearer of constitutional rights and that the
Act was thus repugnant to section 11 of the Constitution because it permits the
killing of human life. The court found for the respondents. It held that a foetus
does not have legal persona and that the term ‘everyone’ in section 11 did not
cover a foetus. The court said that accepting the plaintiff’s argument would
impact negatively on the achievement of substantive equality for women. It said
that the provisions granting women abortion under the Choice on Termination of
Pregnancy Act were supported by provisions of the Constitution guaranteeing
women rights to: equality, 792 human dignity, 793 bodily and psychological
integrity, which includes the right to make decisions concerning reproduction
and the right to security in and control over her body 794 privacy, 795 freedom of
788 Section 5(3) ibid.
789 Ibid.
790 Christian Lawyers’ Association of South Africa v Minister of Health 1998 (11) BCLR 1434 (High Court of
South Africa); Christian Lawyers’ Association v Minister of Health 2004 (10) BCLR 1086 (High Court of South
Africa).
791 Christian Lawyers’ Association of South Africa v Minister of Health 1998 (11) BCLR 1434 (High Court of
South Africa).
792 Section 9 of the South African Constitution.
793 Section 10 ibid.
794 Section 12 ibid.
795 Section 14 ibid.
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