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

eligion, belief and opinion 796 and health care services, including reproductive
health services. 797
[37] In Christian Lawyers’ Association v Minister of Health (2004) 798 the validity of the
Choice on Termination of Pregnancy Act was challenged on the ground that
section 5(3) of the Act was unconstitutional to the extent that it recognized the
capacity of a minor to consent to abortion without the prior consent and
approval of a parent. It was argued that such recognition was an infringement of
the constitutional right of every child to family care or parental care, 799 and to be
protected from maltreatment, neglect, abuse or degradation. 800 The challenge
was unsuccessful. It was held that the right to consent without parental consent
only applied to children who were sufficiently mature to grant informed consent.
The court also said that the right of a minor who is sufficiently mature to grant
informed consent to an abortion on her own was supported by the constitutional
right to bodily and psychological integrity which includes the right to make
decisions concerning reproduction, 801 and the right to control over one’s body. 802
[38] In 2005, Ethiopia amended its Criminal Code of 1957, which hitherto only
permitted abortion where the woman’s ‘life’ or ‘health’ were in ‘grave danger’.
The old law has been associated with high incidence of unsafe abortion related
mortality and morbidity. The revised Penal Code has substantially liberalised the
grounds for abortion. Under the new law, abortion is permitted on the following
grounds: rape or incest; risk to the life or health of the pregnant woman; risk to
foetal health; physical or mental disability that renders the pregnant woman
unable to raise the child; or minority status that renders the pregnant minor
physically or mentally unable to raise the child. 803 While falling short of explicitly
permitting abortion on request, the grounds are, nonetheless, sufficiently wide as
to facilitate an enabling rather than disabling environment for the provision of
access of abortion services to pregnant women who need them.
6.6 Access to Health Services by Non-citizens
[39] Though not addressing access to health services directly, the decision of the
Constitutional Court of South Africa in Khosa and Others v Minister of Social
796 Section 15 ibid.
797 Section 27 ibid.
798 Christian Lawyers’ Association of South Africa v Minister of Health 2004 (10) BCLR 1086 (High Court of
South Africa).
799 Section 28(1)(b) of the South African Constitution.
800 Section 28(1)(d) ibid.
801 Section 12(2)(a) of the South African Constitution.
802 Section 12(2)(b) ibid.
803 Article 551 of the Penal Code (Ethiopia).
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