Termination of Pregnancy

The most popular Christian religion, Catholicism, condemns abortion outright as a grave evil. Islam recognises (the need for) abortion but only in extremely limited circumstances,1 as does Judaism,2 Hinduism,3 Anglicism,4 and the Methodist and Presbyterian churches. Traditional Buddhism considers it to be taking a human life, although it is not forbidden.5 So our various theologies (and ‘theology’ being, literally, studies about God) hold an extremely critical view on the practice of abortion.

Now, our Constitution recognises that God is the Supreme Being – ‘May God protect our people … God bless South Africa’ the Preamble beseeches. So does our National Anthem. There is a measure of incongruity, then – some might say – in that it nevertheless sanctions the right of ‘every woman … to choose whether to have an early, safe and legal termination of pregnancy according to her individual beliefs’.

This is what the Choice on Termination of Pregnancy Act 1996 does. It is by no means a free-for-all, though, and the circumstances in which and conditions under which a pregnancy may be terminated are controlled by the statute. The Act falls under the authority of the Minister of Health.

A. Circumstances under which an abortion may be performed

  1. It is a criminal offence to perform an abortion otherwise than as set out below.
    • During the first twelve weeks of pregnancy, only a medical practitioner,6 registered midwife, or a registered nurse who has completed a prescribed training course may perform an abortion.7
    • Up to the end of the 20th week of pregnancy, only a medical practitioner may perform an abortion and, then, only if, after consultation with the pregnant woman, he is of the opinion that:8
      • the continued pregnancy risks injury to the woman’s physical or mental health; or
      • there exists a substantial risk that the foetus would suffer from a severe physical or mental abnormality; or
      • the pregnancy resulted from rape or incest; or
      • the continued pregnancy would significantly affect the social or economic circumstances of the woman.
    • After the 20th week of pregnancy, only a medical practitioner may perform an abortion if, after consultation with another medical practitioner or a registered midwife, he is of the opinion that the continued pregnancy:9
      • would endanger the woman’s life;
      • would result in a severe malformation of the foetus; or
      • would pose a risk of injury to the foetus.
  2. It is a crime to prevent the lawful termination of a pregnancy.10

B. Places where an abortion may take place

  1. It is a crime to perform an abortion at any place other than a facility which:11
    • gives access to medical and nursing staff;
    • gives access to an operating theatre;
    • has appropriate surgical equipment;
    • supplies drugs for intravenous and intramuscular injection;
    • has emergency resuscitation equipment and access to an emergency referral centre or facility;
    • gives access to appropriate transport should the need arise for emergency transfer;
    • has facilities and equipment for clinical observation and access to in-patient facilities;
    • has appropriate infection control measures;
    • gives access to safe waste disposal infrastructure;
    • has telephonic means of communication; and
    • has been approved by the Provincial MEC for Health.12
  2. It is a crime to obstruct access to a facility for the termination of a pregnancy.13

  3. It is a crime to allow an abortion to be performed at a place other than one approved by the Provincial MEC for Health.14

C. Records

  1. Any medical practitioner, registered midwife or registered nurse who performs an abortion must record all relevant information in the prescribed manner and give notice thereof to the person in charge of the facility. It is an offence to fail to do so.15

  2. The person in charge of the facility must, within one month of the abortion, collate the information (except the name and address of the woman) and send it to the relevant head of department, and commits an offence in failing to do so.16

  3. The head of department must, in turn, keep a record of this information that he receives, and submit such records to the Director-General every six months. It is an offence not to do these things.17

  4. It is a crime to reveal the identity of a woman who has requested or obtained an abortion (unless she chooses to disclose the information).18

  1. See for a summary of the position – ‘Islamic teachings on Abortion’. 

  2. – ‘Issues on Jewish Ethics: Abortion’. 

  3. Wikipedia – Hinduism and Abortion

  4. ‘Abortion’. 

  5. – ‘Buddhist Perspectives on the Abortion Debate’. 

  6. Registered in terms of the Medical, Dental and Supplementary Health Service Professions Act, 1974. This means a doctor. 

  7. Section 2(1)(a) read with section 2(2) and section 10(1)(a). 

  8. Section 2(1)(b) read with section 2(2) and section 10(1)(b). 

  9. Section 2(1)(c) read with section 2(2) and section 10(1)(b). 

  10. Section 10(1)(c). 

  11. Section 3(1) and section 3(3)(a) read with section 10(1)(d). 

  12. In the case of a pregnancy up to 12 weeks, if the place is a health facility with a 24 hour maternity service, so long as it complies with the rest of the above requirements, it does not need to be approved by the MEC. 

  13. Section 10(1)(c). 

  14. Section 3(1)(k) read with section 10(1)(d). 

  15. Section 7(1) and section 7(2) read with section 10(2). 

  16. Section 7(3) read with section 10(2). 

  17. Section 7(4) read with section 10(2). 

  18. Section 7(5) read with section 10(2).