Choice on Termination of Pregnancy Act, 1996
Encyclopedia
The Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996) is the law governing abortion in South Africa
Abortion in South Africa
Abortion in South Africa was legal for very limited reasons until 1997, when the Choice on Termination of Pregnancy Act was passed, providing abortion on demand for a variety of cases.- Public opinion and political motives :...

. It allows abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...

 on demand up to the twelfth week of pregnancy, under broadly-specified circumstances from the thirteenth to the twentieth week, and only for serious medical reasons after the twentieth week. The act has been described by the Guttmacher Institute
Guttmacher Institute
The Guttmacher Institute is a non-profit organization which works to advance sexual and reproductive health. The institute operates in the United States and globally "through an interrelated program of social science research, policy analysis and public education." According to their mission...

 as "one of the most liberal abortion laws in the world".

History

Before the enactment of the Choice on Termination of Pregnancy Act, abortion was governed by the Abortion and Sterilization Act, 1975, which only allowed abortions when the woman's mental or physical health was seriously threatened, there was a likelihood that the child would be born with a severe handicap, or the pregnancy was the result of rape or incest. It required the approval of two doctors independent of the one performing the abortion, and in some cases also of a psychiatrist or a magistrate.

The Choice on Termination of Pregnancy Act was introduced in the first post-Apartheid
South African general election, 1994
The South African general election of 1994 was an election held in South Africa to mark the end of apartheid, therefore also the first held with universal adult suffrage. The election was conducted under the direction of the Independent Electoral Commission .Millions queued in lines over a three...

 parliament. It implemented the statement in the governing African National Congress
African National Congress
The African National Congress is South Africa's governing Africanist political party, supported by its tripartite alliance with the Congress of South African Trade Unions and the South African Communist Party , since the establishment of non-racial democracy in April 1994. It defines itself as a...

' policy framework that "every woman must have the right to choose whether or not to have an early termination of pregnancy according to her own beliefs". The act passed by 209 votes to 87, with 5 abstentions, and came into force on 1 February 1997.

Provisions

During the first twelve weeks of a pregnancy, an abortion may be performed at the request of the woman. From the twelfth to the twentieth week, a pregnancy may be terminated if it endangers the woman's mental or physical health, if the fetus may suffer from a severe mental or physical abnormality, if the pregnancy resulted from rape or incest, or if it would significantly affect the woman's social or economic circumstances. After the twentieth week, a pregnancy may only be terminated if it could endanger the woman's life, if the fetus is severely malformed, or if there is a risk of severe injury to the fetus.

An abortion in the first twelve weeks may be performed by a medical doctor or by an appropriately-trained nurse or midwife; after twelve weeks it may only be performed by a doctor.

Abortions may only be performed at facilities which meet certain requirements for staffing and equipment, and which have been approved by the provincial Member of the Executive Council (MEC) responsible for health. Facilities with a 24-hour maternity service and which meet the other requirements do not require the MEC's approval to perform abortions in the first twelve weeks of pregnancy.

An abortion can only be performed with the informed consent
Informed consent
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...

 of the woman, and no other person's consent may be required. Even in the case where a minor
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...

 is pregnant, she must be advised to discuss it with her parents, guardian or family, but their consent is not required. When a pregnant woman is seriously mentally ill or in a coma, her pregnancy may be terminated with the consent of her spouse or guardian, or on the authority of two doctors without the consent of the spouse or guardian if there is a serious medical risk.

It is a crime for anyone to perform an abortion without being qualified to do so, or in a unapproved facility; it is also a crime for anyone to prevent a legal abortion or obstruct access to an abortion facility. The penalty is a fine or imprisonment for up to ten years.

The act repeals the Abortion and Sterilization Act to the extent that it deals with abortion, and also repeals any laws on abortion in force in the former homelands.

Constitutional challenges

The Christian Lawyers Association and other anti-abortion groups challenged the constitutionality of the act, asserting that it violated the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...

 contained in section 11 of the Bill of Rights. In 1998 the Pretoria High Court dismissed the case, ruling that a fetus is not a person and does not have a right to life, and that the right to make decisions concerning reproduction, contained in section 12 of the Bill of Rights, protects a woman's right to abortion.

In 2004 the Christian Lawyers Association brought a second constitutional challenge, this time against the provisions of the act that allow a girl under the age of 18 to have an abortion without the consent of her parents or guardian. The court also dismissed this case, noting that the common-law rules relating to informed consent
Informed consent
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...

 mean that a girl who cannot understand the consequences of an abortion is not able to legally consent to one without the assistance of her parents.

Amendment

The Choice on Termination of Pregnancy Amendment Act, 2004 (Act No. 38 of 2004), which came into force on 11 February 2005, amended the main act to expand access to abortions. It allowed registered nurses, as well as registered midwives, to perform abortions up to the twelfth week of pregnancy. It delegated to the provincial MECs the power to approve and disapprove abortion facilities and the power to make regulations under the act, powers which had previously belonged to the national Minister of Health. It also introduced the provision exempting facilities with a 24-hour maternity service from needing the MEC's approval to perform abortions in the first twelve weeks.

The Constitutional Court
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...

 ruled the amendment act to be invalid on 17 August 2006, in the case of Doctors for Life International v Speaker of the National Assembly and Others. It was invalidated not because of its content, but because Parliament had not allowed for the public participation required by the Constitution; however, the court suspended its order for eighteen months to allow Parliament to remedy the situation. Parliament re-enacted the amendment, with the required public participation, as the Choice on Termination of Pregnancy Amendment Act, 2008 (Act No. 1 of 2008), which came into force on 18 February 2008.

The act was also amended by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
The Criminal Law Amendment Act, 2007 is a South African Act of Parliament which comprehensively revised and codified the law relating to sex offences...

, to update the definitions of "rape" and "incest" when they became statutory instead of common law crimes.

External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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