What is the Law on Abortion and Teenage Pregnancy?

Realising you’re pregnant is often world-changing news. Carrying the baby full term and raising it as your child will obviously have a massive impact on your life, however, the decisions to either abort the pregnancy or give the baby up for adoption can be equally taxing with many psychological effects persisting long after the choice has been made. With the abortion rates in South Africa steadily increasing over time and with many of those performed illegally, a few questions are being raised in the minds of the public, namely – What is the law on Abortion? Is it Legal? And how does it apply to Teenage Pregnancies?

The Choice on Termination of Pregnancy Act 92 of 1996 makes it legal for any woman in South Africa to have an abortion on demand at any point for the first 12 weeks of the pregnancy. In certain scenarios, the woman may have an abortion between the 13th and 20th weeks of the pregnancy (20th week included), if specific criteria have been met.

To have an abortion during this time, a medical practitioner must confirm, after consulting with the woman, that –

• Continuing the pregnancy would pose a risk to the woman’s mental or physical health.
• There is a substantial risk that the child will be born with a severe physical or mental issue.
• The pregnancy resulted from rape or incest.
• Continuing the pregnancy would significantly impact the woman’s social or economic status.

In some cases, an abortion may still be performed after the 20th week of the pregnancy if a medical professional, after consulting with another medical professional or registered midwife, determines that continuing the pregnancy would –

• Endanger the woman’s life.
• Result in a severe misformation of the child.
• Pose a risk of injury to the child.

These abortions must be carried out by trained professionals to ensure they are completed safely.

Who can Provide Abortion Services?

Any woman can receive a free abortion at most government hospitals or clinics during the first 12 weeks of the pregnancy.

Abortions can be carried out by different professionals depending on the time at which they are being performed.

It is illegal for untrained individuals to perform an abortion regardless of the stage of pregnancy.

Can Teenagers Have Abortions in South Africa? – What is the Law on Abortion and Teenage Pregnancy?

Yes, they can. As mentioned, any woman, regardless of age can have an abortion on demand during the first 12 weeks of the pregnancy. It is important for parents to remember that only the consent of the pregnant woman is required when performing an abortion as noted in subsection 5 of the 1996 act. As such, pregnant minors do not need to receive the consent of their parents before they have an abortion. Healthcare professionals will however recommend that they consult their parents before making a decision although the minor may refuse and still receive an abortion.

It is also important for pregnant minors to remember that having a child does not make them adults and they will still be under the care and supervision of their parents or guardians regardless of their decision.

What are the Penalties for Having an illegal Abortion in South Africa?

When dealing with penalties related to illegal abortions, there are 3 main offences that are usually considered –

• Performing an abortion without the proper qualifications – ‘Backalley abortions’ are sometimes performed by individuals without the necessary training, this is extremely dangerous for the women involved and is illegal.
• Preventing the lawful termination of a pregnancy.
• Preventing access to abortion services.

All of these acts are punishable by heavy fines and up to 10 years imprisonment.

Can my Partner/Parents Force me to Get an Abortion? – What is the Law on Abortion and Teenage Pregnancy?

No, they cannot. In the same way that only the consent of the pregnant woman is required when having an abortion, likewise, the choice to keep the child is only decided by the woman and nobody can force them into going through with an abortion. Individuals who take part in forced abortions may be subject to criminal charges and imprisonment.

Can an Abortion be Performed without Consent? – What is the Law on Abortion and Teenage Pregnancy?

As noted, usually, only the consent of the pregnant woman is relevant when having an abortion. No other party needs to be consulted or petitioned and, generally, nobody can give consent or demand that someone else gets an abortion.

The only exception to this case occurs when the pregnant women are severely mentally disabled to the point at which she cannot understand the abortion decision or when she is in a state of continuous unconsciousness and there is no reasonable prospect that she will regain consciousness before the time to consent to an abortion arrives. In such a scenario, a guardian or spouse may make the decision and give consent on the woman’s behalf. If such a person is not available, a curator personae may make the decision instead.  

Can a Doctor Refuse to Perform an Abortion in South Africa?

For the most part, yes, a medical professional can refuse to perform abortions although they must inform the pregnant woman of her rights and give her the locations of alternate venues when she may have an abortion.

If however, the patient’s life is at risk, the medical professional must act to save them regardless of their objections to abortion.

Is Abortion Counselling Mandatory?

No, it is not. While many clinics and abortion centres may actively promote counselling, both before and after the procedure, it is not mandatory and women can demand to have their abortion without any such counselling.

In Conclusion – What is the Law on Abortion and Teenage Pregnancy?

Abortion on demand is legal for any woman in South Africa before the 12th week of pregnancy. After this period, abortion is only allowed in certain scenarios such as when the pregnancy threatens the physical or mental health of the mother or when there is a substantial risk that the child will be born with a severe mental or physical disability.

During the first 12 weeks, abortions can be performed by either registered midwives or medical practitioners. Abortions performed after this period can only be done by medical practitioners. It is illegal for any person who does not possess the relevant medical expertise to perform an abortion. These ‘backalley’ abortions are often highly dangerous to the patient and can lead to the practitioner being charged with heavy fines or a prison sentence of up to 10 years.

It is likewise illegal to prevent a lawful abortion from taking place or from denying access to the necessary medical services.

There is no minimum age limit for women seeking abortions in South Africa. Any woman, regardless of age, can seek a free abortion at most clinics or abortion centres around the country. Usually, healthcare practitioners will recommend that minors consult their parents or guardians before the procedure but this is not mandatory and minors may demand an abortion without their parent’s knowledge.

Generally speaking, the only consent necessary to have an abortion is that of the mother. Family members or partners cannot force a woman to have an abortion or to keep a child that they do not wish to keep and engaging in such coercion may lead to criminal charges. The only times in which other groups may be asked to provide consent is when the mother is either mentally impaired to the extent at she can no longer understand the decision she is being asked to make, or when she is continually unconscious and there is no reason to assume that she will regain consciousness in time to make the decision. At this point, a guardian, spouse or curator personae may be asked to provide consent instead.

Medical professionals may refuse to perform an abortion but must provide the woman with relevant information such as the location of a facility that will be able to provide abortion services. The exception to this rule occurs in medical emergency scenarios in which the mother’s life is at risk. When getting an abortion, many clinics and centres may suggest both pre-and post-abortion counselling, however, this is not mandatory and the woman may refuse it.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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