Revisiting minors’ reproductive autonomy rights under South African Law : the rights and wrongs of the Choice on Termination of Pregnancy Act
Author | Admark Moyo |
DOI | 10.10520/EJC-12222f6e8b |
Published date | 01 October 2018 |
Date | 01 October 2018 |
Record Number | sapr1_v33_n1_a7 |
Pages | 1-42 |
Article
Southern African Public Law
https://doi.org/10.25159/2522-6800/2953
https://upjournals.co.za/index.php/SAPL
ISSN2522-6800(Online)
Volume33| Number 1 | 2018 | #2953| 42pages
© Unisa Press 2018
Revisiting Minors’ Reproductive Autonomy Rights
under South African Law: The Rights and Wrongs of
the Choice on Termination of Pregnancy Act
Admark Moyo
Senior Lecturer in Law, Great Zimbabwe University
admoyo@gzu.ac.zw or admarkm@gmail.com
Abstract
This article examines the interface between children’s autonomy, parental
responsibility and state intervention in reproductive decisions of a particular
type, namely the termination of pregnancy. Children asserting their autonomy
in reproductive decision-making often confront counterclaims of legitimate
intervention by parents or guardians responsible for caring for the child.
Locating the right balance between competing interests is very important
because uninformed decisions, with or without the support of parents, often
carry heavy consequences for the education, health and life of the pregnant
child. More specifically, this article seeks to investigate the extent to which
South African law protects and empowers sexually active adolescents to make
decisions concerning the termination of pregnancy. This involves an analysis of
the degree to which relevant legislation appropriately reconciles children’s
reproductive autonomy rights–—particularly the right to terminate a pregnancy
without parental consent orapproval–—withparental responsibility and state
intervention. Parental responsibility and state intervention embody children’s
right to and need for protection (from the immaturity that characterises youth)
when decisions to terminate pregnancies are made. Accordingly, this article
focuses on whether or not the Choice on Termination of Pregnancy Act strikes
an appropriate balance between children’s autonomy, parental responsibility
and state intervention in reproductive decision-making.
Keywords:minor; reproductive autonomy; children’s rights; wrongs; termination of
pregnancy
2
Introduction
Reproductive decision-making includes, among otherthings, matters relating to
sterilisation, contraception and termination of pregnancy. These areas divide parents,
lawyers, philosophers and even healthcare professionals on the issue of what is legally
or morally right for children. Reproductive autonomy revolves around‘the basic right
of all couples and individuals to decide freely and responsibly the number, spacing and
timing of their children.’1This articleexamines the interface between children’s
autonomy, parental responsibility and state intervention in reproductive decisions of a
particular type, namely, the termination of pregnancy. The primary reason for locating
the discussion in thecontext of termination of pregnancy is that uninformed decisions,
with or without the support ofparents, often carry heavy consequences for the health
and life of the pregnant child. More importantly, teenage pregnancies may lead tounsafe
abortion and denial of access to educationalopportunities. These consequences threaten
the life, survival and intellectual development of sexually active adolescents. It is
therefore necessary to investigate whether the domestic regulation of this field of the
law in South Africa is in keeping with the best interests of the child. There are further
reasons for revisitingthe laws regulating the termination of pregnancy: while there was
a flurry of academic writingabout the termination of pregnancy in the late1990s and
the early years of the new millennium,2the main focus of much of the writing was on
the tension between the unborn foetus’s right to life and the pregnant woman’s
reproductive choice. Even less was written about the interaction between children’s
autonomy, parental responsibility and state intervention.This articleadopts a holistic
approach to the termination of pregnancy, exploringas it doesthe triadic relationship
between children, parents and the state, and examining the strengths and shortcomings,
respectively referred to as the rights and wrongs,of the Choice on Termination of
Pregnancy Act (Choice Act).3
Children asserting their autonomy in reproductive decision-making often confront
counterclaims of legitimate intervention by parents or guardians responsible for caring
for the child. Many adults believe that children should abstain from sex or that they are
sexually innocent. These beliefs are inconsistent with the reality that sexually active
minors do participate in sexual activities of different sorts without the knowledge of
parents.4It must be emphasised that this articleis not concerned with the question
1 International Conference on Population and Development (ICPD), Summary of Programme of Action,
DPI/1618/POP United Nations Department of Public Information Conference, Cairo, 5–13 September
1994, ch 7, para A.
2 See, for example, TjakieNaudé, ‘The Value of Life: A Note on Christian Lawyers Association of SA
v Minister of Health’ (1999) 15(4) South African J on Human Rights 541 and DeniseMeyerson,
‘Abortion: The Constitutional Issues’ (1999) 116 South African LJ 50.
3 Act 92 of 1996.
4 See CatherineCampbell, YugiNair and SbongileMaimane, ‘ AIDS Stigma, Sexual Moralities and the
Policing of Women and Youth in South Africa’ (2006) 83 Feminist Review 133–134; Pamela Mda
3
whether or not minors should have sex (sexually active minors participate in sexual
activities regardless of what parents, societyand the law may say). Rather, it seeks to
investigate the extent to which South African law protects and empowers sexually active
adolescents who engage in sexual activities earlier than society anticipates they will.
This involves an analysis of the degree to which the relevant legislation appropriately
reconciles, on the one hand, children’s reproductive autonomy rights – particularly the
right to terminate a pregnancy without parental consent or approval – and, on the other,
parental responsibility and state intervention.Parental responsibility and state
intervention embody children’s right to and need for protection (from the immaturity
that characterises youth) when decisions to terminate pregnancies are made.
Accordingly, this articlefocuses on whetheror notthe Choice Actstrikes an appropriate
balance between children’s autonomy, parental responsibility and state interventionin
reproductive decision-making.
The termination of pregnancy raises sensitive moral, philosophical and legal questions
concerning the degree to which children, particularly girls, should be allowed to
determine how to use their own bodies. Firstly, whereasthe child’s best interests, right
to life and right to privacy may be promoted by giving children relative autonomy from
parental control, many parents or guardians prefer to retain control over the child’s
reproductive decisions. Secondly, even if it were accepted that parents or guardians
should make reproductive decisions for sexually active adolescents, it would be difficult
to monitor children’s compliance with parental decisions even where parents make
and others, ‘Knowledge, Attitudes and Practices about Contraception amongst Schoolgirls aged 12–
14 years in Two Schools in King Sabata Dalindyebo Municipality, Eastern Cape’ (2013) 5(1) African
J of Primary Health Care and Family Medicine 4, where the autho rs observedthat ‘[m]ost participants
agreed that parents were not happy with young girls being involved in relationships. Some mentioned
that their mothers shouted at them whenever they talked about sexual matters and they did not like
that’; and DeborahBrand, ‘Sugar, Spice and Criminalised Consent: A Feminist Perspective of the
Legal Framework Regulating Teenage Sexuality in South Africa’ (2013) 29 South African J on Human
Rights 193 at 197–98, who argues:
Young women are culturally-set beacons of sexual innocence,gatekeepers of sexual activity and
bearers of the moral and physical consequences related to teenage sexu ality. Yet, there is public anxiety
about the potentially corrupting effects of sexual knowledge. In spite of the anxiety about teenage
sexuality, sexis still a potent social force fuelled by the particular circumstances of teenagers’
lives … South African girls also exist in a social environment of violence, poverty and disease as well
as the stigmatisation of the sexuality of women and young people. Many parents, guardians and
community leaders will not acknowledge the possibility of youth sexuality or the fact that their own
children may be sexually active.The denial of teenage sexual desire is particularly strong in relation
to girlsand is relatedto the lack of respect for adult women’s sexual autonomy as well as the wider
demonisation of women. Within communities the ‘weakness of women’ is believed to fuel the spread
of HIV/AIDS in a social context where women are responsible for promoting sexualmorality.
Nonetheless, young women remain sexually active, despite adult attempts to control their behaviour
and, in order to fulfil their potential as fully-fledged adults, first they need to navigate their way through
adolescence.
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