Revisiting minors’ reproductive autonomy rights under South African Law : the rights and wrongs of the Choice on Termination of Pregnancy Act

• Date: 01 October 2018
• Author: Admark Moyo
• DOI: 10.10520/EJC-12222f6e8b
• Record Number: sapr1_v33_n1_a7
• Published date: 01 October 2018
• Pages: 1-42

Article

Southern African Public Law

https://doi.org/10.25159/2522 -6800/2953

https://upjournals.co.za/index.php/SAP L

ISSN 2522-6800 (Online)

Volume 33 | Number 1 | 2018 | #2953 | 42 pages

© 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 or approval–—with 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 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 other things, 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.’1 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. The primary reason for locating

the discussion in the context of termination of pregnancy is that uninformed decisions,

with or without the support of parents, often carry heavy consequences for the health

and life of the pregnant child. More importantly, teenage pregnancies may lead to unsafe

abortion and denial of access to educational opportunities. 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 revisiting the laws regulating the termination of pregnancy: while there was

a flurry of academic writing about the termination of pregnancy in the late 1990s and

the early years of the new millennium,2 the 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 article adopts a holistic

approach to the termination of pregnancy, exploring as it does the 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.4 It must be emphasised that this article is 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, Tjakie Naudé, ‘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 Denise Meyerson,

‘Abortion: The Constitutional Issues’ (1999) 116 South African LJ 50.

3 Act 92 of 1996.

4 See Catherine Campbell, Yugi Nair and Sbongile Maimane, ‘ 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, society and 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 article focuses on whether or not the Choice Act strikes an appropriate

balance between children’s autonomy, parental responsibility and state intervention in

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, whereas the 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 observed that ‘[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 Deborah Brand, ‘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, sex is 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 girls and is related to 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 sexual morality.

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.