Moral Laws (IV): Abortion

28 November 2019

In terms of South African law, abortions are legal and regulated by the Choice on Termination of Pregnancy Act[1] (“the Act”). The Act provides for the termination of pregnancy, without restriction, for the first 12 weeks of a woman’s gestation period.[2] Termination of pregnancy in the 13th to 20th week of gestation can only be performed on one of four grounds[3] – the existence of which must be confirmed by the opinion of a medical practitioner.[4] Termination beyond 20 weeks of gestation may only be performed on one of three grounds[5], which must be confirmed by a medical practitioner in consultation with another medical professional.[6] The termination of pregnancy of a minor or mentally disabled woman requires an additional layer of consent – as prescribed by the Act.[7]

In terms of South Africa’s common law, legal subjectivity – the time when the law recognises one as a natural person/human being, vested with rights, duties and capacities – begins at birth. In terms of the common law, a person is ‘born’ when: (1) the foetus is separated from its mother’s body, and (2) lives independently after separation (even if only for a moment). Prior to birth, no rights vest in a foetus and it is considered to form part of the mother’s body.[8] It is on this basis that the Act has been criticised for its strict regulation of the termination of pregnancies beyond 12 weeks of gestation – as the foetus is not considered a legal subject until birth. The reasoning behind that kind of legislative drafting can be explained by a moral abhorrence of termination as the foetus gets nearer to birth.

THE DEBATE

The friction between the pro- and anti-abortion arguments is more about moral issues than it is either a scientific or legal debate – even though both sides use the law and science to back their moral outlook on the subject.

The opposing lobbies disagree primarily on when life is believed to begin. The anti-abortion lobbyists’ belief about the beginning of life ranges from conception to when the foetus is considered to be “viable” – meaning that the foetus has reached a stage of development in the womb where it can live independently[9] of its mother without being fed from her bloodstream. On the other hand, pro-abortion lobbyists believe, in line with South African law, that life only begins at birth. These differences are significant in that the determination of the beginning of life dictates when a foetus becomes a legal subject vested with rights. It is the difference between terminating a pregnancy and committing a murder.

The unborn child/foetus is a focal point, but so is the bearer of the foetus – the pregnant woman.

Central to the pro-abortion argument is the pregnant woman. In contrast, the anti-abortion argument almost bypasses the woman, considering her merely a vessel obliged to bear and birth the child she conceived. That statement is significant in two ways: the first is that there is almost a lack of recognition of the woman’s rights (as a legal subject) and the conflict that that creates with the rights that anti-abortionists assign to the unborn child; the second is that the anti-abortion argument is only concerned with the protection of the unborn child’s rights up until birth – with no further consideration given to the fact that the child will be born unwanted by its mother (who may also be incapable of caring for it).

The moral and scientific stand points have briefly been highlighted. The legal debate implicates a conflict of rights – that of the woman and that of the unborn child. Of course, pro-abortionists do not consider there to be a conflict of rights at all because the foetus is not vested with any until it is born (whereat the abortion debate becomes superfluous). However, for purposes of this section we will be working off the anti-abortionist premise: that the unborn child/foetus is vested with the constitutional right to life[10] (prior to birth). This right, however, conflicts with the pregnant woman’s constitutionally enshrined reproductive rights[11], her right to bodily integrity[12] and the right to self-determination[13].

All, but the right to self-determination, are fundamental rights in the South African legal framework. The right to life and the right to human dignity[14] are considered by our Constitutional Court to be the most significant of the fundamental rights[15] - bearing in mind that the Constitution was written from the legal standpoint that legal subjectivity is attained at birth.

This position is reinforced by section 12(2) of the Constitution which provides that “Everyone has the right to bodily and psychological integrity, which includes the right: (a) to make decisions concerning reproduction; (b) to security in and control over their body”. If anti-abortionists apply the right to life to a foetus, then surely the refusal to allow the termination of that “life” by the pregnant woman will infringe on her right to human dignity[16] – upping the ante from a conflict with fundamental rights of unequal weighting to a conflict of rights of equal standing.

In a conflict of rights between two legal subjects, the right of one must prevail over the other. Given that the birth of an unwanted child can sometimes be more detrimental to the child,[17] the pregnant woman’s right to human dignity, in living the dignified life that she chooses for herself and her unborn child, would trump the unborn child’s right to life. The anti-abortionist legal argument must fail on this basis.

RE-FOCUSING

Having engaged the different angles of the abortion debate it is now appropriate to address perhaps the most concerning issue of this entire debate – the fact that years after women’s emancipation we are still debating the role of the state in interfering with a woman’s life choices. It is patronising to think that a woman, who is a life bearer, requires criminal sanction to guide (or rather threaten) her decision about the life bearing ability which only she possesses.

It is the woman forced to have the child (under threat of criminal sanction) who endures the emotional, psychological, physical and financial consequences of a decision taken on her behalf by the state or any anti-abortion lobbyists. The state’s and lobbyists’ cause stops at the birth of the child – which is where the mother’s burden begins. As Richard Dworkin put it, “[a] woman who is forced to bear a child she does want because she cannot have an early and safe abortion, is no longer in charge of her own body: the law has imposed a kind of slavery on her.”[18]

CONCLUSION

To be clear, promoting a woman’s freedom to choose to terminate her pregnancy according to her own determination is not to be confused with encouraging the termination of pregnancies in general. The US Supreme Court[19] decision which held that even though “[s]ome of us as individuals find abortion offensive to our most basic principles of morality,... that cannot control our decision”, is echoed here.[20] 

The decision to terminate must be left to the pregnant woman and not to any third party (whether it is the state, medical practitioners or anti-abortionists). That level of interference by anyone (even the state) unjustifiably transgresses personal freedoms. Even the consent limitations placed on pregnant minors and gestation periods beyond 12 weeks in the Act is restrictive, without sufficient justification, based on the same reasons presented above. It is always the mother that has to live with the consequences of either the birth of a child or the termination of a pregnancy. On that basis alone no one has the authority to dictate her decision – not even another woman in her position.

"Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, it does not follow that the State is entitled to proscribe it in all instances.

That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love, cannot alone be grounds for the State to insist she makes the sacrifice.

Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society."[21]

By Lee-Anne Germanos, Legal Researcher, Helen Suzman Foundaiton. 

Footnotes:

[1]No 92 of 1996.

[2]Section 2(a) of the Act.

[3]Section 2(b):

(i) the continued pregnancy would pose a risk of injury to the woman’s physical or mental health; or

(ii) there exists a substantial risk that the fetus would suffer from a severe physical or mental

abnormality; or

(iii) the pregnancy resulted from rape or incest; or

(iv) the continued pregnancy would significantly affect the social or economic circumstances of the woman.

[4]Section 2(b) of the Act.

[5]Section 2(c):

(i) would endanger the woman’s life;

(ii) would result in a severe malformation of the fetus; or

(iii) would pose a risk of injury to the fetus.

[6]Section 2(c) of the Act.

[7]Section 5(3) to 5(5) of the Act.

[8]Concept in Roman Law: partusenimantequamedatur, mulierisportioestvelviscerum.

[9]With or without aids.

[10]Section 11 of the Constitution.

[11]Section 12(2)(a) of the Constitution.

[12]Section 12(2)(b) of the Constitution.

[13]Section 235 of the Constitution.

[14]Section 10 of the Constitution.

[15] S v Makwanyane 1995 (3) SA 391 (CC).

[16]The choice to live a life of dignity based on her own determination of how to achieve that (with or without the responsibility of a child). This choice transcends the right to self-determination as being legally bound to bear and birth a child against her will can impact on how she lives a dignified life (in terms of her financial circumstances, the psychological effect and social impact on her).

[17]There is a body of case law being built around damages claims for wrongful life – which is the birth of a disabled child due to a failure by medical practitioners to provide the parents with information regarding a disability/ies that the child would be born with (which would cause him/her to suffer through his/her life). Examples: Friedman v Glicksman 1996 (1) SA 1134 (W) and Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA).

[18]Christian Lawyers’ Association v National Minister of Health and Others 2004 (10) BCLR 1086 (T) at para 40.

[19]Casey v Planned Parenthood of Southeastern Pennsylvania (1992) 120 L ed 2d 698.

[20]Ibid fn18 at para 42.

[21]Ibid fn19 at Christian Lawyers’ Association v National Minister of Health and Others 2004 (10) BCLR 1086 (T) at para 43.