The Choice on Termination of Pregnancy Act, 1996 (Choice Act) of South Africa establishes specific provisions regarding the necessary requirements for a woman to be able to terminate a pregnancy. With limited exceptions, section 5(2) of the Choice Act makes informed consent of the pregnant woman the sole requirement for the termination of her pregnancy during the first 12 weeks of pregnancy. Meanwhile, Section 5(3) of the Choice Act provides that pregnant women under 18 years of age should be advised to consult with parents, guardians, family members, or friends before the pregnancy is terminated. However, the final decision on whether to undertake such consultations is left the individual.
In 2000, the petitioner, Christian Lawyers’ Association of South Africa, requested that the South Africa High Court hold as unconstitutional sections 5(2) and 5(3) of the Choice Act. The petitioner argued that women under 18 years old are not capable of giving informed consent to terminate their pregnancies, and therefore other requirements were necessary, such as: (a) the consent of the parents or guardians; (b) consulting the parents or guardians; (c) undergoing counselling; and (d) reflecting on their decision or decisions for a prescribed period.
In its decision, the South African High Court analyzed the meaning of “informed consent,” determining that for this requirement to be fulfilled for the termination of pregnancy, the risk, nature, and possible harms of the pregnancy termination must be fully known, realized, and voluntarily undertaken by the person undergoing the procedure.
Moreover, the Court said that valid consent can only be given by someone with the intellectual and emotional capacity for the required knowledge, appreciation, and consent. Because consent is a manifestation of will, capacity to consent depends on the ability to form an intelligent will on the basis of an appreciation of the nature and consequences of the act. Therefore, the Court recognized that young and immature children do not have the capacity for real knowledge, appreciation and consent. Such young and immature children would not qualify under the Choice Act to access the rights to termination of pregnancy because they are incapable of complying with the important jurisdictional requirement of giving informed consent.
However, the Court rejected the assertion that minors were not able to give informed consent. While the Court recognized that the Act does not impose a rigid age at which a girl or a woman has the capacity to give informed consent, a girl or any woman who is mature enough to form an intelligent will has the capacity to consent to the termination of her pregnancy and its concomitant invasion of her privacy and personal integrity. According to the Choice Act, it is the responsibility of the medical practitioner to determine on a case-by-case basis the pregnant individuals’ capacity to give informed consent, considering her emotional and intellectual maturity.
The Court recalled that the Choice Act contains special provisions for termination of pregnancy when the person is under 18 years old, establishing that the medical practitioner shall only advise her to consult with others, but not requiring this as a necessary step for the termination of the pregnancy, so long as the medical practitioner is satisfied with the pregnant person’s capacity to give inform consent. Additionally, the Court reaffirmed, if the medical practitioner has doubts on the woman’s capacity to give informed consent, the medical practitioner must not proceed with the termination of the pregnancy without the assistance of her parents or legal guardians. Therefore, the High Court rejected the petitioner’s allegations and established the Choice Act to be constitutional.
Furthermore, the Court also established that the provisions of the Choice Act are consistent to the right to self-determination. The South African Bill of Rights sets that everyone has the right to bodily and psychological integrity (section 12(2)), which includes the right to make decisions concerning reproduction and the security and control over their body. Also, under the South African Constitution, everyone has the right to reproductive health care (section 27(1)), the right to have their dignity respected and protected (section 10), and the right to privacy (section 14). It is the recognition of these rights what provides a foundation for the right to termination of pregnancy in South Africa.