South Africa’s Choice of Termination of Pregnancy Act (CTOPA) was enacted 25 years ago. It aims to repeal restrictive and inaccessible abortion laws and promote reproductive rights and freedom of choice for women in South Africa. The CTOPA entrenches the right of women and girls to access abortion services on request up until the 12th week of pregnancy. From 12 to 20 weeks, abortion is allowed in certain circumstances. This includes if continuing the pregnancy would significantly affect the pregnant woman’s social or economic circumstances.

After the 20th week of pregnancy, abortion needs to be approved by a medical practitioner. It is only approved if the continued pregnancy would endanger the woman’s life, result in severe malformation of the fetus, or would pose a risk of injury to the fetus.

Regardless of the liberal provisions of the law, South Africa is grappling with new and old threats to abortion access.

  • Information about abortion services remains scarce
  • Access continues to be stigmatised and discriminatory
  • Stock-outs of contraception and medical abortion drugs are common
  • Limited facilities are designated to offer abortion services
  • Limited numbers of doctors, nurses, and midwives are trained and willing to provide abortions.
  • The COVID-19 pandemic has also worsened the experiences of women. They are disproportionately suffering the burdens of COVID-19 on the healthcare system.

One of the current threats to access to abortion in South Africa is the issue of fetal burial.

The case of Voice of the Unborn Baby v Minister of Home is currently pending in our court system. This case was filed by the non-profit organisation Voice of the Unborn Baby and supported by the Catholic Archdiocese of Durban. The applicants argued that the Births and Deaths Registration Act should be declared unconstitutional and a violation of rights to dignity, equality, privacy, and freedom of religion for not allowing the option of burial where a fetus dies before the 26th week of pregnancy. Under the current law, one may only bury a fetus where pregnancy loss occurred at or after 26 weeks.

The Women’s Legal Centre Trust and WISH Associates joined the case as friends of the Court. This was to ensure that the Court understood the current landscape of abortion service provision. Particularly, the lack of timely information about abortion and services.

Stigma is rife. We wanted to explain how fetal burial will further marginalise and endanger the lives of women seeking abortion services. The concern arose because the case brought by the applicants does not distinguish between cases of pregnancy loss by natural causes (miscarriages and stillbirths), and voluntary terminations of pregnancies. The voluntary termination of a pregnancy implicates constitutional rights and international law obligations.

In our view, fetal burial in the current framework of abortion would invariably impact women’s ability to seek and access these services without fear, stigma, discrimination, and marginalisation.

Regardless of it being an option or not, fetal burial would be made a condition for receiving abortion services. This would put more women in danger as they seek assistance from unsafe providers without this requirement. This will devastate women’s ability to access safe and legal abortion, without being hindered or coerced. Ultimately, it would violate their rights to make decisions concerning access to reproductive health care.

On 26 March 2021, the High Court of South Africa agreed that certain sections of the Births and Deaths Registration Act were unconstitutional for failing to provide for the option to bury fetal remains of a pregnancy loss that occurred earlier than 26 weeks, irrespective of the manner of the loss. The Court also stated that the option to bury must not be a consideration imposed on those seeking abortion.

Indeed, the decision to exclude fetal burial from the CTOPA is welcomed and a relief in the current climate of abortion access. It is, however, disappointing that after accepting that fetal burial negatively impacts women’s rights to access abortions, the Court missed an opportunity to pronounce strongly on the dire consequences the option to bury would have had on abortion service provision in South Africa and affirm the goals of the CTOPA within this context. The case will now be heading to the Constitutional Court of South Africa.

At the Women’s Legal Centre, we remain committed to our goal of advocating and ensuring that all women and girls have access to safe and legal abortion to realise their constitutional rights, control their bodies, and enjoy reproductive justice.

Mandi is an attorney with the Women’s Legal Centre, a grantee partner of the Safe Abortion Action Fund.

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