February 2008.
Act
To determine the
circumstances in which and conditions under which the pregnancy of a woman may
be terminated; and to provide for matters connected therewith.
Preamble
Recognising the values of human dignity,
the achievement of equality, security of the person, non-racialism and
non-sexism, and the advancement of human rights and freedoms which underlie a
democratic
Recognising that the Constitution
protects the right of persons to make decisions concerning reproduction and to
security in and control over their bodies;
Recognising that both women and men have
the right to be informed of and to have access to safe, effective, affordable
and acceptable methods of fertility regulation of their choice, and that women
have the right of access to appropriate health care services to ensure safe
pregnancy and childbirth;
Recognising that the decision to have
children is fundamental to women's physical, psychological and social health
and that universal access to reproductive health care services includes family
planning and contraception, termination of pregnancy, as well as sexuality
education and counselling programmes
and services;
Recognising that the State has the
responsibility to provide reproductive health to all, and also to provide safe
conditions under which the right of choice can be exercised without fear or
harm;
Believing that termination of
pregnancy is not a form of contraception or population control;
This Act therefore repeals
the restrictive and inaccessible provisions of the Abortion and Sterilization
Act, 1975 (Act No. 2 of 1975), and promotes reproductive rights and extends
freedom of choice by affording every woman the right to choose whether to have
an early, safe and legal termination of pregnancy according to her individual
beliefs.
Be It Enacted by the Parliament of the
Definitions
1. In this Act, unless the context otherwise indicates-
"Director-General"
means the Director-General of Health;
"gestation
period" means the period of pregnancy of a woman calculated from the first
day of the menstrual period which in relation to the pregnancy is the last;
"Head of Department”
means the head of a provincial health
department;
"incest"
means sexual intercourse between two persons who are related to each other in a
degree which precludes a lawful marriage between them;
"medical
practitioner" means a person registered as such under the Medical, Dental
and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974);
“Member of the Executive
Council” means the member of the Executive
Council of a province who is responsible for health in that province;
"Minister" means
the Minister of Health;
"minor"
means any female person under the age of 18 years;
"prescribe"
means prescribe by regulation under section 9;
"rape" also
includes statutory rape as referred to in sections 14 and 15 of the Sexual
Offences Act, 1957 (Act No. 23 of 1957);
"registered
midwife" means a person registered
as such under the Nursing Act 2005 (Act No. 33 of 2005), and who has in
addition undergone prescribed training in terms of this Act;
“registered
nurse” means a person registered
as such under the Nursing Act, 2005 (Act No. 33 of 2005), and who has in
addition undergone prescribed training in terms of this Act;
“termination
of a pregnancy" means the separation and expulsion, by medical or surgical
means, of the contents of the uterus of a pregnant woman;
"woman"
means any female person of any age.
Circumstances in which and conditions under which pregnancy may be
terminated
2. (1) A
pregnancy may be terminated-
(a) upon request of a woman during the first
12 weeks of the gestation period of her pregnancy;
(b) from the 13th up to and including the
20th week of the gestation period if a medical practitioner, after consultation
with the pregnant woman, is of the opinion that-
(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; or
(c) after the 20th week of the gestation
period if a medical practitioner, after consultation with another medical
practitioner or a registered midwife, is of the opinion that the continued
pregnancy-
(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.
(2) The termination of a pregnancy may only be carried out by a
medical practitioner, except for a pregnancy referred to in subsection (1)(a),
which may also be carried out by a registered midwife or registered nurse who
has completed the prescribed training course.
Place where termination of pregnancy may take place
3. (1) Termination of a pregnancy may take place only at
a facility which—
(a) gives access to medical and nursing staff;
(b)
gives access to an operating theatre;
(c) has appropriate surgical equipment;
(d) supplies drugs for intravenous and intramuscular injection;
(e)
has emergency resuscitation equipment and
access to an emergency referral centre or facility;
(f) gives access to appropriate transport should the need arise
for emergency transfer;
(g)
has facilities and equipment for clinical
observation and access to in-patient facilities;
(h) has appropriate infection control measures;
(i) gives access
to safe waste disposal infrastructure;
(j) has telephonic means of communication; and
(k) has been approved by the Member of the Executive Council
by notice in the Gazette.
(2) The Member of the Executive Council may withdraw
any approval granted in terms of subsection (l)(k).
(3) (a) Any
health facility that has a 24-hour maternity service, and which complies with
the requirements referred to in subsection (l)(a) to (j), may
terminate pregnancies of up to and including 12 weeks without having to obtain
the approval of the Member of the Executive Council.
(b) The person in charge of a health facility contemplated
in paragraph (a) must notify
the relevant Member of the Executive Council that the health facility has a
24-hour maternity service which complies with the requirements referred to in
subsection (l)(a) to (j).
(4) The Member of the Executive Council shall once a
year submit statistics of any approved facilities for that year to the
Minister.
(5) Notwithstanding anything to the contrary in this
Act, the Minister may perform any of the functions that the Member of the
Executive Council may or must perform, if it is necessary to perform such
function in order to achieve any of the objects of this Act.
Counselling
4. The State shall promote the provision of non-mandatory and
non-directive counselling, before and after the
termination of a pregnancy.
Consent
5. (1) Subject to the
provisions of subsections (4) and (5), the termination of a pregnancy may only take
place with the informed consent of the pregnant woman.
(2) Notwithstanding any other law or the common law, but subject to
the provisions of subsections (4) and (5), no consent other than that of the
pregnant woman shall be required for the termination of a pregnancy.
(3) In the case of a pregnant minor, a medical practitioner or a
registered midwife or registered nurse, as the case may be, shall advise such
minor to consult with her parents, guardian, family members or friends before
the pregnancy is terminated: Provided that the termination of the pregnancy
shall not be denied because such minor chooses not to consult them.
(4) Subject to the provisions of subsection (5), in the case where a
woman is-
(a) severely mentally disabled to such an
extent that she is completely incapable of understanding and appreciating the
nature or consequences of a termination of her pregnancy; or
(b) in a state of continuous unconsciousness and there is no
reasonable prospect that she will regain consciousness in time to request and
to consent to the termination of her pregnancy in terms of section 2, her
pregnancy may be terminated during the first 12 weeks of the gestation period,
or from the 13th up to and including the 20th week of the gestation period on
the grounds set out in section 2(1)(b)-
(i) upon the request of
and with the consent of her natural guardian, spouse or legal guardian, as the
case may be; or
(ii) if such persons cannot be found, upon the
request and with the consent of her curator personae:
Provided
that such pregnancy may not be terminated unless two medical practitioners or a
medical practitioner and a registered midwife or registered nurse who has
completed the prescribed training course consent thereto.
(5) Where two medical practitioners or a medical practitioner and a
registered midwife or registered nurse who has completed the prescribed
training course, are of the opinion that-
(a) during the period up to and including
the 20th week of the gestation period of a pregnant woman referred to in
subsection (4)(a) or (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
(b) after the 20th week of the gestation
period of a pregnant woman referred to in subsection (4)(a) or (b), the
continued pregnancy-
(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, they may consent to the
termination of the pregnancy of such woman after consulting her natural
guardian, spouse, legal guardian or curator personae, as the case may be:
Provided that the termination of the pregnancy shall not be denied if the
natural guardian, spouse, legal guardian or curator personae, as the case may
be, refuses to consent thereto.
Information concerning termination of pregnancy
6. A woman who in terms of section 2(1)
requests a termination of pregnancy from a medical practitioner or a registered
midwife or registered nurse, as the case may be, shall be informed of her
rights under this Act by the person concerned.
Notification and keeping of records
7. (1) Any medical practitioner,
or a registered midwife or registered nurse who has completed the prescribed
training course, who terminates a pregnancy in terms of section 2(1)(a) or (b),
shall record the prescribed information in the prescribed manner and give
notice thereof to the person referred to in subsection (2).
(2) The person in charge of a facility referred to in section 3 or a
person designated for such purpose, shall be notified as prescribed of every
termination of a pregnancy carried out in that facility.
(3) The person in charge of a facility referred to in section 3,
shall, within one month of the termination of a pregnancy at such facility,
collate the prescribed information and forward it by registered post
confidentially to the relevant Head of
Department:
Provided that the name and address of a woman who has requested or obtained a
termination of pregnancy, shall not be included in the prescribed information.
(4) The Head of Department--
(a) shall keep record of the prescribed information
which he or she receives in terms of subsection (3); and
(b) submit to the Director-General the information contemplated
in paragraph (a) every six months.
(5) The identity of a woman who has requested or obtained a
termination of pregnancy shall remain confidential at all times unless she
herself chooses to disclose that information.
Delegation
8. (1) The Member of the Executive Council may, on such conditions as
he or she may determine, in writing delegate to the Head of Department or any other officer in the service of the State,
any power confer-red upon the Member of
the Executive Council by or under this Act, except the power referred to in section 9.
(2) The Head of Department may, on such conditions as
he or she may determine, in writing delegate to an officer in the service of
the State, any power conferred upon the Head
of Department by
or under this Act.
(3) The Member
of the Executive Council or Head of Department shall not be divested of any power delegated
by him or her, and may amend or set aside any decision taken by a person in the
exercise of any such power delegated to that person.
Regulations
9. The Member
of the Executive Council may, in consultation with the Minister, make
regulations relating to any matter which it is
necessary or expedient to prescribe for the proper implementation or
administration of this Act
Offences and penalties
10. (1) Any
person who-
(a) is not a medical practitioner, or a registered midwife or registered nurse who has completed the prescribed training course
and who performs the termination of a pregnancy referred to in section 2(1)(a);
(b) is not a medical practitioner and who
performs the termination of a pregnancy referred to in section 2(1)(b) or (c);
(c) prevents the lawful termination of a pregnancy or obstructs
access to a facility for the termination of a pregnancy, shall be guilty of an
offence and liable on conviction to a fine or to imprisonment for a period not
exceeding 10 years; or
(d) terminates a pregnancy or allows the termination of a
pregnancy at a facility not approved in terms of section 3(1) or not
contemplated in section 3(3)(a), shall be guilty of an offence and
liable on conviction to a fine or to imprisonment for a period not exceeding 10
years.
(2) Any person who contravenes or fails to comply with any provision
of section 7 shall be guilty of an offence and liable on conviction to a fine
or to imprisonment for a period not exceeding six months.
Application of Act
11. (1) This Act shall apply to
the whole of the national territory of the Republic.
(2) This Act shall repeal-
(a) the Act mentioned in columns one and two
of the Schedule to the extent set out in the third column of the Schedule; and
(b) any law relating to the termination of
pregnancy which applied in the territory of any entity which prior to the
commencement of the Constitution of the
Short title and commencement
12. This Act shall be called the Choice on Termination of Pregnancy
Act, 1996, and shall come into operation on a date fixed by the President by
proclamation in the Gazette.