Abstract
The aim of this article is to demonstrate that, although South Africa has permissive termination-of-pregnancy legislation, to the extent that women can terminate first- and second-trimester pregnancies on demand and for socio-economic reasons, foetal interests are in fact taken into account. The system of female reproductive rights progressively shelters foetal interests, albeit to a limited extent. South Africa is in the process of successfully balancing the conflicting notions of female reproductive rights and foetal interests. The article discusses the "right to terminate a pregnancy" with reference to the Constitution, the Choice on Termination of Pregnancy Act 92 of 1996 and relevant case law.
 
 On the topic of foetal interests, the article looks at the Choice on Termination of Pregnancy Act as legislative recognition of foetal interests since a woman's right to terminate her pregnancy is progressively limited as the pregnancy advances beyond the second trimester. The value of dignity justifies the recognition of foetal interests. Further, accepting that the Choice on Termination of Pregnancy Act limitedly protects foetal interests based on the value of dignity, the article questions why South Africa permits elective second trimester termination of pregnancies? Research indicates a need for second trimester terminations and the article discusses the position of a number of women seeking second trimester terminations.
 
 The article draws to an end by looking at the case of S v Mshumpa as an example of the balancing process that is needed when dealing with female reproductive rights and foetal interests. This article demonstrates the constitutional setting of women's termination-of-pregnancy rights on the one hand, and foetal interests on the other. Further, it illustrates that these conflicting positions, rather than being deepened, are in fact balanced by legislation and relevant case law.
Highlights
The aim of this article is to demonstrate that South Africa has permissive termination-of-pregnancy legislation to the extent that women can terminate first- and second-trimester pregnancies on demand and for socio-economic reasons, foetal interests[1] are taken into account
The Choice on Termination of Pregnancy Act 92 of 1998 and the Constitution of the Republic of South Africa, 1996 will be examined in order to determine whether the Choice Act is a legislative entrenchment of the tension that arises or whether it silently balances these opposing positions
The Constitution does not expressly deal with the "right to terminate a pregnancy",O'Sullivan states that the Choice Act gives effect to numerous constitutional rights that can be grouped together as female reproductive rights.[4]. These rights include the rights to life, privacy, bodily and psychological integrity, dignity, equality, access to information and health care, and pregnant children's rights, and affect the right to terminate a pregnancy in South Africa. This is reflected in the Preamble of the Choice Act, where these rights are recognised as important elements in promoting reproductive rights and in extending the freedom of choice concerning early and safe termination-of-pregnancy services
Summary
The aim of this article is to demonstrate that South Africa has permissive termination-of-pregnancy legislation to the extent that women can terminate first- and second-trimester pregnancies on demand and for socio-economic reasons, foetal interests[1] are taken into account. These rights play an important role in society and serve as the foremost reason why foetal interests are limited. It is accepted that the Choice Act takes foetal interests into account, since a woman's right to terminate her pregnancy is gradually limited as the pregnancy progresses. South Africa is in the process of successfully balancing the opposing notions of female reproductive rights and foetal interests.[3] There are indications that a balancing method is in place, because two extremes are avoided; that is, pregnant women may not terminate late pregnancies on demand or for socio-economic reasons, and the state does not completely prohibit the termination of pregnancies. In housing values and rights the Constitution ensures that these two extremes are avoided
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
