PRESIDENT'S OFFICE
No. 1891.
22 November 1996
NO. 92 OF 1996: CHOICE ON TERMINATION OF PREGNANCY ACT, 1996.
It is hereby notified that the President has assented to the following Act
which is hereby published for general information:-
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.
(Afrikaans text signed by the President.)
(Assented to 12 November 1996.)
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 South Africa;
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 Republic of South Africa, as
follows:-
Definitions
1. In this Act, unless the context otherwise indicates-
(i) "Director-General" means the Director-General of Health; (iii)
(ii) "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; (iv)
(iii) "incest" means sexual intercourse between two persons who are related
to each other in a degree which precludes a lawful marriage between
them; (ii)
(iv) "medical practitioner" means a person registered as such under the
Medical, Dental and Supplementary Health Service Professions Act,
1974 (Act No. 56 of 1974); (v)
(v) "Minister" means the Minister of Health; (viii)
(vi) "minor" means any female person under the age of 18 years; (vii)
(vii) "prescribe" means prescribe by regulation under section 9; (x)
(viii) "rape" also includes statutory rape as referred to in sections 14 and
15 of the Sexual Offences Act, 1957 (Act No. 23 of 1957); (ix)
(ix) "registered midwife" means a person registered as such under the
Nursing Act, 1978 (Act No. 50 of 1978); (vi)
(x) "termination of a pregnancy" means the separation and expulsion, by
medical or surgical means, of the contents of the uterus of a
pregnant woman; (i)
(xi) "woman" means any female person of any age. (xi)
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 (])(a), which
may also be carried out by a registered midwife who has completed the
prescribed training course.
Place where surgical termination of pregnancy may take place
3. (1) The surgical termination of a pregnancy may take place only at a
facility designated by the Minister by notice in the Gazette for that purpose
under subsection (2).
(2) The Minister may designate any facility for the purpose contemplated in
subsection (1), subject to such conditions and requirements as he or she may
consider necessary or expedient for achieving the objects of this Act,
(3) The Minister may withdraw any designation under this section after
giving 14 days' prior notice of such withdrawal in the Gazette.
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, 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 who has completed the prescribed training course consent
thereto.
(5) Where two medical practitioners or a medical practitioner and a
registered midwife 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, 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 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 Director-General: 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 Director-General shall keep record of the prescribed information
which he or she receives in terms of subsection (3).
(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 Minister may, on such conditions as he or she may determine, in
writing delegate to the Director-General or any other officer in the service of
the State, any power confer-red upon the Minister by or under this Act, except
the power referred to in section 9.
(2) The Director-General 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 Director-General by or under this Act or delegated to him or
her under subsection (1).
(3) The Minister or Director-General 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 him or her.
Regulations
9. The Minister may make regulations relating to any matter which he or she
may consider necessary or expedient to prescribe for achieving the objects of
this Act.
Offences and penalties
10. (1) Any person who-
(a) is not a medical practitioner or a registered midwife 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); or
(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.
(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 Republic of South Africa, 1993 (Act No. 200 of
1993), possessed legislative authority with regard to the termination of
a pregnancy.
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.
SCHEDULE
________________________________________________________________________________
No. and year of law |Short title |Extent of repeal
____________________|________________________________|__________________________
Act No. 2 of 1975 |Abortion and Sterilization Act, |In so far as it relates
|1975 |to abortion
____________________|________________________________|__________________________