A critical evaluation of the laws pertaining to sterilisations and termination of pregnancies: exposing the gaps and threats.
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Date
2021
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Abstract
The right to reproductive health, which is the primary focus of this dissertation, is a
component of the right to health. This right has been protected for many years, notably
in international human rights instruments, and has over time found recognition in the
constitutions of various states, including South Africa. The South African Constitution
protects the right to self-determination as well as the right to reproductive health care.
In addition to the above, the protection of other Constitutional rights such as the right
to dignity, the right to life, the right to equality and the right to access to information
further strengthen the right to reproductive health care. The legislature has also given
effect to these rights through the enactment of the Choice on Termination of
Pregnancy Act (hereinafter referred to as the Choice Act), the Sterilisation Act, as well
as the National Health Act.
Notwithstanding the state’s efforts to comply with international standards, gaps
continue to exist in, firstly, the South African legislative framework and, secondly, the
implementation of existing reproductive health laws. These gaps have manifested,
inter alia, in women having limited access to termination services; the continued
threats and subversion of reproductive health rights; as well as the forceful sterilisation
of HIV positive women in KwaZulu-Natal and Gauteng hospitals.
These gaps, unfortunately, disadvantage the most vulnerable members of society who
rely on public health facilities to enforce their constitutional and legislative rights to
reproductive health. Persons affected by these gaps and threats often resort to illegal
reproductive health services. It is argued, therefore, that the state has a duty to fulfil
and protect reproductive health rights to prevent the inevitable consequence of indirect
discrimination against poor women and girls caused by these gaps.
Description
Masters Degree. University of KwaZulu-Natal, Pietermaritzburg.