A critical evaluation of the laws pertaining to sterilisations and termination of pregnancies: exposing the gaps and threats.

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.