Age and the right to choose

The Choice on the Termination of Pregnancy Act has survived yet another challenge by the “pro-life” movement, this time concerning the right of pregnant minors to terminate their pregnancies without the permission of their parents or guardians. Last week the Pretoria High Court found that a woman’s constitutional right to terminate her pregnancy extends to girls under the age of 18.

Some reaction was sensationalist and unreasoned.

The Christian Lawyers’ Association (CLA), which brought the action, argued that young women and girls are unable to make informed decisions about whether or not to end their pregnancies.

The CLA argued that it was “in the best interests” of the pregnant minor to effectively force her to consult with her parents before the termination is performed, and to prevent her from having the termination where they refuse to give their consent.

Their challenge to the constitutionality of the Act fails to recognise the reality of the lives of thousands of young pregnant women and girls in South Africa. It assumes that they all live in safe, middle-class homes, attend school and have parents who are available and capable of acting in their best interests.

“I have a 14-year-old daughter and I certainly do not want her to go through something as traumatic as an abortion without me being there,” CLA chairperson Teresa Conradie was quoted as saying. The reality is very different from that articulated by those who would limit the right of girls and women to make their own reproductive choices.

The first national HIV-prevalence study among South African children recently conducted by the Human Sciences Research Council found that 3,3% of the children who participated were maternal orphans, while 10% had lost a parent by the time they were nine years old.

In the age group of 15 to 18 years, approximately 25% had lost one parent and 3% of children between the ages of 12 and 18 were heads of households. For the girls among these statistics, there is no parent available to consent to the decision to terminate pregnancy.

Research conducted by the Children’s Institute into the situation of children in South Africa last year found that “the number of crimes committed against children in South Africa has reached alarming proportions”, with rape being one of the most prevalent crimes committed against minors: 472 girls and young women in every 100 000 between the ages of 12 and 17 has been raped, many of them by their fathers and other family members.

Social workers estimate that about 28 000 children are involved in the sex industry, with girls between the ages of four and 17 being the primary targets of sex trafficking. The research also examined the issue of child labour and concluded that a significant number of children were working illegally and in contravention of labour laws. Almost two-thirds of these children said that they worked to help their families.

The Office of the President estimates that 5% of children between the ages of 10 and 16 are not in school. There are many reasons for this, including poverty, children who have to work, children who care for ill and dying parents, and children who live on the streets.

In its report, Scared at School, Human Rights Watch, an international NGO, highlighted the dangers of sexual abuse and violence that many young women and girls face from teachers and other learners on a daily basis while at school. It is in this context that the rights of pregnant minors must be seen. The statistics and the research mentioned here represent the tip of the iceberg.

It is undeniable that the majority of South African children live in poverty, are threatened with abuse and exploitation — often from family members — and experience barriers in accessing education and other services and resources. Girls and young women are disproportionately vulnerable — many are forced to enter into transactional sex to survive, trading sex for basic necessities.

Despite this reality — from which the CLA seems comfortably insulated — the legislation, which provides for safe and accessible abortions in South Africa, has come under constant attack since it was passed in 1996.

South Africa’s Constitution is unique in many respects, but not least because it is one of the few in the world that protects the right to abortion. Section 12 of the Bill of Rights states that everyone, not just adults — and not just minors who live with loving, supportive parents — has the right to bodily and psychological integrity, which includes the right to make autonomous decisions about reproduction.

The Choice on Termination of Pregnancy Act makes this abstract right a reality by giving women and girls access to safe and legal abortions in designated government hospitals.

Prior to the Act, thousands of women and girls risked their lives to seek dangerous, back-street abortions, with several hundred dying every year. The Act explicitly allows minors under the age of 18 to access a termination of pregnancy on request during the first 12 weeks of the pregnancy.

The Constitution also protects the fundamental rights of young women and girls to make decisions about reproduction and whether or not they wish to continue with their pregnancies.

Forcing a girl to consult with her parents and denying her an abortion if she is unable to do so or does not wish to, will completely undermine this most fundamental of rights for women. In many cases, the requirement of parental consent will effectively deny a pregnant minor the right to terminate her pregnancy.

The effects of early pregnancy are well documented internationally — teenagers who become mothers are less likely to complete their education, more likely to be unemployed or situated in low-income employment and have less power to negotiate choices in other areas of their lives.

In a country where many women’s choices are already circumscribed, the imposition of motherhood will undoubtedly limit their choices even further.

It is likely there will be another legal challenge to the Act, and it is critical that we continue to be vigilant about protecting the rights of women, including minors, to make informed decisions about these most personal and intimate aspects of their lives.

Liesl Gerntholtz is a lawyer at the Aids Law Project

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