LME 3701 lme3701-marked-assignment-2.

LME 3701 lme3701-marked-assignment-2. LME3701 - Legal Research Methodology. The mere mention of the word ‘abortion’ is sure to spark a feisty conversation amongst people, due to the differences in opinion, cultural background, religious affiliations, moral stance, medical knowledge and social environments of individuals or groups. An individual’s understanding of a termination of pregnancy is shaped by the various societal factors such as religion, upbringing and/or education. It is important to investigate the malleability of why women continue to have to be shamed about decisions to have abortions. The two factors at the centre of this never-ending debate are the constitutional rights of a person (in this case, women) and the stigma that surrounds termination of pregnancy. Related to this are questions about why the stigma still lingers on long after the promulgation of the Choice on Termination of Pregnancy Act and Termination Act 92 of 19961 In the quest to understand and find answers to this seemingly simple yet multifaceted question, it becomes prudent that this research pieces together the historical developments of the law pertaining to abortion in South Africa. The research will be confined to development from 1975 with the promulgation of the Abortion and Sterilization Act 2 of 1975 up to current status quo. 3. PROBLEM STATEMENT The purpose of this research is to critically analyze the right to a choice of termination of pregnancy as afforded by the Act and to investigate the potential effect or lack thereof in society. The aim being the ability to exercise one’s rights freely and safely by destigmatizing abortion. This research will include aspects that incorporate the following: • Does society’s perception of abortion trump the rights afforded to women as persons living in South Africa under the exclusive protection of the Constitution? 1 Choice on Termination of Pregnancy Act and Termination Act 92 of 1996. 1 Downloaded by Danielle green () lOMoARcPSD| Downloaded by: mrsNURSE01 | Distribution of this document is illegal Downloaded by: nurse001 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material S - The Marketplace to Buy and Sell your Study Material 2 • Are acts which are promulgated by Parliament adequately workshopped or is such knowledge only reserved for the elite? • What is the effect of safe abortions? • Is it possible that the stigma still exists because society lacks knowledge as to the reasons that compelled law makers to promulgate the Choice of Pregnancy and Termination Act 92 of 1996? 4. HYPOTHESIS/AIM OF THE RESEARCH A society that is well versed with the laws that govern their everyday lives, is a society that is more inclined to respect the law and able to utilize remedies afforded by the said law for their everyday problems. The school syllabus already incorporates sexual and reproductive health as part of Life Orientation; thus, the inclusion of such acts can better equip the younger generation with adequate knowledge and thereby destigmatizing abortion. 5. POINTS OF DEPARTURE AND ASSUMPTIONS This research will adopt a historical approach to the developments of abortion in South Africa. It will endeavour to piece together a road map of where these developments from the apartheid era with the promulgation of the Abortion and Sterilization Act 2 of 19752 to the current status quo. Chapter 2 of the Constitution3 which contains the Bill of Rights will be important in understanding the rights which underpin the Choice of Termination of Pregnancy Act 92 of 1996. In deciphering the whole debacle of the stigma associated with abortion, two articles namely; Abortion: Development and Impact in South Africa and The “legalization” of abortion in South Africa will also be consulted with the aim of consolidating the reasons which led to where the law is currently and how lawmakers can better entrench the implementation of the Choice of Termination of Pregnancy Act. The final piece of the puzzle will be to look at the debate that surrounds abortion in society with the view of understanding what the gist of the debate is and how it continues to stifle the implementation of the Act as well as opportunities of improvements on the said implementation. 2 Abortion and Sterilization Act 2 of 1975. 3 Chapter 2 of the Constitution of the Republic South Africa, 1996. 2 3 Downloaded by Danielle green () lOMoARcPSD| Downloaded by: mrsNURSE01 | Distribution of this document is illegal Downloaded by: nurse001 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material S - The Marketplace to Buy and Sell your Study Material 3 6. CENTRAL RESEARCH THEMES 6.1 Abortion during apartheid During apartheid South African women of all races were marginalized in that they were under the social and even legal control of their fathers and husbands. As such women were treated as second class citizens for many years. Customary gave Black women the status of minors and excluded them from rights regarding children and property. Common law on the other hand deprived white women guardianship and various economic rights. Women could not even have separate domiciles from those of their husband. This became posed a serious challenge when it came to divorces. Section 44 of the Insurance Act of 19434 deprived married women, but not married men, of all or some of the benefits of life insurance policies made in their favour by their husbands. Thou women of some races suffered more than others, the common thread is that; all women regardless of race, were oppressed under apartheid. The book by Susan M Klaasen titled “Abortion Under Apartheid: Nationalism, Sexuality, and Women's Reproductive Rights in South Africa” is said to be the first book to focus on the history of abortions in the African context. It traces the criminalisation of abortions in South Africa during the apartheid era (). During apartheid, the Afrikaner dominated National Party, advanced separate population policies for White, Black, Coloured and Indian South Africans, mainly fuelled by fear of unsustainable population growth. This fear turned into a racist cancer and manifested in propaganda suggesting that the black population was growing too quickly while the white population was stagnating. The Dutch Reformed Church which was the official church in South Africa propagated the belief that the white population must grow in order to maintain supremacy. Government tax incentives were used to encourage to procreate while contraception amongst Black, Coloured and Indian women was encouraged. All of this meant that pregnancies could not be terminated upon request, but White women had several options available to them when unwanted pregnancies occurred. 4 Section 44 of The Insurance Act of 1943. Downloaded by Danielle green () lOMoARcPSD| Downloaded by: mrsNURSE01 | Distribution of this document is illegal Downloaded by: nurse001 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material S - The Marketplace to Buy and Sell your Study Material 4 Many could get abortions done by the private practitioners. Under common law, doctors could justify the termination of pregnancies if it were a risk to a woman’s mental health. If the different circumstances existed, the financial astute white women could acquire help in countries outside of South Africa. In contrast, the many unemployed and/or low paid women of colour found it difficult to procure the services of private doctors who were willing to perform abortions privately. The hard situations often meant that ‘backstreet’ abortions became the only viable option for women of colour (Black, Coloured and Indian women). This meant that poor women with unwanted pregnancies often had to turn to unregistered, unskilled or doctors who had not completed their training for assistance. Often these practitioners did not even have the necessary experience of instruments needed to perform safe abortions. If the ‘backstreet’ abortion was not even an option due to cost; women of colour would often try to terminate their own pregnancies by ingesting dangerous substances such as bleach or using knitting needles. These often placed their lives at risk with countless women losing their lives in the process. The Abortion and Sterilization Act 2 of 1975 Women’s organizations such as ARAG (Abortion Reform Action Group) and the medical practitioners who were performing abortions within the confined government regulations were instrumental in pressuring the apartheid government to expand the circumstances for legal abortions. In 1975, the Abortion and Sterilization Act was passed by Parliament. The Act was package as one that was giving greater freedom to all women when in reality the newly promulgated law narrowly specified ruled under which abortions could be performed made it more difficult for women to get abortions. Under the 1975 Abortion and Sterilization Act, abortions could be performed legally only when a pregnancy could seriously threaten a woman's life or her physical or mental health; could cause severe handicap to the child; or was the result of rape (which had to be proved), incest or other unlawful intercourse, such as with a woman with a permanent mental handicap. Thou it appeared that the circumstances under which women could get abortions were expanded, however, in order to qualify for these abortions women had to get approval from two independent physicians (neither of which could perform the procedure) and in some cases the approval of a Downloaded by Danielle green () lOMoARcPSD| Downloaded by: mrsNURSE01 | Distribution of this document is illegal Downloaded by: nurse001 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material S - The Marketplace to Buy and Sell your Study Material 5 psychiatrist of magistrate was needed. The act was worded in such a way that it placed women of colour at a disadvantage. The lack of financial means meant that women of colour often could not afford to get legal abortions. The Impact of the 1975 Act Contrary to the claims of the parliamentary advocates’ claims, the 1975 Act failed to increase access to safe abortion services. Data on legal abortions performed in state hospital (as prescribed by the Act) are incomplete and do not reflect the true nature of the state of affairs. This is because women continued to seek illegal termination of pregnancies despite the serious health risks and these numbers were not accounted for. The number of women admitted to gynaecologic wards increased due to incomplete and septic abortions. Many of the poorer women and ones with no access to health care services died either on their way to these wards or at home, these too, were not accounted for. The total number of unsafe abortions is under estimated as the Medical Research Council of South only started actively tracking and documenting the rate of maternal morbidity (an overarching term that refers to any physical or mental illness or disability directly related to pregnancy and/or childbirth) and mortality (death, especially on a large scale). 6.2 Abortion post 1994 The journey to reform During the 1994 elections, The African National Congress’ (ANC) draft health care program included of access to legal abortions. After the party’s election victory, the new government drafted a new abortion law to be considered and passed by the new parliament. The call to abolish the 1975 Act started a rife debate amongst religious groups, antiabortion and prochoice groups. Prior to the parliamentary vote on the 1996 Termination of Pregnancy Act, almost two dozen antiabortion groups united under the National Alliance for Life and held demonstrations. Groups such as ARAG and Planned Parenthood of South Africa supported the ANC’s prochoice stance that “every woman must have the right to choose whether or not to have an early termination of pregnancy according to her own beliefs.