Who Decides? Unpacking Abortion Consent for Couples

Issue: Can a woman make the unilateral decision to terminate her pregnancy even against the wishes of the unborn baby’s father?

Here’s a question from Bongani:

My fiancée and I are both committed Christians. We met at church, where we were both active youth members. We have been dating for nearly four years, during which time we have remained celibate because we do not believe in premarital intimacy. Despite numerous tempting instances, we kept each other in check and accountable to stay chaste until marriage.

However, recently, we succumbed to temptation, and, as fate would have it, she is pregnant from that one incident. Of course, we knew biologically it only takes a single instance of intercourse for pregnancy to occur, but we feel so hard done by. It feels like all our plans have been chucked out the window from the top floor of a skyscraper.

After swiftly going through the stages of grief, I found myself at peace with the situation and even looking forward to being a father. The problem is, as a Christian, my fiancée says she does not want to have the baby as she does not wish to have a child out of wedlock. On the other hand, as a Christian, I oppose abortion. As you can imagine, this has left us at somewhat of an impasse. I have tried talking her out of it, as have fellow church members whom I have roped in for assistance and guidance. I just cannot get through to her.

Can she abort our child against my wishes? Does she not need my consent? Is it not supposed to be a joint decision? She does not deny that I am the father, so, as the father, can I stop her from aborting my child?

From The Legal Desk:

Thanks for the question, Bongani. I’ve got to say this is not a fun way to learn that it only takes one night of intimacy to end up with a baked potato in her oven. As if that wasn’t enough, to both be of the same faith and then have that faith be what presents the stumbling block in your decision-making is quite the cruel twist of fate. That said, regarding your questions, let’s take a look at the legals…

The old Abortion and Sterilisation Act¹ prescribed restrictive conditions under which abortion could take place. That Act was subsequently repealed by the Choice on Termination of Pregnancy Act² (“CTPA”), which is the Act that is relevant here. Unlike its predecessor, the CTPA significantly widened the circumstances under which an abortion may be performed lawfully and, notably, it shifted the focus onto the woman concerned and her medical practitioner.

So, unlike the good old U.S. of A, where the issue of abortion is a political hot potato, the legalities of it in South Africa are much more straightforward. As far as your situation is concerned Bongani, here’s the most critical part you need to know: A pregnancy may be terminated only with the informed consent of the woman unless she is not able to give such consent. This was confirmed in Christian Lawyers Association v National Minister of Health.³

In other words, only the mother’s consent (regardless of her age) is required. It is not a joint decision. The consent of the biological father of the unborn child, the husband, the parents, or the guardian (where the pregnant person is a minor) is not required. Although minors are to be counselled to consult relevant individuals such as parents or the father of the unborn child, their consent is not necessary. No one can veto the mother’s informed decision to terminate the pregnancy.

Another important aspect to be aware of is that section 10(1)(c) of the CTPA provides that any person who prevents the lawful termination of a pregnancy commits a crime. So please, Bongani, do not forcibly prevent your fiancée from pursuing a lawful termination. Do not lock her up at home, confiscate her means to travel to the relevant clinic, obstruct her access to a registered abortion facility, or any other act of that nature. These are all criminal offences.

As a side note, you may want to share the following information with your fiancée: According to section 2 of the CTPA, the conditions under which the pregnancy may be terminated differ according to the stage of pregnancy at the time of the termination:

First 12 weeks of pregnancy: Pregnancy termination is allowed by a registered medical practitioner, registered midwife, or nurse with the prescribed training.

13th to 20th week of pregnancy: Termination is subject to considerations like therapeutic, eugenic, and humanitarian factors. It also requires consultation with the pregnant woman.

After 20 weeks: Termination is allowed after consultation with another medical practitioner or registered midwife. It is permissible if the woman’s life is in danger or due to the foetus having severe malformation.

That’s that from the legal point of view. From a more practical and resolution-focused point of view, have you considered getting married now? If you both want this relationship and want a child, and the only thing complicating the matter is whether the child is born before or after marriage, why not just get the marriage out of the way? You could visit the Department of Home Affairs and have a marriage officer solemnise your marriage today. That way, you have your child (happy you) and the child is born into wedlock (happy her). You can always have a lavish dream wedding later.

Written by Theo Tembo