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LME 3701 MARKED ASSIGNMENT 2
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ABORTION – HISTORICAL DEVELOPMENTS WHICH BIRTHED THE CURRENT STATUS QUO
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Legal Research Methodology (University Of South Africa), 1. PROPOSED WORKING TITLE
ABORTION – Historical Developments which birthed the current status quo / Building Blocks which
birthed the current status quo
2. INTRODUCTION
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?
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
2 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.
1 Choice on Termination of Pregnancy Act and Termination Act 92 of 1996.
, 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 it3 continues to stifle the implementation of the Act as
well as opportunities of improvements on the said implementation.
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 (1948 -1990).
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.
2 Abortion and Sterilization Act 2 of 1975.
3 Chapter 2 of the Constitution of the Republic South Africa, 1996.
4 Section 44 of The Insurance Act of 1943.
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