South Africa remains committed to providing comprehensive sexual and reproductive health services in an equitable and rights-based approach. Access to sexual and reproductive healthcare is a constitutional right and on a broader perspective as part of the universal right to health. South Africa’s Choice on Termination of Pregnancy (CTOP) Act of 1996 was a major step towards achieving sexual and reproductive health freedom.^1,2 The Act serves as a global role model of reform in the area of abortion laws. South Africa is amongst the top-ranking countries with the most liberal laws on abortions.

The CTOP Act of 1996 is manifestly a radical change in the reproductive health sector in South Africa. The CTOP Act was passed in November 1996 and first came to effect in February 1997. It replaced the old law of Abortion and Sterilisation Act of 1975.³ Following this act, abortion-related maternal morbidity and mortality decreased by a dramatic 91% between 1997 and 2002.^4,5 The 2004 and 2008 amendments reform of the CTOP Act of 1996 brought a further reduction in abortion-related maternal morbidity and mortality.^6,7

Unsafe abortion is a preventable phenomenon and continues to be a major public health problem. Despite abortion being legally available in South Africa after a change in legislation in 1996, barriers to accessing safe abortion services continue to exist.⁸ According to the Saving mothers report, unsafe abortion is still an avoidable factor of maternal deaths after more than two decades of abortion law reform in South Africa.⁹

Several studies that have highlighted the barriers to safe abortion in South Africa include provider-related factors such as stigma, provider opposition to abortion, limited knowledge of abortion legislation, unavailability of the services especially in rural areas and lack of technical skill amongst providers because of inadequate training.^10,11 When the legal abortion services are not assessible or available, women seek help outside the established legal health system, and that brought serious implications on women’s reproductive health and well-being.^12,13 The conceptual framework for women’s abortion-related healthcare needs is demonstrated in Figure 1. The CTOP Act brought a significant improvement in sexual and reproductive health, but barriers to access the safe abortion are still an obstacle to the full benefits of abortion reforms in South Africa.^14,15

The requirements of the health facility are listed under section 3 of the CTOP Act to comply with TOP services. The TOP may take place only at a designated facility and should have access and availability to the following:

Any health facility with 24-h maternity service and complying with the requirements of section 3 (a) to (j) may be entitled for TOP services up to 12 weeks without having the approval of the MEC. The head of the health facility must notify the relevant MEC that the health facility complies with the requirements of the CTOP Act.^3,6

All women who request TOP services have the right to information concerning the process and procedure of TOP under the CTOP Act. The healthcare practitioner with whom the client first requests the TOP service should provide the following information to the client⁶:

The CTOP Act has a provision of non-mandatory and non-directive supportive counselling. Every pregnant woman who is contemplating TOP should be offered pre- and post-counselling from a trained healthcare professional. The counselling should include sufficient information to help women to make their informed choice.³

Pre-TOP counselling provides the details of the TOP procedure and process. Women have an opportunity to choose the options for TOP available for their gestational age. This also assists women who need emotional support immediately before the procedure. Pre-TOP counselling should include the following³:

The following information should be provided during post-TOP counseling³:

The TOP may only take place after the informed consent of the pregnant woman. The CTOP Act provides the provision of the consent of pregnant women for TOP regardless of their age.³ The CTOP Act even allows for minors (< 18 years) to request an abortion without their legal guardian or parents. The healthcare professional is obliged to advise the minor to consult with a parent, guardian or family member; however, the minor may choose or not to do so. Figure 2 summarised the standard process of consent under the CTOP Act.³ The constitutional right of a pregnant woman to decide on reproductive health is not age-restricted.⁶

The CTOP Act has special provision of the standard procedure with the consent of her natural guardian, spouse or legal guardian or curator under the following circumstances⁶:

The healthcare facility should maintain health records that are required to complete monthly summary reports containing the number of TOP performed, women’s age group and gestational age. Also, health facilities are obliged to complete an individual notification form for each TOP performed under CTOP Act.⁶

Therefore, in terms of the law, healthcare providers who are not directly involved with the abortion procedure cannot use their beliefs as a reason for not assisting a woman seeking abortion services with information and appropriate referrals. The CTOPA stipulates the following cases as guilty of offense if any person:

In terms of the CTOP Act, the guilty of an offense is liable on conviction to a fine or imprisonment for a period not exceeding 10 years.³

The qualification of TOP services is time-restricted under the CTOP Act and is particularly challenging because of the health expertise required. The Act leaves considerable scope for interpretation by third-party certification about whether the pregnant woman satisfies the ground for TOP. In the first 20 weeks of pregnancy, there is no third-party certification required. If a woman presented for TOP after the 20th week, then there is a requirement for the medical practitioner to consult with another medical practitioner or midwife about whether the woman meets the ground for abortion.¹⁶ Furthermore, the CTOP Act requires the intervention of two doctors or a doctor and a midwife for them to authorise the TOP if the woman seeking a late-term abortion meets the grounds. This is a form of third-party certification that women need to obtain before accessing the TOP service.³

The refusal by healthcare professionals to provide TOP services is often referred to as ‘conscientious objection’, which means ‘to object in principle to a legally required or permitted practice’. The CTOP Act does not include any provision explicitly regulating the exercise of conscientious objection. The South African Constitution guarantees the right to freedom of conscience, and implicitly accommodates the right to conscientious objection to TOP in certain circumstances.¹⁶

This right only applies to the direct provision of services and does not apply to pre- and post-abortion care. Also, the right to conscientious objection would not apply when there is an immediate threat to a woman’s health or her life is at risk.¹⁷ For example, conscientious objection is always overridden by the healthcare professional’s ethical duty to provide the necessary care during emergencies.

The CTOP Act of 1996 was amended by Act No. 38 of 2004 and Act No. 1 of 2008. The following changes were amended⁶:

Despite the liberalisation of the abortion law and the relative availability of abortion facilities, access to legal abortion services remains a major challenge for many women in South Africa.^18,19 As a result of this, there is a high number of illegal abortions performed outside the designated legal facilities. This high number of illegal abortions highlighted that legalisation alone cannot ensure sexual and reproductive health freedom.

Research findings of previous studies in South Africa reported the complex reasons as to why women seek TOPs outside of designated health facilities, which include the lack of knowledge of CTOP Act, shortage of public health service providers and denial by healthcare service provider.^10,11 A lack of knowledge regarding abortion rights under the CTOP Act and the perceived poor quality of reproductive health services in the designated facilities are the other important barriers to access the TOP services. The lack of knowledge of the time-limited nature of the TOP services amongst healthcare users and providers forced these disgruntled users to seek help outside the established legal system.²⁰ Women seeking TOP services outside the designated facility is associated with higher maternal morbidity and mortality.⁸

Unsafe abortion is a preventable phenomenon and continues to be a threat to sexual and reproductive health in many countries, especially in the developing world.²¹ Despite abortion being legally available in South Africa after a change in legislation in 1996, barriers to accessing safe abortion services continue to exist.¹² It marks two decades since our landmark legislation was enacted, and women are still demanding the reproductive health rights that the law provides for them. It is a legislative demand that TOP services should be accessible and available to all women in South Africa.

The CTOP Act 92 of 1996, with its amendments, provides a legislative framework for sexual and reproductive health services, although more work is needed to overcome the barriers to access. In response to mitigate these challenges, there is a need to implement the CTOP Act in a standardised and expanded manner, which reaffirmed the sexual and reproductive healthcare as per the constitution.