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Abortion Law – A Comparative Take on the Constitutional Framework of South Africa and Germany

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COMMENT Freda Louwes 05 February 2021

In recent weeks and months, the topic of abortion has become a highly debated one in the media throughout the world. Last summer, despite the prevalence of the dangerous COVID-19 virus, thousands of people have gathered on the streets of Warsaw to protest the decision of the Polish Constitutional Court that pronounced abortions a criminal offense. Only a few weeks ago, the Argentinian Parliament passed a legislation that legalized the termination of pregnancies within the first 14 weeks of pregnancy and declared it a service, the state has to provide. In Germany too, the debate about pro-choice vs. pro-life has become louder as well.

The idea of the western world being the centre of modern societies based on values such as equality, democracy, self-determination, and freedom does not necessarily represent reality. The frequently used terms “developed” and “underdeveloped” suggest that the Global North has already succeeded every stage of development. When we have a closer look, in this case at the legal framework, we can see that it is not infallible. In Germany abortions are still punishable under Section 218 (1) of the German Criminal Code, although Section 218 (4) provides that no woman will be prosecuted on the basis of unlawful termination of pregnancy. Poland, also member of the EU, has recently prohibited the practice of abortion, apart from cases of rape, incest or severe dangers for the life of the child or mother. Having a look at the so-called Global South we can see a different take on that matter. In 1997, South Africa introduced the Choice on Termination of Pregnancy Act, allowing women access to legal institutions, pre- and postnatal care, as well as counselling.

In recent years, the Constitutional Court of South Africa has reaffirmed the right to abortion (see Christian Lawyers‘ Association v Minister of Health and Others). The reasoning behind that being that otherwise women’s right would be severely impaired. Abortion touches upon the right to freedom and security of the person, the right to make decisions concerning reproduction, right to security and control over their bodies, right to human dignity and the right to belief and opinion. The right to abortion addresses the question: When does life begin? With disregard to any scientific, ethical or philosophical interpretation, the legal personality and legal protection of a foetus must be assessed. Referring to the Canadian Charter of Rights and Freedoms, “everyone has the right to life”, however the term “everyone” does not include a foetus. Interpreting Article 2(1) of the European Convention on Human Rights has led to the same conclusion. The South African Constitutional Court came to the same conclusion and decided that a foetus does not enjoy any constitutional protection and has not been given a legal personality by the Constitution. In conclusion: The Court decided that the life of a human being starts at birth.

One might wonder, why seemingly progressive and developed countries, such as Germany, are still refusing to legalize abortions. Not only is it de jure prohibited, albeit it being de facto allowed, but the so-called advertisement of abortions also remains forbidden. In January 2021, the Oberlandesgericht Frankfurt found a gynaecologist guilty of improper advertising of abortions. An obscure thought to compare informing women about a medical procedure with an Adidas Black Friday Sales offer, 2 for the price of 1. With regard to the termination of pregnancies, no one can believe that this is being done frivolously. It is hard to believe that any woman wishes to undergo such a procedure. Pregnancies as a result from incest or rape often qualify as a reason for an abortion, even in the restrictive jurisdiction of Poland that is allowed. Termination of unwanted pregnancies due to the social and economic standing of the mother, however, are less likely to be included in the legal framework. South Africa is well ahead in this regard and offers legal protection to those women who are not yet, maybe never, ready to become a mother.

The practice of abortion is very unlikely to disappear. Legalization could ensure better health care for the woman, both physically and mentally. The right to security and control over their body should be uncontested. Finally giving women the right to make decisions over their own body is another very important step towards the full emancipation of women.

Freda Louwes is a student assistant at the Chair for African Legal Studies. She studies African Development Studies in Geography with the side subject of Law in Africa.

By Freda Louwes

Freda Louwes is a student assistant at the Chair for African Legal Studies. She studies African Development Studies in Geography with the side subject of Law in Africa.

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