Conscientious objection to termination of pregnancy in South Africa: analysing the legislative framework governing the rights of patients and healthcare providers.

Abstract

The termination of pregnancy (TOP), underpinned by international, constitutional and statutory laws, is an essential medical service available to girls and women in South Africa. Health practitioners involved in TOP provision possess the constitutional right to conscientiously object to such services, but this can conflict with the patient’s right to access reproductive healthcare. Therefore, this doctrinal study, through an examination of relevant legal doctrines and other contextual literature, aimed to scrutinise the legislative framework governing the rights of both patients and practitioners concerning TOP and conscientious objection (CO) within the public healthcare sector in South Africa. The findings show that CO primarily relies on the objecting provider's responsibility to refer patients to an alternative and willing provider. However, when considering this duty against the grim backdrop of a dysfunctional and critically under-resourced public healthcare system, undefined or non-existent referral pathways, public health laws incongruent with socio-economic realities, and a lack of policy monitoring structures, it becomes evident that this regulatory mechanism is inadequate to safeguard the rights of the patient. Since CO has the potential to undermine health rights, and social and reproductive justice, targeted advocacy is imperative at legislative, political, social, and health system levels to establish a realistic rights equilibrium within this normative gap. This is a critical starting point in ensuring that girls and women are not unreasonably impeded in their pursuit of TOP care.