Can the consent provisions in the Choice on Termination of Pregnancy Act, which do not require children to be assisted by a parent or guardian, be used for live births by caesarian section in emergency situations?

Abstract

The answer to the question as to whether in emergency situations, when there is no time for the procedures in the Children’s Act No. 38 of 2005 to be followed, doctors may use the consent provisions in the Choice on Termination of Pregnancy Act No. 92 of 1996 (CTOP), which do not require children to be assisted by a parent or guardian, for live births by caesarian section, will depend on how ‘termination of pregnancy’ is defined and interpreted in the CTOP. It is argued that, unless it is modified by Parliament or the courts, the definition in the Act is sufficiently wide to justify doctors using the provisions applicable to the third trimester to rely on the consent of the child alone, in situations where the caesarian section is performed to save the mother’s life or to prevent the fetus suffering the risk of injury. Whatever Parliament or the courts decide, doctors can always fall back on the ‘best interests of the child’ Constitutional principle, using the provisions in the CTOP and standards in the Children’s Act as guidelines for determining the pregnant child’s ‘best interests’ in emergency situations requiring a caesarian section, where there is no time to obtain the consent required by the Children’s Act. Such an approach is also consistent with the bioethical principles of patient autonomy, beneficence, non-maleficence and justice or fairness.