Authored By: Andiswa xaba
University of the Western Cape
In South Africa, women have the legal right to make decisions about their own bodies, including whether to end a pregnancy. This right is protected by law to ensure women’s health, dignity, and freedom. At the same time, men often bear legal responsibilities — such as paying child support — even if they are not ready or did not wish to become fathers. This creates a clear disparity in how the law treats men and women in the reproductive sphere. This article navigates that gap by examining several areas where this imbalance arises: abortion, child support obligations, custody, family planning, and adoption.
Abortion and Women’s Rights
Termination of a pregnancy means the separation and expulsion, by medical or surgical means, of the contents of the uterus of a pregnant woman.1 When a woman does not want to have a child or is not ready to do so, she is permitted by law to terminate the pregnancy. This is justified as a protection of her freedom and bodily integrity, since she is the one who carries the child and is most directly affected by the pregnancy. The Choice on Termination of Pregnancy Act 92 of 1996 governs the termination of pregnancy in South Africa. The Act supports women’s reproductive rights and affirms their freedom to make their own decisions.2 It means that every woman has the right to choose whether to have an early abortion, and that this procedure must be safe and legal. Importantly, the decision is left to the woman herself, and she may make it based on her own beliefs and personal circumstances.3
Society generally frames abortion as an issue that concerns primarily women, and the media and politicians often reinforce that view, which means that relatively little attention is paid to how male partners might feel about an abortion.4 From a legal standpoint, including men in abortion decisions would introduce significant complications.5 While society sometimes frames abortion as a moral or relational issue that should involve both partners, the law does not recognise that view, because requiring male consent would undermine women’s constitutional rights.
The Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law.6 In the context of termination of pregnancy, the differential treatment of women and men is regarded as a justifiable differentiation rather than unfair discrimination, because pregnancy directly affects only the woman’s body and health. The Constitution further provides that everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction.7
As a result, the law grants women the sole right to decide whether to continue or terminate a pregnancy. This recognition of women’s autonomy creates a clear contrast with the legal position of men, who have no decision-making power during pregnancy but may later be subject to legal responsibilities once the child is born.
Men’s Obligations
Once a child is born, both parents have a legal duty to provide financial support, regardless of their personal wishes or level of readiness. This obligation is governed by the Maintenance Act 99 of 1998, which requires that both parents contribute towards the upbringing of the child according to their respective means. When determining maintenance, courts consider various factors, including the needs of the child and the financial position of each parent, guided by the constitutional principle that the best interests of the child are of paramount importance.8
While women have the legal right to decide whether to terminate a pregnancy, men have no corresponding right to avoid the financial responsibilities that arise once a child is born. In this sense, men may be held legally accountable for parenthood even in circumstances where they did not consent to becoming fathers.9 Consider, for example, a situation where a man clearly communicates that he is not ready for fatherhood and requests that his partner use contraception. If his partner declines and later gives birth, then subsequently finds herself unable to support the child financially, a court may still order the father to pay maintenance — regardless of the circumstances surrounding conception.
It can be argued that in some cases men have attempted to prevent a termination but were unsuccessful, since the law prioritises women’s reproductive autonomy. This legal position can have significant emotional and psychological consequences for men, some of whom may have formed a genuine attachment to the prospect of the child. The law does not recognise these interests as decisive, as it prioritises the woman’s constitutional rights during pregnancy.
This position is illustrated in the American case of Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), where the court held that the state cannot require a woman to obtain her husband’s consent before terminating a pregnancy. While this is a United States authority and therefore persuasive rather than binding in South Africa, it is instructive. It has contributed to broader arguments about fairness: men have no legal power to prevent an abortion, yet may still be compelled to pay child support if the child is born. A further illustration is the case of John Stachokus, who obtained a temporary court order to prevent his partner from terminating a pregnancy — an order that was set aside approximately one week later.
Therefore, while men are legally obligated to provide financial support for children regardless of consent, this responsibility exposes the ongoing imbalance in reproductive and parental rights between men and women.
Custody, Adoption, and Access to Contraception
This gap extends beyond financial obligations into areas such as custody, adoption, and access to reproductive healthcare, where women often retain greater control over decisions relating to children and their own bodies. Section 19 of the Children’s Act 38 of 2005 provides that a mother automatically acquires full parental responsibilities and rights in respect of her child, regardless of whether she is married. By contrast, under section 21, an unmarried father only acquires parental responsibilities and rights automatically if he satisfies certain requirements, such as having lived with the mother in a permanent life-partnership at the time of the child’s birth, or having consented to be identified as the child’s father and contributed to the child’s upbringing. This structural difference means that mothers are placed in a significantly stronger legal position than unmarried fathers from the moment of the child’s birth.
Conclusion
South African law clearly prioritises women’s autonomy in reproductive matters, granting them the right to decide whether to continue or terminate a pregnancy and to access contraception and reproductive healthcare. At the same time, men often bear compulsory responsibilities — such as providing financial support for children — even if they were not ready or did not consent to fatherhood. This creates a legal asymmetry in which women exercise significant control over reproductive decisions while men have limited rights but binding obligations. While the law justifies this difference as necessary to protect children and to uphold women’s health and constitutional rights, it also raises legitimate questions about fairness and the equal recognition of men’s reproductive autonomy. Ultimately, South African law reflects a careful, if imperfect, balance between the rights of women and children — one that highlights a persistent gendered asymmetry continuing to shape family and reproductive law.
Bibliography
Constitution
Constitution of the Republic of South Africa, 1996.
Legislation
Choice on Termination of Pregnancy Act 92 of 1996.
Children’s Act 38 of 2005.
Maintenance Act 99 of 1998.
Case Law
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) (United States Supreme Court — persuasive authority).
Internet Sources
Coyle CT “Men and Abortion: A Review of Empirical Reports Concerning the Impact of Abortion on Men” (2007) The Internet Journal of Mental Health available at http://www.ispub.com/ostia/index.php?xmlPrinter=true&xmlFilePath=journals/ijmh/vol3n2/abortion.xml (accessed 30 March 2026).
Footnote(S):
1 Choice on Termination of Pregnancy Act 92 of 1996, s 1.
2 Preamble of the Choice on Termination of Pregnancy Act 92 of 1996.
3 Preamble of the Choice on Termination of Pregnancy Act 92 of 1996.
4 Coyle CT “Men and Abortion: A Review of Empirical Reports Concerning the Impact of Abortion on Men” (2007) The Internet Journal of Mental Health (accessed 30 March 2026).
5 Coyle (2007).
6 Constitution of the Republic of South Africa, 1996, s 9.
7 Constitution of the Republic of South Africa, 1996, s 12(2)(a).
8 Constitution of the Republic of South Africa, 1996, s 28(2); Maintenance Act 99 of 1998.
9 Maintenance Act 99 of 1998, s 2.
