A Reply to Camilla Pickles' “Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests”

Abstract

Camilla Pickles’ Pregnancy Law in South Africa. Between Reproductive Autonomy and Foetal Interests (Pregnancy Law) aims at providing a less adversarial angle related to the pregnant woman and the unborn within her, by moving away from the pregnant woman as a single entity (including the unborn within her) as well as from viewing the pregnant woman and the unborn within her as two separate entities of distinctive value and separate needs. This applies to four categories addressed by Pregnancy Law, namely foetal personhood, violence against pregnant women that terminates pregnancies, substance abuse during pregnancy, and termination of pregnancy for especially the South African context. Pregnancy Law positions its argument on a relational model that emphasises the context of pregnancy as signifying a connection between the pregnant woman (with rights) and the unborn (with interests) inside of her, the unborn being fully dependent on the pregnant woman’s body. This in turn is blended with what is referred to as a not-one/not-two approach. Bearing this in mind, Pregnancy Law claims to provide a compromise, middle ground and third approach regarding what is perceived to be the extremes of the single-entity and separate-entities approaches. Bearing this in mind, this article comprises a critical appraisal directed at Pregnancy Law’s claims as alluded to in the above with specific focus on the status of the unborn against the background of abortion (which in turn has implications for matters related to foetal personhood, violence against pregnant women that terminates pregnancies and substance abuse during pregnancy).