A case before the High Court in Pretoria will consider whether SA law should permit forms of safe child relinquishment.
At its centre is Section 305 of the Children’s Act, which criminalises “child abandonment” in sweeping terms, regardless of whether a child is left in circumstances that ensure their safety.
But to focus only on the legal question is to miss the more urgent issue. This is not only a case about children. It is a case about the women we have chosen not to see.
While a child’s best interests are paramount, giving meaningful effect to this principle requires confronting the realities in which both children and their mothers exist.
Rights must be understood as interdependent, not competing. Protecting children cannot come at the cost of further marginalising women.
Under current law, a woman who leaves her child outside formal, state-approved processes risks prosecution and up to 10 years’ imprisonment. There is no exception. No recognition of context. No distinction between harm and survival.
Consider a different perspective: a young woman in rural South Africa who cannot access contraception, abortion or adoption, but she still cannot have a child due to circumstances or violence. By the time the child is born, she has nowhere to turn.
The law then offers her a stark choice: parent or be a criminal. It offers no safe, lawful way to say: I cannot do this, but I want my child to have a chance.
In a country where nearly 60% of pregnancies are unintended, this is not hypothetical, and when the law ignores this reality, it does not prevent harm; it helps produce it.
Behind every instance of so-called abandonment, is a woman navigating structural constraints: unmet need for contraception, uneven access to abortion, inconsistent sexuality education and a dysfunctional adoption system.
The result is high rates of unplanned pregnancies, disproportionately affecting young, poor and black women.
These are not individual failures. They are systemic ones.
There is another problem we rarely confront: the words we use. “Child abandonment” is not neutral. It carries assumptions of neglect and moral failure, casting women as suspects.
But this obscures a critical truth: in many cases, the decision not to parent is itself a reproductive choice and understanding this as “relinquishment” shifts the conversation toward constitutional analysis by recognising that deciding not to parent can fall within the right to make decisions concerning reproduction, closely tied to dignity, privacy, and bodily autonomy.
Our constitutional framework protects the right to decide whether and when to have children, yet in practice this right is treated as if it ends at birth.
If reproductive choice includes the right not to continue a pregnancy, it is difficult to justify a system that denies realistic alternatives after birth.
Failures in Sexual and Reproductive Health and Rights services do not operate in isolation and are not only a legal failure, but a gendered one. The burden of care falls overwhelmingly on women and ,when systems fail, it is women who are held accountable.
If we are serious about protecting children, we must also be honest about the conditions in which they are born. This is not a choice between children’s rights and women’s rights. The two are deeply connected.
The answer cannot lie in punishment. It must lie in recognition, support, and the creation of lawful, humane pathways that preserve life and dignity.
This case presents an opportunity to do more than clarify the law. It is a chance to recognise reproductive rights do not end at birth, to confront systemic failures shaping women’s choices, and to finally see women at the centre of this issue.
Until then, we will continue to treat the consequences of inequality as crimes – and call it justice.
