Is section 71 of the National Health Act 61 of 2003 inconsistent with a child’s constitutional rights to bodily integrity and equality?

Abstract

The South African Constitution entitles children to all the basic human rights. In addition, the concept of ‘[a] child's best interests’ (section 28(2)) has been significant in the realisation of other rights contained in the Bill. This concept becomes more meaningful as the child grows older, where it is used to determine the range and limitations of all other competing rights. Maturing children then derive their partial to full self-determination from the rights to dignity, privacy, and freedom of religion, expression, and association. In this study I submitted that the constriction of section 71 into ‘nurturance’ over a broad class of children violates the constitutional right to equality, human dignity, privacy, freedom, and safety of the person when read together with the ratified international and regional treaties relating to the rights of children. Section 71 provisions are deemed unfair because the direct differentiation is linked to the categorisation of a socially vulnerable group [children] by age. Moreover, section 71 failed to confer the equal protection and benefit of the law and to set other measures designed to protect or benefit persons, or groups of persons who are disadvantaged as a result of unfair discrimination. Section 71 lacks a proper set of provisions or rules applying to research involving children, and the power grants and restrictions are not properly balanced to fit the protection and self-determination of children’s rights. Moreover, the general principles that form the basis of children's rights were not fully considered. Principles relating to age, maturity, and stage of development are generally provided to make any law or conduct meaningful to children. The section 71 infringement of the right to equality and bodily integrity cannot be justified through analysis in terms of section 36. The limitations imposed are highly restrictive, unreasonable, and unjustifiable in a democracy based on human dignity, equality, and freedom. There are no less restrictive provisions that allow independent consent for, particularly, maturing children. This is inconsistent with the principle of the child’s best interest contained in the Constitution and the UNCRC. Children have not been treated as individual rights bearers since the parent still stands as the final decisional maker and encroaches on the right of the child to control its body and its uses. In conclusion, section 71 of the National Health Act is unconstitutional.