Condoms for kids? A South African Dilema

[Guest guest]

Condoms for kids?

Ann Skelton, 17 July, 2007

The promulgation of certain sections of the new

Children’s Act on July 1 has caught the attention of

the public and media. Some have applauded, others have

said it is controversial and they are up in arms about

it.

Those in favour say the Act deals effectively with the

pragmatic concerns of our time -- HIV/Aids, burgeoning

numbers of orphans, many children living on the edges

of stretched families and some even heading

households. Those against, have expressed fear and

outrage at the idea of children’s rights being

elevated and parental authority being undermined.

So what is it about the provisions of the new Act that

has some people in a froth? There are two clauses that

have proved to be controversial.

The first is that children now have official access to

contraception. The Act provides that no person may

refuse to sell condoms to a child over the age of 12

years, or to provide them on request where condoms are

provided or distributed free of charge.

Other forms of contraception may be provided to

children over the age of 12 without parental consent,

but only if proper medical advice is given and a

medical examination has been undertaken.

The second clause causing controversy says children of

12 or older can consent to HIV tests without parental

assistance -- or even younger than 12 if the child is

of sufficient maturity to understand the benefits,

risks and social implications of such a test. This is

subject to the test being in the child’s best

interests and there being pre- and post-test

counselling. The test results are confidential, but

the child can waive such confidentiality.

The critics of these clauses say that children of 12

years of age should not be having sex, that the age of

consent is 16 and, therefore, to provide contraception

to children below that age is to encourage illegal sex

and promiscuity. They criticise HIV testing on the

grounds that children cannot make such decisions

without parental assistance.

Child protection is the core goal of the Children’s

Act. It is aimed not at children living in families

where they receive competent parenting, but rather at

children who are at risk -- children on the streets,

children living in unofficial alternative care,

children living on their own. There are hundreds of

thousands of children in such situations.

There are, of course, different ways of advancing

child protection.

One is to take an idealistic approach: children’s

sexual encounters should be delayed as long as

possible. Therefore, we should frame laws that reflect

that ideal -- do not provide them with services when

they are very young, lest this be misinterpreted as an

invitation to have sex.

Another is a practical one: children should not be

having sex when they are very young but,

unfortunately, some of them -- especially the most

vulnerable ones -- are doing so. To protect them from

further dangers, such as HIV/Aids and early

pregnancies, we need to provide them with services.

To recognise and respond to realities is not to

endorse or approve of them. For example, the Act

recognises child-headed households. Child-headed

households are not a preferred option: children would

be much better off living with caring adults in loving

families. Such families are not always available,

however, and because of practical issues relating to

the danger of losing the family home, the reality is

recognised in the Act and catered for, so that such

children can access services to allow them to get on

with their lives.

Giving access to services is behind the controversial

clauses too -- any 12-year-old (or even a younger

child) can go into a public toilet and grab a handful

of condoms. No adult sees this or interacts. The Act

requires the condoms to be supplied by an adult --

most probably at a clinic. This gives the child the

opportunity to be advised.

Similarly, many children who are HIV-positive are also

orphans. Insisting on parental consent to take the

test before diagnosing and prescribing treatment might

cause untenable delays.

Although the promulgation of the provisions seems to

have taken the public by surprise, the Act has been a

long time coming. It has, in fact, been a decade in

the making. The South African Law Reform Commission

started reviewing the Child Care Act in 1997. The

commission consulted widely on its recommendations

and, when the Bill went to Parliament, there were more

public hearings.

It is perfectly healthy that the public continues to

debate the new legislation, but we should not allow

the discussions to be become distorted by

over-reactions to a few sections of a comprehensive

Act, taken out of context.

Ann Skelton is an advocate with the Centre for Child

Law at the University of Pretoria

http://www.mg.co.za/articlePage.aspx?articleid=314011 & area=/insight/monitor/

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