Paradox of Laws on Age of Consent for Children when Testing, or Participating in HIV/AIDS Research and Clinical Trials in South Africa
Paul T. Mtunuse 
& Tembela Mdunyelwa-Melane
Issue: Vol.5 No.16 Issue Article 12 pp.2835-2842
DOI: https://doi.org/10.38159/ehass.202451612 | Published online 18th December, 2024
© 2024 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).
The purpose of the study was to explore the contradictions between the laws on the age of consent for children when consenting to test or participating in HIV/AIDS research and clinical trials exclusive of parental consent in South Africa. The methodology used was a qualitative method that incorporated a literature review, content analysis, internet sources, and databases to analyse children’s consent to testing and treatment. Consent for children when testing for or participating in HIV/AIDS research and clinical trials is a controversial issue. The paper submits a finding that while it is welcomed that children below 18 years may undergo testing or consent to research or clinical trials for HIV without parental consent, this is a paradox as it leads to legal contradictions. The inconsistencies are that whereas other laws allow children of 12 years of age to consent to testing or participation in HIV/AIDS research, other rules do not permit such a minor to act on his or her behalf if his or her health is harmed in the process, until 18 years. In conclusion, the researchers recommended that parental consent to HIV testing, research, or clinical trials of a minor child should not be excluded by law. The study’s contribution to scholarship is that it exposes inconsistencies in legislation that governs the age of consent for children and guides health professionals and researchers to understand the risks they assume when testing or conducting HIV/AIDS research or clinical trials.
Keywords: Age of Consent, HIV/AIDS, Clinical Trials, Parental Consent, Assistance, Age of Majority.
Legislation
Children’s Act 38 of 2005.
Child Care Act 74 of 1983.
Constitution of the Republic of South Africa of 1996.
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
Customary Initiation Act 2 of 2021.
National Health Act 61 of 2003.
Cases
A.M v S.W (7813/2022) [2022] ZAWCHC.
Castell v De Greef 1994 (4) SA 408 (C).
Christian Lawyers Association of South Africa v Minister of Health 1998 (4) SA 1113 (T).
S v Mshupa 2008 (1) SACR 126 (E).
Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC)
Books and Articles
Bango-Rili, Nompumelelo. “Consent to Medical Treatment: To What Extent Does the Post 1994 South African Legal Framework on Consent Protect Patients: A Critical Review.” University of KwaZulu-Natal, 2021.
Boezaart, Trynie. “ Child Law, the Child and South African Private Law.” In Child Law in South Africa, edited by Boezaart Trynie. Cape Town: Juta, 2009.
Bosman-Sadie, Hester, Lesley Corrie, and Erno J Swanepoel. A Practical Approach to the Children’s Act. LexisNexis, 2010.
Buchner-Eveleigh, Mariana, and Fred Vogel. “Section 71 of the National Health Act: A Call for a Review of the Consent Requirement for Child Participation in Health Research.” De Jure 48, no. 2 (2015): 280–92. https://doi.org/10.17159/2225-7160/2015/v48n2a2.
Currie, Iain, and Johan De Waal. The Bill of Rights Handbook. Juta and Company Ltd, 2013.
Ferreira, Sandra. “The Best Interests of the Child: From Complete Indeterminancy to Guidance by the Children’s Act.” THRHR 73 (2010): 201.
Ganya, Wandile, Sharon Kling, and Keymanthri Moodley. “Autonomy of the Child in the South African Context: Is a 12 Year Old of Sufficient Maturity to Consent to Medical Treatment?” BMC Medical Ethics 17 (2016): 1–8.
Heever, Chantelle Van der. “The Sexual Orientation of a Parent as Factor for Consideration in the Granting of Care.” North-West University, 2011.
Labuschaigne, Melodie, Safia Mahomed, and Ames Dhai. “Evolving Capacity of Children and Their Best Interests in the Context of Health Research in South Africa: An Ethico‐legal Position.” Developing World Bioethics 23, no. 4 (2023): 358–66.
Mahlobogwane, Frans Mashilo. “Parenting Plans in Terms of the Children’s Act: Serving the Best Interests of the Parent or the Child?” Obiter 34, no. 2 (2013): 218–32.
Moodley, Keymanthri. “ Respect for Patient Autonomy.” In Medical Ethics, Law and Human Rights: A South African Perspective, edited by Keymanthri Moodley. Pretoria: Van Schaik Publishers, 2017.
Moyo, Admark. “ Balancing Child Participation Rights, Parental Responsibility and State Intervention in Medical and Reproductive Decision-Making under South African Law.” University of Cape Town, 2014.
Mtunuse, Paul T., and Paul S. Masumbe. “Mandatory Vaccinations at the Workplace during Covid-19 Times in South Africa: Lessons Learnt for Future Pandemics.” E-Journal of Humanities, Arts and Social Sciences 5, no. 5 (May 21, 2024): 717–723. https://doi.org/10.38159/ehass.20245511.
Mujinga, Sandrina, Ntumba. “The Participation of Children in HIV/AIDS Clinical Trials: Ethical and Legal Considerations.” University of South Africa, 2009.
Ngwena, Charles. “Health Care Decision-Making and the Competent Minor: The Limits of Self- Determination.” In Children’s Rights , edited by Keightley Raylene. Cape Town: Juta & Co Ltd, 1996.
Nienaber, Annelize. “The Statutory Regulation of Children’s Participation in HIV-Related Clinical Research: More Questions than Answers,” THRHR 71 (2008): 671.
Pienaar, Letitia. “Access to the Medical Records of a Child: Legislative Review Required.” South African Journal on Human Rights 30, no. 3 (2014): 508–25.
Prinsen, Larisse. “An Analyses of Consent with Specific Regard to Stem Cell Therapy and Research.” University of Pretoria, 2016.
Skelton, Ann. “Too Much of a Good Thing? Best Interests of the Child in South African Jurisprudence.” De Jure Law Journal 52, no. SPE (2019): 557–79.
Slack, Catherine, Ann Strode, Catherine Grant, and Cecilia Milford. “Implications of the Ethical-Legal Framework for Adolescent HIV Vaccine Trials-Report of a Consultative Forum.” South African Medical Journal 95, no. 9 (2005): 682–84.
Strode, Ann, Catherine Slack, and Zaynab Essack. “Child Consent in South African Law: Implications for Researchers, Service Providers and Policy-Makers.” South African Medical Journal 100, no. 4 (2010).
Paul T. Mtunuse (LLD) is a Senior Lecturer & Non-Examining Chairperson, Research & Higher Degrees, School of Law, Faculty of Law, Humanities and Social Sciences at Walter Sisulu University, and an Advocate of the High Court of South Africa. His research interests include International Human Rights Law, Constitutional Law, Child Law, Interpretation of Legal Instruments, Labour Law, Cyber Law, Artificial Intelligence Law and Medical Law.
Tembela Mdunyelwa-Melane (LLB) is a Lecturer in the School of Law, Faculty of Law, Humanities and Social Sciences at Walter Sisulu University, and an admitted Attorney of the High Court of South Africa. Her research interests include Customary Law, Medical Law, Law of Insolvency, Company Law, Constitutional Law, Family Law, Notary, Conveyancing, Business Law, and Law of Succession.
Mtunuse, Paul T. & Tembela Mdunyelwa-Melane . “Paradox of Laws on Age of Consent for Children when Testing, or Participating in HIV/AIDS Research and Clinical Trials in South Africa,” E-Journal of Humanities, Arts and Social Sciences 5, no.16 (2024):2835-2842. https://doi.org/10.38159/ehass.202451612
© 2024 The Author(s). Published and Maintained by Noyam Journals. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).
