sexual health and human rights in the african region - The ICHRP

The requirement to obtain consent does not apply where the HIV test is
necessary to establish that a health worker or another third party may have
contracted HIV due to contact with the bodily substance from the child. 765
Section 132 of the Act provides that testing must be preceded and followed by
counseling.
[29] Section 133 of the Children’s Act regulates confidentiality of the HIV status of a
child. Where the child is 12 years or order and is of sufficient maturity to
understand the benefits, risks and social implications of such disclosure,
information that the child is HIV positive can only be disclosed with that child’s
consent. 766 Where these conditions are not met, parents or parties in loco parentis
may consent. 767 As with consent to HIV testing, there is provision for consent to
disclose to be given by a superintendent or a court. 768 The duty of confidentiality
under section 133 is not absolute but may give way to legal requirements
requiring disclosure. 769
[30] Section 134 of the Children’s Act regulates access to contraceptive services and
condoms and recognizes 12 years as the age for competence to access condoms. It
provides that:
(1) No person may refuse-
(e) to sell condoms to a child over the age of 12 years
(f) to provide a child over the age of 12 years with condoms where such condoms
are provided or distributed free of charge.
(2) Contraceptives other than condoms may be provided to a child on request by
the child and without the consent of the parent or care-giver of the child if-
(a) the child is at least 12 years of age;
(b) Proper medical advice is given to the child; and
(c) a medical examination is carried out on the child to determine whether there
are any medical reasons why a specific contraceptive should not be provided
to the child.
(3) A child who obtains condoms, contraceptives or contraceptive advice in terms
of this Act is entitled to confidentiality …
6.5 Access to Health Services for the Termination of Pregnancy
[31] Generally, African abortion laws favour criminalization rather than
decriminalization of abortion. Historically, a feature common to all colonial
abortion laws is that they all criminalized abortion and were all replicas of laws
765 Section 130(1)(b) ibid.
766 Section 133(2)(a) ibid.
767 Sections 133(2)(b) ibid.
768 Section 133(2)(d) ibid.
769 Section 133(1)(a), (b) and (c) ibid.
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