Important note: Information in this article was accurate in 2003. The state of the art may have changed since the publication date.
Mail & Guardian (Johannesburg) - October 24, 2003
Nawaal Deane
This week the Aids Law Project (ALP) at Wits University's Centre for Applied Legal Studies took the department to task for initially giving the go-ahead for the drafting of these guidelines - then suspending the process. According to the ALP, the guidelines would set out procedures for paediatricians and health workers to apply for consent to test orphaned children. It said the guidelines would be an interim measure for the next two to three years until the new Children's Act is passed.
Until then, child-headed households might be excluded when the roll-out of anti-retroviral treatment takes place because of a cumbersome legal process requiring paediatricians to apply to the high court for permission to test children for HIV.
The ALP said the current Child Care Act is inadequate to deal with the HIV/Aids epidemic. Research projects extrapolating from UNAids studies indicate that by 2015 South Africa can expect two million children under the age of 15 to be orphaned by Aids.
Liesl Gerntholtz, a lawyer at the ALP, told the Mail & Guardian it is critical that mechanisms are put in place to ensure that children receive the full protection of the law, while also ensuring their health needs are met.
"Currently consent can only be given by a legal guardian or a parent, but there are many children who are living in child-headed households and have no legal guardian."
The Child Care Act says the minister of social development can give permission for the child to be treated, but not for HIV-testing. "We think that is absurd, because the Department of Health, health workers and doctors all interpret treatment to include HIV testing," said Gerntholtz.
"We are extremely concerned that the department has not acted more quickly to deal with the increasing numbers of children who are living without legal guardians. These children are most vulnerable to abuse and exploitation and also to being excluded from treatment and care programmes."
A high court application in June 2003 from the Wits Paediatric HIV Working Group sought permission to test and treat four HIV-orphaned children as part of a research study.
Tammy Meyers, a paediatrician at the Wits working group, told the M&G she "felt it was unethical to leave these children out, so we went to the high court". She said many health care workers now ignore the law and do not obtain consent from a legal guardian before testing.
The Department of Social Development did not respond to the M&G's requests for comment.
Meanwhile, Minister of Social Development Zola Skweyiya called on Parliament this week to fast-track the Children's Bill. But child lobby groups oppose this, saying they need more time to make submissions.
"The truth is that the Bill has been so badly damaged that if it goes through as it is it will have very limited impact on the plight of children in our country," said a statement from the Children's Bill Working Group this week.
In separate remarks to the M&G on Thursday, the minister said that although he understood the concerns of the organisations, his department needed to look at what was practi-cally possible for it to implement. He encouraged the organisations to take their concerns to the Parliamentary committee dealing with the Bill.
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