Right to life, health care trumps right to freedom of religion

“Please promise...just promise you won’t make me go for an operation” says 16-year-old Yolanda Jwaqa.

She is clearly terrified. On the one hand, she risks disobeying her elders and customs. On the other she faces the steady, painful growth of a large tumor in her belly.

Her petite figure is weighed down by a five kilogram mass, making it almost impossible for her to live a normal life. Her appetite is weak and she looks thin and sickly. She has been unable to attend school since grade 7. She refuses to step outside her house for fear of ridicule or being injured.

Jwaqa was initially taken for scans in 2012 and immediately recommended for surgery by doctors at Leratong Hospital.

“They drained five litres of water from my stomach and told me I need an operation to stop the egg from growing.”

A traditional healer convinced her and her family that she would die if she went for surgery, and must rely instead on traditional medicine.

 “If the person was in a health facility, she would be given the necessary care and treatment because in our view the right to life is paramount” said Gauteng department of health communications head, Simon Zwane.

He failed to mention, however, that the law makes clear provision to assist children who are not being given access to medical care by their guardians.

According to section 129(7) of Children’s Act 38, the minister of Social Development may consent to a child's surgical operation where the parents or guardian unreasonably refuses to give consent or to assist the child in giving consent.

“Therefore, there should be a social worker's investigation and a Children's Court process for the child so that her interests can be protected” said Karabo Ngidi of Pretoria University’s centre for child law.

Lynne Cawood, director of Childline Gauteng said “It is extremely tragic that one of the downsides of living in such a diverse country is that people can receive conflicting advice, which is very confusing.

In Jwaqa’s case, we would like to call her and her family in to our Soweto centre and try understanding their situation before recommending a course of action.”

In 2008 and 2009, three high court rulings were passed to provide medical care to children against the will of their parents. All three families were Jehovah’s Witnesses, a religion which forbids its followers from receiving blood transfusions even in the face of death.

The rulings were made on the basis that the South African constitution assures each citizen the right to life and health care, and this right takes priority over the right to freedom of religion.

Each of the children survived after state intervention.