friendly health services, as well as sexual and reproductive health services to
survivors of sexual violence.
Alleged violation of article 10 of the ACRWC on the right to privacy
89. The Complainants allege that the practices of mandatory pregnancy testing and the
illegal detention of pregnant girls violate their right to privacy regarding the right to
privacy’s indivisibility from the rights to dignity and physical integrity. The
Complainants further argue that the practices of imposing mandatory pregnancy
testing and the expulsion of girls are both unlawful and arbitrary and cannot be justified
as necessary or carefully tailored preventative or disciplinary measures. The
Respondent State stresses the fair balance that must be struck between the
competing interests of the individual and the community. The Respondent further
alleges that it is due diligence in the investigation of a crime to question the victim and
that there is no evidence of illegal detentions occurring in the State Party.
90. In determining whether the Respondent State has violated article 10 of the Charter,
the Committee must consider whether the practices of mandatory pregnancy testing
and the illegal detention of pregnant girls are violations of the right to privacy. The
available evidence must be considered to determine whether the Respondent State
has violated the right to privacy in this regard.
91. Article 10 of the Charter states that:
No child shall be subject to arbitrary or unlawful interference with his or her privacy, family
home, or correspondence, or to attacks upon his honour or reputation, provided that
parents or legal guardians shall have the right to exercise reasonable supervision over the
conduct of their children. The child has the right to the protection of the law against such
interferences or attacks.
92. While the requirement that no interference may be unlawful envisages that such
interference should be prescribed by law, the requirement that no such interference
may be arbitrary foresees that this interference cannot compromise any other rights
in the Charter.106 Rather, for interferences not to be arbitrary, they must be deemed
to be reasonable.107 Reasonableness requires that the measures taken are
responsive to context, are not discriminatory, and do not infringe any rights. 108 There
must also be a balance between the goal sought and the means employed for this
goal to be achieved.109
93. The right to privacy is further implicated in the manner in which consent is (or is not)
obtained in matters concerning a child’s health.110 Children should be allowed to give
their prior informed consent before and while undergoing any medical procedure,
106 CCPR, General Comment No. 16, para 4.
107 As above.
108
Constitutional Court of South Africa, Government of the Republic of South Africa and Others v
Grootboom and Others 2000 (11) BCLR 1169 (CC) para 44.
109 As above, para 46.
110 UNCRC, General Comment No. 4, para 29.
JN
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