Balancing child participation rights, parental responsibility and state intervention in medical and reproductive decision-making under South African law
Doctoral Thesis
2014
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University of Cape Town
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Abstract
Throughout history, the boundaries between children’s rights, parental responsibility and state intervention have been regularly redrawn. At the heart of this process is the need to recognise the separate personhood of the child and the important role played by parental guidance in the proper upbringing of children. While participation rights spring from the child’s autonomy-related claims, parental guidance and state intervention arise from the child’s need for protection, at least until the child either reaches the age of consent or attains majority status. Thus, children are now seen as holders of autonomy rights who should nonetheless be protected, by parents and the state, from personal decisions that threaten other important interests. At the international level, the separate personhood of the child has been legally reinforced by the adoption of the Convention on the Rights of the Child. This instrument entrenches non-discrimination, child participation rights, the best interests of the child and the right to life, survival and development as general principles of children’s rights. These principles have been largely domesticated in South African law and play an important role in determining how much autonomy and protection should be given to children. This study relies upon primary and secondary legal materials to explain whether international and domestic law strike an appropriate balance between children’s autonomy, parental responsibility and state intervention in decision-making.
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Moyo, A. 2014. Balancing child participation rights, parental responsibility and state intervention in medical and reproductive decision-making under South African law. University of Cape Town.