Courts can override faith to save a child, but who protects them afterwards?

When the courts step in to save a child’s life, we often imagine the hardest part is over. A judge authorises treatment, doctors act, and a life is preserved.

Yet when parents refuse life-saving care on religious grounds, that legal clarity often marks the beginning – not the end – of the child’s vulnerability. SA’s laws are clear about when a child’s best interests override parental authority. What remains uncertain is who protects the child once the order is executed, the treatment is done, and they return home.

Recent reports that Health Minister Aaron Motsoaledi has suggested a hospital might need to approach the high court to seek authorisation for a life-saving liver transplant for a teenager whose parents refuse a blood transfusion on religious grounds have sparked a national debate. Public attention has primarily focused on religious freedom and parental rights. Much less consideration has been given to the ethical responsibilities that follow state intervention.

SA’s Constitution clearly affirms that a child’s best interests are of paramount importance in every matter concerning the child, including the right to basic healthcare services and protection from neglect or harm. While freedom of religion is protected, it is not absolute. Where parental decisions place a child’s life or wellbeing at risk, our courts have consistently prioritised the child’s rights to life, dignity and care.

Children’s Act

The Children’s Act gives effect to these commitments. It recognises that children aged 12 may consent to medical treatment independently or to surgical treatment assisted by a parent or guardian. The child must be sufficiently mature to understand the benefits, risks and social implications.

Crucially, the act also empowers hospital superintendents for emergency care and, where necessary, the minister of health to authorise medical treatment or surgery when parental consent is unreasonably withheld or when urgent intervention is required to preserve a child’s life.

The National Health Act enhances this protection by requiring the state to ensure access to healthcare, especially for children, and by forbidding the denial of emergency treatment. Legally, the route is straightforward: when parents refuse life-saving care for religious or cultural reasons, authorities must intervene. A court may save a child in the theatre; ethics must protect that same child once the theatre lights dim and they return home.

Children do not become independent simply because a court order is issued. Even when they can legally consent, they still rely on caregivers for transport, medication, follow-ups, emotional support and daily care. A court can authorise treatment, but it cannot undo family dynamics, belief systems or the power imbalances woven into dependency.

Critical ethical gap

This is where a critical ethical gap emerges. What happens when a child returns home to caregivers who believe the treatment violated their faith? Subtle harm can slip by unnoticed; missed medication, skipped follow-ups, or emotional withdrawal disguised as discipline. A child may even face isolation for receiving prohibited care.

These risks are real and not just hypothetical. Clinicians, social workers and ethicists face them regularly, yet our legal responses often assume the ethical duty ends once the child survives. Section 28 of the Constitution does not limit a child’s best interests to mere survival. It also includes protection from neglect, degradation and emotional harm, and affirms the child’s right to family care or, if needed, suitable alternative care.

A child who survives a court-ordered intervention but is returned to a home where they are regarded as morally unclean and have care conditionally withdrawn while being isolated from family and religious connections has their best interests compromised. In such moments, their vulnerability does not disappear, but deepens.

These risks are real. Clinicians, social workers and ethicists see them often, yet our legal responses still assume the ethical duty ends once a child survives. But Section 28 protects far more than survival – it guarantees safety, dignity and care. A child returned to a home where they are treated as morally tainted, given conditional care, or isolated from family and faith networks has had their best interests fundamentally compromised. In such moments, their vulnerability does not fade, it deepens.

Courts authorise surgeries and transfusions, and hospitals carry them out. However, saving a child’s life is not the same as ensuring the child’s wellbeing afterwards. A constitutional democracy committed to children’s rights must be willing to do both or accept that its moral obligation remains unfulfilled. DM

Dr Brenda Kubheka‑Chauke is a bioethics scholar and founder of Health IQ Consulting with experience in clinical governance and health systems leadership. She serves on a committee of the Health Professions Council of South Africa and on various boards. She teaches and conducts research on ethics, leadership, innovation, social media and health advocacy.