Why pregnancy tests in schools without parental consent are illegal

Dear Vivian,

I am a parent of a secondary school girl at a boarding school in Nyeri. I am concerned about the practice at the school of conducting mandatory pregnancy tests when students return from holidays. These check-ups are then followed by physical examinations. Is this permitted by law and should parental consent be obtained?

Magdalene Wahome,
Nyeri

Dear Magdalene,

No school has automatic authority to carry out pregnancy tests on students without the consent of a parent or guardian. The law provides clear safeguards to protect children from such actions.

First, the Constitution, under Article 31, affirms the right to privacy. This protection covers both the body and personal information of every individual, including minors. A pregnancy test is medical in nature and therefore falls squarely within this constitutional safeguard.

The Constitution further recognises and protects the right to dignity. Subjecting a student to an unapproved pregnancy test, especially under coercion, undermines this fundamental right. The Constitution also requires that children be protected from abuse, neglect, harmful cultural practices, and all forms of violence.

Read: Kicked out of school for being pregnant: Forced tests violating girls’ rights 

Similarly, the Children Act, 2022, prohibits subjecting a child to torture or to cruel, inhuman, or degrading treatment. An unconsented pregnancy test could fall within these prohibitions. In addition, the Health Act, 2017, stipulates that no medical examination should proceed without informed consent. For those under 18, such consent must come from a parent or legal guardian.

Furthermore, the Data Protection Act classifies health records as sensitive personal data. Handling such information about a minor without parental approval, except in narrowly defined legal circumstances, constitutes a breach of the law.

So, what constitutes informed consent? Informed consent requires an explanation of the procedure’s purpose, method, and possible consequences before it is carried out. Since children are not considered capable of providing informed consent for medical treatment or other interventions, parental or guardian consent is required. For adolescents (typically aged 14–17), both parental or guardian consent and the child’s informed assent should be obtained.

Read: Testing schoolgirls for pregnancy not likely to cut number of teenage mothers

In light of the above legal framework, you should begin by asking the school for a copy of any written policy authorising pregnancy testing and keep a record of it. If no lawful justification is presented, put your objection in writing to the principal and the board of management.

It is also advisable to raise the matter during a Parents Teachers’ Association meeting to encourage collective action. If the practice persists, report it to the County Director of Education or the Ministry of Education. You may also lodge a complaint with the Office of the Data Protection Commissioner and the Kenya National Commission on Human Rights.

Finally, should the violation continue, you may seek court orders to stop the practice and, where appropriate, claim damages. Kenyan law protects a child’s privacy, dignity, and bodily autonomy, and any school acting contrary to these rights can be held accountable

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).