Law and Policy Guide: Adolescents

05.29.2019

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Adolescents

Adolescents often face a range of barriers when accessing abortion services, such as cost, stigma, lack of confidentiality, and misinformation resulting from inadequate sexuality education. Adolescents also face barriers unique to their age group, such as parental consent or notification and judicial authorization requirements, which prevent them from making autonomous decisions about their reproductive capacities and can inhibit them from seeking safe abortion care. Judicial authorization, which in some jurisdictions is used in lieu of parental consent, can be particularly problematic for adolescents due to the range of barriers they face in accessing formal judicial mechanisms and the stigma surrounding sexual and reproductive health services.1

Human Rights Norms

UN Treaty Monitoring Bodies

A number of UN Treaty Monitoring Bodies (TMBs) have recognized the importance of guaranteeing adolescents the right to access safe abortion services.2 Through individual cases, both the Human Rights Committee and CEDAW Committee have recognized rights violations stemming from denying adolescents access to abortion services.3 In KL v. Peru, the Human Rights Committee recognized that denying an adolescent access to abortion for a fatal fetal impairment was a violation of her rights to privacy and special measures of protection, and constituted cruel, inhuman, and degrading treatment.4 Similarly, in LC v. Peru, the Committee on the Elimination of Discrimination against Women determined that Peru violated an adolescent’s right to health and freedom from sex stereotyping by forcing her to carry to term a pregnancy resulting from rape that put her physical and mental health at health.5

Furthermore, the CRC recognizes that there should not be any “barriers to commodities, information and counselling on sexual and reproductive health and rights, such as requirements for third-party consent or authorization.”6 The Special Rapporteur on the Right to Health further recognizes parental consent and notification requirements as a barrier to health services for adolescents, as they “make adolescents reluctant to access needed services so as to avoid seeking parental consent, which may result in rejection, stigmatization, hostility or even violence.”7 These normative developments reinforce the CEDAW Committee’s recognition that parental authorization requirements constitute a barrier to health services.8

Furthermore, the CRC has urged states to review their legislation in order to guarantee “the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.”9 The CRC also called on States to ensure that “girls can make autonomous and informed decisions on their reproductive health.”10

African Regional Bodies

General Comment No. 2 of the Maputo Protocol acknowledges that adolescent girls are a “vulnerable group” at risk of unsafe abortions and States have an obligation to prevent “third parties from interfering” with adolescents’ access to safe abortion services.11 Specifically, the General Comment obligates States to remove third party authorization requirements, particularly parental authorization, from abortion access policies, so adolescents can access abortion without evidence of parental consent.12 The General Comment also calls on States to remove all barriers to accessing safe abortion services for adolescents, “such as those arising from marital status, age, disability as well as economic and geographic barriers.”13

European Human Rights Bodies

In P. & S. v. Poland, the European Court of Human Rights found a number of human rights violations stemming from the denial of abortion services to a 14-year-old who became pregnant as the result of rape and was subjected to intimidation and harassment. In finding violations of the rights to be free from ill-treatment, to private life, and to liberty and security of the person,14 the  Court recognized that P’s status as a minor was of “cardinal importance,”15 and the fact that she had been sexually abused placed her in a position of great vulnerability.16

Latin America and the Caribbean Human Rights Standards

During the Montevideo Consensus on Population and Development in 2013, 38 countries in Latin America and associate members of the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) under which the Consensus is part, pledged to “[p]rioritize the prevention of pregnancy among adolescents and eliminate unsafe abortion”17 by providing comprehensive sexuality education, and providing “timely and confidential access to good-quality information” and contraceptives.18

Global Medical Standards

In Safe Abortion: Technical and Policy Guidance for Health Systems, the World Health Organization (WHO) notes that national abortion laws “should include protections for informed and voluntary decision-making, autonomy in decision-making, non-discrimination, and confidentiality and privacy for all women, including adolescents.”19 The guide also acknowledges that third-party authorization requirements hinder adolescents’ access to abortion, and increase the likelihood that they will seek unsafe abortions.20 Furthermore, the WHO urges States to create an enabling environment for adolescents to access safe and legal abortion services, including sexuality information and access to a comprehensive range of contraceptives.21

The International Federation of Gynaecology and Obstetrics (FIGO) has recognized the unique challenges adolescents face when experiencing an unwanted pregnancy, such as barriers to access to education, adverse health effects from carrying a pregnancy at such a young age, and stigma.22 FIGO recommends that governments and health workers ensure access to education including the risks of unsafe abortion and the “availability of early and safe abortion where legal.”23

Comparative Law

Countries have recognized adolescents’ right to access abortion services in a number of ways. For example, several countries that do not allow abortion on request  include exceptions in their laws specifically allowing adolescents access to abortion services on grounds of their age. For example, Ethiopia allows abortion on broad social or economic grounds and the law explicitly recognizes that minors who become pregnant are eligible to access legal abortion services. The law states that abortion is permitted “where the pregnant woman, owing to… her minority, is physically as well as mentally unfit to bring up the child.”24 Similarly, Finland’s allows abortion on broad social or economic grounds and explicitly permits access to abortion for girls under 17 years old on request, without parental authorization or notification.25

The majority of countries worldwide do not require parental authorization or notification for adolescents to access abortion services. Of the countries that do require it, most are countries that permit abortion on request. However, a number of courts have struck down parental consent and notification requirements as unconstitutional. For example, in Gillick v. West Norfolk and Wisbech Area Health Authority, the House of Lords in the United Kingdom issued a landmark decision in which they determined that children younger than 16 were able to consent to abortion advice and services without parental authorization.26 In the United States in 2016, the Alaska Supreme Court determined that Alaska’s law requiring physicians to notify a parent of a minor seeking an abortion violated the state constitution’s right to equal protection.27

Some countries have drafted their parental authorization or notification requirements to minimize the harm these requirements can have on adolescents. For example, Rwanda requires parental/legal guardian consent for anyone under the age of 18 to access abortion, but explicitly states that if the parents disagree, or if the parents do not agree with the child, the child can still access abortion services if she wants.28 Italy created a small caveat in their parental authorization law that permits a minor access to abortion without parental or judicial consent when there is a “serious threat to [her] health.”29 Conversely, Ghana’s health policy recommends parental consent, but explicitly states that it is not required in order for adolescents to seek abortion services.30

  • 1. International Planned Parenthood Federation (IPPF), Qualitative research on legal barriers to young people’s access to sexual and reproductive health services 13 (June 2014).
  • 2. K.L. v. Peru, Human Rights Committee, para. 6.5, Commc’n No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003, (2005) [hereinafter K.L. v. Peru]; L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, para. 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011) [hereinafter L.C. v. Peru]; Committee on the Rights of the Child, General Comment No. 20 on the Implementation of the Rights of the Child during Adolescence, para. 60, U.N. Doc. CRC/C/ GC/20 (Dec. 2016) [hereinafter CRC Committee, Gen. Comment No. 20]; CEDAW Committee, General Recommendation No. 24: Article 12 of the Convention (women and health), (20th Sess., 1999), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at 358, para. 21, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008) [hereinafter CEDAW Committee, Gen. Recommendation No. 24].
  • 3. K.L. v. Peru, Human Rights Committee, para. 6.5, Commc’n No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003, (2005) [hereinafter K.L. v. Peru]; L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, para. 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011) [hereinafter L.C. v. Peru].
  • 4. K.L. v. Peru, Human Rights Committee, para. 6.5, Commc’n No. 1153/2003, U.N. Doc. CCPR/C/85/D/1153/2003, (2005) [hereinafter K.L. v. Peru]
  • 5. L.C. v. Peru, CEDAW Committee, Commc’n No. 22/2009, para. 8.15, U.N. Doc. CEDAW/C/50/D/22/2009 (2011) [hereinafter L.C. v. Peru].
  • 6. Committee on the Rights of the Child, General Comment No. 20 on the Implementation of the Rights of the Child during Adolescence, para. 60, U.N. Doc. CRC/C/ GC/20 (Dec. 2016) [hereinafter CRC Committee, Gen. Comment No. 20].
  • 7. Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Rep. of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health, Dainius Puras, para. 59, U.N. Doc. A/ HRC/32/32 (2016) [hereinafter SR Health, Report on the Health of Adolescents (2016)].
  • 8. CEDAW Committee, General Recommendation No. 24: Article 12 of the Convention (women and health), (20th Sess., 1999), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at 358, para. 21, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. II) (2008) [hereinafter CEDAW Committee, Gen. Recommendation No. 24].
  • 9. CRC Committee, Gen. Comment No. 20, supra note 1, para. 60.
  • 10. CRC Committee, General Comment 15: The Right of the Child to the Enjoyment of the Highest Attainable Standard of Health, (62nd Sess.), para. 56, U.N. Doc. CRC/C/GC/15 (2013) [hereinafter CRC Committee, Gen. Comment No. 15].
  • 11. The African Commission on Human and Peoples’ Rights (African Commission), General Comment No. 2 on Article 14 (1) (a), (b), (c) and (f) and Article 14 (2) (a) and (c) of the Maputo Protocol, paras. 39 and 43 (2014).
  • 12. Id., at para. 43.
  • 13. Id., at para. 61.
  • 14. P. and S. v. Poland, No 57375/08, Eur. Ct. H. R. (2008) [hereinafter P. and S. v. Poland]. 
  • 15. P. and S. v. Poland, No 57375/08, Eur. Ct. H. R. (2008) [hereinafter P. and S. v. Poland], para. 161.
  • 16. Id., para. 162.
  • 17. Montevideo Consensus on Population and Development (2013). Agreement 14, https://www.cepal.org/celade/noticias/documentosdetrabajo/9/50709/2013-596montevideo_consensus_pyd.pdf
  • 18. Montevideo Consensus on Population and Development (2013). Agreement 14, https://www.cepal.org/celade/noticias/documentosdetrabajo/9/50709/2013-596montevideo_consensus_pyd.pdf; https://www.oas.org/en/mesecvi/docs/MESECVI-SegundoInformeSeguimiento-EN.pdf (para. 112).
  • 19. World Health Organization, Safe Abortion: Technical and Policy Guidance for Health Systems 67-8 (2d ed. 2012).
  • 20. Id. at 68.
  • 21. Id. at 98.
  • 22. FIGO pp. 134-6 (2015) https://www.figo.org/sites/default/files/uploads/wg-publications/ethics/English%20Ethical%20Issues%20in%20Obstetrics%20and%20Gynecology.pdf
  • 23. FIGO pp. 135 (2015) https://www.figo.org/sites/default/files/uploads/wg-publications/ethics/English%20Ethical%20Issues%20in%20Obstetrics%20and%20Gynecology.pdf
  • 24. Article 551(1)(d) of the Criminal Code of Ethiopia.
  • 25. Finnish Abortion Act (239/1970, as amended), Section 1(4)
  • 26. Gillick v. West Norfolk and Wisbech Area Health Authority, [1986] 1 Appeal Cases 112 (House of Lords).
  • 27. Planned Parenthood v. Alaska, Supreme Court of Alaska, (2016), https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/supreme_court_opinion__7114.pdf
  • 28. Ministerial Order Rwanda, 2019, art. 6, Official Gazette No. 14 of 08/04/2019
  • 29. Law 194 of Italy, (1978), Art. 12.
  • 30. Ghana Health Service, page 16, Prevention and Management of Unsafe Abortion: Comprehensive Abortion Care Services Standards and Protocols