Law and Policy Guide: Third-Party Authorization

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Third-Party Authorization

Third-party authorization requirements compel individuals to obtain consent from a party beyond their healthcare provider, such as a parent, spouse, judge, or medical committee, before they can access legal abortion services. Such requirements may be written into laws or policies or imposed in practice. Third-party authorization requirements can delay women and girls’ access to abortion services while they seek the necessary approvals or result in denials of access altogether, such as when women and girls are unable to obtain the necessary approvals or fear violence or reprisal for seeking consent of a third-party. In such circumstances, women and girls may be forced to seek out unsafe, clandestine abortion services as a result.

Human Rights Norms

UN Treaty Monitoring Bodies

Several UN Treaty Monitoring Bodies (TMBs) have recognized third-party authorization requirements as a barrier to abortion services and an infringement on human rights.[1]CESCR GC 22, para. 41; Committee on the Rights of the Child, General Comment No. 20 on the implementation of the rights of the child during adolescence, para. 31, U.N. Doc. CRC/C/ GC/20 (Dec. 2016) … Continue reading For example, the Human Rights Committee recognized judicial authorization for abortion services as a human rights violation in In L.M.R. v. Argentina. In this case, the Human Rights Committee determined that a court’s involvement in determining whether an adolescent could access abortion was arbitrary and unlawful because it was not required by law. The Committee noted that the decision should have been between the adolescent and her physician and the court’s involvement in that decision amounted to a violation of the right to privacy.[2]L.M.R. v. Argentina, Human Rights Committee, Commc’n No. 1608/2007, para. 9.3, U.N. Doc. CCPR/C/101/D/1608/2007 (2011).

In its General Comment No. 22, the Committee on Economic, Social, and Cultural Rights obligates States to “remove and refrain from enacting laws that create barriers in access to sexual and reproductive health services,” including third-party authorizations for accessing abortion care.[3]CESCR GC 22, para. 41 The Committee further noted that States must prevent private actors from establishing third-party authorization requirements.[4]CESCR GC 22, para. 43

The Committee on the Elimination of Discrimination against Women has repeatedly raised concerns to states about third-party authorization requirements. For example, the Committee urged Slovakia to remove its third-party authorization requirements from its abortion law in accordance with the World Health Organization guidelines.[5]CEDAW Concluding Observations, Slovakia, 2015, para 31(c). The Committee also raised concerns about judicial authorization requirements that were formerly in place in Bolivia, which required pregnant women to obtain judicial authorization in order to access abortion in cases of rape or incest.[6]CEDAW Concluding Observations, Bolivia, 2016, para 29(c).

TMBs have also commented on the impact of third-party authorization requirements specifically for adolescents. The Committee on the Rights of the Child 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.”[7]CRC Committee, Gen. Comment No. 20, supra note 1.

European Human Rights Bodies

Two European courts have rejected third-party authorization requirements, particularly spousal consent requirements, for pregnant women seeking abortion care. In Paton v. United Kingdom, the now extinct European Commission of Human Rights found that a spouse cannot prevent a pregnant woman from accessing an abortion. In its decision, the Commission highlighted that the right to respect private and family life does not extend to the biological father’s ability to object over his wife’s abortion.[8]Paton v. United Kingdom, European Commission of Human Rights Similarly, in Boso v. Italy, the European Court of Human Rights determined that a husband’s rights were not violated when his wife obtained an abortion without his consent. Furthermore, the Court determined that the husband did not have an admissible claim, because the woman’s rights outweigh the father’s when determining access to abortion, since the woman will be the person most impacted by the pregnancy.[9]Boso v. Italy

Global Medical Standards

In Safe Abortion: Technical and Policy Guidance for Health Systems, the World Health Organization (WHO) acknowledges that  third-party authorization requirements undermine women’s autonomous decision-making, and urges States to remove such requirements from health laws and policies.[10]WHO, Safe abortion guide, pages 68 and 86, apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=7D7261384A06937FFF02CB773EEB6FBE?sequence=1… Specifically, the guidance notes that third-party authorization requirements from doctors, judges, spouses, or parents create a significant barrier that can deter women from accessing abortion services.[11]WHO, Safe abortion guide, page 94, apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=7D7261384A06937FFF02CB773EEB6FBE?sequence=1… The guidance also explicitly highlights the impact of third-party authorization requirements upon adolescents, noting that “[a]dolescents may be deterred from going to needed health services if they think they will be required to get permission from their parents or guardians, which increases the likelihood of them going to clandestine abortion providers.”[12]WHO, Safe abortion guide, page 68, chap. 3.3.5.2, apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=7D7261384A06937FFF02CB773EEB6FBE?sequence=1…

Comparative Law

The frequency of third-party authorization requirements vary considerably depending on the type of authorization and the law in effect. Notably, a number of countries have removed third-party authorization requirements or have had them struck down by the courts. In 2014, the Bolivia Constitutional Court declared judicial authorization requirements for abortion in cases of rape to be unconstitutional.[13]https://abortion-policies.srhr.org/documents/countries/02-Bolivia-Judicial-Decision-2026-2014.pdf (article 266), 2014 In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court of the United States determined that spousal notification requirements are unconstitutional and placed an undue burden on women’s individual liberties.[14]Planned Parenthood of Southeastern Pennsylvania v. Casey, Page 898, supreme.justia.com… In 2019, Rwanda removed judicial authorization requirements for abortion, thereby permitting women over the age of 18 to access abortion without judicial authorization.[15]Ministerial Order of Rwanda, 2019, article 8

Despite this trend, third-party authorization requirements remain in effect in a number of countries. Notably, about a dozen countries worldwide require spousal authorization for abortion services. For example, Taiwan and Japan require married women to obtain consent from their husbands before they are permitted to access abortion services.[16]Taiwan, Genetic Health Act, Article 9

While most countries do not require parental authorization or notification for minors to access abortion care, those that do require it predominately permit abortion on request. The age limits vary within these countries and often are below the age of majority. For example, the Slovak Republic requires authorization from a parent or guardian for girls under 16 years old to access abortion on request.[17]Slovak Republic, Section 6 (1) of Act No. 73/1986 Coll., on Artificial Termination of Pregnancy, as amended (in force as of January 1, 1987).

References

References
1 CESCR GC 22, para. 41; Committee on the Rights of the Child, General Comment No. 20 on the implementation of the rights of the child during adolescence, para. 31, U.N. Doc. CRC/C/ GC/20 (Dec. 2016) [hereinafter CRC Committee, Gen. Comment No. 20]; CEDAW Concluding Observations, Slovakia, 2015, para 31(c); L.M.R. v. Argentina, Human Rights Committee, Commc’n No. 1608/2007, para. 9.2, U.N. Doc. CCPR/C/101/D/1608/2007 (2011).
2 L.M.R. v. Argentina, Human Rights Committee, Commc’n No. 1608/2007, para. 9.3, U.N. Doc. CCPR/C/101/D/1608/2007 (2011).
3 CESCR GC 22, para. 41
4 CESCR GC 22, para. 43
5 CEDAW Concluding Observations, Slovakia, 2015, para 31(c).
6 CEDAW Concluding Observations, Bolivia, 2016, para 29(c).
7 CRC Committee, Gen. Comment No. 20, supra note 1.
8 Paton v. United Kingdom, European Commission of Human Rights
9 Boso v. Italy
10 WHO, Safe abortion guide, pages 68 and 86, apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=7D7261384A06937FFF02CB773EEB6FBE?sequence=1…
11 WHO, Safe abortion guide, page 94, apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=7D7261384A06937FFF02CB773EEB6FBE?sequence=1…
12 WHO, Safe abortion guide, page 68, chap. 3.3.5.2, apps.who.int/iris/bitstream/handle/10665/70914/9789241548434_eng.pdf;jsessionid=7D7261384A06937FFF02CB773EEB6FBE?sequence=1…
13 https://abortion-policies.srhr.org/documents/countries/02-Bolivia-Judicial-Decision-2026-2014.pdf (article 266), 2014
14 Planned Parenthood of Southeastern Pennsylvania v. Casey, Page 898, supreme.justia.com…
15 Ministerial Order of Rwanda, 2019, article 8
16 Taiwan, Genetic Health Act, Article 9
17 Slovak Republic, Section 6 (1) of Act No. 73/1986 Coll., on Artificial Termination of Pregnancy, as amended (in force as of January 1, 1987).