Christopher Harper | Teens don’t need parental consent for abortions
In a recent Gleaner article, '40% of Jamaicans say parents must approve abortion by teenagers', Children's Advocate Diahann Gordon Harrison advanced some troubling positions contrary to the sexual and reproductive health and rights of adolescents across Jamaica.
I seek to affirm that adolescents do possess the right to make independent decisions about their health, including their sexual and reproductive health, once they are deemed to have the necessary capacity.
While I acknowledge that procuring an abortion in Jamaica is currently illegal under the Offences Against the Person Act, we must have an open and honest conversation about the implications of such a law in relation to the reproductive health of our adolescents.
Section 8 of the Law Reform (Age of Majority) Act provides that adolescents, including adolescent girls, who are 16 years and older have the legal capacity to consent to any surgical, medical and dental service without the need for parental consent. Furthermore, a medical practitioner under the common law can waive the need for the parental consent that is required for adolescents under 16 where, in his or her professional opinion, the child is deemed sufficiently capable of understanding the situation at hand and is considered to have the capacity to make the decision that is required.
Efforts to protect the rights of the adolescent have further been bolstered by the inclusion of the condition that the medical practitioner who performs the service must submit a formal report to the Office of the Children's Advocate to absolve himself or herself from any liability. Guidance such as this ensures that such decisions made are not arbitrary and inherently yield to the best interests of the child.
In light of this, if abortion were to be decriminalised, imposing a need for parental consent around the procurement of abortion services creates an imputation that 16- and 17-year-olds should not be given the right to consent until they have achieved age of majority. This establishes the notion that children are not rights holders until they are legally recognised as adults, which conflicts with Jamaica's international obligations under the Convention of the Rights of the Child (CRC).
The CRC recognises that at the core of the rights of the child are the principles of best interest and the evolving capacity of the child. Making a statement that a 16-year-old is incapable of negotiating as a minor ignores their right to access information and their right to be heard/participate, which are fundamental to their ability to navigate relationships, convey their thoughts and feelings, and make decisions that are ultimately in their best interest.
AGE OF CONSENT
The evolving capacity of any child should be inherently linked to laws establishing the age of consent, alongside the circumstances and experiences that characterise their development. In Jamaica, the age of consent to accessing services and the age of sexual consent identify 16 as the common age in the spectrum of adolescence where a child is deemed capable of understanding what is at stake and able to make the choice and exercise autonomy on whether or not he or she should engage in a particular activity.
The point raised by Rosalee Gage-Grey, CEO of the Child Development and Family Protection Services, echoes the sentiment that one of the most effective means of intervention is to ensure that children are exposed to age-appropriate, culturally relevant, life skills-based sex education.
In an ideal world, no young woman will fall pregnant and carry to full term as a result of rape, incest or failed contraceptives. In an ideal world, all girls who are 16 and 17 can speak openly about sex and pregnancy.
However, until we have achieved that ideal, we cannot force girls who have ended up in a situation like this to be unable to access the necessary services because of an additional barrier in the form of parental consent.