ADOLESCENT SEXUAL REPRODUCTIVE HEALTH: KENYAN LEGAL FRAMEWORK, A CASE FOR REFORM?

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WHO defines adolescents as individuals in the 10-19 years age group.[1] Adolescence is now the transitional stage of physical and psychological development that generally occurs during the period from puberty to legal adulthood.

The issue of adolescents’ consent to treatment mostly on reproductive health has been a very contentious discourse in the health law realm as various stakeholders have conflicting and divergent opinions on the same. This can be attributed to various factors such as issues of morality, the burden of teenage pregnancies are usually borne by parents and guardians of the children, adolescents are still in the growth and development phase, public health issues such as reducing STIs and STDs infection among the younger generation, to limit unsafe abortions and the issue of children being seen as objects and not subjects of the law due to their ‘vulnerability,’ Hence addressing adolescent sexual and reproductive health in Kenya requires concerted efforts of both state and non-state actors and more importantly, a supportive environment.[2]

There have been some notable improvements in AYSRH in Kenya as various policies and initiatives have been undertaken to promote the same. For instance, the adoption of the SDGs and other additional initiatives such as FP2020 (2012), Girls Not Brides (2011), Together for Girls (2009), and Global Strategy on Women, Children, and Adolescent Health (2016–2030) among others. In furtherance, various statutes seem to take a progressive stand on AYSRH for instance:

Section 14 (1) (b) of the HIV and AIDS Prevention and Control Act provides for the right of a minor who is sexually active, married, or pregnant to consent to an HIV Test without their parent’s involvement.[3]

Section 10 (1) of the Mental Health Act, Cap 248, provides that any person who has attained the apparent age of 16 and above can voluntarily consent to being admitted to an institution.[4]

Also, the enactment of the Reproductive HealthCare Bill 2014 is a great stride as it seeks to: recognize reproductive rights, set standards for reproductive health care, provide for the right to make decisions regarding reproduction free of discrimination, coercion, violence, and control.

However, there are still so many challenges and regressive legislation towards the realization of AYSRH. For instance:

Currently in Kenya children apart from the elderly are seen as the most vulnerable members of the society and are thus often below adults who continually make their decisions even medical ones. Section 8 (1) of the Health Act, 2017 seems to suggest that minors cannot receive their own health information as it states, ‘Every health care provider shall inform a user Health information or, where the user of the information is a minor or incapacitated, inform the guardian of the user’s health status.’

Moreover, although Section 9 of the Children Act, 2001 creates the right to health and medical care for every child, it places the duty on the parents and the State to ensure that this right is protected.

This particular provision seems to be regressive to certain international legal instruments that seek to address sexual and reproductive health (SRH) issues  such as; Article 20 of the UN Convention on the Rights of Children which endeavors to make children subjects and not objects of the law: subjects have rights and can voice out their opinions whilst decisions are made for objects of the law; the 1995 Beijing Platform for Action  and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

There are also other challenges such as:

 Supremacy of constitution- protection of family by the state, principle of parens patriae-inherent power of state to protect those who cannot protect themselves, the balance of right to life of the unborn child and adolescent SRHR, unconstitutionality and illegality of abortion and consequences thereof, and the best interest of the child principle as encapsulated in Article 53 of the Constitution and Section 4 (2) of the Children Act, 2001.[5]

In the locus classicus case of Gillick v, West Norfolk and Wisbech Area HA and another [1985] 3 All ER 402, the issues of adolescent sexual and reproductive rights were set. In this case, Plaintiff Mrs. G had 5 daughters all under the age of 16. The Directorate for Health Services had issued a circular to the area health authorities that advised doctors who were in family planning clinics that if they were approached by any girl under the age of 16, they would not be acting unlawfully if they prescribed contraceptives for the child as long as the doctor was acting in good faith to protect the child from the harmful effects of sexual intercourse.

Mrs. G sought assurance from the local area health authority that her own daughters would not be given contraceptive advice or treatment without her prior consent. The local health authority refused to give her the assurance and she went to court to seek a declaration. The House of Lords decided against her. Lord Fraser particularly stated that:

“It seems to be verging on the absurd to suggest that a girl or boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Of course, the consent of the parents should normally be asked, but they may not be immediately available.’’

He then went ahead to set what has been dabbed the Gillick Competent test, in which e opined the following guidelines:

A doctor is justified to proceed without the parents’ consent or even knowledge provided he is satisfied THAT:

  1. The girl will understand his advice
  2. He cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice
  3. She is very likely to begin or continue having sexual intercourse with or without contraceptive treatment
  4. Unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer
  5. Her best interests require the doctor to give the contraceptive advice, treatment or both without the parental consent.[6]

CONCLUSION

Truth be told, the world is filled with a lot of anomalies and a lot of things go wrong in the world. And the issue of adolescent sexual and reproductive health rights is a very sensitive and controversial issue that requires a delicate balance of various concerns about the protection of the adolescents, parental rights/duties, and societal values. And sometimes it feels like a battle between the conservatives and the SRHR advocates. Ideally, though, children should not be encouraged or be seen to engage in sexual relationships. However the reality of our world today is that so many young people are engaging in sexual activities despite its grave consequences as aforementioned, we cannot thus afford to bury our heads in the sand and cross our fingers hoping the problem will go away. There have to be concerted efforts made towards the protection of adolescent sexual and reproductive health not because we want to create a hyper-sexualized society but because there is a lot of wisdom in the aphorism, prevention is better than cure. It could start by doing a write-up like this one to create awareness, enacting appropriate legislation and policies like National Adolescent Sexual and Reproductive Health Policy 2015 and the Reproductive Healthcare Bill, 2014 or Courts of law setting up progressive jurisprudence on the same. Just my 2 cents though.


[1] World Health Organization (WHO) Adolescent definition, www.who.ihti

[2] The moral and social narratives of sexual and reproductive health in Kenya: a case of adolescents and young people pre- and within the MDG era by Elsie Akwara and Priscilla Idele

[3] HIV and AIDS Prevention and Control Act, no.14 of 2006, is an Act of Parliament enacted to provide measures for the prevention, management, and control of HIV/AIDS and for other connected purposes

[4] The Mental Health Act, Cap 248, is an Act of Parliament enacted to amend and consolidate the law relating to the care of persons who are suffering from mental health disorders

[5] Reproductive Healthcare Bill and the Adolescent Bill: Aligning adolescent health to Sustainable Development Goals in Kenya by Dr. Scholastica Omondi, at Paradise Hotel, Mombasa 2018

[6] Lord Fraser, Gillick v West Norfolk and Wisbech Area HA and another [1985] 3 All ER 402


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