Children and Adolescents’ Access to Reproductive and Sexual Healthcare
The majority of the approximately 177 million population of Nigeria consists of young people. The percentage of that population under 15 years is put at about 44 per cent.1 It is estimated that women from the age of 15 years and above constitute about 2 million of the 4 million people living with HIV in the country.2 Furthermore, HIV prevalence in Nigeria, like in other parts of Africa, is three times higher in young women aged 15–24 years than in their male counterparts.3 The median age of sexual debut among women between the ages of 15–24 years is put at about 17 years.4 This is an indication that adolescents in the country are likely to be exposed to sexual intercourse at an early stage of life. As a consequence, the rate of unwanted pregnancy among young people is very high, thus leading to cases of unsafe abortion. The end result of this is preventable loss of lives.5 Indeed, it has been shown that unsafe, illegal abortion accounts for about 33 per cent of all maternal deaths in the country.6 Nigeria, with about 1,000 deaths per 100,000 live births, has one of the highest maternal mortality rates in the world.7 Most of these deaths occur among young women.
Generally, there is limited access to healthcare services, particularly sexual and reproductive healthcare, for children and adolescents in Nigeria. Several reasons account for the poor use of contraception among adolescents in the country; these include ignorance among adolescents and healthcare providers and lack of youth-friendly healthcare services. Others are socio-cultural factors, negative attitudes of healthcare providers and an unfavourable policy environment.8 These challenges underline not only the need for more information on adolescents’ sexuality, but also accessible and youth-friendly healthcare services for adolescents. While it is agreed that the enactment of appropriate laws and policies may not necessarily address these challenges, it is not in doubt that laws and policies can create an enabling environment for the realization of access to sexual and reproductive health services for children and adolescents. For instance, laws and policies can facilitate access to sexual health information for adolescents and address discriminatory practices against children and adolescents in the healthcare sector.
Access to comprehensive sexual and reproductive health services for children and adolescents, particularly in the context of contraceptive services, is important for a number of reasons. Sustained investment in sexual health services for adolescents has the potential to prevent loss of lives and improve young people’s health.9 Information on sexual health helps adolescents, especially young adolescents who are yet to be sexually active, to delay sexual debut and take necessary precautions should they decide to engage in sexual activity. Moreover, access to comprehensive sexual health services, especially contraceptive services, will help in preventing about one third of the sexual and reproductive ill-health cases prevalent among women of reproductive age across the world.10 Furthermore, it will help in satisfying the unmet need for contraceptive services among women, particularly unmarried women in developing countries including Nigeria. This will in turn prevent about 52 million unwanted pregnancies around the world, thereby saving 1.5 million lives.11
The Social Construction of Children and Adolescents in Nigeria
Before examining the relevance of assuring access to sexual and reproductive care for children and adolescents, it is necessary first to understand how societies in the past and at present have construed children and adolescents. This will provide a good understanding of how laws or policies regarding adolescents are formulated. Adolescence is often described as a stage between childhood and adulthood. It is typically a period where the major psychological task is to ‘determine identity; develop power to make decisions and be in control; and develop a mature sexuality’.12 According to the World Health Organization, adolescents are people in the age group 10–19 years while young persons are between the ages of 15 to 24 years.13 Development varies depending on the stages of adolescence. The early stage of adolescence (10–14 years) usually witnesses the beginning of sexual maturation and abstract thinking.14 During this stage, the adolescent is unable to grapple with the vicissitudes of life, often susceptible to peer pressure, and listens less to the opinions of family members.15
The stage of middle adolescence (15–17 years) is characterized by improved thinking skills and intelligence, great desire for emotional and psychosocial independence from parents and increased sexual awareness and interaction with the opposite sex. Moreover, it is a stage at which most adolescents experience their first sexual acts.16 The last stage of adolescence (17–19) involves the manifestation of traits of maturity, independence and more settled ideas and opinions.17 This is the stage at which the adolescent has fully manifested the qualities of an adult and is more interested in a serious relationship.
Despite these developmental stages in adolescents, adolescence is often equated with childhood in most societies. This position is inadvertently supported by the definition of a child under the Convention on the Rights of the Child (CRC) where a child is regarded as anyone under the age of 18. The implication of this is that adolescents, like children, are viewed as vulnerable, dependent, weak and innocent.18 This perception of adolescents has often meant that they are always deserving of protection with concomitant steps being taken to protect them. Ironically, this is often the beginning of a paternalistic conception of children and adolescents. Based on this, children and adolescents are viewed erroneously as asexual beings, neophytes incapable of discerning wrong from right, and deserving of constant parental attention lest they be harmed by others. Locke, for instance, argues that a child is an irrational being incapable of thinking for itself. He states further that children cannot do what is rational since they are yet unable to see what is rational.19 It is believed that the adolescent’s mind exists in a state of tabula rasa – emptiness.
Furthermore, in many communities in Nigeria children and adolescents are believed to be either too naive or too innocent to engage in the same acts as adults. Thus, children and adolescents are not supposed to know anything about sex lest they begin to experiment with it. This explains why many parents do not communicate with their children on issues relating to their sexuality. Even the clamour for sex education in some quarters has been met with stiff opposition by many conservative parents with the excuse that this will open the gate to ‘corrupting innocent souls’. While children and adolescents are generally barred from engaging in sexual acts, girls in particular are often the target of this unwritten law. In African societies, girls are expected to be custodians of chastity or public morality. They are expected to maintain and prove their virginity while boys are implicitly permitted to prove their virility by engaging in premarital sex.20
Premarital sex for adolescent girls is more or less regarded as forbidden until marriage. This is because sexual activities for girls are considered not only injurious to them (because of fear of pregnancy and sexually transmitted infections) but also to society at large (because of dropping out of school and financial dependence on society).21 This culture celebrates girls who refrain from sexual activities as good and cultured, while those who become sexually active or even seek information about their sexuality are regarded as deviants. This has led Gagnon and Simon to conclude that ‘learning about sex in our society is learning about guilt, conversely learning about how to manage sexuality constitutes learning how to manage guilt’.22
More often than not, society has tried to impose on children and adolescents their ideas of what is in their best interest. Here lies the challenge. At what point should interference in the affairs of adolescents be respectful of their fundamental rights and freedoms? This is by no means an easy question to answer. But it is important to note that steps taken to protect children and adolescents must be balanced with their rights as recognized in international and regional human rights instruments. In particular, attention needs to be given to the autonomous decision-making power of children and adolescents to seek sexual and reproductive health services, especially with regard to contraception. Children and adolescents, particularly the girl-child and female adolescent, when seeking contraceptive advice and services from health providers, should be treated like autonomous human beings capable of deciding what is in their best interest. This will be consistent with the principles of the evolving capacities of the child and the right of the child to be heard in all matters. It is important to bear in mind that the adolescent’s right to autonomy or self-determination is not a privilege; rather it is a fundamental right that he/she is entitled to by virtue of being human.
Factors Limiting Access to Sexual and Reproductive Health Services for Children and Adolescents
Cook et al. have identified four crucial factors, namely providence, people, politicians and providers of healthcare – referred to as the four ‘P’s – that are the determinants of human health.23 The authors observe that providence determines the genetic constitution of every human being inclusive of the diseases to which we can become susceptible. According to the authors, whether a human being is born male or female is determined by the constitution of the chromosomes. People, the second factor identified by the authors, implies that the kind of lifestyle behaviour a person adopts can have implications not only for the health of that person but also for the health of others. For instance, unwillingness or refusal of a male to use a condom during sexual intercourse can have implications for the health and well-being of a female adolescent. Politicians, the third factor identified by Cook et al., as well as legislators can become catalysts for shaping our societies. This can be through the development and enactment of appropriate policies and laws and the allocation of adequate resources to the healthcare sector. With regard to providers of healthcare, Cook et al. argue that with the recent advances in medical technology, it becomes imperative for healthcare providers to ensure that they protect, maintain and restore the health of all people and in particular that of vulnerable groups such as women, adolescents and children. These four determinants are equally crucial to the health needs of children and adolescents; they play important roles in the context of realizing access to sexual and reproductive healthcare services for children and adolescents in Nigeria.
Besides these determinants, several other factors have been found to hinder access to healthcare services for children and adolescents in many developing countries including Nigeria. These factors can be classified under three broad headings: socio-cultural factors, barriers associated with the healthcare setting, and legal and policy factors. This chapter focuses on the third factor – the legal framework on access to healthcare services for children and adolescents. However, since there is a correlation between these factors, it is necessary to engage in a brief discussion of the impacts of socio-cultural and health system related factors on access to contraception for adolescents in the country.
In a patriarchal society such as Nigeria, it is sometimes challenging for adolescent girls to learn about their sexuality and means of preventing pregnancy or STIs, since in some homes discussions about sex between parents and their wards is almost taboo. Recurrently, parents and guardians are failing in their responsibilities to equip their children with the essential information they require for their healthy growth. Most parents in the country do not realize that they are the primary educators with regard to the sexuality of their children and wards. Often, in the name of tradition or religion, parents deliberately avoid talking to their children or may pass confusing or misleading messages along to adolescents.24 But the truth remains that adolescents want to communicate with their parents or guardians. This appeal for communication between parents and adolescents is captured in a plaintive plea by a 14-year old girl from Botswana: ‘In my country Botswana, there is a serious problem of communication between parents and their children. This is a cry from our hearts. Parents talk to us! Without your communication, guidance and dialogue we are a lost generation.’25 Although this plea is from an adolescent in Botswana, it nevertheless captures the plight of most adolescents in Nigeria.
Moreover, because of cultural and religious practices in Nigeria, adolescent girls are likely to be censured from seeking information about their sexuality, and any girl that defies this censure may be tagged ‘irresponsible’, ‘immoral’ and ‘unsuitable for marriage’.26 The fear is also prevalent that exposing unmarried adolescent girls to contraception is more or less a license to promiscuity.27 This fear is more pronounced in the northern part of the country where Sharia law operates. Sharia forbids an unmarried young girl to engage in sexual activity or to seek information related to her sexuality. Among Christian groups in Nigeria, Ojo has contended that biblical injunctions have often been cited to justify opposition to premarital sexual activity among young people.28 He argues that in most cases Christian religious beliefs have been invoked to suppress people’s sexual pleasure, particularly in the case of children and adolescents. Consequently, sexual activities such as masturbation, oral sex, homosexuality or engaging in non-procreative pleasurable sex have been condemned as sinful and unacceptable.
These negative societal norms and values about children and adolescent girls are often used as a weapon of social control over women and their sexuality.29 Hence, rather than relying on information from parents or guardians, studies have shown that most children and adolescents look elsewhere for information as regards their sexuality.30 For instance, a study among young people in Nigeria has shown that the main sources of information about sexuality for most adolescents are either their peers or the media.31 This prohibition of information on adolescent sexuality based on cultural and religious beliefs is often rooted in patriarchy. The whole essence of such practices is to preserve a girl’s virginity or virtue for her future husband. It represses female adolescents’ sexuality and denies them the right of agency in sexual health matters. The fact that in most cases male adolescents are not subjected to similar prohibition or censure raises the issue of discrimination or gender inequality.32
A study conducted in Lagos, Nigeria has shown that adolescents’ level of education is crucial to their knowledge of factors that can dispose them to sexual and reproductive ill health.33 The more educated adolescents are, the better their chances of taking precaution to prevent unwanted pregnancies and STIs.34 Similarly, another study has shown that poverty and lack of resources can play a major role in determining access to healthcare services including access to sexual and reproductive health services for children and adolescents.35 The problem of cost with regard to sexual and reproductive health services for children and adolescents can be particularly challenging in a world where it was estimated in 2000 that about 22.5 per cent of young people were living below 1USD per day.36 Nearly 90 per cent of these young people live in developing countries, including countries in Africa. Of the number of young people living in Sub-Saharan Africa, it is estimated that about 60 million of them live in extreme poverty.37 And less than 5 per cent of this population of young people worldwide is currently using a method of contraception.38 The situation may affect female adolescents’ capability to express their sexual autonomy and to negotiate condom use. Moreover, poverty may also limit female adolescents’ capability to seek contraceptive services as they may be unable to afford the cost of contraception.
Experience has shown that poor young women and girls tend to forgo their sexual and reproductive self-determination due largely to lack of economic power. For instance, a study in Nigeria demonstrates that adolescent girls from less affluent households are more likely to have sex without using contraception than their peers from wealthy households.39 In other words, poverty aggravates gender inequality and suppresses women’s and girls’ sexual autonomy. The Committee on Economic, Social and Cultural Rights (ESCR) has noted that the cost of healthcare services and goods including contraception must not be unduly burdensome to marginalized and vulnerable groups such as children and adolescents.40 Moreover, states are under obligations to remove barriers to economic accessibility to healthcare services and goods.
Barriers in the Healthcare Setting
It is ironic that the healthcare institution that ought to serve as a beacon of hope to adolescents is often populated by health providers with judgmental attitudes. The healthcare setting itself is often unfriendly and inaccessible to adolescents. While studies have identified the healthcare institution as a place where adolescents can seek information and services on contraception, yet many adolescents are avoiding using the healthcare institution for this purpose.41
Most children and adolescents often avoid seeking advice on sexual and reproductive health from healthcare providers because they fear they might be misunderstood or judged. Children and adolescents are quite sensitive to their surroundings, especially when they have become sexually active; hence, they tend to show some discomfort when they are not certain this fact will be kept away from their parents or guardians.42 While commenting on challenges in the healthcare sector hindering access to emergency contraception (EC) in developing countries, Shiappacasse and Diaz have observed that lack of privacy, unfriendly attitudes towards adolescents and high cost of the product often act as stumbling blocks to adolescents’ access to the product.43
Hobcraft and Baker have identified four major barriers to children’s and adolescent’s access to sexual and reproductive treatment in the healthcare setting. These include poor remuneration of healthcare providers, a working environment poorly equipped to deal with the sexual and reproductive health of young people, personal biases of healthcare providers and uncoordinated parallel programmes in the healthcare system.44 These concerns are neither limited to EC nor to developing countries; they apply to other forms of contraception and to developed countries as well.45 For instance, a study in middle high school students in Los Angeles has found that though there is a significant increase in knowledge, this has not translated into better sexual behaviour or increase in contraceptive use.46
Experience has shown that healthcare providers exhibit little knowledge or skill with regard to adolescents’ health needs including access to contraceptive services. In some cases the healthcare environment may seem unwelcoming to adolescents.47 This situation often puts children and adolescents in a dilemma and sometimes betrays their confidence in the healthcare system. The result is that children and adolescents are reluctant to seek contraceptive advice even when in dire need. An adolescent seeking medical treatment is quoted as follows:
I didn’t know what to do. When a friend finally told me about the clinic, I was so relieved, but also nervous about going. The person at the reception just kept making me fill in forms, and it was a strange environment. I didn’t know where to look, sit or stand. Eventually I was called in, very loudly, so I felt a bit vulnerable. I was on my own.48
Sometimes healthcare institutions are located far away and out of reach of adolescents and they operate at such a time of the day that does not take into account the peculiar circumstances of adolescents. This could sometimes be frustrating for children and adolescents.49
It is important that healthcare facilities are not only friendly, but must also guarantee to children and adolescents confidentiality of services. This will include an assurance that information about children’s and adolescents’ visits to a healthcare facility on sexual and reproductive matters is not made known to the public. This assurance is more pertinent as regards advice on contraception for sexually active adolescent girls. Studies have confirmed that the inability of most healthcare facilities to assure adolescents confidential healthcare services has been responsible for poor use of the healthcare system by most adolescents.50 Sometimes the need to ensure confidential healthcare services for children and adolescents may have to be balanced with the rights of parents to know the kind of treatment their children receive. This often controversial issue captures a key theme in Chapter 6 of this volume: Obi Nnamuchi’s chapter on the confidentiality of health information – that is, the appropriate regard that may be given to socio-cultural values in the formulation of confidentiality principles. This issue, which is explored further below, is critical because Nigeria’s socio-cultural values can be said to be at odds with the idea of keeping confidential medical information provided to children and adolescents. Although the various testimonies relating to the challenges adolescents encounter in the use of the health services mentioned above occur in Botswana and Ghana, adolescents in Nigeria face similar challenges.
Legal Framework on Access to Sexual and Reproductive Health Services for Children and Adolescents
At common law, there have been two different positions in this regard. One is that children generally are incompetent to consent to medical treatment independent of their parents or guardians.51 The basis for this view is that essentially, a treatment intervention on a minor or a child amounts to an adverse interference with the welfare of the minor or child and thus requires the prior consent of a parent or guardian, who has legal custody of the minor.52 Clearly, this position seems to favour the protection of parental rights over that of a minor or a child until he/she attains the age of majority.53 This position will no doubt impede access to contraception for adolescents as they may be regarded as too immature to seek services related to contraception.
The other view, which is outlined in the Gillick decision discussed below, is that the competence of children or minors to consent to medical treatment is a matter of fact depending on the ability of the minor or child to exhibit good understanding of the nature and importance of the treatment sought.54 This is often known as the ‘mature minor rule’ at common law. As a former colony of Britain, Nigeria has retained common law rules dating back to 1 January 1900. Ireh Iyioha highlights the similarity in the legal systems of Nigeria and Britain in Chapters 1, 4, 5, and 12. By virtue of this legal relationship, the laws to be administered by the Court include the common law of England, the doctrine of equity and the statutes of general application, which were in force in England on 1 January 1900. In the context of the applicable rule on minors’ consent to treatment in Nigeria, the influence of socio-cultural norms and the rules of reception make the first rule at common law the general rule in Nigeria. That is, minors cannot give valid consent to medical treatment until they reach the age of majority because they are generally deemed incompetent to provide consent independent of their parents or guardians. However, as Iyioha and Aniaka explain in Chapter 5, Nigerian courts may be influenced by the minor’s appreciation of the nature and consequences of a treatment decision to find such minor capable of making a decision about treatment.
Ngwena has argued that the common law position, which generally regarded children as incompetent to consent to medical treatment independent of their parents or guardians, is an anachronism, out of tune with the realities of modern times.55 Therefore, he supports the view that the competence of children or minors to consent to medical treatment is a matter of fact depending on the ability of the minor or child to exhibit good understanding of the nature and importance of the treatment sought. He notes that this latter view seems preferable as it reflects recent developments and changes relating to children’s capability to act in certain situations, without parental or guardians’ consent.56
The issue whether an adolescent can consent to sexual health treatment has been addressed by the courts in Britain and Canada. The decision of the English House of Lords in Gillick v West Norfolk and Wisbech Health Authority and Department of Health and Social Security57 centres on this controversial issue and reflects the ‘mature minor’ rule stated above. In that case, a claimant challenged as unlawful a guidance issued by the Secretary of State permitting a person under the age of 16 to seek contraceptive advice and medical treatment. The question for determination before the court was whether a doctor could lawfully give contraceptive advice or treatment to a girl under the age of 16 without the consent of the girl’s parents. The approach adopted by the majority of the court in that case seems to have taken into consideration the peculiar life experiences of young women seeking sexual health services. Rather than the conservative and restrictive approach of the minority in that case,58 the majority took a more realistic approach by examining the incidence of teenage pregnancy among young women in the country and the need to address such a challenge. According to the majority, rather than imposing a blanket restriction on a girl under 16 from consenting to sexual health treatment, the important consideration should be whether such a girl has the maturity to understand the nature of treatment being provided and the implications of such treatment.
Although the majority did admit that the ideal thing to do would be for the doctor to advise the girl to inform her parents of such treatment, however, where she declines to so act, treatment should not be denied if she has met the conditions stated above. In the view of the majority, ‘parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his (sic) duties towards the child and towards other children in the family.’59 This seems not only to be a realistic approach, but also a gender-sensitive approach. It is a known fact that most adolescents who require sexual and reproductive health treatment are females. Though the issue of parental consent affects all adolescents, however, it tends to have more serious implications for female adolescents than others.
In R on the Application of Axon v The Secretary of State for Health60 the court seems to have followed the same approach of the majority in the Gillick decision. Justice Silber adopted wholly the reasoning of the pro-Gillick judges to refuse an application brought by a mother of five challenging a Health Guidance which permits access to contraceptive treatment for girls under 16. He rejected the argument that a Health Guidance which allows a girl under 16 to seek sexual health treatment without parental consent or knowledge was illegal or unlawful. According to Justice Silber, ‘the very basis and nature of the information which a doctor or a medical professional receives relating to the sexual and reproductive health of any patient of whatever age deserves the highest degree of confidentiality ….’61 Relying on the decision of the European Court on Human Rights in the case of Yousef v Netherlands,62 the court held that in the event of a conflict between parental right and the right of an adolescent to autonomous sexual health decisions, the latter should take priority over the former. This, according to the court, will be consistent with the principles of the best interests of the child and the evolving capacities of the child recognized under the CRC.
Some Canadian courts have followed the above English decisions. For instance, in C. v Wren63 the Alberta Court of Appeal permitted a 16-year old girl to undergo an abortion despite her parents’ opposition. Echoing the decision in Gillick, the court held that while parental rights over children exist until children attain the age of majority, those rights tend to diminish as the child grows. This is more or less an affirmation of the principle of ‘evolving capacities’ of the child recognized under human rights instruments such as the CRC and the African Charter on the Rights and Welfare of the Child. In the more recent case of Manitoba v A.C.,64 the Canadian Supreme Court examined the autonomy of an adolescent to refuse life-saving treatment. Although this case does not directly relate to access to sexual and reproductive health services for adolescents, nonetheless, the principle enunciated in the case can be useful in understanding the scope of adolescents’ autonomy to consent to sexual and reproductive health treatment. In that case, a girl under 16, despite medical advice from her physician that her internal bleeding posed a grave threat to her life and well-being, refused blood transfusion on religious grounds. Based on medical assessment of the child, an application was made to the Court pursuant to section 25(8) of the Manitoba Child and Family Services Act.65 Section 25(8) allows the court to authorize treatment that it considers to be in the best interests of the child.66 According to section 25(9) of the Act, the best interests of a child age 16 or over can be ‘most effectively promoted’ if the child’s views are determinative, ‘unless it can be shown that the child does not understand the decision or appreciate its consequences’.67
The Court ordered that the girl should receive blood transfusion. According to the judge, this is premised on the fact that for children under 16, there are no statutory restrictions on the Court’s ability to order medical treatment that is in the best interests of the child.68 The girl and her parents lodged an appeal challenging the constitutionality of some of the provisions of the Manitoba Child and Family Services Act and claiming a contravention of sections 2(a), 7 and 15 of the Canadian Charter of Rights and Freedom. The Court of Appeal however, upheld the decision of the applications judge. On further appeal to the Canadian Supreme Court, it was held that the provisions of the Child and Family Services Act were not inconsistent with the Canadian Charter of Rights and Freedoms. In explaining the rationale for its decision, the Supreme Court noted:
In assessing an adolescent’s maturity in a s. 25(8) ‘best interests’ analysis, a judge should take into account the nature, purpose and utility of the recommended medical treatment and its risks and benefits; the adolescent’s intellectual capacity and the degree of sophistication to understand the information relevant to making the decision and to appreciate the potential consequences; the stability of the adolescent’s views and whether they are a true reflection of his or her core values and beliefs; the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgment; the existence of any emotional or psychiatric vulnerabilities and the impact of the adolescent’s illness on his or her decision-making ability. Any relevant information from adults who know the adolescent may also factor into the assessment.
While it may be argued that there is merit in the approach of the Canadian Supreme Court in this case,69 the challenge is that such an approach may inadvertently lead to the reinforcement of a paternalistic view of children. This is because while courts are willing to respect an adult Jehovah’s Witness’s refusal of blood transfusion, a child or an adolescent with a similar belief is denied the right to refuse blood transfusion based on lack of maturity. This approach, which would obviously require further scrutiny, implies that a child cannot be trusted enough to allow him/her to make crucial life impacting decisions. From a human rights perspective, the Court’s reasoning can be faulted in the sense that fundamental rights guaranteed in international and regional human rights instruments apply to all human beings including adults and children. Therefore, it may amount to discrimination to grant some of these rights to adults and deny the same to children and adolescents. This is more so if the basis for such denial is age difference. This argument is explored further in the section relating to the right to non-discrimination.
Moreover, it may be difficult to justify the recognition of the right of autonomy of a child under 16 in the choice of abortion services – an invasive and life-impacting decision – while the same child is denied the right to refuse medical treatment on grounds of the principle of best interests of a child. This approach will likely pit the principle of the ‘evolving capacities’ of the child against the principle of the ‘best interests of a child’. It is doubtful whether this is the intention of the drafters of the CRC. Both principles as recognized under the CRC are meant to advance the interest of a child and not to qualify each other. Perhaps, a plausible justification for the court’s decision in the A.C. case is that a state has the duty to preserve lives, whether of adults or children, and it will not allow any of its citizens to ‘deliberately’ take his or her life.70 Another important point that needs to be taken into consideration in this case is that the child in question was medically assessed and adjudged not psychologically fit to refuse a blood transfusion. This finding may have influenced this decision.
These foreign decisions, particularly the Gillick and Axon cases, are potentially useful for Nigerian courts when dealing with similar issues. Although they are not binding on Nigerian courts, they serve as persuasive authorities that can be relied on when dealing with similar cases. A vibrant and proactive judiciary that adopts a purposive approach to interpretation of laws relating to children and adolescents will no doubt complement efforts by the Nigerian government to reform its laws and policies relating to children and adolescents. This is more so given that over the years Nigeria has put in place some legislative and policy formulations which can have implications for access to sexual and reproductive health of children and adolescents. The discussion that follows relates to some of these laws and policies.
The Nigerian Constitution does not contain specific provisions relating to the sexual health needs of adolescents. However, chapter IV of the Constitution contains some provisions that can be invoked, albeit indirectly, to advance the sexual health needs of adolescents in the country. Some of these provisions include the right to privacy, right to dignity, freedom from non-discrimination, right to liberty and right to life. The human rights provisions of the Constitution such as the right to life, dignity, liberty, privacy and non-discrimination are essentially influenced by the Universal Declaration on Human Rights (UDHR). Although children and adolescents are nowhere specifically mentioned in chapter IV of the Constitution, it is not in doubt that the words ‘everyone’ adopted by the Constitution applies to all individuals including children and adolescents.
The right to life
Section 33 of the Constitution guarantees the right to life. The section provides that ‘no one shall be intentionally deprived of his life, save in accordance with the provision of the law’. Even though on the surface this provision seems to apply to everyone, it merely obligates the Nigerian government to observe due process of law before capital punishment is imposed. A narrow construction of this provision may seem not to accommodate the experiences of women, especially young Nigerian women, who continue to die due to pregnancy-related complications or unsafe abortion.
Regardless of the fact that section 33 of the Nigerian Constitution is couched in a negative and gender-neutral sense (the Constitution adopts the use of the word ‘his’), it can still be invoked creatively, by Nigerian courts, in a gender-sensitive manner to hold the Nigerian government accountable for unnecessary loss of lives among female adolescents. This will be so especially if such loss of lives is attributable to the government’s failure to provide access to contraception to female adolescents in order to prevent unwanted pregnancies and their attendant consequences. There is now a growing consensus that the violation of the right to health may result in the violation of the right to life.71 In recent times, some national courts and international tribunals have broadly interpreted the right to life so as to impose a positive obligation on states to preserve lives. For example, the Indian Supreme Court has held that failure on the part of a government-owned hospital to provide emergency treatment to a citizen amounted to a violation of the right to life guaranteed under Article 21 of the Indian Constitution.72 In that case, the Court explained that the Indian government could not rely on the excuse of a lack of resources to justify its failure to prevent the loss of lives.
Also, the African Commission on Human and People’s Rights (African Commission), reaffirming the mandate imposed by the right to life under Article 4 of the African Charter in International PEN and Others (On behalf of Ken Saro Wiwa) v Nigeria,73 has stated:
The protection of the right to life in article 4 also includes a duty for the state not to purposefully let a person die while in its custody. Here at least one of the victims’ lives was seriously endangered by the denial of medication during detention. Thus, there are multiple violations of article 4 (sic).
In Tavares v France,74 the European Commission on Human Rights was called upon to determine a complaint filed on behalf of a woman who had died during childbirth. The complaint alleged that the death of the woman constituted a violation of the right to life guaranteed in Article 2 of the European Convention on Human Rights. Although, the complaint was dismissed on technical grounds, nonetheless the Court held that the right to life guaranteed under the European Convention extended beyond a state’s duty to abstain from intentional killing; it also included taking necessary steps to protect unintentional loss of life. This can be interpreted to mean that a state must take positive steps to provide health-related goods and facilities such as contraception in order to prevent unnecessary loss of lives.
The decisions in the above cases clearly emphasize the positive nature of the duty imposed by the right to life and the indivisibility and interrelatedness of the right to health and the right to life. These decisions coincide with the reasoning of some treaty monitoring bodies.75 Furthermore, the Committee on CRC has observed that the obligations of states to realize the right to life of adolescents include paying attention to their sexuality and eliminating all conditions that may be injurious to their health needs.76