Good evening ladies and gentlemen.
To begin, I would like to thank the Ministry of Health, UNFPA and UN Women for organising this event and giving us the opportunity to explore more deeply the impact of the Zika virus on women’s sexual and reproductive health.
I remember the hysteria and panic from a few months ago, when it was first reported that there might be a relationship between the Zika virus and babies being born with microcephaly. In response, the Jamaican MOH issued the advisory that women should delay pregnancy. On the one hand, the MOH’s response could be regarded as proactive – an attempt to stave off disaster before it struck. On the other hand, the warning brought to the fore, at least in my mind, the social, legal and economic obstacles that actually prevent women from assuming full control over when and in what circumstances they become mothers. So while the warning was well intended, it made the assumption that all women had full control over their sexual and reproductive health.
The basis for women’s rights to reproductive and sexual health can be found in various international human rights instrument including CEDAW. Of central importance to women’s reproductive and sexual health are the rights to autonomy and privacy in making sexual and reproductive decisions.
This evening, I would like to focus on two legal realities that impact on women’s ability to choose when they get pregnant and whether they carry a pregnancy full term.
The first is access to contraceptives for adolescent girls. And this is important because if you’re having sex, how will you effectively prevent pregancy without access to contraceptives?
Access to Contraceptives
So we know that adolescents are in fact having sex. In a 2007 study by Tazmoye Crawford, it was found that 42% of adolescents between the ages of 9-17 were sexually active.
We also know that even though they are having sex they are not using contraceptives. The same study found that 118 of 238 sexually active adolescents did not use any form of contraceptive method. It was no surprise then, that 72 of the 119 girls interviewed had experienced an unplanned pregnancy.
The inability of adolescent girls to access contraceptive to prevent pregnancy is in part due to the law. The age of consent is 16 and so adolescents, under the age of 16, need parental consent to access contraceptives. But most parents/guardian would never consent to this.
Even where girls are 16 and over they find it difficult to access contraceptives because pharmacist and some healthcare providers still hold the belief that only adults should be having sex and of course you are only an adult by law when you turn 18. In Crawford’s study adolescent girls also explained that they were unable to access contraceptives because the provider expressed “fear of getting in trouble”.
Again this tentativeness on the part of providers is a consequence of the law, which says yes you can have sex at 16 but you are only an adult at 18. And because adolescents under 16 cannot consent to sex, if a provider comes in contact with a child asking for contraceptives, and he/she obliges the adolescent, it could be interpreted as encouraging an illegal activity.
At this point, I would like to say that the MOH does have a policy, which allows minors to access contraceptives without parental consent. But as illustrated above, there is a conflict between the law and the MOH’s policy. This conflict makes providers extremely reluctant to issue contraceptives without parental consent since if charges are brought the black and white letter of the law takes precedence.
Abortion as an Option
The second issue is access to a safe and legal abortion. We know that for most families, the cost, both emotional and financial, might be too much to bear in raising a chld with microcepahly. And so proper family planning dictates that a woman, facing those circumstances must have the option to terminate that pregnancy.
But does a woman, who gets pregnant and is infected with the Zika virus, have access to a safe and legal abortion in Jamaica?
There is a significant amount of uncertainty surrounding the circumstances in which terminating a pregnancy is regarded as legal in Jamaica. You have the Offences Against the Person Act, 1864, which only prohibits unlawful abortions and so, conversely, it has always been assumed that there are circumstances in which abortion is in fact lawful in Jamaica. The problem is that the statute
is silent on these circumstances. And while persons have tended to rely on an old English case called Regina v Bourne to provide legal justification for an abortion, the weight of this authority in the Jamaican context is quite weak. In any event, Bourne only permits an abortion, if the pregnancy will threaten the well being, both physical and mental, of the mother. And so, it would not give legal support to a woman who wants to terminate a pregancy because of inability to afford the costs of raising a child with microcephaly.
We currently have a case before the local courts, which deals with the abortion issue and so this case might shed some light on the circumstances in which abortions is legal. But it is highly probable that we might not get a decision for another few years.
The MOH had developed the practice of offering abortions, under specific cricumstances, in the late 70s and up to the mid 90s. But these services were discontinued in the mid-1990s due to financial constraints. And I am not aware of the resumption of these services but I stand to be corrected.
What we have therefore is an uncertain legal and policy environment where even though abortions are quite common, they (1) occur under a shroud of secrecy, (2) are unregulated thereby putting women’s health at risk through unsafe abortion practices, (3) put well meaning individuals and medical practitioners at the risk of being prosecuted for assisting women in terminating pregnancies for which they are not financially or emotionally prepared and (4) disadvantages poorer women, who might not be able to either obtain access to abortions due to the high cost or might do so but only at great personal cost. All this put together illustrates a general lack of respect for women’s autonomy and also the government’s failure in creating an environment within which women can legally and safely exercise control over their reproductive functions.
Balancing Competing Interests
The deficiencies in the legal and policy structure regarding access to abortion and contraceptive for adolescent girls are the result of seemingly conflicting societal interests. And so far, as a society, we have failed to commit to a cohesive legal and policy position that balances those competing interests.
For abortion, you have on one side respect for women’s autonomy that demands access to safe and legal abortion services and on the other you have advocates for the rights of the foetus, who argue that the foetus has a right to life that must also be respected. But adopting a legal and policy position doesn’t have to be a question of either or and a few jurisdictions in our region such as Barbados and Guyana have shown us workable middle grounds. In fact, the final report of the 2007 Abortion Policy Review Advisory Group’s presented a policy position (including legal framework) that achieved this middle ground. It is unfortunate however that there was and continues to be a lack of political will to fight for its implementation.
Similarly, with the issue of access to contraceptives for adolescents, we have on one side those who contend that adolescents are having sex, unplanned pregnancies and no amount of abstinence education will stop them from having sex.
And so, why not empower them to make safe and healthy choices that will not negatively affect their ability to flourish?
But you have those who argue that they are children. They are not ready emotionally and financially to take on the consequences of sex and besides, premarital sex is wrong and should not be encouraged.
So what’s the happy compromise that will empower young people to make healthy choices regarding reproduction and sex? I am afraid there aren’t any easy answers but I believe the following are 3 useful recommendations:
- Keep the age of consent at 16. The purpose of the age of consent is to punish and act as a deterrent for older individuals, especially men, who prey on the young. And so I don’t believe that moving it to 18 will solve the problem of access to contraceptives for adolescents and it certainly will not reduce the number of persons under 18 who are having sex.
- Amend the Childcare and Protection Act to include the MOH’s policy on healthcare providers giving adolescents access to contraceptives without parental consent.
- Ensure that counselling and contraceptives are readily available and integrated with other services that adolescents use. For example, students should be able to get contraceptives from the school nurse.
To conclude, access to contraceptives for adolescents and access to safe and legal abortions are critical in ensuring that women have the ability to choose when they get pregnant and whether they carry a pregnancy full term. I believe that there is a strong social support for these services. In developing and implementing policy to guarantee access to these two essential services, we should therefore, not allow a small, uncompromising minority to drown out a much larger, reasonable majority.