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The Legal Dimensions For Reproductive Health

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The Legal Dimensions For Reproductive Health

Manny Enajeroh

Long before the establishment of conventional health institutions, self care has always existed. In a country such as Nigeria, where basic health amenities are not available to majority,  self care continues to represent the only access to any form of healthcare among the lowest classes of society.  The World Health Organization’s working definition of self care includes “the ability of individuals, families and communities to promote health, prevent disease, maintain health, and cope with illness and disability with or without the support of a health-care provider.” This article focuses on the legal dimensions of self care with particular reference to reproductive health among young people in Nigeria. Young people have been defined by the WHO as individuals between the ages of 10 – 24.

Even though the healthcare system in Nigeria has been evolving steadily, over 90% of the Nigerian population still live without health insurance coverage. A number of healthcare reforms have been implemented, aiming to address the country’s public health challenges but there remains an overwhelming lack of access to healthcare. The Patient-to-Doctor ratio in Nigeria is 2500:1, more than four times higher than the WHO’S recommendation of 600:1. Given this gap and current demography, the country needs up to 10 times its current number of medical doctors to guarantee satisfactory performance in the health sector.

As science evolves, certain medical interventions that were previously available only through facility based healthcare providers, are now being accessed in the self care environment. Pregnancy tests and HIV tests, for instance, are just a few of the instances where conventional health services have transitioned to self care.

The area of reproductive health has proven particularly ripe for innovation and has witnessed several self care interventions such as self injection (eg, of contraceptives), self screening or testing (eg, for sexually transmitted infections (STIs) and pregnancy), self medication (eg, for abortion and HIV), and self monitoring (eg, of fertility). Sadly, reproductive rights have been given little or no consideration by the Nigerian Courts and Legislature over the years.  In such a sexually conservative society, there is a justified fear of stigmatization when it comes to issues of reproductive health. But to what extent does an individual have the right to legally administer self care for reproductive health purposes in Nigeria? The answer to this question will necessarily depend on local legislation.

Ideally, the right of a citizen to “self-administer” any form of healthcare should be subsumed under the right to health as guaranteed by section 17(c) & (d) of the Nigerian 1999 Constitution (as amended) which makes provisions for access to adequate health facilities for all Nigerian citizens. 

Unfortunately, the fundamental objectives are not enforceable rights and it has been argued that the right to health as enshrined in section 17(c) & (d) of the Constitution (as amended) is not justiciable. A right is justiciable if it can be tried according to the law. Regardless, the right to life (itself a justiciable right) cannot be sustained without good health. Safeguarding the ‘right to life’ requires that socio-economic rights such as the right to health to be taken into account and thus it can be said that the right to administer self care is an offshoot of the non-justiciable right in Nigeria.

Irrespective of the demand for self care health products, the implementation of these interventions will necessarily depend on the presence of an enabling environment. To illustrate, let us consider two areas where self care interventions significantly intersect with human rights and local legislation in Nigeria

Abortion: Self care intervention provides for medical abortion care, particularly for those in early pregnancy. This is usually done through self administered contraceptive injections. The priority aim of this self care intervention is termination of unintended/unwanted pregnancies predominantly among young people. But it would appear that the mere use of these products would ordinarily contravene Nigerian criminal laws.  Section 297 of the Nigerian Criminal Code provides that it is an offence for a woman to commit an abortion. Supplying any material to be used for an abortion is also punishable with a three year term of imprisonment. Similar provisions apply across Nigeria with abortion only generally permissible when carried out to safeguard the physical or mental health of the mother. Such a scenario requires clinical diagnosis which surely falls outside the context of self help intervention. Therefore, supply of self care abortion kits without medical diagnosis could therefore portend ethical and perhaps criminal inquiries on the part of NGOs and medical practitioners.

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Hormone administration for Gender affirmation: One of the areas in which self healthcare has broken ground is, availing young people the opportunity to transition into their desired sex with an unprecedented amount of privacy. This is done through systematic self administration of hormones.  A common trend of the 21st century has been an increase in the number of young people around the world who have chosen to change their gender. Section 42 of the Constitution specifically provides for a general right to freedom from discrimination. However, there are several Nigerian laws in place which are outrightly discriminatory towards transgendered individuals. One of many such laws is Section 217 of the Nigerian Criminal Code which prohibits acts of “gross indecency” between members of the same sex, the penalty being a term of three years imprisonment. There are a plethora of other laws in place in Nigeria, including the Same Sex Marriage Prohibition Act, which make it virtually impossible for a transgendered individual to exist without infringement at some point. This therefore begs the question whether young people should be allowed and assisted to transition into a different sex within a clime where the inevitable end of the process will be criminal prosecution.  

Because of the legislative climate in Nigeria, the issue of what age a young person should be allowed to transition into another gender is a moot one. It is however worth mentioning that young people ideally should attain a sufficient level of maturity before being exposed to gender altering self care health products. The potential benefits of self care interventions must be balanced against the harms, including human rights violations occasioned by the illegal use or misuse of these interventions.

Regulation of self care interventions should always adhere to human rights law and obligations with consideration of the locations in which interventions are purchased and used.  Assessing and ensuring an enabling environment in which self care interventions can be made is a precondition to the use of these interventions. Medical practitioners must be made aware of the legal limitations imposed on the use of these interventions in order to avoid potential ethical misconduct. 

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