The impact of third-party authorization requirements on abortion-related outcomes: a synthesis of legal and health evidence

Abstract

Objectives

This review synthesizes legal and health evidence to demonstrate the health and human rights impacts of third-party authorization requirements (TPAs) on abortion seekers.

Results

The synthesized evidence substantiates the pre-existing position in international human rights law that requirements that abortion be authorized by third parties like parents, spouses, committees, and courts create barriers to abortion, should not be introduced at all, or should be repealed where they exist.

Conclusions

The review establishes that rights-based regulation of abortion should not impose TPAs in any circumstances. Instead, the provision and management of abortion should be treated in a manner cognizant with the general principles of informed consent in international human rights law, presuming capacity in all adults regardless of marital status and treatment sought, and recognizing the evolving capacity of young people in line with their internationally-protected rights.

Background

It is well established in both medical ethics and in international human rights law that nobody may be subjected to any health intervention unless they consent to it, and that such consent must be freely given and fully informed [1, para 8; 2,3,4,5; 73]. As the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has put it [6], “Guaranteeing informed consent is fundamental to achieving the enjoyment of the right to health through practices, policies and research that are respectful of autonomy, self-determination and human dignity”. Rooted not only in autonomy and agency, the general principle of consent to healthcare interventions is “an integral part of respecting, protecting and fulfilling the enjoyment of the right to health” [6, para 18]. It not only prevents non-consensual interventions but is also a mode of enacting the right to privacy and confidentiality on health matters, which is fundamental to ensuring that all people can seek and avail of healthcare without apprehension.

Mental capacity is generally presumed in adults. The general principle of informed consent is applied in a modified way to persons who are considered to have reduced mental capacity (also known in some settings as competency) such as minors or persons with disabilities or health conditions that impact on their perceived ability to make autonomous decisions as to health interventions, all of whom are guaranteed the right to non-discrimination in health care [1, paras 18, 26]. Mental capacity is usually determined by reference to the person’s ability to understand, retain, believe, and weigh up information provided to them in the process of deciding about whether to proceed with an offered intervention or course of action [6, para 10]—in the case of abortion, whether to continue with pregnancy or to end their pregnancy through induced abortion—or other cognitive abilities. For persons with reduced mental capacity, medical ethics and human rights law generally provide that they should be supported to understand and be full participants in decisions about their health care [7, 8, para 41; 9]. Only in very exceptional cases—where the person has no mental capacity or in situations of emergency—might a third party’s judgement substitute that of the person whose treatment is in question.

These general principles of consent to health and medical interventions have long been under strain in sexual and reproductive healthcare including abortion. Lavelanet et al. [10]. found that 105 countries of 158 analyzed required authorization by one or more health worker for abortion to be lawfully provided, while one third of countries that permit abortion required parental authorization for minors, and twelve required spousal consent. Such third-party authorization requirements are found in jurisdictions all over the world, and within abortion laws that are broadly considered liberal or permissive as well as those considered generally restrictive. In practical terms this means that a spouse, a parent, a court, a committee, a police officer, a medical professional, or another specified authority can effectively override one’s stated preference to end pregnancy through abortion by refusing to ‘authorize’ it. These arrangements are known as third party authorization requirements (TPAs) and run counter to the principle that—absent a lack of mental capacity—it is the ‘patient’ alone who decides whether to undergo an intervention or treatment.

International human rights law bodies have concluded that requirements for parents, spouses, committees, and courts to authorize abortion create barriers should not be introduced at all, or, where they do exist, should be repealed. As a matter of international human rights law, states may not restrict women’s access to health services on the ground that they do not have the authorization of husbands, partners, parents or guardians, or health authorities, because they are unmarried, or because they are women [11, paras 14, 21; 2 paras 41, 43; 3]. Furthermore, states must recognize children’s and adolescents’ evolving capacity and their associated ability to take decisions that affect their lives [12, Article 5].

This review aims to address gaps in existing knowledge about the health and non-health outcomes that relate to TPAs. Rather than doing this by means of a classic systematic review, we have synthesized evidence from existing studies (i.e., data extracted from included studies) and international human rights law (i.e., standards articulated in and by international human rights law sources and bodies) according to a previously published methodology that was developed for this purpose [13] and which is appropriate for complex interventions with multiple effects, including non-linear and context-dependent effects [14]. Interventions of this kind often interact with one another, meaning that outcomes related to one individual or community may be interdependent, and could be positively or negatively impacted by the presence, arrangement, and implementation of institutions, resources, and people within the broader system in which they operate [15]. This review is one of seven reviews that was conducted as part of the evidence base for the WHO’s Abortion Care Guideline [16].

Consistent with the approach in the Abortion Care Guideline [16], we use the terms women, girls, pregnant women [and girls], pregnant people, and people interchangeably in this review to include all those with the capacity to become pregnant.

Methods

Identification of studies and data extraction

This review examined the impact of the TPAs on pregnant people seeking abortion. Having undertaken a preliminary review of the literature [17], scholars and experts from law, policy, and human rights codeveloped a search strategy and outcomes of interest. Our outcomes of interest were delayed abortion, continuation of pregnancy, opportunity costs, unlawful abortion, self-managed abortion, anticipated family disharmony, anticipated exposure to violence or exploitation, anticipation reproductive coercion, and system costs.

Using a combination of MeSH terms and keywords, we searched English language texts in PubMed, HeinOnline, JStor, and the search engine Google Scholar. As the second edition of the WHO’s Safe Abortion Guidance included data up until 2010, we limited our search to papers published in English from 31 to 2010 to 2 December 2019. An updated search of the same databases was undertaken through July 2021. All studies that included original data collection or analysis could be included. Thus, we included quantitative studies, qualitative and mixed-methods studies, reports, PhD theses, and economic or legal analyses, both comparative and non-comparative. Masters’ theses and abstracts were excluded.

The full review team was made up of 6 members (MF, AF, FdL, AC, MR and AL). AL and FdL developed the PICO. Two reviewers (MF and AF) conducted an initial screening of the literature. Titles and abstracts were first screened for eligibility using the Covidence® tool following which MF and AF reviewed full texts. Full texts were then reviewed. FdL confirmed that these manuscripts met inclusion criteria. FdL and AC extracted data. Any discrepancies were reviewed and discussed with AL and MR. Where they arose, discrepancies were resolved through consensus.

In accordance with our previously published methodology for the effective integration of human rights as evidence in systematic reviews for guideline development, [13] we reviewed international human rights law to identify relevant human rights standards. These were standards that referred expressly to TPAs for sexual and reproductive healthcare including abortion, and standards that outlined states’ relevant general obligations as they relate to sexual and reproductive healthcare. As we have described elsewhere [13], we identified these standards through analysis of treaties, general comments, opinions of treaty monitoring bodies, and reports of special procedures.

We then integrated the evidence from the studies and international human rights law to identify the implications of TPAs in abortion law and policy. This allowed us to develop a full understanding of (a) which human rights standards are engaged by TPAs, (b) whether the included studies suggest that TPAs have positive or negative effects on the enjoyment of those rights, and (c) where no data is identified from the manuscripts against outcomes of interest, whether human rights law provides evidence that can further elucidate the impacts and effects of TPAs.

Patient and Public Involvement

It was not appropriate or possible to involve patients or the public in the design, or conduct, or reporting, or dissemination plans of our research.

Types of third-party authorizations

As already mentioned, a wide range of TPA requirements are found in abortion law and policy. This review considers five such requirements: parental involvement, parental notification, parental ‘consent’, judicial bypass, and ‘spousal consent’ requirements. These types of authorization were identified deductively from the results of the first search for evidence undertaken for this review, and reflect the kinds of authorizations found in the manuscripts identified through that search strategy. Although specifically sought in the manuscript search, studies containing original data on the impacts of other forms of TPA (such as health worker authorization or general requirements for judicial authorization to access abortion) were not identified.

We use the term ‘parental involvement’ to identify interventions the precise nature of which was not specified in the studies, but which comprised formal requirements for parental authorization (known in much of the US-based literature as ‘parental consent’) and/or ‘mere’ notification requirements. ‘Parental involvement’ requirements are broadly considered within the definition of TPA for the purposes of this analysis because they constitute the legally mandated involvement of a third party who has the legal and/or relational authority to (seek to or actually) determine the pregnant person’s effective access to lawfully available abortion. ‘Parental notification’ requirements mandate that a parent or guardian be made aware that a minor is seeking abortion, although they do not provide that a parent’s authorization must be secured before abortion can be provided. For example, the Colorado Parental Notification Act (2003) requires healthcare providers to provide a parent or guardian with at least 48 hours written notification of a young person’s scheduled abortion. ‘Parental consent’ requirements do mandate that a parent’s or guardian’s authorization is required for a lawful abortion to be provided. Importantly, these requirements are separate to any general rules that may apply to a minor’s capacity to (refuse) consent to healthcare interventions. They are particular to the context of abortion and apply simply on the basis that the person seeking abortion is under a specified age (usually 18), without any reference to their mental capacity to consent to abortion as a healthcare intervention. In the state of Kansas, USA, for example, the law provides that a minor may not receive abortion care without the prior, “notarized written consent of the minor and both parents or the legal guardian of the minor” (KSA 65-6705). ‘Judicial bypass’ is the term conventionally used to describe a process that allows a minor to ‘bypass’ a legal requirement for parental authorization of abortion by substituting it with judicial authorization; this mechanism is typically but not exclusively found in the law of some states in the United States of America. While minors can use judicial bypass to avoid informing their parent or guardian about their pregnancy and desire to access abortion, judicial bypass is itself a form of TPA, as access to abortion is conditional on authorization from a court (i.e., a third party). Finally, ‘spousal consent’ requirements mandate that a woman cannot access abortion unless her husband authorizes it (or, in the commonly used term, ‘consents’ to it). Such requirements apply regardless of the pregnant person’s mental capacity to consent to healthcare interventions. In Japan, for example, the Maternal Health Act 1996 permits abortion in certain circumstances and with the consent of the pregnant person’s spouse.

Analysis

We organized data from the included studies by reference to our study outcomes and presented this in evidence tables. These tables presented the association of each study on the outcome together with an overall conclusion from the data relevant to the outcome of interest. We then applied both general human rights standards and those specifically relating to TPAs to these outcomes by assessing whether the evidence from the included studies indicated that TPAs had effects that were incompatible with established requirements of international human rights law. To summarize the effect of the intervention, across all study designs, we used and applied a visual representation of effect direction. The direction of the evidence was illustrated by a symbol which indicated whether, in relation to that particular outcome, the evidence extracted from a study suggested an increase (▲), decrease (⊽), or no change in the outcome (○). The symbol did not indicate the magnitude of the effect [13, 15].

Results

After the removal of duplicates, the initial search generated 25,514 citations. Titles and abstracts were screened, following which we undertook a full text screening of 278 manuscripts. Manuscripts that did not have a clear connection with the intervention and our pre-defined outcomes were excluded. 34 manuscripts were included in the final analysis (Fig. 1. Prisma flow diagram).

Fig. 1

Prisma Flow diagram

*Consider, if feasible to do so, reporting the number of records identified from each database or register searched (rather than the total number across all databases/registers)

**If automation tools were used, indicate how many records were excluded by a human and how many were excluded by automation tools

From: Page MJ, McKenzie JE, Bossuyt PM, Boutron I, Hoffmann TC, Mulrow CD, et al. The PRISMA 2020 statement: an updated guideline for reporting systematic reviews. BMJ 2021;372:n71. doi: https://doi.org/10.1136/bmj.n71

more information, visit: http://www.prisma-statement.org/

All but three manuscripts [18,19,20] described data from the United States of America. The three other jurisdictions were Hong Kong [19], Tunisia [20], and Turkey [18]. The characteristics of included manuscripts are presented in Tables 1, 2, 3, 4 and 5. The included studies contained information relevant for the outcomes delayed abortion [21,22,23,24,25,26,27], continuation of pregnancy [25, 26, 28,29,30,31,32,33,34,35,36,37,38,39], opportunity costs [19, 20, 22, 25,26,27, 40, 41], unlawful abortion [18, 19], anticipated family disharmony [27; 41–43], anticipated exposure to interpersonal violence or exploitation [22, 27, 41, 42, 44], anticipated reproductive coercion [41,42,43, 27], and system costs [45,46,47,48,49,50]. No evidence was identified linking the intervention to the outcomes self-managed abortion. All but one of the studies [18] considered the effects of TPAs that apply when minors seek abortion; that study considered ‘spousal consent’ requirements.

Table 1 Characteristics of included studies, Parental Involvement

Table 2 Characteristics of Included Studies: Judicial Bypass

Table 3 Characteristics of Included Studies: Judicial bypass vs. parental consent

Table 4 Characteristics of Included Studies: Parental consent v parental notification

Table 5 Characteristics of Included Studies: Spousal Consent

23 manuscripts considered what they termed ‘parental involvement’ [45, 40, 43, 19, 29, 41, 25, 30,31,32, 47, 46, 33, 34, 48, 35,36,37, 26, 38, 49, 39, 50]. These manuscripts did not specify the precise form of parental involvement required by law in the study setting but did make clear that some kind of parental involvement was mandated by law. In other words, these studies related to situations where the pregnant person’s parent or guardian had an involvement in the abortion decision because the law required that, rather than being involved because the pregnant young person chose to involve them. The summary findings from these studies are outlined in Table 6 and the findings by study are outlined in Supplementary Table 1.

Table 6 Impacts of parental involvement requirements for abortion seekers

Six manuscripts considered ‘judicial bypass’ [20, 22, 27, 41, 42, 44], while a further three studies considered comparatively the impacts of judicial bypass and ‘parental consent’ [21, 23, 24]. The summary findings from these studies are outlined in Tables 7 and 8 respectively, with the findings by study being contained in Supplementary Tables 2 and 3 respectively.

Table 7 Impact of judicial bypass requirements on abortion seekers

Table 8 Judicial bypass vs. parental consent: Impact on abortion seekers

Two included studies [28, 24] compared the impacts of parental consent and parental authorization and notification requirements (Supplementary Tables 4 and 5). Finally, one of the included studies considered the impacts of ‘spousal consent’ requirements [18] (Supplementary Tables 6 and 7).

Delayed abortion

Two studies [25, 26] found that parental notification laws per se are not associated with increased gestational age among minors seeking abortion, however one of these studies showed that minors who must travel outside of their community to access abortion care without a TPA experience a higher proportion of second trimester abortions compared to that in abortion seekers aged 18–21 [26]. Two studies showed that minors who use judicial bypass (i.e., who seek to circumvent parental authorization requirements) do experience delayed abortion [22, 27], but the three studies that compared judicial bypass to parental consent requirements presented a mixed picture about the comparative delays between the two systems [21, 23, 24]. One study suggested that using judicial bypass resulted in greater delays than the parental consent requirement and that minors using judicial bypass are more likely to pass gestational limits that render them ineligible for medical abortion [23], while two suggested that judicial bypass resulted in shorter delays than where the parental consent requirement is fulfilled [21, 24]. Two studies suggested that judicial bypass is especially important for subpopulations of minors, namely those coming from a minority racial [23, 24], or lower socioeconomic background [23], those under 15 [24], and those who are resident out of state [24]. The one study that compared parental consent to parental notification found that there was no difference in rates of second semester abortion between them [24]. While this presents a somewhat mixed picture, it does suggest that in at least some cases TPAs are associated with delays to abortion and that such delays may even be such as to result in an abortion seeker exceeding a gestational limit and thus becoming ineligible for lawful abortion. Delayed abortion may in some cases be more complex or intrusive than early abortion raising the possibility of potential increased maternal mortality or morbidity. This is notwithstanding the fact that states are strictly required to take steps to reduce and prevent maternal mortality or morbidity as a matter of international human rights law [2, 8], particularly for adolescent girls [7].

Continuation of pregnancy

The studies considered in this review suggested that TPA requirements are associated with decreased access to abortion and contribute to the continuation of pregnancy. When considered by reference to abortion rates, three studies found that parental involvement requirements were associated with reduced overall abortion rates for minors and adults [31,32,33], while two found that parental notification requirements are associated with a decrease in the number of abortions among minors [25, 26]. Three further studies suggested either that parental involvement laws had no impact on the number of abortions among minors [29, 39] or that any such impact was unclear [38]. One study showed that parental involvement laws are not associated with reductions in overall unintended pregnancy rates among minors and adults [35], while another showed that they are not associated with increasing unintended birth rates [36]. However, three studies [30, 37, 39] showed that parental involvement laws are associated with an increase in birth rates among adolescents, so that reduced abortion rates can be interpreted as suggesting an increase in continuation of pregnancy. One study suggests that states with parental consent laws have lower abortion rates but no difference in adolescent birth rates to those where parental notification or no TPA are mandated [28]. Although one study suggested that parental consent laws do not have a different effect on rates of abortion between white, Black or Hispanic women [34], another showed that increased birth rates associated with parental consent laws are disproportionately experienced by Black minors and those who must travel over 100 miles to reach another US state where no parental TPA applies [37]. The evidence from these studies indicates that TPAs engage states’ obligations to protect the right to health (which requires that sexual and reproductive healthcare be available, accessible, acceptable and of quality [1], including legal and safe abortion care [6]), the right to privacy, and the right to decide the number and spacing of children. As abortion restrictions only apply to women, and as TPAs can be applicable only to sub-categories of abortion seekers, the right to equality and non-discrimination is also implicated [51] including where, as suggested by the evidence from included studies, the TPA requirements impact disproportionately on sub-populations of pregnant people.

Opportunity costs

Evidence from four studies suggests that TPAs are associated with opportunity costs for those who seek abortion [19, 25, 26, 40]. While two studies found that there was no increase in inter-state travel to obtain abortion care where parental notification requirements are implemented [25, 26], two studies suggested that travel-related opportunity costs are associated with parental TPAs. Evidence from one study showed that, where parental notification laws apply, minors are more likely to travel long distances to access abortion [40], and another (based in Hong Kong) showed that some minors will travel to obtain unlawful abortion to avoid parental consent laws [19]. Judicial bypass procedures are also associated with opportunity costs for minors, including logistical burdens (like time missed from school, work, and home), uncertainty and delays while decisions about the application are being made [20], and travel to and from court [22, 27]. In one study, minors reported that the need for judicial bypass would complicate access to abortion significantly because of logistical burdens and difficulties in finding free or affordable legal services [41]. As already mentioned, satisfaction of the right to the highest attainable standard of physical and mental health requires states to ensure that healthcare—including sexual and reproductive healthcare—is available, accessible, acceptable and of quality [1]. Opportunity costs of the kind demonstrated in the included studies reduce the accessibility of abortion care, thus undermining the right to health.

Unlawful abortion

Evidence from one study suggested that minors resort to unlawful abortion in order to avoid parental consent laws [19]. A further study suggested that where spousal TPA requirements are in place, some women will resort to unlawful abortion to avoid them [18]. While unlawful abortion is not always unsafe, it is generally less safe [52] (i.e., it meets only one of the two conditions for safe abortion: provided both by an appropriately trained provider and using a recommended method). As a matter of international human rights law, states are obliged to protect abortion seekers from, and to take steps to reduce, unsafe abortion [3]. The evidence from these included studies suggests that TPAs operate contrary to these obligations.

Anticipated exposure to interpersonal violence or exploitation

Several studies included in this review suggest an association between TPA requirements and abortion seekers’ anticipated exposure to interpersonal violence or exploitation. One study showed that minors are concerned that parental notification laws will expose them (and in some cases their future children) to physical or psychological violence during or after pregnancy [41]. As states are required to protect abortion seekers, including ensuring that lawful abortion is effectively available without adverse consequences for those seeking it [53], associations between TPAs and exposure to violence or exploitation raise significant questions of human rights compliance. Four studies showed that, where parental TPAs are required, minors use judicial bypass to avoid anticipated violence [22, 27, 42, 44], suggesting that judicial bypass may be a rights-enhancing measure in the context of TPA requirements. However, the existence of judicial bypass is itself a product of the TPA requirement so that even if it mitigates, it likely cannot alleviate the human rights implications arising from the TPA.

Anticipated reproductive coercion

Evidence from two studies showed that minors are concerned that parental TPA requirements will diminish their reproductive autonomy and put them at risk of forced abortion or forced continuation of pregnancy [41, 43]. Either outcome violates the pregnant person’s rights. Non-consensual abortion is a serious human rights violation that may constitute cruel, inhuman, or degrading treatment or punishment [54, 55] and violates the right to health [56]. Accordingly, states are required to take steps to prevent it [6, 57]. Forced or coerced continuation of pregnancy also results in human rights violations, which may include a violation of the right to decide on the number and spacing of children in Article 16(1) of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The CEDAW Committee has made it clear that decisions whether to have children or not, while preferably made in consultation with a spouse or partner, must not be limited by spouse, parent, partner, or Government; they are for the pregnant person herself to make [11]. In respect particularly of adolescents, multiple human rights actors have made clear states’ obligations to ensure health systems and services can meet the specific sexual and reproductive health needs of adolescents [7], including having access to non-discriminatory, confidential, and responsive sexual and reproductive healthcare including safe abortion services [69]. According to three included studies, avoiding reproductive coercion is one reason minors report for not wanting to disclose their pregnancy to a parent [43] and for using judicial bypass [27, 42]. Thus, judicial bypass may once more mitigate the human rights harms of other TPA requirements, but it too is a TPA and thus constitutes a non-rights-based barrier to access to quality abortion.

Anticipated family disharmony

Evidence from two studies shows that minors anticipate that the involuntary disclosure of their pregnancy due to TPA requirements would lead to profound change in their relationship with their parent [41, 43]. Minors reported that seeking to avoid such disharmony within their family was a reason for not disclosing a pregnancy to a parent [43] and for seeking to use judicial bypass instead [27, 42].

System costs

Five of the studies included in this review suggest that TPAs are associated with either increasing or no additional system costs. Evidence from one study shows that parental involvement laws are not associated with increased rates of sexually transmitted infections [45] another that they are not associated with increased rates of adolescent pregnancies [47], and another that they are not associated with increased occurrence of postpartum depression [48]. However, one study showed that parental involvement laws are associated with increased odds of preterm birth and low birth weight infants [50], and another with increased numbers of homicide-related deaths in children under five [49]. Only one study suggested an association with decreased system costs, in this case showing an association between parental involvement laws and an overall reduction in unintended pregnancy rates among both minors and adults [46].

Discussion

TPA requirements are aberrations from the usual principles of consent to health care interventions outlined in the introductory section of this review. Although predominantly focused on one class of persons (minors) and in one setting (the United States of America), the studies included in this review underline what human rights bodies have long made clear about TPAs: that they infringe on privacy and confidentiality and on the right to the highest attainable standards of physical and mental health, and that they operate as barriers to access to healthcare rather than as modes of supporting a pregnant person’s decision-making [2, 3, 51, 58]. This is similarly true of measures introduced purportedly as mitigations for other TPA requirements (such as judicial bypass as an alternative to parental consent requirements), which themselves operate as modes of TPA. In this respect, it is worth recalling the basis for the general principle- that it is a healthcare seeker alone whose consent is required for a health intervention.

Adolescents are frequently the objects of TPA requirements [10]. Such TPAs are rooted in a set of stereotypical and often patriarchal assumptions about young people that fail to reflect the well-established requirements of international human rights law, but which are widely reflected in health laws on adolescent consent and privacy [59]. Children have a right to freely express their views in all matters affecting them, including their reproductive lives and health care, under Article 12, UN Convention on the Rights of the Child. Consistent with the principle of recognizing young people’s evolving capacity, Article 12 makes clear that young people’s views must always be given due weight according to their age and maturity. Importantly, maturity cannot be determined based on chronological age alone. Rather, the UN Committee on the Rights of the Child has made clear that maturity should be understood as the “capacity of a child to express her or his views on issues in a reasonable and independent manner”. As a general principle, “the greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of that child” [60, para 30]. Decisions about the continuation of pregnancy clearly have a profound impact on the young person’s life, not only because of the physical and emotional effects of pregnancy per se but also because unintended pregnancy and childbearing can impact significantly on educational attainment, economic opportunities, and ability to participate fully in public life [61, 62].

Accordingly, the UN Committee on the Rights of the Child has consistently emphasized that adolescents’ preferences in the context of abortion must be respected [63, para 66(b); 64, para 46]. Adolescents have a right to access “confidential adolescent-responsive and non-discriminatory reproductive and sexual health information and services, available both on and off-line” [65, para 59]. The UN Committee on the Rights of the Child has specifically called for adolescents to have access to confidential abortion services [66, 67]. Healthcare providers have an obligation to maintain young people’s confidentiality; they may reveal confidential medical information only with the adolescent’s consent.

For some this raises a dilemma. How can law and policy adequately support young people in forming decisions about their lives, including with the support of their parents and loved ones, while also respecting their human rights? International human rights bodies and experts have offered considerable guidance in this respect. As confirmed by the UN Committee on the Rights of the Child, states must review their legislation to guarantee the best interests of adolescents and ensure their views are always heard and respected in abortion-related decisions [65, para 60], and take steps to ensure that girls can make autonomous and informed decisions on their reproductive health [68, para 56]. The Committee has called on states to consider introducing a legal presumption that adolescents are competent to seek and have access to preventive or time-sensitive sexual and reproductive health commodities and services, [65, para 39], a suggestion that has been endorsed by the Special Rapporteur [69]. In practice this would mean that health workers are under no obligation to notify parents or otherwise seek to involve anyone other than the young person, although if the young person voluntarily seeks support from a third party—including a parent—in her decision-making about whether to continue with her pregnancy that can be facilitated. Any obligation to involve a third party would arise only if the health worker were to conclude, based on an individual assessment of the abortion seeker’s maturity and understanding, that she does not have capacity to reach this decision without such support. Even in such cases, a rights-based approach would comprise of seeking to support the young person in making a decision and not in substituting the decision of a parent, guardian, court or other authority for hers.

Although the studies considered in this review focused primarily on the application of TPA requirements relating to adolescents, there is a well-developed body of international human rights law that makes clear that TPA requirements are similarly rights-infringing in other contexts. The UN Human Rights Committee has said that requiring judicial authorization violates the right to privacy because it seeks to resolve through judicial proceeding what should be resolved between a health provider and the person who seeks abortion [70]. Furthermore, people have a right to decide for themselves on the number and spacing of children [71, Article 16(1)]. While human rights bodies have recognized that it may in principle be desirable for such a decision to be made in consultation with a spouse or partner, that decision must not be limited by spouses, parents, partners, governments [62] or health authorities [11]. Any barrier to accessing lawful abortion that is not based on medical need has been deemed discriminatory by the UN Working Group on the issue of Discrimination against Women in Law and in Practice [51]. As TPA requirements apply to categories of women (i.e., those who are pregnant) seeking a particular type of health care (i.e., abortion) without regard to their mental capacity to consent to health interventions, they are properly understood as discriminatory barriers to accessing sexual and reproductive health care.

Limitations

This review has its limitations. As already mentioned, the included studies are disproportionately from the United States of America and limited to manuscripts published in English. TPAs are by no means particular to the United States of America and are widely found in national and sub-national abortion laws, which are largely not represented in the review [10]. Similarly, the included studies are almost all concerned with the impact of TPAs on minors, with limited data on the impact of other forms of TPA. This reflects a need for further research into the impacts of other forms of TPAs in abortion law and policy. As regards TPAs applying to minors, the included studies did not explain fully how TPAs interact in practice with general principles and practices relating to consent to healthcare interventions for young people and their developing capacity. Accordingly, further research on how TPA requirements interact with general laws or policies relating to consent to healthcare interventions would be welcome. Randomized controlled trials or comparative observational studies are not appropriate to studies that seek to understand the human rights implications of abortion-related interventions. In this field, studies are often conducted without comparisons. While this may be considered a limitation from a standard methodological perspective for systematic reviews, it does not limit the ability to identify human rights law implications of TPAs or similar interventions in law and policy and thus does not operate as a limitation within the context of the integrated methodology used here [13]. Standard tools for assessing risk of bias or quality, including GRADE [72] or the use of plausibility as an inclusion criterion, are not suited to a review that aims fully to integrate human rights implications into our understanding of the effects of TPAs as a regulatory intervention and thus engages with a wide variety of sources. Finally, in line with the methodology approach applied[13], this review applies international human rights law, rather than regional or domestic human rights law. While this enabled us to develop a general understanding of the rights-related implications of TPAs, multiple factors (including a state’s ratification of human rights instruments and their status in domestic law) will determine the applicability of any individual human rights standard in a specific setting [16, p. 7].

Conclusion

This review synthesizes legal and health evidence to demonstrate the negative health and human rights impacts of TPA requirements on abortion seekers. It provides further substantiation of the pre-existing position in international human rights law that any requirements that abortion be authorized by third parties like parents, spouses, committees, and courts create barriers to abortion should not be introduced at all, or should be repealed where they exist. The review thus establishes that rights-based regulation of abortion should not impose TPAs in any circumstances. Instead, the provision and management of abortion should be treated in a manner cognizant with the general principles of informed consent in international human rights law, presuming capacity in all adults regardless of marital status and treatment sought, and recognizing the evolving capacity of young people in line with their internationally-protected rights.