Hello, hello, Parents of Ubusha. Welcome to the dual podcast-article series in which we have a sit down with experts on sexual and reproductive health. In this series our experts share reliable, accurate and scientifically-based information in an easy to understand way so you can support your adolescent on their journey to good choices about their health.

In this episode we speak to distinguished Professor Ann. Strode, from the University of Kwazulu-Natal. Professor Strode has worked in the socio-legal space for over twenty years, with most of her work addressing HIV as a human rights issue. Her more recent work has focused on issues of consent in health research with children and adolescents, not neglecting her co-authored 2016 article on the evolving sexual and reproductive health rights of adolescents. 

We would like to thank the professor for generously sharing what the law says about Human Rights and Sexual and Reproductive Rights in the South African context respectively, as well as some ideas on the role and responsibilities that parents, guardians and communities have in creating a world in which Sexual and Reproductive health rights as human rights are not taken for granted. Do enjoy.

Q & A*

What exactly are human rights and what are sexual reproductive rights respectively?

So Human Rights are really a special kind of right, because they are a right that is given to everyone at birth simply by being human. So since 1948, with the adoption by the United Nations of the Universal Declaration of Human Rights, that was the first time, I mean, which is very sad that was took as long as to get to 1948 before the international community actually recognized that there was something called human rights.

And that everyone, every single human, ought to be entitled to this set of fundamental human rights. And it really came out of the Second World War because in the Second World War there were all those human rights violations at so many different levels. But particularly perhaps it was the extermination of 6 million Jewish people, the extermination of gay people, extermination of gypsies and all the other violations that ordinarily come with war.

So in 1948, the United Nations as a universal body, adopted this document called the Universal Declaration of Human Rights,  
which set out a whole range of rights that
every individual would have. They especially made it a declaration because within the United Nations system if you’re going to make something legally binding, it has to be in the form of a convention or a treaty, and then individual countries have to sign up to it. So something like The Convention On The Elimination Of All Forms Of Discrimination Against Women, you’d actually have to get every country to agree to it. And they wanted something that would go beyond that, that would just be a declaration. So it’s not legally binding, but sets that high standard of rights that every individual ought have. Now one of the rights within the Universal Declaration of Human Rights is around a standard of living; that everyone ought to be entitled to a dignified standard of living. And one aspect of that standard of living is health, and in the Universal Declaration they very wisely put it in relation to human well-being, you know, it’s part of shelter, it’s part clothing because you have to have all of those things for you be healthy. So within health is where we would situate the sexual and reproductive health rights.

But it took from 1948 and then in 1966, the United Nations adopted the International Convent on Economic, Social and Cultural Rights. This was now a legally binding document that countries could sign up to, and within that there was the Right to the highest attainable standard of health. So it’s not that we have a right to health; we have a right to, for our countries must strive to give us, the highest attainable standard of health. And that was 1966, it was implemented in 1976. 1994 was the next milestone because there in Cairo, we had a world Population and Development Conference where it was actually recognized for the first time that part of the right to health is sexual and reproductive health rights.

So it took us through all the way from 1948 right till 1994 to start recognizing that an important subset of human rights is sexual and reproductive health rights, and sexual reproductive health rights are a subset of rights that deal with anything to do with essentially reproduction. So they’re various elements of it. It would be a right to, to have sex, that is a fundamental right. Then if you’re going to have sex, obviously there need to be the right to have access to sexual reproductive health services. Because we’re going to have sex we’re going to need contraceptives, pregnancy services etc. Then lastly the other part of sexual reproductive health rights, which is so important, is that right to make reproductive health choices. Do I want to have a family? Do I not want to have a family? What’s the size of my family going to be? Those sorts of choices. So it’s those 3 core things around autonomy; making our own choices. And so even just our own choices about our sexual partners: Do I want a female partner? Do I want a heterosexual partner, etc. So having access to services and then also the right to actually have sex.

From work that you have done, how is South Africa fairing with regards to Sexual and Reproductive Rights?

So let’s start at the top with our Constitution. Our Constitution was the first in the world to actually specifically mention sexual and reproductive health rights in two places. So firstly, if we look at Section 12 of the Constitution, that’s the right to bodily and psychological integrity. Your body is your own. You must make your own choices about your body. It’s really an autonomy right, and that people can’t interfere with that right. They can’t harm you or hurt you in anyway. And what’s important about Section 12 is that it specifically states that part of bodily integrity is the right to make sexual and reproductive health choices. So that was the first in the world to have that in the Constitution and having that provision has meant that we’re able to have, for example, a choice and termination of pregnancy Act. So I’m like in the US with, they’ve now got such restrictive abortion legislation, we’ve actually got that right to make our own choices in the constitution around reproduction.

So if I don’t want to have children, I don’t have to have children. I have those choices around my reproduction. Then the second thing that was very progressive in our Constitution is Section 27 in the Bill of Rights, the right to access healthcare services, which was trying to move away from the Apartheid separate services that people were provided, which were all differential with white people getting allocated 3/4 if not more of the budget. Now everyone has access to healthcare services. And what’s interesting is, that includes sexual and reproductive health services. So out of all the services the state must provide (they must provide mental healthcare services, they must provide services obviously to elderly people, cancer patients, HIV); the Constitution actually elevates sexual and reproductive health rights and so the state must also provide these rights. So those two rights in Section 12 and 27 created this great framework for sexual and reproductive healthcare in South Africa because the Constitution is our supreme law, and everything must comply with it. So we’ve got a great constitutional framework.

And then from there where we have done very well is that we as a country from 1996 when Parliament passed the choice on Termination of Pregnancy Act, we have progressive termination of pregnancy legislation. We also have protective legislation around sterilisation from 1998. Again there’s special requirements for sterilisation, as you can’t sterilise someone under the age of 18. The Act’s very clear about consent – that you must have consent for sterilisations. So we’ve got abortions, we’ve got sterilizations. And then the other big legislative area has been the Children’s Act. In the Children’s Act, in a very progressive and pragmatic move, the government, the Parliament, provided that from the age of 12 you can access contraceptives all without parental consent, you can access medical treatment, you can access HIV testing. At 16 you can access male circumcision if you are a young man; you can make that choice independently. So we have got a great legislative framework. In practice all the research shows that we’re not doing as well. So actually access to these services is not that easy and that’s where our problem is.

We also have one red flag for me in the legislative framework, and it is that the Children’s Act actually has made a harmful cultural practice legal. So what was good in the Children’s Act is that they said you can’t have female genital mutilation. It’s clear, it’s there, which is great. So we’ve got that as a protective measure for young girls. But then they also provided that virginity testing is legal. And I feel that’s a harmful cultural practice, that they should never have said it’s legal. What they’re saying is the act is that it’s legal if you’re 16, if you consent to it, if the status of whether you’re virginity or virginity is not going to be disclosed. It can be on both girls or boys. But we know in reality, there’s only virginity testing of girls. And we know that it’s not done in a way in which it’s kept confidential. In fact it’s harmful because some girls have been sexually abused and then it comes up they’re not virgins.

Actual the practice is not scientific anyway, to tell whether you a virgin or not, but then you get essentially marked in your community. So that for us is one area where it’s a great pity they did that. I have not actually even seen a rationale for why, when it’s under the heading that you can’t have harmful cultural practices. Maybe they’re rationale was they wanted to take a harmful practice and put protections in that the girl or the boy would consent, and that it has to be kept confidential. But in practice the literature shows it doesn’t work that way. And I’m sorry I’m stigmatizing, in fact, in KwaZulu in eMsinga a rural area here, there was even some years ago now probably 6-7 years ago, the local municipality actually created a bursary fund for virgins based on this provision because you know, you could do virginity testing, it was legal. And then they offered bursaries to go to university to girls who were virgins. So it has that kind of unintended consequence I feel. Because it’s unscientific, we don’t know, but it really did then discriminate against these so-called non-virgins who may well have been virgins because it’s not a scientific process. But you were humiliated in front of your whole community because you didn’t meet that bar.

What processes and institutions are provided in the governmental framework as well as perhaps culturally, to address the violations of sexual and reproductive rights? Where do you go? Who do you call? How do you begin that process, and what protections are in place for those kinds of violations?

Before I get there, the other piece of legislation is obviously the criminal law because it is closely linked to sexual and reproductive health rights. We do have a very good laws around rape. Rape is essentially when someone has sex with you without your consent. So that’s also obviously very important that that’s our standard for sex. There must be consent and failure means that you can go and report that as a crime.

And then linked to that is actually the adolescent issues because our law says that you can only consent to sex at 16. But again, we know in reality children, adolescents, are having sex at a younger age. So that’s another problem with our legal framework – the Children’s Act and the Criminal Law come with two different approaches. There was this gap between ‘I can go and get contraceptives’, but I’m not supposed to be having sex. And so there is often a problem with services being provided. There was a challenge in the Constitutional Court around this, that and around the criminalization of sex. And after that the law was amended and narrowed. So now you can have sex between 12 and 15, which is below the age of consent, provided there’s less than a two year age gap between you and your sexual partner.

Problem though is again, if we look at reality, it’s young woman who are disadvantaged because young woman tend to have older partners. There is very little peer-sex unfortunately, in that age group. Like a young girl of 14 or 15 is likely to have sex with a partner up to five years older than her, if not more. And so then those young women are still vulnerable because if I’m 15 and my partner’s 23, he’s committing a criminal offence, but obviously I’m the witness to that criminal offence. So I am also brought into the criminal justice system to give evidence about him. Obviously, no young woman with a 23 year old boyfriend is going to want to report them to the police. So that’s another problem in our system is that we haven’t really worked out with consensual sex, because those are all consensual crimes. I’ve consented to it because if I didn’t consent to that, it doesn’t matter about my age. You know, that is rape – if someone doesn’t get my agreement. We need to look at when it’s about consent ; when should the criminal law be involved and when not.

So to go back to your question though, if there’s no consent it’s a criminal justice matter and one would report that to the police. Also when there’s sex under 12, the law says you don’t have capacity to consent to sex. So any sex under 12, there the remedy is the criminal law and the police etc. Especially for very young children, there’s actually a very harsh, it’s not helpful in terms of sexual and reproductive health rights. Just the other day I was contacted by a psychologist who’s working at a Johannesburg hospital. She was saying that when pregnant teenagers come to her to the hospital where she is working, if they’re under 16 and they are coming for antenatal services, then the first thing that happens to them is they’re told to go to the social worker and the social worker fills in a form asking them who their sexual partner is. It’s form 22 which is actually the form you’d use for reporting child abuse. So this teenage girl has to go there first then she comes back for her pregnancy services. And their data she told me is showing that because that’s quite coercive (I mean it’s very embarrassing to be told now we’re going to report this to the police), their data is showing that young girls are coming very late for pregnancy services if they’re under 16 which is a real problem because those are actually risk pregnancies. And we would want to intervene as soon as possible so it’s a safe pregnancy in terms of HIV and giving services and making sure that that young mom is going to have proper support once her child’s born, etc.

So this is like a push-pull in our system where we have some progressive laws but then the way they’re implemented makes the young girl not want to go and use the services. So these sexual reproductive health and rights, especially for young girls, seem to not be making a difference in their lives, which is very concerning. So the one whole set of institutions is the police and the prosecutions – the courts that can be used. Your other main institution is a health clinic. Young girls and young boys should be able to go to clinics and get, before they even sexually active, get contraceptives, get information, get advice. If they have an STI, get immediate treatment because that’s another problem. There’s research now being done by UCT which is showing for example, that with STIs because they’ll give you a set of antibiotics to clear up the STI but you really need to go back because they need to do another after certain time period (a week or two), they need to do a second test to check that you clear and that you’re not infectious,   young people say ‘I’m not going back’. So you’re not necessarily sure that they’re clear of that STI which means then they can still spread it, you know, and it all seems to be coming back to these services – they are not friendly. If I’m going to go there and they’re going to shout at me and say: ‘oh, why did you have sex? You only 13’ or ‘Oh, this is your 4th partner’, I won’t go.

It seems our services are still judgmental. There are moralistic attitudes around sex and when you should have it and when it’s appropriate. And it’s also even more difficult for young men having sex with young men or even adult men having sex with men, women having sex with woman, you know. So I think there’s a huge problem around adolescence and sex, then it’s same-sex relationships – they also get a lot of negativity. I mean, I’ve heard stories of nurses calling other nurses to come in and look at anal warts and say: “Have you seen this?”. It’s like a deliberate humiliation and violation, not concerned about someone’s dignity and how hard it’s been for them to even come to the health service. And it means you have to really be in pain to go and seek a health service if you’re a gay man. And then also generally around sexual and reproductive health rights, another area in which the law and people are starting to write about and think about is obstetric violence. Women, birthing moms, and the treatment they get is often appalling. At an emotional level, mums are shouted at, screamed at. There seems to be some physical abuse: slapping, shouting you must breathe at this time and not breathe at that time, not bringing people pain relief, etc. There’re whole lot of abuses that actually take place around the birthing process which now people are speaking about.

So if we’re looking at the  human rights framework, some of the interventions the state is trying to introduce are Public health programs like antenatal services, etc. Whereas some human rights advocates are now arguing that we should be reframing it around health justice, making it more in the human rights domain. It’s not just giving everyone contraceptives. How do you give them contraceptives? Do you listen to what their needs are? If it’s a gay man, do you sit and properly listen to what their need may be around condom use and lubricants, you know, in a dignified way, not in a giggling and ‘eish this is bad behaviors’.  So we’re trying to reframe how we actually approach this issue because it is about justice and justice is fairness. It’s dignity. And for a birthing mom to have someone screaming at me when I’m in pain, that’s not dignity at all. And apparently with young woman, they will shout at you and say “oh you were so happy to open your legs and nine months ago and now you don’t want to open your legs”. There’s so many layers of it: you are in extreme pain, you’ve been treated in a humiliating way, especially if it’s a first pregnancy woman are afraid; you don’t know how this is all going to unfold. So the whole experience becomes negative and it also appears, the research is showing, that the women doesn’t know this is not what you should expect. They think “well, this is what happens to everyone, this is normal”. So women don’t actually report it or do anything, which means this cycle carries on and on and on. So they ultimately go to human rights NGOs because you’re not getting access to that termination of pregnancy – that’s also a thing.  Sometimes the healthcare services just delay you. With terminations acting quickly is so important; you can’t say to someone come back in two weeks’ time because the sooner you act, the better for the woman’s health. So there’s all sorts of pressures like just pushing you downstream till suddenly you 16 or 17 weeks and now it’s a much more difficult procedure, more painful and greater risk.

So really I think my bottom line is we’ve generally got a great framework, but it’s how we implement it. That’s where we need new strategies, new approaches and much better training for healthcare workers, which helps them identify the difference between my own values (and I might believe, for religious reasons, terminations are wrong and that’s fine because that’s my choice and I don’t have to have a termination), and someone else’s. I need to respect someone else’s, another woman’s choice or another man’s, choice around this. You got to learn to distinguish between my choices, my values, and the choices, and the values on which someone else has made their choice and respect that which is at the heart of all of this. Just respect other people.

You’ve identified the police and clinics, all of which are institutions that help us to maintain and uphold and have access to all these rights. We have other institutions like the family, like the schooling system and the community. What role do they play, if any, in assisting to uphold, maintain and having access to sexual and reproductive rights particularly for adolescents and younger people which you’ve mentioned as vulnerable?

I think they’re absolutely essential. Starting at school, we have a Life Skills program and education at schools.
But the problem with that program, and this is purely from an anecdotal point of view of my two children who have finished school and so have completed that program, it’s like for my daughter there was no focus on that autonomy of ‘you make the choice’; these are your choices. So like she was in a girl’s only school and they showed them all how to use condoms. But my daughter came home and said, “why am I learning to put a condom on?” They had not taught her that it’s about you taking control. If your sexual partner doesn’t want to use a condom, you can say “I’ve got a condom. I can put it on”. They weren’t teaching young woman,  I feel, how to take control which is really what we need because so much of so many problems come from inequality in relationships. We need to be empowering, especially young woman,  to know It’s OK, you can make this choice or not, but you be in the centre. And we weren’t. Seemed like we weren’t. And my son at his school, he was in a Christian School, and there was much more of a focus on you just get married which doesn’t help you. That’s not something that’s going to help you make a choice. They were both using the same curriculum, but I just think there seems to be a failure around specifically not just giving people information but actually giving them skills if they’re going to protect themselves. I think maybe we misunderstand it’s actually about self-esteem. If a child has self-esteem then they protected against peer pressure and all of that. You’ve got to feel good about yourself and because I feel good about myself as a teenager, I can make choices that might not necessarily be popular, etc. So it’s most likely there’s just like too much of that public health kind of focus on use a condom, have an injection or take a pill. Not enough about how do you negotiate. How do you start the conversation with your 14 year old boyfriend? Like what do you say? What are the words?
I think the education is a bit misdirected.

And then it just seems to me that we don’t make services as accessible as they could be, because it’s schools. I mean, a school is a captive place. Kids are supposed to be there when they’re teenagers for X number of hours a day so really there should be more sexual and reproductive health services like the mobile clinic going there once a week or something, or once a month or something. You really need to be making those services so accessible. At my daughter’s, what was very enlightening, was the headmistress asking me to go through the policies. So my daughter was a day girl, but at a boarding school. So because it was a boarding school, it had a clinic at the school. So at that school they offered, the nurse offered confidentially, if you went and said I had unprotected sex on the weekend, she would give you the emergency contraceptives right there. You could be going to the clinic at the school for any reason, you could be going because you had a headache that day – it didn’t matter. And so while she was in her five years at high school there was one pregnancy in her school. That shows me that you can decide at a small level and have services right there. Those girls would have been having the same amount of sex as everyone else, you know what I mean? Let’s not kid ourselves. I think that there would have been sexually active girls there, many of them, probably most of them, but having the service has made the difference. So look at their outcomes. To me, it’s about the health outcomes and impact on those girls lives. Only one fell pregnant. They are that one step ahead of so many of their peers, you know, it means so much for women’s equality. Somehow, we’re not getting services and integrating services into something like a school health program.
And to me, you wouldn’t be stigmatized for going to the health clinic because I might be going because I’ve got a headache or I’ve got pimples or
I’ve got growing pains, you know. To me, there’s so many reasons why I could be going to the clinic, even if other people ask me I just say “well this itchy patch on my arm” or you know. It is really about trying to make services so much more accessible and then also you start good health patterns for life. Because I’m learning that I go to the clinic and it’s good and I have these things tested and then hopefully for life, I’m going to continue with that pattern as a male or a female. I’m going to have my weight checked and  blood pressure, etc. and it just becomes normalized and becomes health seeking behavior.

It was very difficult for the school to actually get to the point of providing those services because a lot of the teachers didn’t want the emergency pill to be given, there was a lot of pushback with people saying they were encouraging sex and all of that. And this was some years ago now, but she said no one had actually ever gone to the clinic, in her tenure as headmistress and asked for a termination which was interesting. They asked for the emergency pill, but obviously, maybe for terminations, they went different routes. But I just thought it was a good model that the school was doing all of that and they were openly talking about and, you know, the headmaster asked me to please come and look at their policy and where they could improve, and what they should do. And they’ve taken a specific decision that they wouldn’t emphasize the criminal law. They wouldn’t say it’s an offence, but that they are just talking about your health and that’s it. But as I say, even then in that progressive environment, my feeling was that my daughter wasn’t taught about the her autonomy.  So I guess there’s still so much to learn about how we can empower young people.

Speaking of emphasis on child and adolescence safety, there are a number of research programs and projects going around and parents having to consent on behalf of their child and so on. And as a researcher and as an ethicist, what should parents lookout for and what are some of the questions they should ask and anticipate to have in place when a researcher asks to do a study with their children around some of these sensitive issues?

So for me, in terms of a child rights perspective, the first thing you need to ask as a parent is: “if my child discloses information, say my child discloses that the uncle is abusing them or something like that, what is going to happen to that information? And will my child be protected? Will I be told?” Because the law doesn’t require any disclosure to the parent. So if my child is in trouble, or says I’ve got 5 sexual partners and I’m not using any contraceptives or just a range of things could be disclosed, would I want to know.

So I would want to know that at least there is going to be a service that the researcher is going to refer my child and say, look, you need contraceptive counselling. That there is a service and some link to a community service. And I think it’s also very important in the consent form for parents to look and see what ‘am I going to be told’ and what is my child going to be told because, especially some of these clinical trials like for HIV prevention, there’s probably going to be regular pregnancy testing for girls. Will that be told to you as a parent?
Would it not? Will my child be referred to termination of pregnancy services? Because sometimes for parents, that’s a deal breaker – they want to know. And they need to be no surprises so that everyone through the consent process knows.

Even if their parent is consenting to the research, the child would have right to some privacy in the study because they’ve got the right to consent to their own contraceptives from 12. So even if my parent is signing for me to be in the study, there are something’s I would have privacy rights over and that really needs to be in the consent form. So parents need to look at that and make sure they’re happy that with what is there. Yeah. So for me it would be the services, the referrals, and I think as a parent I think it’s really important that we encourage and support parent-child relationships. Children are part of families and families are part and natural, and one of the most important institutions in our society. So that for example, if it’s HIV prevention and my child tests positive, they are going to be supported to disclose to me or to another family member.

Supportive processes around things like disclosure is going to be important long term – I think  it’s hard to do without support. So consider what’s going to be offered like “will my child be referred into a treatment program” and “will there be services”. So I’d be looking at child protection which is the sort of mandatory reporting stuff, something like if a teacher has been coercing my child into sex, I would want to know that that’s going to be reported. That’s going to be stated intervention. Then my child’s wellness –
if information around my child’s wellness is going to be explored, are there  going to be referred to other services. And then the third is around privacy – are we all on the same page around what’s going to be disclosed, and not disclosed. I think often pregnancy is that one where a parents may want that information, but the child may not want to disclose that. So it’s a 3-way relationship between the child, the researcher and the parent. Everyone must be clear so that there are no surprises if something comes up.

You don’t want later on for the parent to come back and say “I signed a consent form, my daughter tested positive for pregnancy, you referred for termination of pregnancy and I was never told”; and being very angry with the researchers. Rather there is all that disclosure up front so the parent knows and hopefully the parent would realise that if there’s a good parent-child relationship the daughter will disclose to you anyway, hopefully. But you know, you just don’t want surprises also because of the risk of physical violence for some. In families this sort of thing happens. We must always be mindful of child welfare. You must know that the child is actually going to be OK. We don’t want them harmed by the research in any way.

To round off, are there any things that you feel the public should be aware of with regards to human rights and/or sexual and reproductive rights?

I think it’s very important to actually just contextualize this as a rights issue. Sexual and  reproductive health is part of the Right to health. We need to see it that way and perhaps start to focus more on it because it’s a right, and with rights come duties. Therefore we need to see ourselves as rights holders and we need to say to the state “you need to fulfill your obligations to all of us as sexual and reproductive health beings” because these are very basic human rights which relate to our health. The fact that they are mentioned twice in the Constitution shows how important it was considered in all of the human rights that we were given in our new constitution. It really was given great prominence because it’s so significant in all of our lives; it a very important part of our health and wellbeing.

Reference:

1. image – https://pin.it/3HY3xQ8

*This dialogue is based on the transcript of the interview with Prof. Strode conducted on March 2^nd, 2023. The text has been adapted for increased readability and coherence from the audio-visual recording. The full audio recording is available on the Ubusha Bami podcast, available on all streaming networks.