The Namibian High Court has ruled that the human rights of three HIV-positive women were violated when they were coerced into being sterilized while they gave birth, but the judge dismissed claims that the sterilization amounted to discrimination based on their HIV status.
“This decision is a victory for HIV-positive women throughout Namibia, as it reaffirms their right over what is done to their body,” said Priti Patel, deputy director and HIV programme manager at the Southern Africa Litigation Centre (SALC), a legal aid group that supported the women. “This judgment makes clear that obtaining consent while a woman is in labour or in severe pain violates clear legal principles.”
The case – the first of its kind in southern Africa – was filed in 2009. The women chose to have caesarean sections at public hospitals to reduce their chances of passing the HI virus on to their children, but said the doctors told them they could only have the procedure if they agreed to be sterilized at the same time.
The judgment allows the women to seek damages from the government. “All medical personnel must obtain informed consent from HIV-positive women prior to any medical procedure,” Patel told IRIN/PlusNews. “This includes, but is not limited to, informing them of the nature of the procedure, the impact of the procedure, and gives the women enough time to consider the information before making a decision.”
The ruling that the women failed to show they were discriminated against based on their HIV status, made the win somewhat bittersweet.
“We were not very happy with the judge’s decision on discrimination – maybe it’s the way we presented the case, focusing more on informed consent than on discrimination – we will talk to our lawyers and strategize on whether to appeal or accept the judgment,” said Jennifer Gatsi-Mallet, executive director of the Namibian Women’s Health Network, which assisted in bringing the case to court.
Gatsi-Mallet told IRIN/PlusNews that her organization had 16 similar cases pending, and had recorded dozens more while conducting research. “We hope the Ministry of Health will now review its policies, providing information circulars on sexual and reproductive health to women in public hospitals so that we don’t see such cases brought up again,” she said.
SALC’s Patel noted that the judgment would have an impact beyond Namibia. She said there were anecdotal reports of similar practices in Swaziland, and documented cases in South Africa, in which SALC was involved.
“This case does have implications in other countries,” Patel said. “It brings the issue to the attention of countries in southern Africa, allowing them to take the necessary steps to ensure the practice isn’t happening in their country, and if it is, that the practice is stopped.”