Government of the Republic of Namibia v L.M. and Others,  NASC 19
Three Namibian women sued the Government of the Republic of Namibia alleging that they were subjected to coerced sterilization immediately after giving birth via Caesarean section. The women alleged constitutional violations, lack of informed consent, and discrimination based on their HIV-positive status. The High Court ruled in favor of the women in 2012, and ordered damages. The Namibian government appealed the ruling to the Supreme Court, which upheld the decision of the High Court on November 2, 2014. The court found that the women did not give informed consent for the sterilizations because they were going through labor pains and could not adequately weigh their options, but found that the women had not demonstrated that the decisions to sterilize them had any relation to their HIV-positive status. The women were supported by the Namibian Women's Health Network (NWHN), the Legal Assistance Centre (LAC) and the Southern Africa Litigation Centre (SALC).
Three Namibian women, all HIV positive, sued the government, claiming that they had been sterilized at public hospitals without their consent after giving birth via Caesarean section. The women argued that any supposed consent to the procedures was coerced, in that they were misled about the consent form they signed, did not understand the language in which the procedure was explained, and had been told by doctors that they could only receive a Caesarean if they were also sterilized. The women sued in tort for negligent harm, argued that they were impermissibly discriminated against because of their HIV status, and alleged that certain specific constitutional provisions were violated, including Article 6 (right to life), Article 7 (right to liberty), Article 8 (right to human dignity), and Article 14 (the right to found a family).
The Namibian High Court ruled for the women in July 2012, finding that they had not given informed consent. However, the court found that the women had not provided sufficient evidence that the sterilizations were performed because of their HIV-positive status. The Namibian government appealed to the Supreme Court, which upheld the High Court decision.
At the outset the Supreme Court emphatically stated that the respondent women had provided no evidence that they were sterilized due to their HIV-positive status. However, after examining testimony from each of the three women, a gynecologist testifying as an expert on their behalf, and medical staff testifying for the government, the court determined that the women had proven that they did not give proper consent to the sterilization procedures. The court distinguished between written consent, which the women had given, and informed consent, which the court said had to be given freely after understanding and weighing the available options. The court emphasized that a lack of adequate hospital records to confirm the performance of certain procedures hindered the government’s ability to prove their case. The available records could not demonstrate that hospital staff ensured the women understood their options, were given the information in their native language, and were given the opportunity to weigh options with a clear head. Instead, the court found that lack of interpreters, use of medical acronyms, and the intense pain of labor meant that the women could not understand the consequences of the procedure and consent freely.
The Court found the women were entitled to money damages, and remanded the case to the High Court to determine the amount of damages.
Namibian Women's Health Network (NWHN) and Southern Africa Litigation Centre (SALC)
Forcible sterilization is an unfortunately common occurrence in African countries, including in Namibia. While the court in this case did not find that the women in this case had presented enough evidence of HIV-discrimination, the court remained open to the possibility of a finding of discrimination on the basis of future evidence. Human rights organizations see this case as a first step towards recognition and protection of the rights of HIV-positive women in Africa. Additionally, the court specifically rejected medical paternalism as harmful to patients and particularly to the women in this case.