Summary
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.
