In deciding whether or not to undergo an elective procedure, the patient must have the final word.
On November 3, the Supreme Court of Namibia sided with women’s health. Two years prior, the country’s High Court ruled that medical personnel at public hospitals violated the rights of three HIV-positive women when it sterilized them without their consent. The government appealed that decision, and the Supreme Court rightly rejected that appeal last month.
The decision, written by the Namibian Chief Justice Peter Shivute, is a welcome victory in a battle that began in 2009, when the Namibian Women’s Health Network, a chapter of the International Community of Women Living with HIV, uncovered the practice of hospitals forcing unwanted sterilization on HIV-positive women.
The case centered on three women living with HIV who sued the government of Namibia in 2012 alleging that they had been sterilized without their informed consent. This would amount to a serious crime in Namibia, where the constitution explicitly guarantees every citizen the right to physical integrity and the right to found a family. In addition to arguing that their sterilization was against the law, the women argued that it was done to them because of their HIV status, which violated their right to be free from discrimination.
In July 2012, the High Court of Namibia handed down its decision. It ruled that all three women were indeed sterilized without their informed consent in violation of the law. Although the justices rejected the discrimination claim, the ruling was nonetheless a major victory for victims of this illegal and odious practice.
Forced and coerced sterilization is a widespread problem in Namibia. One investigation found that 40 out of 230 women living with HIV had been victims of this abuse. Making things even worse, because sterilization is stigmatized in Namibian society, women who’ve been forcibly sterilized face a lifetime of public contempt.
When the government appealed the High Court’s decision, the primary legal issue was whether the women had given their informed consent to be sterilized. In all three cases, the women signed consent forms, but argued that their signatures were coerced and that they weren’t provided adequate information. The government argued that this was irrelevant, saying that the only question the High Court needed to consider was whether the women were aware that sterilization leads to sterility.
The Supreme Court rejected that argument, thankfully, and upheld the High Court’s original decision that the women’s sterilizations violated their rights as guaranteed by the constitution. The Supreme Court also emphasized that the decision of whether or not to be sterilized is of great personal importance and must be made with informed consent, as opposed to merely written consent, highlighting the right to understand and appreciate the risks, consequences, and available alternatives.
The court reiterated that the woman must be in a position to comprehend the nature and consequences of the operation to be performed on her, and concluded that consent for sterilization cannot be obtained when women are in labor or in pain. “In the case before us, it is crucial to determine whether the respondents had the intellectual and emotional capacity to give their informed consent in the light of the peculiar circumstances in which they found themselves when signing the consent forms,” said the court. “The records of all three respondents do not indicate what information was conveyed to the respondents when their written consent was obtained.”
The court also unequivocally rejected medical paternalism, emphasizing that “the principles of individual autonomy and self-determination are the overriding principles towards which our jurisprudence should move in this area of the law. These principles require that in deciding whether or not to undergo an elective procedure, the patient must have the final word.”
The decision has far-reaching consequences for women living with HIV throughout Africa. Similar cases have been brought before the courts in South Africa, for instance. Earlier this month, the Kenya Legal and Ethical Issues Network on HIV and Africa Gender and Media Initiative Trust, together with five women living with HIV, filed two petitions in the High Court of Kenya in Nairobi. The five women were sterilized in different health facilities in Nairobi County, even though the Kenyan constitution guarantees many rights and freedoms that should have prevented this. In practice, comparative law has weight in Kenyan courts, so the Namibian decision will likely be considered in the determination of these cases.
This ruling by the country’s highest court, while cause for celebration, is but a single victory in a continuing fight. The Namibian government now needs to take steps to meaningfully investigate all claims, ensure those responsible are held to account, and work towards ending coerced sterilization of women living with HIV. It will be important for local, regional, and international organizations to continue to advocate for just compensation for women forcibly sterilized in Namibia, and to call for an end to this practice on the rest of the continent.