Many thanks to Andy Sprung, a 3rd year Law student at the University of Toronto, for summarizing the following decision for Reprohealthlaw subscribers.
Namibian High Court found that three women living with HIV were subject to sterilization without their informed consent while undergoing caesarean sections in State Hospitals, but rejects claim that the women were specifically targeted because of their HIV-positive status.
LM and Others v. Republic of Namibia, [2012] NAHC 211 (High Court of Namibia) Decision 2012
On July 30, 2012 in what is being called a landmark case for patients’ and women’s reproductive rights, the High Court in Namibia ruled in favor of three women who claimed that they had been sterilized in State Hospitals without their informed consent while undergoing caesarean sections.
The three women, who are all living with HIV, sued the government for damages claiming that their sterilization without their informed consent infringed their constitutionally protected rights to life, liberty, human dignity, and their right to found a family, and resulted in harms to their physical and psychological wellbeing and future marriage prospects. The women also claimed they were targeted for sterilization because of their HIV-positive status and that this amounted to a violation of their right to equality and freedom from discrimination.
Although the facts differed, Judge Elton Hoff found that in each instance, the women signed consent forms while in extreme pain at the height of labour and that this could not constitute informed consent. Although sympathetic to the tremendous pressures faced by the Namibian public healthcare system, the Court held that the onus is on the hospital to keep clear and accurate records to prove that informed consent has been obtained. The women are entitled to damages which will be determined at a later date.
The Court dismissed the discrimination claim on account of there being ‘no credible or convincing evidence’ to substantiate that the sterilizations were performed because of the women’s HIV-positive status.
Full text of High Court decision: Decision High Court 2012
Update: Appeal dismissed by Supreme Court in 2014 Decision Supreme Court 2014
News articles: From the BBC
From the Guardian
From IOL South Africa
Detailed case analysis by Godfrey Kangaude and Phillipa Tucker for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, forthcoming 2016.
For summaries of older African cases, see: Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts, Volumes I and II
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