Court Dismisses Sterilisation Appeal

THE Supreme Court yesterday dismissed an appeal against the High Court judgement in which the Namibian government was held liable to compensate three women who claimed they were sterilised in State hospitals without their proper consent.

The constitutional right to found a family includes the right of adult women to have children and of men and women to choose and plan the size of their families against that background a woman’s decision to be sterilised or not has to be made with informed consent, Chief Justice Peter Shivute stated in the judgement in which the Supreme Court dismissed the government appeal against the High Court decision.

“Informed consent implies an understanding and appreciation of one’s rights and the risks, consequences and available alternatives to the patient.

An individual must also be able to make a decision regarding sterilisation freely and voluntarily,” the Chief Justice said.

The three women, who lodged a test case against the government in 2008, did not give their informed consent before they were sterilised in government hospitals in Windhoek and at Oshakati in 2005 and 2007, the Supreme Court found.

“There can be no place in this day and age for medical paternalism when it comes to the important moment of deciding whether or not to undergo a sterilisation procedure.

The principles of individual autonomy and self-determination are the overriding principles towards which our jurisprudence should move in this area of the law,” Chief Justice Shivute said.

Dismissing the government’s appeal against the judgement that Judge Elton Hoff delivered in the Windhoek High Court at the end of July 2012, the Chief Justice, backed by Judges of Appeal Gerhard Maritz and Sylvester Mainga, sent the matter back to the High Court for the monetary damage that the three women suffered as a result of their sterilisation to be determined.

Each of the women is claiming N$1 million from the government for having been sterilised without their informed consent.

The three women, whose identities may not be revealed because they are HIV positive, claimed they were sterilised without having given their informed consent for such a medical procedure to be performed. They also claimed they had been sterilised because they were HIV positive, and that this constituted impermissible discrimination on the grounds of their HIV status.

Judge Hoff was entirely correct when he dismissed the three plaintiffs’ claim that they were sterilised because they were HIV positive, Chief Justice Shivute said in his judgement. He noted that there was “absolutely no evidence” on the record to support the women’s belief that a policy or arrangement to sterilise women of child-bearing age who were HIV positive existed in government hospitals at the time the women were sterilised.

Chief Justice Shivute also stated: “[I]t is my considered opinion that none of the respondents gave informed consent because they were in varying degrees of labour and may not have fully and rationally comprehended the consequences of giving consent for the sterilisation procedure.”

He remarked that the three women should have been given an opportunity to return to hospital at a later stage to undergo the sterilisation procedure, having had an opportunity to make an informed decision in a sound state of mind and without being influenced by circumstances such as the labour pains they were experiencing at the time they signed forms in which they supposedly gave their consent for the sterilisation.

Unlike some life-saving medical procedures that require intervention on a moment’s notice, sterilisation allows time for informed and considered decisions, the Chief Justice said.

With a decision to undergo an elective, rather than an emergency medical procedure, “the patient must have the final word”, he said.

“This decision has far-reaching consequences not only for HIV-positive women in Namibia but for the dozens of HIV-positive women throughout Africa who have been forcibly sterilised,” Priti Patel, deputy director of the Southern Africa Litigation Centre, which was involved in the case, commented yesterday. “This decision sends a clear message that governments throughout Africa must take concrete action to end this practice,” Patel said.

Jennifer Gatsi Mallet, director of Namibian Women’s Health Network, which was also involved in the case, claims the three plaintiffs “are only the tip of an iceberg”. She said yesterday: “We have documented dozens of cases of other HIV-positive women who have been forcibly sterilised. The government needs to take active steps to ensure all women subjected to this unlawful practice get redress.”

Source : The Namibian