Women Want Forced Sterilisation Busted. 21/5/10

the attendant nurse refused to call a doctor, unless she consented to the sterilisation procedure.

AllAfrica

WINDHOEK - Women's organisations and a coalition of civil society organisations from southern Africa will host several events that coincide with the dates of a High Court case in which six women are suing Government for damages after alleged forced sterilisations.

Each of these women claims monetary compensation in the region of N$1 million, depending on whether such sterilisations are "reversible or not".

The case will be heard in Windhoek between June 1 and 4. The Legal Assistance Centre (LAC) is litigating on behalf of the plaintiffs.

The mass support events include a handover of a petition and demonstrations at Namibian embassies in Zambia and South Africa.

The purpose of the mass action, said LAC's coordinator of the AIDS Law Unit, Amon Ngavetene, is to raise awareness among policy and law makers, duty bearers, and the general public on the issue.

"We must, however, make it clear that the purpose of the mass action is not to litigate the matter in public nor is it to unduly pressurise the judiciary. The content and petition of the action will attest to the fact that it will be done in a responsible manner," said Ngavetene.

The matter of forced sterilisation of HIV-positive women came to the attention of the LAC in January 2008, when 20 women approached the institution for assistance.

These women had attended a workshop organised by the International Community of Women Living with HIV/AIDS the previous year when they became aware that their rights had been infringed upon.

According to Ngavetene, five of the cases proved difficult to litigate because of lack of sufficient evidence. The rest had enough merits to pursue legal action.

But for practical reasons, he said, the LAC will for now represent just six of these cases. The court outcome of these should provide a precedent for the others.

The case was first heard by the High Court in November last year.

Government lawyers raised a legal point that the Public Service Act of 1995 applied to the litigation.

The Public Service Act requires that any person wishing to institute legal action against Government must do so within 12 months of the action arising, and only after written notice of one month has been given to Government.

The LAC contended that the Act does not apply to its clients because it merely regulates the employment relationship between Government and its employees, not to non-public servants.

It stated that should the High Court find that the Act applies to this matter, the LAC would then have proceeded to argue that the Act is in fact unconstitutional and in violation of its clients' right to a fair trial.

The High Court ruled that the Act, in fact, does not apply to this matter, hence the continuance thereof in the court in June.

The LAC argues that health professionals acted in violation of personality rights and the fundamental rights and freedoms of the women.

The claims of the women stem from what they charge were 'forced' sterilisations done without their informed consent.

One of these claims from a woman is that she was subjected to forced sterilisation in April 2005 at the Katutura State Hospital.

The woman maintains that the sterilisation was as a consequence of her being HIV-positive, and that it was done without any explanation of related risks and consequences.

The LAC said she has been put under "extreme duress", and that the sterilisation can therefore not be considered as voluntary.

It argued that this woman as a result, would not be able to have more children, and that she has lost marriage prospects.

Furthermore, it said, this woman will suffer "ongoing mental and emotional anguish, shock, pain and suffering".

In this case, the woman arrived at the hospital while she was "in the throes of labour". She was reportedly desperately in need of a doctor to perform a Caesarean section. The alternative would have been for her to have her baby vaginally, which would have increased the risk of HIV transmission to her unborn baby.

The LAC maintained that when the woman asked for a doctor, the attendant nurse refused to call one, unless she consented to the sterilisation procedure.

The plaintiffs claim that the sterilisations were done without any explanation of related risks and consequences.

The LAC said these sterilisations were unlawful and wrongful practice of "impermissible discrimination" against its clients, particularly in view of the fact that the Namibian Constitution makes provision for the right to life, human dignity, equality and freedom from discrimination.

Courts in South Africa recognise an individual's right to bodily integrity, individual autonomy and self-determination. These rights are similarly recognised in England and the United States.

The South African Sterilisation Act of 1998 makes provision for the individual's right to bodily and psychological integrity, which includes the right to make decisions about your own reproduction.

It requires a doctor to ask for the consent of a patient, and alert the patient to the risks of such procedure.

The LAC said as far as the issue of consent goes, Government must prove that the women (the plaintiffs) had knowledge and were aware of the nature and extent of the harm done to them; that they appreciated and understood the nature of the harm; and that they indeed consented to it.

Hence, it said, the plaintiffs ought to have been informed of the 'type and nature' of the treatment they were to receive, and medical practitioners were supposed to make them aware of the risks inherent in such treatment.

The International Federation of Gynaecology and Obstetrics' Ethical Considerations in Sterilisation states that sterilisation differs from other contraceptive methods because, in theory, "it eliminates any further option to procreate (although new reproductive technologies have altered the finality of some sterilisation techniques)".

"The intention of permanency underscores the need for patients and physicians to consider a special set of ethical issues and the well-documented possibility of later regret by the patient," the body maintains.

It further states that consent must be given "freely".

The World Health Organisation (WHO) in its "essentials of contraceptive technology training manual" emphasises the importance of an individual's choice to be sterilised, that it must be voluntary, even if the individual is HIV-positive.

The 'WHO Essentials' holds that the decision cannot be diverted to a partner or another family member, and neither to a health practitioner or a community leader, or anyone else for that matter.

It also states that patients should be informed that they can decide against the sterilisation procedure at any time without losing rights to other medical, health, or other services.

The argument to be presented before the court is that these "forced" sterilisations are in violation of the plaintiffs' right to life, right to liberty, and right to human dignity.

Importantly also, the argument is that these women have been denied their right to found a family.

This right, the LAC said, places an obligation on the State not to interfere by, for example, ordering compulsory sterilisation.

Women are further granted the right to freely decide on the number and spacing of the children they will have. Interestingly, is that women also have a right to have access to information and education or other means that will allow them to exercise these rights.

Furthermore, the State is burdened with the responsibility to provide "appropriate services in connection with pregnancy".

The LAC said some of the women it represents have been put under "extreme duress", and that the sterilisations thus cannot be considered as voluntary.