In a landmark decision, Namibia’s High Court has ruled that the government violated the rights of three HIV-positive women when medical personnel at public hospitals sterilized the women without their consent. This is the first case of its kind in southern Africa, and as multiple international news outlets reported, it could open the flood gates for similar lawsuits in countries across the continent.
The decision written by Judge Elton Hoff was the culmination of a fight that began in 2009, when the Namibian chapter of the International Community of Women Living with HIV uncovered the practice during a series of workshops. In those workshops, a number of women mentioned that they had been sterilized. They further shared that though they did not want to be sterilized, they did not see the sterilization as a violation of their rights since they believed that HIV-positive women did not deserve to have children.
Fast forward three years and it’s clear that that attitude has changed tremendously as more women have learned of their rights, thanks to this lawsuit. In anticipation of the court's decision, on July 31 the streets of Windhoek (Namibia’s primary city) and the courthouse itself were flooded with HIV-positive women demanding that health care workers treat them fairly and respect their fundamental rights under Namibian law. Their demands were affirmed by the High Court later that day.
The case before the High Court centered on three women who were coercively sterilized. The women were referred to in the court proceedings only by their initials to protect their privacy.
The first woman was 26 years old when she was sterilized. She had previously given birth to a healthy child. While she was in labor, she was given a number of forms to sign. One of the forms was a consent form for sterilization. She never received information regarding the nature and consequences of sterilization. She only learned of the sterilization after she delivered her child.
The second plaintiff had had two healthy children when she found out she was pregnant with her third. She was informed by medical personnel that she needed to have a caesarian section, but that that would only be performed if she agreed to a sterilization. She eventually went to the hospital and while in severe pain was provided a number of documents to sign by medical personnel. She was not aware of the contents of the forms.
The third plaintiff was in her 40s when she was sterilized. She was also made to sign consent forms while in pain and was not informed of the contents of the forms. She only learned that she was sterilized when she overheard two nurses discussing her sterilization.
The three women had argued before the court that this treatment violated their rights under common law and the Namibian Constitution. As the High Court stated in its decision, the primary issue in the case was not whether the public medical personnel “had obtained…the plaintiffs’ written consent but the plaintiffs’ informed consent prior to the respective sterilization procedures performed on them.” (emphasis added)
The decision spends a great deal of time on the factual issues, but very little time on the legal issues raised in the case. This is unsurprising given that the primary disagreement in the case was not about the legal standard—both parties agreed on the legal standard—but on whether informed consent had actually taken place in the three cases.
The court held unequivocally that consent for sterilization cannot be obtained when women are in labor or in pain. In reaching its decision, the court clarified what was needed for informed consent: consent must be given freely and voluntarily; the nature, consequences, and risk of the procedure must be understood and accepted by the patient; and the patient must be provided with information on the advantages and disadvantages of alternative methods of contraception. In these three cases, the court found that no informed consent was given for the procedures, and the women’s common law rights had been violated. The court failed to address a number of the constitutional claims raised in the case, only finding that there was insufficient evidence to find for the women regarding a claim that the practice was discriminatory as it particularly targeted women living with HIV.
This decision is a victory for women living with HIV in Namibia. It makes clear that women living with HIV must be treated with dignity in public hospitals. However, much work still needs to be done to ensure this decision is implemented and has a broader impact. The Namibian Women’s Health Network has documented approximately 40 cases of other women living with HIV who have been subjected to coerced sterilization. The network, along with Harvard Law School’s International Human Rights Clinic and Northeastern Law School, recently released a scathing report examining a slew of sexual and reproductive rights abuses that women living with HIV continue to face in Namibian health facilities. Not only do other women in similar situations deserve justice, but the Namibian government must take steps to meaningfully investigate all claims, ensure those responsible are held to account, and work towards ending the coerced sterilization of HIV-positive women.
As the mass mobilization at the courthouse demonstrates, this case marks a turning point for women living with HIV in Namibia, who have courageously stood up to medical personnel and publicly demanded their rights. This will be the lasting legacy of this case.