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Namibia: Supreme Court Ruling Against Forced Sterilizations of HIV-Positive Women

(Nov. 10, 2014)

On November 3, 2014, the Supreme Court of Namibia ruled that three HIV-positive women had been forcibly sterilized, without proper consent, during emergency caesarean deliveries. The Court thereby affirmed an intermediate court ruling from July 2012, determining that the women had not freely given informed consent. (Alexandra Farone, Namibia High Court Rules Hospitals Illegally Sterilized HIV-Positive Women, PAPER CHASE (Nov. 3, 2014); LM and Others v Government of the Republic of Namibia (I 1603/2008, I 3518/2008, I 3007/2008) [2012] NAHC 211 (July 30, 2012), SOUTHERN AFRICA LEGAL INFORMATION INSTITUTE (SAFLII).)

The recent ruling states:

… 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. This is especially the case given that none of the respondents made any appointment or booking to confirm their intention to be sterilised before going into labour. (Government of the Republic of Namibia v LM and Others (SA 49/2012) [2014] NASC 19 (Nov. 3, 2014), SAFLII.)

The ruling also referred the matter back to the High Court for determination of the amount of damages due the women involved. (Id.)

According to the human rights advocacy group Southern Africa Litigation Center (SALC), while the ruling is a victory for HIV-positive women in Namibia and elsewhere in Africa, the three cases are just a few among many. The group’s press release quotes Jennifer Gatsi Mallet of the Namibian Women’s Health Network, who states, “[w]e 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.” (Press Release, SALC, Namibia’s Highest Court Finds Government Forcibly Sterilised HIV-Positive Women (Nov. 3, 2014).) SALC and the Health Network provided some support to the three women in the case. (Id.)

The issue of forced sterilization of those infected with HIV is a global one. The World Health Organization has released a report on the subject, entitled Eliminating Forced, Coercive and Otherwise Involuntary Sterilization, completed jointly with six other agencies: The Office of the High Commissioner for Human Rights, the United Nations Entity for Gender Equality and the Empowerment of Women, the Joint United Nations Programme on HIV and AIDS, the United Nations Development Programme, the United Nations Population Fund, and UNICEF. The report argued that “sterilization should only be provided with the full, free and informed consent of the individual” and noted that in some countries, people in various categories, including those living with HIV, were being sterilized without such consent, which the agencies consider a violation of human rights. (ELIMINATING FORCED, COERCIVE AND OTHERWISE INVOLUNTARY STERILIZATION: AN INTERAGENCY STATEMENT 1 (2014), U.N. Population Fund website.)