The judgment passed by the high court in Namibia on Monday 30th July 2012–ruling in favour of three women who claimed they had been sterilized without their informed consent–confirms the principle that in order for consent to be truly “informed,” it must be freely given and clearly understood. In the case in Namibia, the women had Cesarean deliveries to reduce the risk of transmitting HIV to their babies. They were sterilized at the same time as they underwent the Cesareans.
Windhoek High Court Judge Elton Hoff was unconvinced that informed consent had been given by the women and said “There should be unhurried counseling in a language that is clearly understood by the patient.” Obtaining consent from women when they were in severe pain or in labour, Judge Elton Hoff ruled, did not constitute informed consent. While Judge Hoff also found that the women had not sufficiently proved that they were targeted for sterilization because they are HIV-positive, the decision still paves the way for legal action by other women who claim they were coerced into sterilization because they are living with HIV.
Forced and coerced sterilization and abortion among HIV-positive women have been reported in many countries across regions. For example, a case was filed with the Inter-American Commission on Human Rights in which a woman diagnosed with HIV charged that the government of Chile failed to protect her from being forcibly sterilized at a state hospital immediately after she gave birth. The case is still pending before the IACHR.
The recently released report HIV and the Law: Risks, Rights and Health by the Global Commission on HIV and the Law documented that women claim to have been denied access to HIV and health services unless they agree to abortion or sterilization. Other coercive and discriminatory practices in health care settings include forced HIV testing, breaches of confidentiality and the denial of health care services.
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The Commission reported that “coercive and discriminatory practices in health care settings are rife, including forced HIV testing, breaches of confidentiality and the denial of health care services, as well as forced sterilisations and abortions.” The Global Commission on HIV and the Law is an independent Commission, convened by UNDP on behalf of the joint United Nations Programme on HIV/AIDS (UNAIDS).
This important decision affirms the rights of all women to the important standard of informed consent, and points to the specific vulnerability of women and girls living with HIV with regard to their reproductive and sexual health and rights. Congratulations are due to the many individuals and organizations involved – especially the Legal Assistance Centre of Namibia and the Namibia Women’s Health Network for their efforts to ensure access to justice for women and girls living with HIV.
Much work remains to be done to abolish punitive laws and practices related to HIV, such as mandatory HIV-related registration, testing, and forced treatment regimens; to facilitate access to sexual and reproductive health and rights; and stop forced abortion and coerced sterilisation of women and girls. As the Global Commission on HIV and the Law recommends: “countries must prohibit and governments must take measures to stop the practice of forced abortion and coerced sterilisation of HIV-positive women and girls, as well as all other forms of violence against women and girls in health care settings.”