Namibian sterilisation case could open floodgates
In a partial victory for what was widely seen as a test case for HIV victims' rights, Judge Elton Hoff found that the state could not prove that they gave informed consent to sterilisation when they signed consent forms to perform what they believed was a Caesarian section, all while in the late stages of labour.
However, Hoff ruled that the second and perhaps more crucial part of their claim, that they were sterilised because they were HIV positive, could not succeed because of the lack of evidence presented to the court.
Had they succeeded in this part, Namibia might have found itself on the wrong side of a serious law. Forced sterilisation is considered a crime against humanity under the Rome Statute and is prosecutable by the International Criminal Court.
The three women, whom the court ruled should not be identified because of their HIV status, all underwent a bilateral tubal ligation procedure at state hospitals in Oshakati, Ongwediva and Windhoek between 2005 and 2007.
The case laid bare the often difficult conditions under which state doctors have to operate. One doctor testified that the Katutura State Hospital in Windhoek handled up to 6000 births a year, many of the patients did not understand English and the doctors often had to rely on nurses for translations to explain medical procedures.
All three women were diagnosed as HIV positive prior to their Caesarian section procedures.
The youngest victim was 26 and giving birth to her third child, as was the second victim, aged 31 at the time. The third victim was 41 and birthing her sixth child.
All three experienced serious difficulties and were in an advanced stage of labour when presented with documents by nursing staff, who, the court was told, pressured the women into signing the consent forms that ended their ability to bear children.
The case has also raised questions about the efficacy of the antenatal classes conducted by the nursing staff at Namibia's hospitals, where the pressure under which staff operate makes it impossible to provide one-on-one counselling to advise women about all birth control options.
The youngest victim found out she had been sterilised when she returned to the clinic for birth control pills, only to be informed that she would no longer need them. Like the others, she testified that the nursing staff informed her she had been sterilised because she was HIV positive.
Despite the arguments of advocate Dave Smuts, now also a judge, that this was a pattern in, if not a policy of, state hospitals, Hoff ruled that not enough evidence was presented to convince him it was indeed the case.
It also emerged from the evidence that surgeons often relied on hastily scribbled notes on the patients' files and that no one had explained to the victims what the acronym BTL (bilateral tubal ligation – tying off both Fallopian tubes) implied.
Just how widespread such rushed practices are is open to question. Amon Ngavetene of the Legal Assistance Centre, a free legal advisory service that helped the women to bring their case to court, said there could be many more cases of women summarily sterilised in state hospitals during such Caesarian procedures. "We're picking up from other women's organisations, other human rights groups, that there could be many more such cases as the issues surrounding this becomes widely known," said Ngavetene.
"And there are many more cases that we know of – about 18 or so that we have documented already and possibly another 40 cases or so that these groups have brought to our attention."
He said many of these cases appeared to involve younger women aged between 20 and 35, the most affected population group in a country in which the incidence of HIV infection is about 20%, according to the World Health Organisation.
The implications for the state are enormous. Should it emerge that there is indeed an existing, if unspoken, policy of sterilising HIV-positive women, it would put Namibia's health authorities on the wrong side of the eugenics debate and forced population control.
For example, former Peruvian president Albert Fuijimoro implemented a similar policy and between 1995 and 2000 more than 331600 women, mostly from minority ethnic tribes, were forcibly sterilised.
Uzbehkistan, another country not noted for its respect for human rights, is still accused of enforcing just such a policy, although authorities have insisted that the women chose the procedure fully informed of their choices.