This report and subsequent investigation followed a complaint lodged by the Women’s Legal Centre (WLC) five years ago on behalf of the Her Rights Initiative (HRI) and International Community of Women Living with HIV (ICW) organisations.
HRI and ICW maintain that the sexual and reproductive rights (and myriad other rights) of their clients were violated when they were forced into sterilisation at public hospitals.
Sterilisation is a medical procedure that permanently blocks women’s fertility. It’s performed either by tubal ligation, where the Fallopian tubes are tied, or a hysterectomy — removal of the uterus. Forced sterilisation, however, happens when an individual is sterilised without their knowledge, is coerced into giving consent or consent is derived via incomplete or false information.
WLC prepared the complaint on behalf of the two organisations and 48 women after HRI’s research. The commission then sampled 15 hospitals in KwaZulu-Natal and Gauteng — the provinces where most complainants live. The commission’s approach into investigating the complaint was three-fold: it sought additional details from the complainants; met the department; and carried out on-site inspections.
The affidavit of the report shows that all the women who had lodged the complaints were black, most of them were living with HIV and, at the time of the sterilisations, were pregnant and seeking medical care at various state hospitals.
Either before giving birth, while in labour or experiencing extreme pain, these women were coerced to sign forms without knowing that these were consent forms allowing the hospital to sterilise them. These women only learned the implications of signing the forms at a later stage. All of these women also underwent a caesarean section.
The women’s statements show that medical personnel either humiliated or threatened them. Some were told they would not be treated if they did not sign the forms. Others said they were experiencing extreme pain and did not understand the contents and consequences of the documents they were signing.
It is not the government’s policy to carry out forced sterilisation. The Sterilisation Act is clear that sterilisation should not happen without informed consent. Using force, or any other type of coercion, is prohibited and considered a violation of human rights.
The report refers to the Tubal Ligation Guidelines of 2014 set out for the department of health in KwaZulu-Natal, which also clarifies the provisions of those who undergo “female sterilisation” for healthcare practitioners. The guidelines stipulate that those who choose sterilisation should have access to it and undergo an appropriate consent procedure, including counselling, information on the advantages and disadvantages of the procedure, and information on other forms of contraception available. Obtaining consent should be conducted in the language the patient understands and witnessed by at least one other health worker.
But, despite the law and these provisions, this type of discrimination against women living with HIV is not new in South Africa. Research contained in a study by Ann Strode, Sethembiso Mthembu, and Zaynab Essack on women living with HIV, indicates patterns of forced sterilisation. In the study, 32 HIV-positive women were screened in Gauteng and KwaZulu-Natal using a questionnaire. Their responses reveal that 25 women (68%) had undergone forced sterilisation.
After investigating the WLC’s complaints, the commission concluded that the forced sterilisation for women living with HIV in South Africa’s public hospitals amounted to “cruel, torturous or inhuman and degrading treatment”. It also accused medical staff of breaching their “duty of care”.
The commission has referred its report to the Health Professions Council of South Africa (HPCSA), the Nursing Council and the national health department (NDOH).
The HPCSA is set to investigate the professional conduct of the implicated medical professionals.
One of the recommendations the report makes is to include petitions to the South African Law Reform Commission for an amendment to legislation to ensure consent is properly obtained in this practice. The commission also recommended that those who agreed to sterilisation must be given a “cooling off” period to fully understand the procedure.
The NDOH is recommended to investigate consent forms to ensure they provide for the principle of informed permission in all respects. The health department has been given three months to confirm receipt of this report, and is required to put concrete steps in place to ensure that the harmful practice of forced sterilisation is eliminated. — Health-e News