Example 4: Using Litigation to Protect HIV-positive Women from Coerced Sterilization
Project Type: Litigation — L M and Others v. The Government of the Republic of Namibia (July 30, 2012).
South African Litigation Centre (SALC)
Johannesburg, South Africa
Southern Africa Litigation Centre (SALC) provides technical assistance and financial backing to public and private lawyers, civil society organizations and community-based organizations pursuing the public interest through impactful litigation. Strategic litigation, like that undertaken by SALC, can help level the playing field. Through litigation, the SALC challenges existing laws and regulations and pursues progressive legal reform through judicial decision-making. In addition to securing justice for their clients and others similarly situated, the SALC’s efforts draw public attention to the issues faced by those they represent.
Discrimination against people living with HIV stymies efforts to reduce morbidity and increase access to HIV prevention and treatment. Many people living with HIV often face economic hardship, violence and social stigma, contributing to an increased risk of human rights abuses. Legal remedies for discrimination against people living with HIV are often difficult to obtain. In Namibia, people living with HIV do not have full access to justice, due in part to a lack of access to legal services, a legal system with pervasive corruption and lack of knowledge of individual rights.
“I have been taught to be quiet. It would be helpful if someone could come and speak on my behalf.” – Esther K. of Chilumba, Malawi (Chi Mgbako et al, We Will Still Live, 31 Fordham International Law Journal 528, 583 (Jan. 2008)).
Coerced sterilization is a common practice in countries with high rates of HIV infection. Coerced sterilization is defined as any procedure performed on a man or women without their informed consent that eliminates their ability to have children. Doctors at government hospitals in Namibia continue to sterilize HIV-positive women without their informed consent. A 2009 study by the International Community of Women Living with HIV/AIDS found that, of those surveyed, nearly one out every five women living with HIV in Namibia has been subjected to coerced sterilization. Coerced sterilization violates a women’s bodily integrity and reproductive rights. Moreover, for women in Namibia, sterilization can lead to additional exclusion, social stigma and restricted marriage prospects.
With the help of the SALC, three HIV-positive Namibian women who were victims of coerced sterilization at a government hospital brought a common law and constitutional tort action against the government for money damages and injunctive relief.
Results and Lessons Learned
On July 30, 2012, the Namibian High Court ruled that the three women had been sterilized without their consent and therefore coerced into sterilization. Although the court did not rule on the constitutional claim or whether the women were selected for sterilization based on their HIV-positive status, the court did determine that the government owed the plaintiffs money damages. As noted by Nicole Fritz, director of SALC, “The court’s detailed ruling as to what constitutes informed consent upholds the rights of the plaintiffs, recognises their entitlement to redress and lessens the vulnerability to which women especially are likely to be subject [to coerced sterilization].” Priti Patel, the deputy director of SALC, noted that this case means that authorities in Namibia “must [now] meaningfully investigate all the other cases to ensure justice for every woman who has been coercively sterilised.”
- The Guardian (U.K.): Namibia court rules HIV-positive women sterilised without consent. www.guardian.co.uk/global-development/2012/jul/30/namibia-hiv-women-sterilised-without-consent
- Mindy Roseman: The Day After Victory: More Work Needed to Protect Rights of Namibian Women Living with HIV. http://harvardhumanrights.wordpress.com/2012/07/ 1/the-day-after-victory-more-work-needed-to-protectrights-of-namibian-women-living-with-hiv/
- The International Community of Women Living with HIV/AIDS (ICW), The Forced and Coerced Sterilization of HIV Positive Women in Namibia (2009). www.icw.org/files/The%20forced%20and%20coerced%20sterilization%20of%20HIV%20positive%20women%20in%20Namibia%2009.pdf