Sexual and reproductive health rights threatened through forced sterilisation of women living with HIV/AIDS: Case studies from Namibia and South Africa

Abstract

In spite of a woman’s right to make sexual and reproductive choices as endorsed in various human rights charters and conventions, women living with HIV continue to encounter discriminatory attitudes from health care institutions about their child bearing choices. Cases of coerced sterilization of women who are HIV positive are on the rise in southern Africa. Specific cases have been reported in South Africa and Namibia. This article examines the current state of women’s reproductive and sexual health rights in southern Africa as legitimated in various human rights charters and conventions. It considers case studies of coerced sterilization and perspectives of various women’s rights organizations. It describes women forced sterilization and how it is a significant violation of sexual and reproductive rights which despite being taken up by a range of NGOs is still a significant human rights abuse in the region. It is anticipated that this will help stakeholders advocating women’s rights, including governments, in identifying specific rights violations and respond appropriately. The underlying objective is to build the capacity of stakeholders to hold governments accountable for promises they have made through signing national and international legal agreements that protect people’s rights. The article concludes by a discussion of some suggestions for positive change and resources for women’s reproductive health rights advocacy in the region.

Key words

Sterilization, informed consent, HIV positive, women, reproductive rights

1. Introduction

There have been reports from women’s rights activists that certain public health doctors, mostly from the southern African region are sterilizing women living with HIV against their will. Against this evidence, the paper will review the state of women’s sexual and reproductive rights in the era of HIV/AIDS with particular reference to southern Africa. It will consider the current legislation and the views from bodies lobbying for human including women’s sexual and reproductive rights. The issue of informed consent will be intensely explored as it is the legal clause that forms the basis of an individual’s willingness to participate in an action. Case examples from Namibia and South Africa will form the focus of attention. The article draws on news paper articles, presentations made and literature published after 1994 when reproductive rights were first officially recognized at the International Conference on Population and Development (ICPD) in Cairo. However, it includes some papers and books published prior to this where these are viewed as having made an important contribution to issues and debates around women’s sexual and reproductive health rights. The focus will primarily be on women’s sexual and reproductive health rights as their reproductive health is regularly compromised because their rights are overlooked.

2.HIV/AIDS and its impact on women in Sub-Saharan Africa

To date, the HIV/AIDS epidemic has had its most profound impact in sub-Saharan Africa and women make up the majority of those living with HIV/AIDS in the region (Henry J. Kaiser Family Foundation, 2006). According to the latest (2008) WHO and UNAIDS estimates women in sub-Saharan Africa constitute 60% of people living with HIV. Women are especially vulnerable to HIV/AIDS because they have more vulnerable employment status dependent on labour intensive activities, lower incomes, least access to formal social security and least entitlements to or ownership of assets and savings (Mutangadura, 2001; De Bruyn, 1992). They are physiologically at high risk of being infected by HIV/AIDS and research indicates that the risk of HIV infection is 2 to 4 times higher for women than men during unprotected intercourse because of the larger surface areas exposed to contact (NACP, 1998; De Bruyn, 1992). More than 50 percent of the women in sub Saharan Africa live in rural areas where services are often inaccessible and unaffordable. It has already been recognized that the subordination of women to men creates a highly unfavorable environment for preventing HIV infection especially when major prevention strategies recommended are abstinence, mutual fidelity or use of male condom, none of which are under the control of women.

3. Forced sterilisation of HIV positive women

Against a backdrop of the high HIV prevalence amongst women in the region, NGOs have increasingly reported instances of forced sterilizations of HIV positive women.

3.1 Forced sterilisation: Unpacking the term

Female sterilization is a procedure in which the fallopian tubes which carry the egg from the ovary to the uterus are blocked, thereby preventing the sperm from uniting with and fertilizing an egg (Family Health International, 2009). The procedure effectively ends a woman's fertility and because is usually not reversible, it is important that women make a voluntary and informed choice when considering female sterilization.Sterilization becomes coerced when it entails the use of intimidation, fear, pressure or deception to get consent for the procedure.

3.2 Forced sterilizations: Myth or reality - the Namibian and South African experiences

The first coerced sterilization cases in Namibia were reported in 2007 when 3 of the 30 participants in an International Coalition of Women Living with HIV (ICW) training project with young HIV positive women stated that they had been sterilized without their informed consent (ICW, 2009). Since February 2008 and to date, the Legal Assistance Centre (LAC) in Namibia has documented fifteen individual cases in which women seeking medical care were subjected to sterilization without informed consent at state hospitals in two of the thirteen regions of Namibia. Most of the clients did not even know that they were sterilized until they consulted medical personnel (Gatsi-Mallet, 2008). Litigation proceedings have commenced in all fifteen cases including the prescribed ones.

In all the documented cases, informed consent was not adequately obtained due to one or more of the following factors: consent was obtained under duress, medical personnel failed to provide full and accurate information regarding sterilization procedure, consent was invalid as the women were not informed of the contents of the documents they signed and women were told or given the impression that they had to consent to sterilization in order to obtain another medical procedure such as an abortion or caesarian section (Kalambi, 2008). As noted by Jennifer Gatsi-Mallet, ICW Namibia Coordinator, “these women were in pain, they were told to sign, and they did not know what it was. They thought it was part of their HIV treatment. None of them knew what sterilization was, including those from urban areas because it was never explained to them” (Gatsi-Mallet quoted in The Guardian Newspaper, 22 June 2009). The reported cases in Namibia were from women who could not read, write or speak English, were black and used public health care services, who were poor and from disadvantaged backgrounds or informal settlements,who did not know what sterilization meant or entailed or who did not know what informed consent entailed (Dumba, 2009)

In 2008, the ICW made a submission to the Deputy Minister of Health highlighting that coerced sterilization violated numerous rights guaranteed under the Namibian Constitution bearing in mind that Namibia ratified the Convention on the Elimination of Discrimination Against Women (CEDAW) in 1992 (Gatsi-Mallet, 2008). In addition to this effort, the ICW continues to engage in research and advocacy with partner organizations in order to raise awareness of coerced sterilization in Namibia. Health Minister Dr. Richard Kamwi has categorically denied that HIV-positive women are ‘systematically coerced’ to be sterilized at State hospitals (The Namibian, 3 July 2009). In a ministerial statement in Parliament on 1 July 2009 the Minister stated that his ministry undertook an investigation at various state hospitals including Katima Mulilo and their findings did not indicate any specific trend with regard to bilateral tubal ligation performed on HIV positive women (The Namibian, 3 July 2009). He said the investigation clearly established that all women who had had a caesarean section as well as a sterilisation had signed the relevant consent forms before the operation was done.

The LAC has since responded to the Minister placing on record the assumption that no investigations took place because non of the clients who are on record as being sterilized, were approached by the Ministry as part of the investigations (Dumba, 2009). LAC also expressed its concern that the matter is not being investigated and no remedial action was being taken to avoid the further sterilization of HIV positive women without their informed consent. Be that as it may, six of the cases have been set down for hearing and will be heard in two sets. The first set of cases will be heard during the week of 20 to 23 October 2009 and the second set during the week of 24 to 27 November 2009.

There have also been media reports on coerced sterilization cases in South Africa. According to Kardas-Nelson (Mail &Guardian, 19 June 2009), South Africa’s Women’s Legal Centre has documented 12 cases of South African women living with HIV, who claim to have undergone coerced sterilization. One of the documented cases was that of a 19-year-old patient at Prince Mshiyeni Hospital, outside Durban. In 2007 she was allegedly pulled out of the delivery ward while in labor and told by the doctor "you have to be sterilized" (Mail & Guardian, 19 June 2009).

Promise Mthembu, a women’s rights activist who is helping compile the South African cases said many of the patients had been told that to gain access to medical services they had to undergo the procedure. She told of a 14-year-old Orange Farm resident who "went to get an abortion earlier this year, and they said they would only operate if she was sterilized" (Mail & Guardian, 19 June 2009). In South Africa, cases are being referred to the Women's Legal Centre with a view to possible action. Promise Mthembu told the Mail & Guardian newspaper that coerced sterilizations were happening in "very large areas" of the country and many patients were forced to undergo the operation as the only means of gaining access to medical services. Surprisingly enough, South Africa has legislation stipulating that consent must be obtained prior to any sterilisation and that it must be “given freely and voluntarily without any inducement” (SA Sterilization Bill, 1998)

The case studies show that coerced sterilisation is indeed a gross violation of women's rights, and appears to be driven by the HIV epidemic. Sterilising women without their informed consent violates numerous human rights, including those guaranteed and protected under the concerned countries’ constitution and international treaties. These include, but are not limited to, the right to liberty and security of the person; to health, to find a family, including reproductive health; to family planning; to privacy; to equality; to freedom from discrimination; and most importantly to life.

4. Sexual and reproductive rights for women – the international law framework

Sexual and reproductive health rights are defined as, “the right for all people, regardless of age, gender and other characteristics, to make choices regarding their own sexuality and reproduction, provided that they respect the rights of others” (Griffin, 2004). They are well established in international law as evidenced in the United Nations Charter of Human Rights, the International Convention on Civil and Political Rights, the International Conference on Population and Development (ICPD) held in Cairo in 1994, the Beijing conference in 1995, the 1968 Teheran Human Rights Conference, the African Charter on Human and People’s Rights, the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), the African Women’s Protocol as well as in the International Planned Parenthood Foundation (IPPF) Charter on Sexual and Reproductive Rights.

The Universal Declaration of Human Rights condemned discrimination on the grounds of sex and set out a network of rights relevant to the promotion and protection of health. The Universal Declaration has laid a strong foundation for the development of a body of international human rights law enshrined in legally binding covenants and conventions, within which the right to reproductive health was included (UN, 2009). At the International Conference on Population and Development (ICPD) held in Cairo in 1994, women’s reproductive capacity was transformed from an object of population control to a matter of women’s empowerment to exercise personal autonomy in relation to their sexual and reproductive health within their social, economic and political contexts (Shalev, 1998). The ICPD acknowledges the right of women to personal reproductive autonomy and to collective gender equality as an important aspect of the development of reproductive health and population programmes. The Beijing conference in 1995 went further from the premises of the ICPD by forging international commitments to promoting equality, development and peace for and with all the women of the world. It was endorsed at this conference that equality between women and men is a human rights concern, and that empowering women ensures the development of a sustainable and equitable society (Beijing Declaration, 1995).

The 1968 Teheran Human Rights Conference endorsed two key sexual and reproductive health rights issues. These are the protection of the right to family planning and that individual and couples should be able to make their own child bearing decisions (Proclamation of Teheran, 1968). On the other hand, the African Charter on Human and People’s Rights address human rights from an African perspective and calls on all states parties to eliminate discrimination against women and to ensure the protection of the rights of women as stipulated in international declarations and convention (African Commission on Human & People’s Rights, 2003). Attached to this Charter is the African Women Protocol which emphasise the importance of women’s right to control their fertility; the right to decide whether to have children, the number and spacing of children; the right to choose any method of contraception and the right to have family planning education (Mukasa, 2008; Centre for Reproductive Rights, 2006).

The United Nations Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) often described as the international bill of rights for women was the first instrument to bring together all women’s human rights clauses that were scattered in various instruments into one ambit of a single Human Rights Instrument. State parties commit themselves to ensuring that government organizations comply with the CEDAW regulation by taking legislative and other appropriate measures to eliminate discrimination of women in public institutions or abolish discriminatory laws, customs and practices (Foster, 1998). Linked to this is the International Planned Parenthood Foundation (IPPF) Charter on Sexual and Reproductive Rights that makes reference to the “right to liberty and security of the person, “the right to information and education”, the “right to information and education”, the “right to healthcare and health protection” and most importantly the “right to decide whether or when to have children” (ARASA, 2008).