Four women living with HIV in Kenya have each been awarded $20,000 (£16,000) in damages for being sterilised without their informed consent. The women fought a nine-year legal battle, and their names have been changed to protect their identities. Penda, who had twins, underwent bilateral tubal ligation (BTL) shortly after having twins at the state-owned Pumwani Maternity Hospital in Nairobi. She was told she was entitled to free food for herself and the babies, but only if she showed proof that she was using family planning.
Neema, who already knew her positive HIV status by the time she was expecting her fourth child, also experienced similar experiences at the Pumwani Maternity Hospital. She was told by a nutritionist that if she did not agree to undergo a BTL after giving birth, she would not qualify to receive portions of cooking oil porridge and maize-meal flour and that her maternity health bill would not be paid.
In Furaha's case, she remembers no discussion about family planning before having her third child at the Pumwani Maternity Hospital. She only recalls consenting to a caesarean section to prevent her from infecting her newborn with HIV and then waking up in unbearable pain. A nurse explained that she had also undergone the sterilisation procedure.
Faraja, another HIV-positive woman, caved into pressure to undergo the BTL two months after delivering her third child. As she was HIV-positive, she had been cautioned against breastfeeding her newborn. But without proof that she was using family planning, in particular a BTL, she was not able to receive free baby formula milk.
Faraja told the Kenyan High Court that she attended a clinic where she underwent the procedure. She was given a form to sign, but because she could not read, she did not understand what she was signing. No one explained to her that she had agreed to be sterilised, and she says she was not offered alternative family planning.
It is because health professionals did not explicitly explain what these women had agreed to that they won their case.
The High Court of Kenya has ruled that the use of BTL without informed consent is a violation of women's fundamental rights, including the right to establish a family. The damages will be paid jointly by Marie Stopes International, the Pumwani Maternity Hospital, and the medical charity Médecins Sans Frontières (MSF), which advised family planning. The judgement is significant for HIV-positive women in Africa who have experienced pressure to undergo sterilisation.
Allan Maleche, executive director of Kelin Kenya, an HIV-rights group that represented them, says the judgement is very significant for HIV-positive women in Africa who have experienced pressure to undergo sterilisation. Marie Stopes has welcomed the resolution after nearly a decade, stating that informed consent has always been integral to everything they do. MSF France maintains that it never performed or is currently performing medical sterilisations in Kenya and that their role is to counsel, inform, and refer patients to selected facilities.
There is no accurate data about how many women living with HIV in Kenya have been sterilised without their informed consent. A 2012 study by the African Gender and Media Initiative - Robbed of Choice - documented the experiences of 40 women who had been coerced into sterilisation. Of these, only five successfully filed a constitutional petition. The women say their case was not just about compensation but has validated their demand for justice.
In 2020, BBC reported that South African woman Bongekile Msibi was sterilised without her consent after giving birth at the age of 17 and only learned about it 11 years later when she tried to have another child. The Commission for Gender Equality found that 48 women were sterilised without consent at state hospitals. The commission's inquiry was hampered by the disappearance of patients' files and a hostile reception from hospital staff.
The commission visited 15 hospitals after civil rights groups brought cases, some dating back to 2001, to its attention. South Africa's health department has not yet provided a detailed response to the report, but its minister, Zweli Mkhize, has requested a meeting with the commission to discuss it.
Msibi recalled her ordeal, which included a large scar across her stomach and a lack of a uterus. She went to the press health ministry and eventually returned to the hospital where she gave birth. The doctor who treated her did not apologise and told her he had sterilised her to save her life.
An inquiry found 47 others who were sterilised without consent, some of whom were told it was because they had HIV. The doctor claimed she had signed a consent form, which she did not, and that her mother had signed the consent form.
The news changed Msibi's life, as she was the only woman who had been sterilised without her consent.
There could be more women out there who have been sterilised without their concern, requiring more probing into the injustice women go through in healthcare facilities. We are dealing with multiple forms of violations that span beyond gender-based violence, which need to be attended to. Information needs to be out there for more women, especially among African communities where such injustice happens.
