Kenya: Justice Prevails - Kenyan Women Living With HIV Awarded U.S.$20,000 for Unlawful Sterilisation

(file photo).
5 December 2023

Four women, living with HIV, received compensation of U.S.$20,000 each after undergoing involuntary sterilisation without informed consent. In interviews with the BBC, they shared their harrowing experiences, after a nine-year legal battle.

Penda, whose name has been changed to protect her identity, said she underwent surgery shortly after having twins at the state-owned Pumwani Maternity Hospital in Nairobi.

The process is known as bilateral tubal ligation (BTL). It involves cutting, tying, burning, clipping, or partially removing the fallopian tubes, closing them off to avoid future pregnancies.

The father of her twins left before they were born, and her husband had passed away a few years earlier due to HIV-related complications. She worries about finding another partner, saying, "Who will marry me if they know I can't give birth?"

Penda was aware of her HIV-positive status when she became pregnant and sought medical advice. During that time, pregnant women with HIV were advised to opt for a caesarean section and refrain from breastfeeding to prevent the virus's transmission to their babies.

These choices though were costly, especially for those with limited financial means. While maternity care in Kenya is now mostly free, that wasn't always the case.

Following childbirth, Penda was directed to use formula milk exclusively. She was told she could receive free food for herself and the babies, but only if she provided evidence of using family planning.

"As a single mother, that shocked me. I was already dealing with stigma, and I didn't know what else to do," she said.

To help Penda obtain the necessary proof, the hospital nutritionist referred her to a community health worker, who instructed her to visit a clinic where Marie Stopes, Kenya's largest sexual reproductive health organisation, conducted a family planning programme.

Here, Penda was given a form, which she signed to undergo bilateral tubal ligation (BTL). As she cannot read, she claims she did not realise she had given consent to be sterilised.

In September 2023, the High Court of Kenya ruled that the use of bilateral tubal ligation (BTL) without informed consent violated the women's fundamental rights, including the right to establish a family.

The damages, awarded jointly by Marie Stopes International, Pumwani Maternity Hospital, and Médecins Sans Frontières (MSF), the medical charity providing family planning advice, will be paid to the affected women.

Allan Maleche, the executive director of Kelin Kenya, an HIV-rights group representing them, emphasised the judgment's significance for HIV-positive women in Africa who have faced pressure for sterilisation.

"For a very long time, cases that were filed in South Africa and in Namibia, had the difficulty making the link between the tubal ligation and the HIV status. The significance of this case is that it reaffirmed the fact that it is wrong," Maleche said.

In an email, a Marie Stopes spokesperson in Kenya told the BBC that the case had been a long and difficult ordeal for all those involved.

MSF France maintains that it has never carried out, nor is currently conducting, medical sterilisations in Kenya. It explained that when a patient chooses to undergo bilateral tubal ligation (BTL), its responsibility is limited to counselling, providing information, and referring them to specific facilities.

There is no accurate data  on the number of HIV-positive women in Kenya who have undergone sterilisation without giving informed consent.

However, in a 2012 study titled "Robbed of Choice" conducted by the African Gender and Media Initiative, the experiences of 40 women coerced into sterilisation were documented. Out of these, only five women were able to file a successful constitutional petition.

Maleche said the women chose to file constitutional petitions, rather than criminal cases, because this type of litigation has a bigger impact.

The women said their case was not just about compensation, they say the High Court judgment has validated their demand for justice.

The women won their case because health professionals failed to clearly explain the procedures they were agreeing to. -  Edited by Esther Rose

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