Justice denied for four women 'sterilised for being HIV positive'

Demand damages after they were allegedly subjected to tubal ligation without consent.

In Summary

• The decision to sterilise must be voluntary and women should not be pressured by their partners, families or healthcare providers to undertake a procedure.

• African Gender and Media Initiative, another petitioner in the case, says 40 women living with HIV were coercively sterilised.

Image: FILE

World Aids Day was marked yesterday. The annual event is meant to raise awareness of the HIV-Aids pandemic.

For four women living with HIV, a search for justice has remained a mirage five years since they were subjected to what they have maintained was forced sterilisation for being HIV positive. Justice delayed is justice denied, so goes the legal maxim.

SWK, PAK, GWK, and AMM filed a case to seek compensation. Their tubes were forcefully removed in what they say amounted to discrimination for being HIV positive.

African Gender and Media Initiative, another petitioner in the case, says 40 women living with HIV were coercively sterilised.

Acting on their behalf, the Kenya Legal and Ethical Issues Network on HIV & Aids (Kelin), a non-governmental organisation that promotes and advocates HIV-related rights in East Africa, has pushed the High Court to address the case.

The case has dragged in court since 2014. On January 18, 2018, the High Court in Nairobi directed the case to continue after it dismissed objections by the parties sued. The case was then mentioned on March 19, 2019, and it is scheduled for hearing in January 2020. 

Given the option of getting free food, paid maternity bills and a family planning method they were not very familiar with, the women chose to sign forms they did not understand quite well. They said no one took time to explain to them that the tubal ligation — a family planning option suggested to them — meant they would bear no more children.

Nutritionist blamed

They filed a petition against Médecins Sans Frontières-France, Pumwani Maternity Hospital, Maries Stopes International, Nairobi health executive and Health Cabinet Secretary. 

They accuse the facilities and government of subjecting them to torture and inhuman and degrading treatment. They say the organisations acted in violation of their constitutional and other rights as they are now sterile after undergoing bilateral tubal ligation without their informed consent.

SWK, in her submission, said Benta Anyango Owuor, a nutritionist at Blue House Clinic in Mathare, informed her that if she did not agree to undergo the tubal ligation during the time of giving birth, she would not qualify to receive food portions for her and her baby.

“She said the clinic runs a programme that provided items like cooking oil, porridge and ugali flour for new mothers,” SWK said.

“She said they would even pay my maternity bill at Pumwani which was approximately Sh8, 000 if I agreed to a family planning method she termed as tubal ligation. I assumed it was like any other method I know.”

SWK tested positive for HIV in 2003 and was advised by a medical professional to take Septrin, a combination of antibiotics,  and started taking ARVs in 2005.  She has continued the medication to date.

In September 2009, she conceived and used to attend a prenatal clinic at Blue House Clinic which was run by Medecins Sans Frontiere- France before she was referred to give birth at Pumwani Maternity Hospital.

In May 2010, she gave birth through Cesarean section at Pumwani. But before she was taken into the theatre, the nurse on duty that day started talking to her about the need to plan her family and advised her that because she already had two children and was expecting another, she was better off undergoing bilateral tubal ligation.

She was given a paper to sign that she would undergo both the cesarean section and tubal ligation. On or about May 23, 2010, several days after she was discharged from Pumwani Hospital, she went to Blue House after she had run out of the formula milk provided to her at Pumwani.

Benta, the nutritionist, attended to her and informed her that she would not qualify to get formula milk for her children and food portions for her unless she had proof that she had undergone the procedure of bilateral tubal ligation and was advised to go back to Pumwani to get proof that she had undergone the procedure.

“Every time I went to collect the formula milk and food portions, Benta would pester me to undergo the bilateral tubal ligation,” the complainant said.

Can’t read

 On one occasion, PAK said she was told that if she did not have proof that she was on family planning, specifically tubal ligation, she would not qualify to receive formula milk and the food portions anymore.

“At that point, I submitted and she referred me to a community health worker who told me to report to Lions Clinic in Huruma, where medical personnel from Marie Stopes held a family planning clinic,” she said.

On June 8, 2005, while at the clinic, she underwent the procedure of bilateral tubal ligation after signing a form. “I cannot remember the content of the form because I cannot read. No one explained to me the content,” she said.

PAK tested positive at a medical camp in Majengo slums, Nairobi in 2001. She did not seek any form of treatment until July 1, 2002, when her husband died of HIV-related complications. She was referred to Blue House, where doctors put her on Septrin. She started taking ARVs in July 2004.

PAK stated that on October 29, 2004, she gave birth to twin boys at Pumwani Hospital and the maternity and medical bill was paid by Blue House Clinic. After delivery, she was under instructions from the medical staff at Pumwani not to breastfeed the children but to feed them on formula milk, which was to be provided weekly at Blue House Clinic together with food portions that included cooking oil, porridge and ugali flour.

She went to collect the formula milk and food portions the next time at the Blue House Mathare clinic and showed the card to the nurse that indicated she had undergone bilateral tubal ligation. She was issued with formula milk for her baby and food portions. PAK said there were no further confrontations from that point onwards.

The third petitioner, GWK, however, claimed not to have given consent for tubal ligation and only discovered it had been performed on her when she was recuperating at Pumwani Hospital. She said she was HIV positive and had been undergoing treatment at Blue House Clinic in Mathare during the time she got pregnant.

In August 2009, she was due for delivery and went to Pumwani where she had been referred to by the clinic. “I was in labour for 48 hours and during that time, a nurse whose name I cannot recall brought me a form to sign. She said it was consent for a Caesarian section and I signed it,” she explained.

Excruciating pain

She was lying in bed in Pumwani when she decided to enquire from a nurse why she was in so much pain.

“She informed me that the doctor had performed a tubal ligation on me, to my surprise. During the clinic at Blue House, I was asked if I was on any family planning method and I said no, but we did not discuss the topic further,” she submitted.

GWK said she did not put much thought into the issue given that she did not understand the implication. Also, Blue House had paid her hospital bill and was providing the formula for her baby and giving her food. But after she was discharged, GWK went back to Blue House to collect the food but was told she had to go back to Pumwani to get proof of tubal ligation.

AMM, the fourth petitioner, said she was told she would put her life at risk if she got pregnant again. It was after much persuasion that she agreed to tubal ligation.

(Edited by F'Orieny)