The Gauteng health department has made an out-of-court settlement agreement to pay almost half-a-million rand to an HIV-positive woman for damages for the pain and suffering she endured as a result of being coercively sterilised in a state hospital. The department confirmed on Friday that the settlement was made last month.
Activists say the outcome of the nearly two year-long legal battle is a "landmark" and sets a precedent for other women who were reportedly strong-armed into the permanent contraceptive procedures because they were HIV-positive.
The 32-year-old woman alleged she was forced to sign a form consenting to the sterilisation when she was admitted to a Johannesburg hospital for the birth of her child in 2009.
According to Sethembiso Mthembu from Her Rights Initiative, a Durban based nongovernmental organisation, the forced sterilisation of HIV-positive women "is reported in all South African provinces".
Mthembu's organisation, along with the University of KwaZulu-Natal's Health Economics and HIV Research Division, released a study in 2012 recording first person accounts of 22 HIV-positive women in Gauteng and KwaZulu-Natal who were forcefully sterilised.
This is just one of the stories. "The nurse gave her the forms without discussion or explaining the procedure and its implications properly. She was pressured into signing because of her HIV status," says Mthembu.
"Obviously being asked to sign anything while in labour pain or waiting to have a child is not acceptable as per the Sterilisation Act of 1998, it is not a conducive time to take consent."
Jennifer Williams, from the Women's Legal Centre which represented the woman, says that her organisation "took on the case, among others, to develop due diligence standards for the obtaining of consent so that this and similar sterilisations don't occur".
"We have come across such sterilisations of women who are refugees too," she explains. "Apart from limiting women's reproductive choices, the moral judgments behind these sterilisations de-humanise particular groups of women."
Williams says that because the matter was settled between the department and her client, "the court didn't make a finding on the allegation" that the sterilisation was done because of her HIV status.
Now the government has to cover the cost of the "resources to facilitate either reversal of her sterilisation and also to seek alternative conception procedures, in vitro fertilisation being one on them", says Mthembu.
"The department does not believe in forced or coerced sterilisation. It is the right of every woman to decide on whether to be sterilised or not. We can only advise then allow a woman to make an informed decision," said Gauteng health spokesperson Simon Zwane.
Similar cases have also been reported in a number of African countries, including Namibia, Lesotho, SwaziIand, Mozambique, Kenya and Uganda. In 2012, a Namibian court ruled in favour of three women who were coercively sterilised because they were HIV-positive.
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