The Commission for Gender Equality on Monday, 24 February released the findings of an investigation that was launched due to complaints lodged with the Commission by two entities against the National and Provincial Departments of Health. The complaint was lodged by Women’s Legal Centre (WLC) in March 2015 on behalf of the complainants, namely Her Rights Initiative (HRI) – a feminist social impact organisation and International Community of Women Living with HIV (ICW) – a regional and global network advocating for and advancing the protection of the rights of women living with HIV.
The complaint lodged is grounded on the gross human rights violations of women living with HIV in South Africa; as they were allegedly subjected to forced and/or coerced sterilisation in public hospitals. The commission investigated 38 cases in KwaZulu-Natal and Gauteng and found many women were forced into sterilisation without their consent. Forced sterilisation occurs when an individual is sterilized without their knowledge, coerced into giving consent, or consent is obtained based on false or incomplete information. According to the United Nations’ (UN) Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment states that forced and/or coerced sterilisation is a gross human rights and medical ethics violation; it is often described as an act of torture and cruelty, inhuman, and degrading treatment. The law in South Africa categorically provides that, for a person to undergo the process of sterilisation, informed consent ought to be obtained. Using force, or any other form of coercion is prohibited, and amounts to a violation of human rights.
Sterilisation, when done without the free and full consent of an individual, amounts to violence against girls, women, transgender people and gender non-conforming people.
Part of the investigation process entailed obtaining sworn affidavits from the complainants, which gave accounts of the alleged attempts. From the affidavits, it is evident that all the women who had lodged complaints were Black women of whom most are HIV positive, at that time of the alleged forced/coerced sterilisations, were pregnant, and in the process of seeking medical assistance at various hospitals in the country. In addition, all women who were allegedly subjected to this process of sterilisation gave birth through caesarean section. The practice of forced sterilisation amounts to a direct attack on important Constitutionally enshrined rights. Additionally, the Sterilisation Act82 clearly states that, ‘a person undergoing sterilisation is supposed to give voluntary consent free from any form of inducement’.
Following the investigation and report by the Commission; the Department of Health, the Health Professions Council of South Africa and the South African Nursing Council will conduct further investigation to inform actions that will be taken. These three aforementioned organisations “will have to disclose how they will deal with the nurses and doctors that were allegedly involved in the reported cases”, said Commission for Gender Equality Chief Executive Officer, Keketso Maema. Since sterilization is an irreversible medical procedure; as a result, most of the complainants have been suffering from depression from the time they learnt that they would never be able to conceive due to the forced sterilisation they had been subjected to. “The range of redress could include holding medical staff accountable to providing affected women with compensation and psychological support”, said WLC Attorney Jody-Lee Fredericks.