After eight years of litigation, Hon. Justice Mrima has today (December 16, 2022) delivered a landmark judgment in the first case of its kind, when he declared that the tubal ligation of a woman living with HIV, without her consent violated her rights to dignity, freedom from discrimination, right to the highest attainable standard of health and her right to found a family. He further awarded the petitioner Kshs 3,000,000 as damages to be borne by the 1st and 2ndrespondents, Marura Maternity and Nursing Home and the County Government of Nairobi, on a ratio of 70-30. The court however dismissed the claims against the Cabinet Secretary for Health and the Attorney General finding that the State had already put in place a legal and policy framework to ensure that there were procedures for informed consent prior to receiving medical services.
Petition 606 of 2014, brought by LAW, a woman living with HIV who was supported by KELIN, challenged the action of a health care provider , in a private medical facility, who sterilised her without her knowledge or consent.
While reading the determination this morning, the Court made three main points: the first is that the conduct of the health care provider to the 1st Petitioner raised weighty constitutional issues, particularly on the right to the highest attainable standard of health and the right to freedom from discrimination.
The Court went on to consider the question of how women living with HIV exercise their informed choices when accessing reproductive health care and found that a healthcare provider has a duty to ensure that patients who present themselves for treatment at health facilities must be informed of medical procedures that are to be conducted on them, including the possible outcomes.
In reaching this finding, the court highlighted the various factors that may make women vulnerable in decision making processes at health facilities, Justice Mrima noted that due to their HIV status, WLHIV are often compelled to make the wrong decisions on reproductive health due to stigma and fear. This was the kind of stigma and fear that led to the forced sterilisation suffered by the 1st Petitioner.
By this decision, the Court brings to an end years long litigation for LAW, and marks a step towards justice for a woman living with HIV robbed of a choice to make a crucial decision on her reproductive health at the tender age of twenty years as she sought antenatal care.. In LAW’s words, “this win is not just for me but for each woman living with HIV who has been subjected to forced sterilization. I am happy that the violations against us have been acknowledged and hope my story will be a tool for the protection of the right to health for other women living with HIV.”
As at time of publishing this release, the full court judgment is yet to be released.
For more information:
Allan Maleche and Nyokabi Njogu
Advocates for the Petitioners
Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)
Karen C, Kuwinda Lane, Off Langata Road
Po Box 112 – 00202 KNH
0790111578
NAIROBI
Email: amaleche@kelinkenya.org; litigation@kelinkenya.org
NAIROBI
Link the court documents
Petitioners’ submissions and supplementary submissions
1st Interested Party’s submissions
