The Kenyan High Court has ruled that the forced sterilisation of a woman living with HIV is a violation of her human rights, in the first case of its kind. In December 2022, and after eight years of litigation, Hon. Justice Mrima delivered an historic judgment, 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 health and her right to found a family.
The case was filed in Nairobi in 2014, by a Kenyan woman living with HIV. She was supported by SRT grantee KELIN, (The Kenyan Legal and Ethical Issues Network on HIV AIDS), which was one of the petitioners on the case. The plaintiff challenged the action of a health care provider in a private medical facility, who sterilised her without her knowledge or consent. She stated afterwards that, “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.”
The judge awarded the petitioner 3,000,000 Kenyan shillings as damages to be borne by the first and second respondents, Marura Maternity and Nursing Home, and the County Government of Nairobi.
“We welcome the court’s decision and although it took a long time, we are happy that the court found the client’s rights had been violated, and particularly the finding of discrimination on the basis of sex and HIV status,” said Allan Maleche, Executive Director of KELIN.
The Court found that the conduct of the healthcare provider violated the right to the highest attainable standard of health and the right to freedom from discrimination.
The Court also found that healthcare providers have a duty to ensure that patients must be informed of medical procedures that are to be performed on them, including the possible outcomes.
In reaching this finding, Justice Mrima noted that due to their HIV status, some women are pressured into making decisions on reproductive health due to stigma and fear. He concluded that this contributed to the forced sterilisation of the plaintiff.
KELIN advocates for the promotion and protection of health-related human rights. It recognises the fundamental connection between HIV AIDS, and sexual and reproductive health and rights. The organisation advocates for laws and policies that protect and fulfil sexual and reproductive rights at the county, national and regional levels, undertakes strategic litigation, strengthens the capacities of community-based organisations, and provides legal support for medical providers and women affected by penal provisions on abortion.
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