Gender Commission seeks redress on human rights violations: The case of forced sterilisation in South Africa
Launch of investigative report on forced sterilisation in public health care services
Greetings to everyone.
I would like to welcome you all to this media briefing.
Today we launch an investigative report on the allegations of forced sterilisation at certain health care facilities in South Africa. This report highlights amongst other things, the gross violation of the rights of South African women through coerced or forced sterilisation.
Our interest in the investigation was given impetus by the Constitution of South Africa. In this regard, I make reference to Section 187(1) of the Constitution, which gives the Commission the powers and functions to execute its mandate. The Commission is further given the impetus to implement its mandate through the Commission for Gender Equality Act 39 of 1996. It is through Section 11(1)(a) of the CGE Act, the Commission is given the power to monitor and evaluate practices and policies of, amongst others, public bodies and private institutions. Section 11(1)(e) of the CGE Act makes it possible for the Commission to investigate any gender related issue of its own accord or upon receipt of a complaint.
The investigation on forced sterilisation arose from complaints by Civil Society Organisations against National and Provincial Departments of Health. The organisations are namely; Her Rights Initiative (HRI) and International Community of Women Living with HIV (ICW). HRI is an advocacy organisation, takes an interest on Sexual and Reproductive Health Rights. ICW is an advocacy organisation that seeks to protect the rights of women living with HIV. Both these organisations were represented by the Women's Legal Center and later by Jody Fredericks Attorneys.
Forced sterilisation occurs when a person is sterilized without their knowledge, consent or incomplete information. Similarly, coercive conduct is equally concerning. Forced sterilisation and coerced sterilisation are serious human rights violations as they subject women to inhumane, degrading treatment, indignity and torture. As such; these practices are outlawed and prohibited by international treaties and regional protocols as well as domestic legislation. Based on several research studies, it has come to light that forced or coerced sterilisation happens as a result of misinformation. In other instances, the practice of forced or coerced sterilisation is as a result of the condition of services of health. More often than not, those who fall victim to these deplorable practices are persons with disabilities, those who are living with HIV, indigenous communities, ethnic minorities, transgender and intersexed persons and women who live in poverty.
Nature and background of the complaint
The complaint was lodged on behalf of 48 women whose cases of forced/coerced sterilisation have been documented as well as a matter of public interest. It must be pointed out that the initial evidence presented in support of the complaint was not in the form of sworn affidavits but rather, 48 documented cases. The complaint lodged is grounded on the gross human rights violations that women living with HIV in South Africa were exposed to being subjected to forced and/or coerced sterilisation in public hospitals.
The Complainants took cognisance of the fact that, pursuant to the law of prescription, there was a limited opportunity for legal redress and remedy. A substantial amount of time had lapsed between the time the cases were documented and lodging of the complaint.
The complainants sought the following remedies:
A full investigation on compliance with the law to determine the entire extent of the problem.
Engagement with National Department of health on the national problem
Legal reform to protect victims of forced sterilisation
Redress from Government to the victims, especially women living with HIV.
The investigation took the following three steps in the quest of determining the outcomes:
Request for information from the respondents (National and Provincial Departments of Health)
Interface through meetings with the department of Health
Onsite inspections with the department of health
Onsite visits were conducted in Gauteng and Kwa-Zulu Natal Provinces. A list of the hospital where site visits were conducted are found in Annexure A of the media pack. After several meetings and numerous written correspondence between the Commission representatives of the complainants, sworn affidavits were ultimately furnished to the Commission. The Commission experienced challenges with some of the hospitals due to the ancient nature of the complaints. In the course of the investigation, some files of patients could be found this was important in verifying the information on the patients. I would like to point out that some of these files contained consent forms, even though the Complainants had initially indicated that they had never consented to the sterilisation but were coerced into signing the consent forms and these acts of sterilisation. To further verify these allegations, the Complainants were then requested to swear affidavits and present them to the Commission outlining the series of events to weigh against the disaggregated data. A total of 14 (fourteen) affidavits were availed, and this was through the assistance of a representative from Jody Fredericks Attorneys who has been a part of the investigation. The Commission received these affidavits in July 2018. Having assessed the complaints received from the complainants, it became apparent that the actual complaints have a bearing on several international treaties, regional protocols as well as the domestic laws of South Africa.
Analysis of the information
A thorough analysis of the affidavits by the Legal team has revealed that most complainants have been suffering from depression from the time they learnt that they would never be able to conceive due to the coerced/ forced sterilisation they had been subjected to. Most of these complainants are women from the KwaZulu-Natal region and a number of them stated that their partners have since left them due to their inability, and failure to conceive more children.
First case study
Ms. A for example alleges that she went to Nkandla hospital for antenatal care in September 2011. She was then informed that she would be giving birth via caesarean section and an appointment was set for 18th September 2011. The patient was not aware that she was being sterilised until the Doctor informed her. Upon inquiry about the matter, the nurses told her that she is being sterilised because she had too many children. The patient protested against sterilisation, but she was deceived by the nurses into believing that if she does not get sterilised, she might die. It was in this case that the patient was coerced into filling the sterilisation consent forms because she was told by the hospital staff that they would not assist her in giving birth until the forms were duly completed. She signed the forms under duress.
Second case study
Ms. X was 8 months pregnant, felt sick and weak whilst pregnant and allegedly went to Magwaza hospital where a doctor examined her and was diagnosed with Tuberculosis(TB). The doctor allegedly informed her that the TB would infect the child thus could only give birth via caesarean section. On the 25th of September 2002, she was admitted to hospital and the doctor spoke and the nurse translated into Zulu. He informed her that she would be sterilised, because if she were to have children again she would die. The doctor also told her that women with HIV should not have children and allegedly informed her about the forms she needed to sign. The doctor did not explain what sterilisation is. She alleges that she was then injected and felt dizzy and does not remember whether she signed the sterilisation forms or not. She gave birth and was allegedly sterilised. A few years later, she tried to conceive without success. She has been suffering from depression since then.
Opinion of the CGE
Forced sterilisation due to HIV status is a fundamental human rights violation. Complainants alleged that they were told to sterilise because HIV positive women could not be allowed to have children. Denying women the right to have children because of their HIV status amounts to discrimination. Section 12(2) of the Constitution guarantees everyone the right to make decisions pertaining to their bodily and psychological integrity, which includes the right to make decisions concerning reproduction. Kindly refer to Annexure B for reference on international, regional and domestic legislation which prohibit forced sterilisation.
South African law makes it clear that, sterilisation should not happen without informed consent or through coercion. Contrary actions in this regard are highly prohibited by local and international law. Many of the complainants had been forced by the health care professionals to sign the consent forms for sterilisation. Others alleged that they were humiliated by the health care providers, which then exerted pressure on them to sign the forms. For example, one of the Complainants in her affidavits narrated the following:
'When I asked the nurse what the forms were for, the nurse responded by saying: You HIV people don't ask questions when you make babies. Why are you asking questions now, you must be closed up because you HIV people like making babies and it just annoys us. Just sign the forms, so you can go to theatre' she said.
Part of the requirement for sterilisation is the provision of alternative care and treatments that need to be explained prior to the procedure. We have established that this is often overlooked. In some instances, complainants were given the forms while they were in extreme labour pain and were told that they would not receive medical assistance until they had signed the forms.
The complainants had their right to equality and freedom from discrimination violated;
The Complainants' right to dignity, bodily integrity and freedom and security over their bodies, were violated;
The right to the highest attainable standards of health including sexual and reproductive rights were violated;
The Complainants were not provided with adequate knowledge on the sterilisation procedure before being asked to consent thus violating their right to information;
The Complainants were not advised on other alternative methods of contraception;
The complainants were subjected to cruel, torturous or inhuman and degrading treatment;
The medical staff breached their duty of care to the patients.
While some files had consent forms, this cannot be equated to informed consent. The consent forms do not reflect the nature of the discussions that took place prior to such consent being given, and they are also not indicative of the language that was used to explain the medical procedure. This begs the question of whether the Complainants even understood the medical procedure at all and its long-term implications;
There is a lack of a uniform file management systems within the DOH and including electronic file management and backup;
The Complainants could not reasonably be said to have consented to the procedure given the current structure of the consent forms and the alleged unethical process/es used to obtain consent. They were therefore forced and/or coerced into being sterilised.
The Commission will refer this report and its findings to the Health Professions Council of South Africa and the complaints contained herein. The HPCSA is a statutory health body that guides and regulates health professions on all aspects pertaining to professional conduct and ethical behaviour. Thus, they ought to engage with this report on this matter as they have the necessary capacity to investigate the professional conduct and behaviour of the implicated health care practitioners;
The Commission will refer this report and its findings to the South African Nursing Council (SANC) and the complaints contained herein. The SANC is the body entrusted to guide and regulate nurses on all aspects pertaining to professional conduct and ethical behaviour. Thus, they ought to engage with this report on this matter as they have the necessary capacity to investigate the professional conduct and behaviour of the implicated health care practitioners;
The NDOH, upon receipt of this report must interrogate and scrutinise the provisions of the Sterilisation Act and interrogate consent forms for sterilisations to ascertain whether the provisions contained therein provide for and protect the principle of informed consent in all respects. The NDOH must report to the CGE within 3 (three months) of receipt of this report as to what concrete steps the Department will take in order to ensure that the eradication of the harmful practice of forced sterilisation;
The NDOH, upon receipt of this report should facilitate dialogue a between themselves and the complainants in order to find ways of providing redress to the complainants
The Commission will present this report as part of its petition to the Law Reform Commission for amendments to legislation that ensure consent is properly obtained - such as counselling prior to consent, the timing of obtaining consent and compulsory information that must be provided.
The NDOH must revise consent forms to bring them into conformity with the guidelines provided by International Federation of Gynaecology and Obstetrics and standardised for all sterilisation procedures. The NDOH should also print consent forms in all official languages, and the explanation around the procedure, particularly its irreversible nature should be given in the patient's language of choice. This must be executed and attested to;
The NDOH must make it an operational policy requirement that where a patient agrees to sterilisation, they must be given a cooling off period in order to fully appreciate the risks and consequences of their sterilisation procedure.
Standard timeframes should be put in place in relation to when the discussion around sterilisation should take place. Patients cannot be informed about this process minutes before going to theatre. Patients must also be informed that they are at liberty to change their minds at any time before the procedure takes place;
The DOH must ensure that their filing systems, both manual and electronic are standardised for ease of coordination. Feedback to be provided within 3 months from date of this report.
In conclusion, I need to state the fact that the Commission is seriously concerned about the outcomes of the investigation and their implication on South African society. At this point it is not yet clear how wide spread this problem is in South Africa but we are hoping that the recommendations of our investigation will open the lid to matters that are not yet known in full. It is for this reason the all the recommendations made in this report ought to be carried out in adequately. Failure to do so may imply further violation of the rights of women who suffer as a result of forced sterilisation. In essence, we all have a responsibility to ensure redress for those who fell victim to forced sterilisation. During the investigation, it was established that most women suffered psychologically, physically and emotionally as a result of forced sterilisation. We owe it to the women who have suffered to ensure that the required remedies are followed accordingly.
I would like to thank all the women who came forth to lay their grievances. I would like to applaud their bravery in the process of seeking justice. I would like to thank the civil society organisations that took on the cases of these women who have suffered dearly. Lastly, I would like to thank the Gender Commission's Legal Team for the hard work they have put into the investigation.
I thank you!
Source: Government of South Africa