For eight years, four women have battled to be awarded Sh120 million as compensation after they were allegedly sterilised without their consent.
In the case before High Court judge Anthony Mrima, each of the women, codenamed in court papers as SWK, PAK, GWK, and AMM, is demanding Sh30 million as recompense for alleged breach of their rights.
Pumwani Maternity Hospital, Marie Stopes International, Medecins Sans Frontiere-France (MSF), the Ministry of Health, Nairobi County, and the Attorney General, have been named as respondents in the case.
The case is centered on the right to reproductive health and Justice Mrima is expected to make a decision after listening to final submissions by both sides.
Marie Stopes is a sexual and reproductive health services provider while MSF is an international medical humanitarian organisation.
The women told Justice Mrima that they were sterilised without their consent.
They claimed this happened after they tested positive for HIV, a position supported by two non-governmental organisations, Kenya Legal and Ethical Issues Network (Kelin) and Africa Gender and Media Initiative (GEM).
However, Marie Stopes, MSF, Ministry of Health and the AG have denied the claim and urged Justice Mrima to dismiss the case.
The petitioners have also accused the Health ministry of failing to implement National Guidelines on Family Planning of 2010.
Pre-natal care
They argued that they should have been sensitised about the family planning methods before making an independent decision.
The court heard the four underwent Bilateral Tubal Ligation (BTL), a surgical procedure where a woman’s Fallopian tubes are permanently blocked, clipped or removed.
The first petitioner, SWK, is living with HIV and currently engages in small-scale farming, according to court records.
In 2009, SWK testified that she went for prenatal care at MSF’s clinic, Blue House Mathare Clinic (now known as the AIDS Health Care Foundation Clinic) and in May 2010, she was referred to Pumwani to give birth there.
At the time of referral, the 52-year-old woman claimed, a nutritionist at Blue House informed her she was required to show proof of having used family planning methods for her to continue receiving food portions and have her bill paid at Pumwani Hospital.
SWK said she was handed a document to sign on her way to the theatre but she did not understand what was on the document.
She told the court that a nurse at Pumwani told her that due to her age, she should not get any more children because of opportunistic infections.
The court heard that owing to her level of education, she did not doubt the nurse but did not give consent to be sterilised.
She testified that she returned to Blue House but was turned back and asked to provide proof she’d undergone BTL. Justice Mrima heard that it was upon SWK returning with a form from Pumwani that she got a cash voucher to collect flour and cooking oil.
Blocked permanently
The court heard that Dr Weston Khisa examined SWK and confirmed her Fallopian tubes had been blocked permanently.
SWK expressed fear her husband would leave her due to her inability to conceive.
Court records show that PAK, who is 47 years old, also attended Blue House clinic for anti-retroviral (ARV) therapy and treatment from 2002.
PAK told the court the bill when she delivered her twins was paid by MSF and was advised not to breastfeed her children but give them infant formula instead
She was also informed she would get food rations for six months.
The woman alleged she was sterilised at Huruma Lions Health Clinic on June 8, 2005.
Her story is similar to SWK’s who told the court she attended the Huruma Lions clinic a month before PAK and her Fallopian tubes were ligated.
PAK argued that a nutritionist at Blue House coerced her into attending a family planning drive at Huruma Lions clinic where family planning services were being offered by Marie Stopes’ doctors.
She was told if she did not go through BTL, she would not continue getting food rations. She claimed she did it out of fear.
GWK said she too was a Blue House patient, the clinic run by MSF, referred her to Pumwani.
She testified that she went to Pumwani on June 13, 2010. She was in labour and was advised to undergo a cesarean section.
On the evening she was to undergo the operation, a nurse told her that as a person living with HIV and who already had three children, she would undergo a BTL. The woman added that she was given a form but she was in a lot of pain at the time and did not, therefore, read it.
GWK said it was while recovering that she realised she was in a lot of pain. She inquired from Pumwani Hospital why the pain and was informed that she had been ligated.
She too was to get infant formula and food rations.
In her testimony, said she attended Pumwani Hospital for her prenatal care in 2004 and 2005. She claimed she was forced to undergo BTL to get food rations and baby formula.
She said the procedure was done at Huruma Clinic and she later went to Marie Stopes for a review.
She argued that Marie Stopes declined to give her information about the procedure.
“Evidence shows that for a long time, women living with HIV were routinely sterilised as part of an unofficial government policy,” the four petitioners argued.
“The respondents have not provided any evidence that the petitioners were, prior to their surgery, counseled in a manner they could understand any of the following: nature and impact of bilateral tubal ligation, on the procedure’s probable permanent effect in rendering them sterile, on the risks of the procedure, and their contraceptive options or alternatives to the procedure.”
The four petitioners argued they were compelled to undergo the procedure when they were vulnerable and each is seeking Sh30 million as compensation.
They also said there should be public awareness campaigns to educate patients and citizens on their rights to informed consent and privacy.
Marie Stopes concentrated on GWK and AMM and urged the court to dismiss their claims saying there was no conclusion whether theirs was Fallopian blockage or ligation.
Family planning methods
It said the two raised a complaint nine years after the alleged procedure and if it was done, then, it must have been with their consent.
“The petitioner’s assertion that until 2014, when Dr Khisa examined them in preparation for this case, they did not know what had happened to them almost nine years ago is suspicious and a fallacy at best,” said Marie Stopes.
Marie Stopes also argued that women have a choice to choose which family planning method is suitable for them.
The organisation said the petitioners are adults who could make decisions on their bodies.
“The different methods were explained to all the women who attended in a language they understood both in groups and individuals,” Marie Stopes said, adding that there was no proof they were denied food rations as a way of coercing them to be sterilised.
The NGO also argues that informed consent is an integral part of the rights of a patient.
It also disputed follow-up cards produced in court arguing they did not have details to ascertain its staff issued them.
Marie Stopes said its activities are based on the National Family Planning Guidelines and added that it gives full information on family planning methods at its clinics.
MSF admitted it ran Blue House clinic from September 2008 to November 2012. The clinic offers services to people living with HIV and AIDS and offers food and infant formula.
It however distanced itself from family planning options and maternity. It argued that those who needed family planning options and maternity were referred either to Pumwani or Marie Stopes.
According to MSF, the petitioners could not prove food and infant formula was withheld from them as a way of forcing them to undergo BTL.
MSF argued the women did not complain to them on what they said happened at Blue House.
The organisation also dismissed as untrue a claim by one of the women that a nutritionist forced her to undergo the procedure arguing the complainant was always under a nurse or a doctor.
“There is no evidence to show the first respondent threatened to withhold or withheld food or infant formula from petitioners to coerce them to undergo BTL,” said MSF.
Pumwani and Nairobi County joined Marie Stopes and MSF to oppose the case.
They argued that each of the four petitioners admitted to signing a form for consent.
At the same time, they argued that the women had no other persons, family or friends, who would support their claims.
“There is written evidence that written consent was obtained from each of the petitioners before the procedure was carried out,” Nairobi County, Marie Stopes and MSF replied.
“Counseling sessions were also carried out before the procedure and after the procedure.”
The Health ministry and the AG also sought to have the case dismissed arguing the government was not privy to the claims in court.
The AG, who is also representing Ministry of Health, said it cannot be blamed for private arrangements between a hospital and a patient.
According to the AG, the petitioners intend to introduce new regulations binding healthcare workers and practitioners outside the Health Care Act, 2017.
“The fifth (AG) and the sixth (Health ministry) respondents were not privy to the arrangements that exist between the first to fourth petitioners and the first respondent in carrying out the alleged BTL,” the AG said.
The AG also urged the court to dismiss the Sh30 million claim arguing it is over and above what is set by courts in Kenya.
Prof Alicia Ely Yamin, who was admitted in the case as an amicus curiae, argues that Kenyan women living with HIV face a lifetime of narrowing choices based on the stereotypes applied to them.
“They often contract HIV to begin with because women are not thought to have the right to choose their sexual partners, or to choose whether or not to use methods of sexual risk reduction, such as condoms,” she said.
Yamin said women are unable, as men are, to put aside their responsibilities as caretakers of their children, while at the same time lacking the choice to fully explore economic opportunities to be able to provide for their families.
As a result, the Harvard Law School don said, “when they are offered free supplies to help feed and care for their babies, they lack a meaningful capacity to decline undergoing sterilisation.”
She said involuntary sterilisation is inherently discriminatory against women and that the court can set out an alternative narrative about women’s dignity that promotes their empowerment rather than subjugation.