29:
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For it to be valid, consent must be clear and unequivocal and be given freely and voluntarily and not induced by fear, fraud or force. The Court held that written consent does not automatically equate to informed consent as the women did not understand what they were signing, and so the fact that the women had signed a consent form could not absolve the hospitals from responsibility.
207:. The women argued that any purported consent to the sterilisation had been coerced as they had either not been told the contents of the consent forms they were signing, did not understand the medical staff, or had been told by doctors that their caesarean surgeries would only be performed if they agreed to be sterilised.
256:
The
Namibian government denied that there was a policy to sterilise HIV positive women, and denied that the applicants’ consent to sterilisation had been coerced. The government accepted that coerced sterilisation would be a violation of the constitutional rights invoked by the women, but argued that
265:
On 30 July 2012, Judge Elton Hoff held that the evidence presented by the women demonstrated that they had not given informed consent to the sterilisations. The High Court found that obtaining consent from the women when they were in labour or in extreme pain could not constitute informed consent.
282:
distinguished written consent from informed consent that is given freely and voluntarily. The Court held that all three women had not given their informed consent to be sterilised due to the circumstances in which their consent had been obtained, including that they were all in varying degrees of
277:
The
Namibian government appealed the High Court decision to the Supreme Court. On 3 November 2014, the Supreme Court dismissed the appeal and referred the case back to the High Court for the amount of damages to be calculated. Writing for the Court, Chief Justice
283:
labour at the time. The
Supreme Court ruled, however, that there was no evidence for the women's HIV status to be the underlying reason for the sterilisation, and that no rule or policy existed that discriminated against HIV-positive patients.
246:
as it diminished their marriage prospects and ability to bear children, impacted on their bodily and psychological integrity and caused shock, pain and suffering and emotional anguish.
196:
464:
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to sterilisation due to not being informed of the contents of the consent form, not understanding the medical staff, or coercion by being told their
490:
442:
301:"LM and Others v Government of the Republic of Namibia (I 1603/2008, I 3518/2008, I 3007/2008) [2012] NAHC 211 (30 July 2012)"
511:
563:
468:
420:
223:
558:
395:
443:"Namibia court rules HIV-positive women sterilised without consent | Global development | guardian.co.uk"
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The three women applicants, of whom only the initials LM, MI, and NH were given, had been sterilised at the public
532:
374:
330:
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and believe that they were stigmatised and targeted for sterilisation on the basis of their HIV status.
568:
183:
In 2012, the
Namibian High Court held that the women had been coercively sterilised. On appeal, the
184:
120:
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The Judge held that the women were entitled to damages which would be determined at a later date.
227:
200:
327:"Government of the Republic of Namibia v LM and Others (SA 49/2012) [2014] NASC 19"
235:
165:
8:
96:
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78:
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would not be performed unless they consented to the sterilisation. All the women were
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violates a number of rights. The women argued that the sterilisation infringed their
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of three women in
Namibia in 2005 and 2007. The women argued they had not properly
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231:
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250:
552:
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were violated because the sterilisation was as a result of their HIV status.
211:
177:
28:
239:
230:, sued the government for damages, claiming that sterilisation without
421:"Namibian forced sterilisation ruling lauded - Africa | IOL News"
440:
249:
The women also argued that their rights to equality and freedom from
173:
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to life, liberty, dignity and to found a family, as well as various
148:
A consent form could not absolve the hospitals from responsibility
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Written consent does not automatically equate to informed consent
180:
and believe they were targeted for sterilization based on this.
418:
375:"Namibian women were sterilized without consent, judge rules"
48:
LM, MI and NH v The
Government of the Republic of Namibia
257:
the hospitals had obtained the women's consent correctly.
512:"Namibia court rules on HIV forced sterilisation case"
92:
Government of the
Republic of Namibia v LM and Others
74:
LM and Others v
Government of the Republic of Namibia
22:
LM and Others v
Government of the Republic of Namibia
441:
Alex Duval Smith in
Windhoek, Namibia (2012-07-30).
187:upheld the High Court decision on 3 November 2014.
465:"Coerced Sterilisation Case before Supreme Court"
353:"BBC News - Namibia judge backs sterilised women"
550:
145:Women did not understand what they were signing
530:
393:
372:
491:"Namibia court upholds sterilisation verdict"
396:"Namibia Women Coerced into Being Sterilised"
226:, the Namibia Women's Health Network and the
533:"Govt to cough up for forced sterilisations"
419:Independent Newspapers Online (2012-07-31).
462:
488:
27:
16:Legal case regarding coerced sterilisation
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130:Dismissed and High Court judgement upheld
99: (NASC November 3, 2014
321:
319:
317:
161:LM & Others v Government of Namibia
551:
260:
81: (NAHC July 30, 2012
314:
509:
222:In 2009 the women, assisted by the
13:
14:
580:
224:Southern Africa Litigation Centre
151:The women are entitled to damages
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482:
456:
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412:
387:
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345:
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1:
531:Faith Sankwasa (2014-11-04).
394:Anissa Haddadi (2012-07-30).
373:Nkepile Mabuse (2012-07-30).
286:
217:
190:
564:Reproductive rights case law
400:International Business Times
7:
331:Legal Information Institute
10:
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463:Namib Times (2014-03-18).
164:is a legal case regarding
489:Al Jazeera (2014-11-04).
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559:Supreme Court of Namibia
201:Katutura State Hospitals
185:Supreme Court of Namibia
121:Supreme Court of Namibia
355:. Bbc.co.uk. 2012-07-30
228:Legal Assistance Centre
57:July 30, 2012
273:Supreme Court judgment
203:when giving birth via
236:constitutional rights
166:coerced sterilisation
39:High Court of Namibia
510:SAPA (2014-11-04).
261:High Court judgment
445:. London: Guardian
244:personality rights
210:All the women are
127:Subsequent actions
569:Trials in Namibia
333:. 3 November 2014
205:caesarean section
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251:discrimination
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197:Oshakati State
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44:Full case name
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471:on 2014-12-09
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423:. IOL.co.za
117:Appealed to
553:Categories
538:2014-12-04
517:2014-12-04
496:2014-12-04
475:2014-12-04
449:2012-11-01
427:2012-11-01
405:2014-12-04
380:2014-12-04
359:2012-11-01
337:7 November
329:. Namibia
307:2012-11-01
287:References
240:common law
218:Litigation
191:Background
174:caesareans
103:2014-11-03
85:2012-07-30
61:2012-07-30
170:consented
69:Citations
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