To Priya Singh, I am thankful to you for all your valuable inputs and our brainstorming sessions. To my brother Deon (my personal IT specialist) who has always helped me so patiently and regularly checked my progress, I appreciate your support. Thanks for all the light moments we shared, it sure made the road easier to travel.
To my dear friends who were so thoughtful throughout this process and always remembered to monitor my progress and encourage me, your dedication to me is appreciated, especially Asogan who never doubted my ability to complete my work. To my colleagues Darren Subramanien, who kindly completed submission requests on my behalf, and Dr. To Rosemary Kuhn, who proofread my thesis, I would like to thank you for your invaluable contribution. dr. To C. Pickles, my external reviewer, thank you for your insightful comments and feedback, which helped me tremendously.
ICESCR's International Convention on Economic, Social and Cultural Rights MAPUTO PROTOCOL Protocol to the ACHPR on the Rights of Women in Africa.
Introduction
Background…..…………………………………………………………………………………………….……………1-10
22 M G van Dijk et al 'Health care experiences of HIV-infected women with fertility wishes in Mexico: a qualitative study' 2013 Journal of the Association of Nurses in Aids Care 1-9 at 2. This violation of the human rights of marginalized groups due to the high level of stigma and discrimination faced by many people living with HIV.45 Healthcare. 46 Strode et al ``She chose me'': 22 HIV-positive women's experiences of involuntary sterilization in two South African provinces S) Reproductive Health Matters 1-9.
It is submitted that the practice of coercive or coercive sterilization of HIV-positive women fully complies with the definition of obstetrics. 68 Strode et al ``She made a choice for me'': 22 involuntary experiences of HIV positive women. 10 was returned to the High Court for determination of the amount of damages payable by the Government of the Republic of Namibia to the affected women.77.
Personal communication with U Rajcoomar revealed that the matter has been settled and details of the amount paid as compensation to the three women remain confidential.
The forced or coerced sterilisation of women living with HIV…..……………………………11-13
- The Sterilisation Act 44 of 1998
- The National Health Act 61 of 2003
- Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
- Common law on informed consent…………………………………………………………………15-16
- Guidelines issued by the Department of Health…
- Guidelines issued by the Health Professions Council of South Africa
Women also experienced physical pain101 and financial loss102 as a result of the forced or coerced sterilization. The law should provide legal remedies that will ensure that (a) the practice is stopped, the perpetrators responsible for committing involuntary sterilizations face legal consequences and (c) the victims of the sterilization abuse can access relief . For example, our civil law provides for claims for loss of capacity, pain and suffering and for violations of personality rights which include the right to bodily integrity and dignity.105 There is also a possibility of the use of criminal law.106 Finally, a number administrative bodies that have been granted certain legal powers to provide legal redress such as the South African Human Rights Commission.
126 In terms of the Judiciary Amendment Act, 2017, available at http://www.justice.gov.za/. 16, which sets out the standard of the “reasonable patient” test for informed consent as opposed to the “reasonable physician” test.132. The National Contraception Clinical Guidelines were revised in 2012 against the backdrop of the HIV epidemic.136 The guidelines were drawn up in consultation with the World Health Organization and contain specific provisions for contraception and HIV.137 In addition to discussing the different contraceptive options available HIV-positive women specifically states that male or female sterilization is only appropriate for individuals or couples who have been thoroughly counseled about the procedure and are convinced that they never want to have more children in the future, and who have considered the consequences.
The Health Professions Council of South Africa is the statutory body that regulates all health professions in the country.139 The Health Professions Council of South Africa has General Ethical Guidelines for Reproductive Health.140 The purpose of the guidelines is to guide and direct the practice of health professionals.141 It is important to note that the misconduct by a registered health professional measured against deviation from these.
Remedies for addressing the forced or coerced sterilisation of women living with
Civil law remedies by claiming civil damages
Finally, they may also proceed with a claim for general damages, including damages for pain and suffering, as well as for future medical expenses. Each High Court is an Equality Court for the area under its jurisdiction.148 Certain designated Magistrate's Courts also function as Equality Courts.149 The Equality Courts have the power to order the payment of damages in respect of any proven financial loss, including future loss or loss. in relation to damage to dignity, pain and suffering or emotional and psychological suffering, resulting from unfair discrimination, hate speech or harassment in question.150.
Criminal law remedies
Administrative remedies …
Health Professions Council of South Africa
19 to be made to the Nursing Council of South Africa in relation to the alleged misconduct on the part of the nurse. These complexities can affect women's ability to access justice, they include: O Lenczewska "The fine line between 'medically necessary' and degrading: A case study of V.C."
27 O Lenczewska 'The fine line between the 'medically necessary' and the debilitating: A study of the case of V.C. The Court then turned to examine the impact of the failure to obtain informed consent to the sterilization which was argued to be a violation of Article 8 (right to a private life) of the Convention. The High Court's ruling in relation to the issue of the alleged discrimination remained unchanged on appeal.
LS has asserted that as a result of wrongful and illegal health care conduct.
Pandie v Isaacs
50 However, this discussion did not take place.224 The plaintiff learned that she had been sterilized when the theater nurse lifted a glass and shook the contents, which was a cut part of the fallopian tubes.225. ii) Matters before the Court. The court was faced with one key question, whether the statutory obligations to obtain consent prior to sterilization had been met. The court ruled that consent to sterilization must be in writing according to the Sterilization Act.227 The regulations accompanying the act228 require the completion of two documents.
The court stated that the "interference with another person's body was always prima facie illegal at common law".230 In. Applying the law to the facts, the Court found that written consent was required by the Act, but in this case it was absent.232 The Court noted that in the present case only one form was used, namely the hospital consent form and it only provided permission. for the. In this case, the appellant performed the sterilization in the sincere belief that she had verbally consented to the procedure at the last consultation, therefore he did not have the requisite intention or dolus.236 The Court accepted that this approach to consent was the prevailing wash. practice in the appellant's profession and therefore the appellant's conduct was not negligent.237 In this case, liability for the failure to invest consent should lie at the feet of the hospital staff who were negligent in relation to obtaining her written consent on the manner required by the Act.238 The Court concluded that it is unsatisfactory to hold a doctor liable where he obtained informed oral consent but failed to obtain a written consent in accordance with the Act, particularly as:239 .. i) The appellant did not stand to benefit financially, nor was there any incentive to gain by forcing the respondent to be sterilized;240 .. ii) Considering her age , the number of children and socioeconomic status, it is not unlikely that a woman in this position would refuse to be sterilized;241 . iii).
This led the Court to conclude that the defendant verbally consented to the sterilization, which exempted the appellant from liability in terms of a tort claim under common law.245 The appellant could not be liable in terms of criminal law as the required man.
Slovakia ………………………………………………...……………………………..…………………………….52-53
Roma women were sterilized without their consent or because they were given wrong information about their health status. Health care providers have violated women's rights to sexual reproductive health. Incentives were offered to women to influence their decision to be. sterilized, which negated the aspect of informed consent. the violations affected the physical, personal and emotional spheres of women's lives.
The following key themes emerged from the cases. i) Most of the litigation was driven by non-governmental organizations. The Court focused on the circumstances under which the consent of the plaintiffs was obtained. The Court of Appeal was of the opinion that a medical practitioner should not be liable under these circumstances.
With respect to the allegations that the sterilizations were carried out for discriminatory reasons, none of the plaintiffs prevailed on this part of their claim. An assessment of the evidence presented to the courts will help us understand this quagmire. Notwithstanding the facts accepted by the Court, it is submitted that it was wrong to place weight on the doctors' conduct in finding that they acted without intent to mistreat VC, which outweighed the ultimate harm she had suffered .
In addition, two of the plaintiffs reported being told by hospital staff that there was a policy of sterilizing HIV-infected women. None of the women indicated that they wanted to be sterilized by booking this procedure. Durojaye believes that the Namibian courts have missed an opportunity to determine the human rights implications of involuntary sterilization of women.
It is further submitted that both jurisdictions were incorrect in requiring the parties to prove the existence of a discriminatory policy, as it is a well-established principle that the violation of the right to equality may arise as a result of an individual act or collective practice. The table below shows the time that passes from the initiation of the trial to the end of the cases.
Introduction……………………………………………………………………………………………………………66-67
The judgment made it clear that the risks of the procedure must be disclosed to the consenter. This in turn would result in the shortening of the limbs; visible damage to the skin and the. The damage suffered by the plaintiff must have been caused by the plaintiff's unlawful actions.
The judge was convinced that the discriminatory treatment was based on that of Roma women.
Conclusions
Recommendations
