The judge noted that “in such circumstances, there is no doubt that the petitioners were vulnerable and at the mercy of Pumwani Maternity and Médecins Sans Frontières – France for the drugs and the food supplies. They must have found it extremely difficult to resist the offer and, without any option, to concede to the demand for the medical procedures”. “It is also not lost on this Court that the healthcare providers took advantage of the petitioners’ economic vulnerability and low level of understanding occasioned by their illiteracy to subject them to the BTL operations. It cannot, therefore, be alleged that the consents were freely obtained”
Pumwani Maternity, Marie Stopes International, Médecins Sans Frontières – France, and the County Executive Committee Member in Charge of Health Services, Nairobi County, have jointly been fined Ksh.12 million for secretly sterilizing four HIV-positive mothers.
Each of the four petitioners was awarded Khs.3m by High Court Judge A.C. Mrima through a ruling on September 21, 2023, after it was proven beyond any reason that they had undergone the processes leading to the BTL at the above facilities. Bilateral Tubal Ligation (BTL) is a surgical procedure that cuts, ties, burns, clips, or removes parts of a woman’s fallopian tubes, thus preventing future incidences of pregnancy.
The first petitioner claimed that sometime in 2003, she tested positive for HIV. In the year 2009, she conceived. During her pregnancy, she attended prenatal care at Blue House Mathare Clinic, a health facility run by Médecins Sans Frontiers. For purposes of giving birth, Blue House Mathare Clinic referred her to Pumwani Maternity Hospital. Before her referral, however, a nutritionist at Blue House Maternity Clinic by the name of Benta Anyango Owuor informed her that if she did not agree to undergo tubal ligation at the time of giving birth, she would not qualify to receive food portions (cooking oil, porridge, and ugali flour) and for payment of her maternity bill at Pumwani. Pumwani nurses conducted BTL on her.
The second petitioner claimed that she discovered she was HIV positive in 2001. On October 29, 2004, she gave birth to twin boys at Pumwani. The costs she incurred were paid by Blue House Mathare Clinic.
She claimed that after birth, she was under instructions from Pumwani and the doctor at Blue House Mathare Clinic not to breastfeed her children but to only use formula milk, which was to be provided weekly at Blue House Mathare Clinic. She was also to be provided with food portions. The second petitioner claimed that every time she went to collect her food portions and formula milk, the nutritionist, Benta Anyango Owuor, asked her to undergo bilateral tubal ligation. On one occasion, the nutritionist told the second petitioner that if she did not have proof of family planning, especially that of tubal ligation, she would not qualify to receive the food portions and formula milk anymore.
The nutritionist referred her to a community health worker who subsequently told her to report to Lions Clinic in Huruma, where personnel from Marie Stopes, together with a group of women, upon signing a form whose contents she could not remember, as she could not read and were not explained to her, underwent Bilateral Tubal Ligation.
The third petitioner was conceived in 2009. She attended antenatal care at Blue House Mathare Clinic, and as she approached her due date, she was informed that she would give birth at Pumwani Maternity Hospital. To that end, I was given a referral letter to present to the hospital. The evening before going into the theatre, the 3rd petitioner, upon answering in the negative the question whether she was in any form of contraception, a nurse gave her a form to sign. She was told that she was giving consent to the doctor performing a caesarean section.
It is her case that while recuperating at Pumwani Maternity Hospital, she was brought formula milk by a nurse from Blue House Mathare Hospital and was advised not to breastfeed her child. She was asked to collect her weekly formula and food portions from the first respondent. It was while recuperating that the third petitioner was informed by a nurse that tubal ligation had been performed on her and was the reason she was in a lot of pain.
She stated that she had not consented to such a procedure and was not allowed to choose the kind of family planning she wanted to use. The 4th petitioner contended that in 2004 while attending antenatal care at Mathare North, she tested positive for HIV. Her confirmatory test at Pumwani Maternity Hospital indicated that she was indeed HIV positive.
She continued to attend antenatal care at the 2nd respondent, and on March 8, 2005, she delivered normally at the facility. She was advised not to breastfeed to minimize the risk of infecting the baby, and to that end, she was advised to collect baby formula milk weekly from the facility.
The 4th petitioner was, however, continuously cautioned that if she did not agree to undergo tubal ligation, she would cease to qualify to receive baby formula milk. It is the 4th petitioner’s case that she eventually gave in on May 4, 2005, when she attended a medical clinic at Lions Clinic in Huruma, where professionals from Marie Stopes while conducting a family planning drive, underwent tubal ligation.
The judge noted that “in such circumstances, there is no doubt that the petitioners were vulnerable and at the mercy of Pumwani Maternity and Médecins Sans Frontières – France for the drugs and the food supplies. They must have found it extremely difficult to resist the offer and, without any option, to concede to the demand for the medical procedures”.
It is evidenced that the petitioner was casually asked to sign forms before performing the BTL procedures. Some of the inquiries were made just before the operations began. No consent forms were produced in evidence by Pumwani Maternity and Médecins Sans Frontières – France which are the facilities that conducted the BTL procedures.
The judge further noted that “it is also not lost on this Court that the healthcare providers took advantage of the petitioners’ economic vulnerability and low level of understanding occasioned by their illiteracy to subject them to the BTL operations. It cannot, therefore, be alleged that the consents were freely obtained”.
The ruling reads in part “A Declaration hereby issues that it is the right of women living with HIV to have equal access to reproductive health rights, including the right to freely and voluntarily determine if, when, and how often to bear children”.
On awards, the judge ruled, “Each of the 1st to 4th petitioners is hereby awarded compensation in the sum of Ksh. 3,000,000/- (Kenya Shillings Three Million Only). Payment thereof shall be based on 20% against the 1st Respondent (Médecins Sans Frontières – France), the 2nd and 4th Respondents (Pumwani and Nairobi City County Executive Committee member for health) be jointly and severally held liable at 50%, and the 3rd Respondent (Marie Stopes International) be held liable at 30%.
