Doctor sterilised me without my consent

Dear Vivian,

I underwent surgery for an ectopic pregnancy a few months ago, during which the doctor informed me of the need to terminate the pregnancy to protect my life. In our conversation, I informed the doctor that I did not want to have children, and that is as far as the conversation went. However, during a subsequent annual check-up with a different doctor, I discovered that I had been sterilised as I underwent surgery for the ectopic pregnancy. I am deeply traumatised and feel violated by the action of that doctor and hospital, as I never authorised such a procedure. Are there legal avenues I can pursue against the doctor and the hospital for this violation of my rights?

Sincerely,
Anonymous

Dear reader,

Throughout the course of her pregnancy, a woman needs good quality healthcare and dignified support to help her through the intense experience of childbearing. While this statement sounds logical and straightforward, evidence shows many instances when women are not only denied access to good quality medical care but also treated inhumanely by the service providers. This form of violation is known as obstetric violence.

Obstetric violence occurs at an intersection between institutional violence and violence against women during pregnancy, childbirth and the post-partum period. It occurs both in public and private medical practice. In Kenya, every individual has the right to make decisions about their own body and reproductive choices. Sterilisation, a permanent and life-altering procedure, should only be conducted with informed and explicit consent from the patient. Your case, where you were sterilised without your consent, is a clear violation of your rights.

One of the key legal principles supporting your case is the right to bodily integrity, protected under Article 28 of the Constitution. This fundamental right ensures every person makes decisions concerning their body, including reproductive choices, free from interference, coercion, or non-consensual procedures.

The Health Act of 2017 also emphasises the importance of informed consent. Section 9 of the Act states that every health service provider must obtain informed consent before conducting any medical procedure. Failure by the doctor and the hospital to obtain your informed consent to sterilisation constitutes a violation of this provision.

Your case aligns with the principles set out in a recent landmark decision on Constitutional Petition 606 of 2014 in which the courts reaffirmed the significance of informed consent to medical procedures. The court held that medical professionals must ensure patients fully understand the nature and potential risks of any procedure, allowing them to make informed decisions about their treatment.

Gathering as much evidence as possible, including medical records, witness statements, and any correspondence with the hospital, will strengthen your case. Having gathered this, I propose you visit organisations that can guide you in pursuing a medical malpractice claim, citing the violation of your constitutional right to bodily integrity, the Health Act and the established case law. An example of such organisations is Kelin, which works on legal and policy advocacy interventions to ensure accountability for health rights.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected])