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Abstract

In the last several years, courts and tribunals at the international, regional, and national levels have tackled the issue of forced, coerced, and involuntary sterilization, especially as it affects the rights of members of vulnerable or marginalized groups (e.g., women and girls with disabilities, or those living with HIV). International, regional, and national human rights bodies have described forced and coerced sterilization as a violation of human rights and fundamental freedoms, which include the right to the highest attainable standard of mental and physical health, the right to information, the right to found a family, and the right to be free from discrimination. In addition, these human rights bodies have recognized forced and coerced sterilization as a violation of the right to be free from torture and other cruel, inhuman or degrading treatment or punishment. The obligation imposed on States by international and regional human rights instruments to protect the people within their jurisdictions from forced and coerced sterilization extends into the private sphere, which includes practices carried out by healthcare professionals. While the responsibility to protect the rights of women and girls in each African country lies with the government, civil society and its organizations, as well as the judiciary, are important. Civil society organizations, for example, can help individuals whose rights have been violated petition the courts for redress of their grievances. The courts, in turn, can adjudicate cases, clarify the laws relating to coerced and forced sterilization, and provide victims with necessary relief. An examination of case law from various African jurisdictions shows that domestic courts are making significant contributions to the emerging jurisprudence on efforts to eliminate forced, coerced, and involuntary sterilization on the continent. One way to eliminate this violation of the rights of women and girls is to impose a legal duty on doctors to ensure that they obtain the patient’s free, informed, and written consent before subjecting them to the bilateral tubal litigation procedure. So that the consent given is fully voluntary and informed, doctors must ensure that it is undergirded by or rests on three fundamental legs: knowledge, appreciation, and consent. 

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