Abstract
Government of the Republic of Namibia v LM [2014] NASC 19 (hereafter the LM case) concerns the involuntary sterilisation of women during childbirth. The Supreme Court of Namibia found that obtaining consent during the height of labour is inappropriate because labouring women lack the capacity to consent because of the intensity of their labour pains. This article recognises that the LM case may make its way into current litigation strategies against involuntary sterilisations in South Africa and for this reason I evaluate the soundness of the court's reasoning in the LM case. I argue that the court relied on the harmful gender stereotype that labouring women lack the capacity to make decisions, I expose this stereotype as baseless and demonstrate the harmful consequences of its perpetuation. Finally, I demonstrate why the reasoning in the LM case is particularly problematic in the South African context, and I conclude that the adoption of this sort of reasoning will result in many women facing serious injustices, because it strikes at the core of a woman's agency during childbirth.
 
Highlights
Government of the Republic of Namibia v LM1 concerns a claim for damages arising out of the involuntary sterilisations performed on three women during childbirth
I demonstrate why the reasoning in the LM case is problematic in the South African context, and I conclude that the adoption of this sort of reasoning will result in many women facing serious injustices, because it strikes at the core of a woman's agency during childbirth
Badul and Strode understand this case to be a victory for patients' rights and view it as adding to existing patient protections.[5]. They assert that the LM case adds to the current body of law relevant to informed consent because it requires the information provided to the patient to be recorded and because it recognises that obtaining consent during labour does not promote patient autonomy, since decisions tend to be rushed in those circumstances.[6]
Summary
Government of the Republic of Namibia v LM1 (hereafter the LM case) concerns a claim for damages arising out of the involuntary sterilisations performed on three women during childbirth. The doctrine of informed consent[9] is unquestionably applicable to all areas of medical treatment, but how the doctrine applies to the specificities of different areas of medical treatment is still being determined, and childbirth is one of those untouched areas From this perspective, the LM case could be described as ground-breaking because Namibia's highest court has confirmed that women have the final say regarding their non-emergency treatment during childbirth, irrespective of what healthcare providers determine to be in their best interests.[10] I argue that worrying facets of the court's reasoning have been overlooked and this oversight may lie in the fact that the sterilisations were found to be unlawful and the affected women could proceed with their damages claim. Carstens and Pearmain Foundational Principles 879 explain that "capacity ... refers to competence which refers to the functional ability to meet the demands of specific decision-making situations"
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