Namibia: Legal Battle Over Blood Transfusion

All Africa/September 17, 2012

A life hanging in the balance, and which could be saved by a blood transfusion that is being refused on religious grounds, had faith, medical science and the law meeting on a courtroom battlefield in Windhoek on Saturday.

At stake in the medical legal drama which played out before Acting Judge Collins Parker in the High Court is not only the survival of a mother of three children, but also her right to choose the medical treatment which she is receiving, her right to practise her chosen religion, and the opposing rights of her children and family.

The case is unprecedented in Namibian legal history.

At the centre of the case is a member of the Jehovah's Witnesses faith, Efigenia Semente, who is in a grave medical condition in a Windhoek hospital after the birth of her third child on September 8.

Semente, who is a lecturer at the Polytechnic of Namibia, lost about two thirds of her blood when she had to undergo an emergency caesarian section, the court was told. Doctors who are treating her want to save her life by giving her a blood transfusion - but Semente is refusing.

It is one of the principles of the Jehovah's Witnesses faith that blood transfusions are forbidden by the Christian Bible.

Wanting to save her life, Semente's family approached the High Court on Thursday with an urgent application to get her oldest brother, Arsénio Abel Chingufo, appointed as her curator and to give him the legal power to authorise doctors to carry out the blood transfusion.

On Saturday, lawyers representing Semente took a follow-up urgent application to court, to ask Acting Judge Parker to set aside the order which had been granted on Thursday.

Acting Judge Parker reserved his judgement after hearing evidence and arguments in the matter.

According to Semente, she understands the risks involved in her current condition, in the treatment she is receiving, and in her refusal of a blood transfusion, but on the grounds of her religious beliefs, she is adamant that she does not want to receive a blood transfusion.

Chingufo told Acting Judge Parker on Saturday that Semente's family wants to save her life not only in her own interest, but also in the interest of her three children, her nation, and the wider world, which would be losing a useful member of society if she were to die.

"Our concern is when we lose a sister, we shall not have another sister," Chingufo said from the witness stand.

He also told the judge: "I believe at this stage I have the responsibility to do what it takes to save the life of my sister, and also the life of her children."

He added that he believed that she has been put under a lot of pressure by other members of her faith to continue to refuse a blood transfusion.

In a report provided to the court, a psychiatrist who has seen Semente, Dr Reinhardt Sieberhagen, stated that she is able to understand her clinical situation and the risks involved, and is able to make decisions about her treatment and to give instructions to her lawyers.

Doctor Herbert Burmeister, who has been treating Semente, however told the court that he believes that due to her current condition and the lack of oxygen that she is experiencing she is not fully capable of taking rational decisions at this stage.

Another medical doctor, specialist paediatrician Professor Clarissa Pieper, told the court that blood transfusions are one of the most important medical procedures to prevent maternal deaths. People who are experiencing a lack of oxygen can think they are functioning normally and that they are rational, while in fact they are not, she said.

On Semente's behalf, senior counsel Raymond Heathcote argued that an adult patient has an absolute right to choose whether to accept medical treatment, or to refuse it, or to choose between different treatment options.

He said he had respect for her family, and that they are entitled to be concerned - but they do not have the right to interfere when she has made a clear choice not to accept a blood transfusion.

It is also not the court's business to decide what treatment she should be receiving, he argued.

The Constitution protects the freedom to practice any religion, he said. What Semente is now doing, is to manifest her religion, he argued.

Chingufo's legal counsel, Andrew Corbett, said he accepted that she has a right to practice her religion. However, that right should be balanced with the constitutional right of her children to know and be cared for by their parents, and in this situation Semente's rights to practice her religion should give way before her children's rights, he argued.

Corbett also argued that Semente is unable to make her own decision about her treatment at this stage.

The court must act in the best interests of Semente's children, he argued.

Corbett was assisted by Johann du Plessis. Heathcote was assisted by Adolf Denk, until Denk was forced to withdraw from the matter when it emerged that he is also a member of the Jehovah's Witnesses faith and that he had been involved in an altercation with Semente's family about her treatment in the hospital.

To see more documents/articles regarding this group/organization/subject click here.