Chapter 9:

Legal and Ethical Issues in HIV/AIDS

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 Objectives
• Upon completion of this chapter the student
will be able to:
– Explain the features of HIV that raise legal and
ethical issues;

– Discuss the rights and privileges of HIV infected

persons;

– Discuss international guidelines on HIV/AIDS

legal and ethical issues
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 Introduction
• Various ethical and legal controversies have arisen in
relation to HIV/AIDS. These include issues on:
 Debate on testing for HIV should be voluntary or
mandatory;
 Confidentiality of HIV test results with ethical
dilemmas on medical technologist/Patient
relationship, employer/employee situation, partner
notification to mention;
 Discrimination of people living with HIV/AIDS in
terms of employment and the provision of services;

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 Introduction Cont’d
 Gender issues to do with wife inheritance, marital rape,
property rights of women and inheritance;

 Criminalization such as deliberate infection with

HIV;

 Ethics of research.

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 Introduction Cont’d
• Epidemiological data shows that the spread of
HIV/AIDS is disproportionately high among some
populations e.g. women, children, those living in
poverty, minorities, migrants, etc.

• Lack of human rights protection which dis-empowers

these groups to avoid infection and cope with
HIV/AIDS.

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 Introduction Cont’d
• Transgression of human rights such as the use of coercion
or discrimination drives infected individuals underground
where they further spread the virus.

• That is why in 1998 the United Nations came up with the

HIV/AIDS and Human Rights International guidelines.

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 Special features of HIV/AIDS which raise
legal and ethical issues

Feature Consequences

New Epidemic infection Fear, misunderstanding and denial

Long asymptomatic period & life Infected often unaware. No action

long infectivity taken until people become ill

No cure, limited expensive Intensifies fear over testing,

treatment burden on family & health services

Module 7
 Special features of HIV/AIDS which raise
legal and ethical issues (Cont..)

Feature Consequences

Associated with stigma Patients reluctant to come

forward for testing/care

Affects young adults Severe secondary costs due to

loss of productive years of life
and burden on family

Module 7
 Special features of HIV/AIDS which raise
legal and ethical issues (Cont..)
Feature Consequences

HIV is a sexually transmitted Associated with guilt & shame

disease This is a neglected area of
health services
STI which can be vertically Diagnosis in child implies a
transmitted diagnosis in the mother &
often the father

Module 7
 Special features of HIV/AIDS which raise
legal and ethical issues (Cont..)
Feature Consequences

Multi-system disease Multiple medical problems

Multiple drugs needed
Unpredictable
Needs very active palliative
care and diagnosis of
opportunistic infections

Module 7
 Special issues in Vaccine Research
Some of the requirements for ethical research
design present difficulties in HIV vaccine
research because;
•A good animal model does not exists
•HIV is highly variable and undergoes rapid
mutation
•There is currently little information about how
to build protection against HIV.
However ,because of the enormous disease
burdens of HIV, it is ethically appropriate to
begin trials with out fully understanding the
correlated of viral immunity ,provided the other
requirements are met.
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All HIV testing services must follow the 5 Cs
principles recommended by WHO:
informed Consent
Confidentiality
Counseling
Correct test results
Connection (linkage to care, treatment and
other services)

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 Human Rights Principles relevant to HIV/AIDS

• The right to non-discrimination, equal protection and

equality before the law;
• The right to life;

• The right to the highest attainable standard of physical

and mental health;
• The right to freedom of movement, liberty and security
of person;

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 Human Rights Principles relevant to HIV/AIDS

• The right to privacy;

• The right to freedom of opinion and expression & the

right to freely receive and impart information;
• The right to freedom of association;

• The right to work;

• The right to marry and to found a family;

• The right to equal access to education;

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 Human Rights Principles relevant to HIV/AIDS

• The right to an adequate standard of living;

• The right to social security, assistance & welfare;

• The right to share in scientific advancement and its

benefits
• The right to participate in public and cultural life;

• The right to be free from torture and cruel, inhuman or

degrading treatment or punishment.

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 Legal framework for HIV/AIDS Care
• Non-Discrimination and Equality before the Law
 All forms of negative discrimination against persons
infected or affected by HIV/AIDS are unconstitutional
and unallowable.

• Informed consent
 Every human person has the right to determine what should
happen to, or to be done with, his/ her body in accordance
with his/her chosen values and priorities, even in poor physical
health.

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 Legal framework for HIV/AIDS Care
• Testing for HIV
 No person is to be tested for HIV without voluntary
consent
 Voluntary not Mandatory
 Informed consent
 Culturally and contextually appropriate Pre and post
counselling
 Guaranty for confidentiality.

 Testing without informed consent

 For the patient’s health interests, or in emergencies

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Legal framework for HIV/AIDS Care
Indirect Testing, Screening of Blood, Semen and
Body parts Donated.
 Screening blood and body parts for HIV/AIDS without
the consent of the donor may be unlawful and
actionable in law;

 No blood should be transfused or human organ

transplanted without screening for HIV

 Anonymous screening of blood and human organs for

HIV/AIDS
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 Legal framework for HIV/AIDS Care
Anonymous and Unlinked Testing of Populations
and Groups for HIV/AIDS

– May not cease to be unlawful

– For epidemiological purposes to enable

surveillance and control.

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 Legal framework for HIV/AIDS Care
• Pre-Natal Testing and Testing of New-borns
 All pregnant women or girls should be routinely
counselled about the advantages and
disadvantages of HIV testing and offered
voluntary HIV testing.

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 Legal framework for HIV/AIDS Care
• Confidentiality and dilemma
– Dilemma between the need to encourage HIV testing
and the need to prevent transmissions.

– Debate on informing people at risk, also known as

‘partner notification’.

– Afraid to know HIV status, and where they know, not

disclose due to fear of discrimination.
• Counseling HIV positive person to disclose his/her
status to the sex partner
National AIDS Control Guidelines for HIV
 Legal framework for HIV/AIDS Care:
Children
• Persons 15 years old and above can give informed
consent for testing

• Children under 15 years old may only be tested with

consent of their parents or guardians

• “Mature Minors” between 13-15 years of age are

allowed to consent for HIV testing and should be
informed of their results like adults
 Legal framework for HIV/AIDS Care:
Children
• Children 12 years old and above should be informed after
appropriate counseling, with the involvement of their
parents or guardians

• Children under 12 should not be informed of results until

they reach an age when they can understand and
parents/guardians give consent

• Counselors should carefully consider to whom they disclose

results, which the child’s best interests in mind
 Legal framework for HIV/AIDS Care
???
• Health care workers at risk of infection
 Do they need to know the HIV status of their patients
and vice versa?
 Do they need post-exposure ARV prophylaxis?

 How does one deal with issues of consent and

confidentiality of HIV results in these special
circumstances?

 Do Health Workers require protective gear at

workplace? 24
 Legal framework for HIV/AIDS Care

• Health Care Workers need not know the HIV

status of their patients and must at all times
adopt the safety measures provided by the
universal standards.

• Equally there is no legal justification for the

patient to know the HIV status of the Health Care
Provider.

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 Legal framework for HIV/AIDS Care
???
• Victims of rape and those
– How does one get to know the HIV-status of the
“rapist”? especially if he is not apprehended.

– Is there a legal basis for testing the victim?

– Should ARV prophylaxis administered to a victim?

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 Legal framework for HIV/AIDS Care
???
• Deliberately infected by others
– Does ARV prophylaxis given to those who believe
they have been exposed to HIV in consensual sex
either due to:
• Condom breakage
• Failure to employ condom use during sexual
intercourse.
• Those deliberately infected by others

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 Legal framework for HIV/AIDS Care
???
The unborn baby and mother to child transmission
• Is there need for routine administration of ARVs?
• What is the legal position on the testing of pregnant
women?
• Do we need the consent of the partner for the
administration of ARVs on pregnant women?

• How about the partner who is exposed to HIV-

infection if infected – does he need ARV?

• Do we stop ARVs after delivery? 28

 Legal framework for HIV/AIDS Care
• Pregnant Women
– Adequate voluntary pre and post-test counselling
services (VCT);
– Acceptance and uptake of VCT by HIV infected women;
– Providing an enabling environment, preventing
discrimination and abuse of women who test positive;
– Continuing medical and social support for HIV infected
women;
– Affordable ARV drugs.

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 Summary of Chapter 9
Review Questions:
• What rights and privileges do persons infected
with HIV have?

• Why are there special legal and ethical issues for

patients with HIV/AID?

• What are the international guidelines on HIV/AIDS

legal and ethical issues?
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