Human Rights Hiv

HIV &AIDS
Legal & Ethical

Implications
Presented
M.Sudharsan
HIV
• Human Immunodeficiency Virus/ Acquired Immune Deficiency
Syndrome is a serious disease discovered in 1981.
• As of date, no definite cure has been found.
• However, efforts are on to invent a cure for this disease.
• According to UN the diseases affect more than 60 million people. In
this around, and 50% of people affected by the disease have lost
their lives, around 36 million people in the world are living suffering
from HIV/AIDS
• The disease normally contracted through unsafe sexual relations
and other means such as unsafe blood transfusion etc.
• Taking into consideration of the magnitude of the disease and its
effect on the human rights of these people, a number of human
rights organisations started their work in this area since 1981.
Route of HIV Transmission
Sexual contact
• HIV is spread most commonly by sexual contact with an infected partner. The
virus enters the body through the lining of the vagina, vulva, penis, rectum, or
mouth during sexual activity.
Blood contamination
• HIV may also be spread through contact with infected blood. However, due to the
screening of blood for evidence of HIV infection, the risk of acquiring HIV from
blood transfusions is extremely low.
Needles
• HIV is frequently spread by sharing needles, syringes, or drug use equipment with
someone who is infected with the virus. Transmission from patient to healthcare
worker, or vice-versa through accidental sticks with contaminated needles or
other medical instruments, is rare.
Mother-infant
• HIV also can be spread to babies born to, or breastfed by, mothers
infected with the virus.
International Efforts
• UN in 1996 adopted the UNAIDS
• In 2011, through another resolution, it reaffirmed its commitment to
address the issue and requested themember states to increase their
efforts in controlling the diseases in conflict and post conflict
situations.
• The UN AIDS in order todischarge its duties and to achieve the
millennium goal to eradicate the disease has adopted a plan of Action
in 2010
• Accordingly, in order to promote their rights and to create awareness
among various sections of people across the world, it has declared
December 1, 1988 as World AIDS Day
UNAIDS
• The Economic and Social Council considering the work of various
organisations to provide a unitary mechanism for better coordination
between them, through a resolution in 1994 recommended to the
General Assembly to establish a specialized agency to chalk out
strategies to tackle the menace of AIDS in an effective manner. Based
on this recommendation, the UN in 1996 adopted the UNAIDS, a Joint
Programme to coordinate the activities of variousin this area. Since
then UN AIDS adopted a Number of Strategic plans to tackle the
dreaded disease. organs working
UNAIDS GOALS
• To reduce sexual transmission of HIV by half, including among young people, men who have sex with men and
transmission in the context of sex work.
• To eliminate vertical transmission of HIV, and AIDS-related maternal mortality reduced by half.
• To prevent all new HIVinfections among people who use drugs.
• Universal access to antiretroviral therapy for people living with.
• To reduce TB deaths among people living with HIVby half.
• To oversee that people living with HIV and households affected by HIV are
• addressed in all national social protection strategies and to have access to essential
• care and support.
• Countries with punitive laws and practices around HIV transmission, sex work,
• drug use or homosexuality that block effective responses to be reduced by half.
• HIV-related restrictions on entry, stay and residence to be eliminated in half of
• the countries that have such restrictions.
• To see to it that HIV-specific needs of women and girls are addressed in at least
• half of all national HIVresponses.
• Zero tolerance for gender-based violence
Human Rights Violations Faced by
HIV/AIDS People
• Denial of Health Care and Treatment
• Denial of and/or Removal from
• Employment
• Lack of Access to Information
• Lack of Access to Legal Remedies
• Lack of Strong Support System
• including family, spouses, friends and
• relatives.
• Discrimination against those children
• whose parents are suffering from the above disease in various matters including
• education
• Denial of number of services in the society etc.
National Scenario
• In India the first case of HIV/AIDS victim was found in 1986.
• According to Family Health Survey III, 2006, of the Government of India, around two to three million
people are affected by the disease . In the national average, people living in the urban areas are
more in number suffering with the disease compared to that of rural population.
• The Government of India even before the increase of the patients suffering from this chronic
disease as a preventive care, in the year 1987 launched the National AIDS Control Programme.
Accordingly the objectives of the programme are:
• Covered Surveillance
• Blood Screening
• Health Education
• However, considering the increase in the rate of infection among the populace of the country, in
1992 National AIDS Control Organisation.
• The aims of the organisation are to oversee the formulation of policies by various states and the
Government of India, Prevention work and control programme in combating the HIV/AIDS.
• Apart from the organisation, the National Institute of Health and Family Welfare has also been
entrusted to evolve suitable policy formulations at regular intervals to tackle the dreaded disease.
Law for Protection of HIV / AIDS Patients
The Universal Declaration of
Human Rights (UDHR), 1948
• The UDHR, a declaration that became the cornerstone of international human

rights law stipulates that “all humans are
• born free and equal in dignity and rights” (Article 1).
• It also puts forward the principles of equality before the law without
discrimination (Article 7) .
• The right to life, liberty and security (Article 3)
• The right to privacy (Article 12)
The International Covenant on
Civil and Political Rights
(ICCPR)
• Non-discrimination: (Article 26)
• Right to privacy: (Article 17)
The International Covenant on
Economic, Social and Cultural
Rights (ICESCR)
• The right to health: (Article 12)
The Committee on Economic, Social and Cultural Rights (CESCR)
The ILO Convention No. 111 on
Discrimination (Employment and
Occupation)
Indian Laws
• The Court also invoked the Indian Penal Code (sections 269–270),
Case Studies
Mr. X v. Hospital Z, (1998) 8 SCC 296, varied 2002 SCCL.COM 701 (Civil Appeal
No. 4641 of 1998), Supreme Court of India (1998 & 2002)A, C & Others v. Union
of India & Others, High Court of Judicature at Bombay [Mumbai], Writ Petition
No. 1322 of 1999
Court and date of decision
• The initial decision of the Supreme Court of India in Mr. X v. Hospital Z was
issued on 21 September 1998.
• On 10 December 2002, the Supreme Court reconsidered certain aspects
of its original judgement that had gone beyond the issues originally before it and
that had denied the right to marry to people living with HIV.
• In the interim, the High Court in Bombay [Mumbai] issued its judgement in the
A, C & Others proceeding in 1999, which sought an inter-pretation of the
Supreme Court’s original 1998 judgement in a manner that clearly respected
and protected human rights.
Parties
The appellant Mr. “X” was a person living with HIV whose
confidentiality had been breached by the respondent hospital “Z”.
Remedy sought
• The appellant sought damages for breach of confidentiality which had
led to his marriage being cancelled and ostracism by his community.
Outcome
• The Supreme Court denied Mr. X’s claim for damages, absolving the hospital and
its physician of any liability for having breached his confidentiality, saying this was
justified in the interests of preventing harm to Mr. X’s fiancée. Unnecessarily, it
went on to rule that
• India’s penal code, which criminalize negligent and malignant acts likely to spread
an infectious disease dangerous to life, imposed a positive legal duty on a person
with HIV not to marry.
• The Supreme Court was asked to reconsider this issue; in its subsequent
judgment, it distanced itself somewhat from these statements
Background and material facts
• The Commission
• dismissed his petition on the grounds that he could seek his remedy in a civil
court. He initiated proceedings in the Civil Appellate Division of the Supreme
Court of India.
Legal arguments and issues addressed
The argument of … the appellant [Mr X], therefore, that the respondents [Hospital
Z and the doctor] were under a duty to maintain confidentiality on account of the
Code of Medical Ethics formulated by the Indian Medical Council cannot be
accepted as the proposed marriage [to Ms Y] carried with it the health risk to an
identifiable person who had to be protected from being infected with the
communicable disease from which the appellant suffered. The right to
confidentiality, if any, vested in the appellant was not enforceable in the present
situation.
The Supreme Court concluded its judgement with the
following:
• “AIDS” is the product of indisciplined [sic] sexual impulse. This impulse, being the
notorious human failing if not disciplined, can afflict and overtake anyone how
high soever [sic] or, for that matter, how low he may be in the social strata. The
patients suffering from the dreadful disease “AIDS” deserve full sympathy. They
are entitled to all respects as human beings. Their society cannot, and should not
be avoided, which otherwise, would have bad psychological impact upon them.
They have to have their avocation.
• Government jobs or service cannot be denied to them… But, “sex” with them or
possibility thereof has to be avoided as otherwise they would infect and
communicate the dreadful disease to others. The Court cannot assist that person
to achieve that object
Commentary
Following the Supreme Court’s decision, advocates initiated further legal proceed-
ings [A, C & Others v. Union of India & Others] to challenge the court’s statement
• that people living with HIV or AIDS do not enjoy the right to marry. Represented by
the Lawyers Collective
• HIV/AIDS Unit, four people (two of them living with HIV) filed a petition in the High
Court of Judicature at Bombay asking the court to declare:
• that a person living with HIV or AIDS has the right to marry and this right is not lost
or suspended on account of the person’s HIV status;
• that a person with HIV who enters into marriage with a willing partner after
disclosing this fact does not commit an offence under Indian Penal Codethe
• overriding duty of physicians is to preserve the confidentiality of information about
their patients, save for very limited, exceptional cases in which the law may require
them to disclose certain information, such as when a third party appears to be in
imminent danger of harm.
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HIV &AIDS

Legal & Ethical

• The UDHR, a declaration that became the cornerstone of international human

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