What price reproductive rights?

Last updated on: 24 April 2012

One of the hard-won battles in recent years has been the recognition that HIV-positive people have a right to have children.

There have already been cases in other parts of the world where the courts have intervened in the rights of an HIV-positive parent.

One of the hard-won battles in recent years has been the recognition that HIV-positive people have a right to have children.

A great concern for GNP+ is a trend sweeping West Africa that appears to make potential criminals of HIV-positive women whose children become infected with HIV. This has been made explicit in Sierra Leone but, because many other laws based on the African Model Law are vague in their wording, it is possible that other countries could use these laws to prosecute mothers for having positive children (by birth or though breastfeeding) or causing harm to their foetus. There is also concern that the language used in these law is so broad that getting pregnant itself could be construed as a crime. (i)

UNAIDS (ii) says that criminalising mother-to-child transmission is inappropriate because:

  • everyone has the right to have children, including women living with HIV;
  • when pregnant women are counselled about the benefits of antiretroviral therapy, almost all agree to being tested and receiving treatment;
  • in the rare cases where pregnant women may be reluctant to undergo HIV testing or treatment, it is usually because they fear that their HIV-positive status will become known and they will face violence, discrimination or abandonment;
  • forcing women to undergo antiretroviral treatment in order to avoid criminal prosecution for mother-to-child transmission violates the ethical and legal requirements that medical procedures be performed only with informed consent;
  • and often, HIV-positive mothers have no safer options than to breastfeed, because they lack breast-milk substitutes or clean water to prepare formula substitutes.

Court interventions in the rights of positive parents

There have already been cases in other parts of the world where the courts have intervened in the rights of an HIV-positive parent.

In 2000, filmmaker Jennifer Finocchio wrote about several women in the US and Canada who lost custody of their babies after breast feeding and/or refusing AZT. (iii)

In 2002, the baby daughter of an HIV-positive British woman who refused to allow her to be tested for the virus, and who fled to Australia, was made a ward of court after the woman died, even though her father was able to care for her. The couple’s legal argument was that they had not wanted the child to take antiretrovirals because they thought it harmful and having an HIV antibody test may inevitably lead to that. (iv)

In 2007, a court in India denied an HIV-positive woman custody of her 8-year-old daughter, ruling that she would not able to take care of her daughter because of her HIV-positive status. (v)

However, using non-HIV specific laws, Canada and the United States have already prosecuted HIV-positive women for not accessing prevention of mother-to-child transmission (PMTCT) services.

In 2006, a woman in Canada was sentenced to a six-month conditional sentence followed by three years of probation under criminal negligence laws. Her first child, born in 2003, did not acquire HIV. When she became pregnant the second time, in 2004, she changed her doctor and did not disclose that she was HIV-positive. Consequently, she did not access PMTCT services and the baby tested HIV-positive in 2005. Press reports do not provide any explanation for why she did this. (vi)

Her case is remarkably similar to that of a woman in Florida who, in October 2008, was sentenced to two years of probation as part of a plea deal for felony child neglect, which prosecutors agreed to, because “sending her to prison would significantly hinder her ability to care for [her child] financially in the future.” (vii) Her first child, born in 2001, did not acquire HIV. However, in 2004, when she became pregnant with her second child, she did not access PMTCT services, and the second child was infected. Press reports help explain the woman’s state of mind: she was afraid to disclose her HIV status to her second child’s father. (viii)

As Aziza Ahmed of ICW argues, ”We have to ask ourselves why the woman’s fear that the new baby’s father might discover her status seemingly overrode her ability to follow medical advice on how to prevent transmission of HIV to the baby. All too often when women reveal their HIV status, they open themselves to violence, rejection and abandonment by their partner, husband or family. Is it surprising in those cases that a fearful and/or unsupported woman might abandon the procedures which could prevent HIV transmission to her baby, fearing that these might expose her (and possibly her baby) to violence? Is prosecution the way to help more HIV positive women feel able to be open about their HIV status? ICW’s answer is no. To the contrary, the prosecution of women for mother to child transmission worsens the situation for women, increasing stigma and blame.” (ix)

ii UNAIDS Policy Brief. Criminalization of HIV Transmission. August 2008.

ix Ahmed A. The pitfalls of prosecution: Why we oppose criminalisation. ICW News Issue 40, April/May 2008.



Go back