Suggested presentation title/topic:  Positive Prevention: A Human Rights Perspective  
Session type:Symposium  
Session Point Person:Anuar Luna (anuar_luna@hotmail.com)  

HIV-positive people as agents of prevention and social change: what do we need to know, in a human rights perspective?  

Christopher Park Board member LHIVE Swiss national organisation of people living with HIV/AIDS  

Human rights (as expressed in the Universal Declaration of Human Rights of 1949, hereafter UDHR) provide only the broadest terms to secure the well-being and welfare of the human person: as such most of the issues relevant to HIV-positive people today (access to treatment, societal and institutional discrimination, border and immigration restrictions, disclosure and practice of efficient prevention) are at best implicit to the UDHR (and must be competently argued).  

In many cases, there is a discrepancy between what we expect to be human rights and what they really express. For example: are border restrictions of HIV-positive people an infringement of their human rights? Not according to the UDHR which only mentions unrestricted movement within the boundaries of one's own country, and the right to leave that country and return to it at any time, as an inalienable human right (art. 13).  

So it appears that we cannot impute all the difficulties we experience as HIV-positive people to breaches or abuses in human rights. It might however be useful for us to know which of these difficulties can be construed under which articles of the UDHR. It is also important to be aware of the rights/duty dialectic that infuses this document: the UDHR does not simply state a series of privileges, it also dictates behaviours that guarantee the proper exercise of each right.  

Usually, in this type of discussion, one begins by considering if the medical care of HIV is a human right; HIV is above all a health issue for individuals and requires clinical attention in order to survive it. After questions of life and death, many other issues seem secondary. However, LHIVE believes that these "secondary" issues have too long been in the shadow of HIV as a medical question and if the quality of life of people living with HIV is to be seriously addressed, they must be brought to the forefront. Moreover, the present context of greatly improved clinical care also has remarkable implications outside of the medical and public health fields for people living with HIV. Therefore, I will begin by discussing the domain of juridical torts and other discriminations and abuses suffered by HIV.positive people in non-medical contexts.  
*Juridical redress of criminalisation laws and other legal discriminations  

UDHR Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.  

Present situation: Whatever the clinical process and results, an HIV-positive person is legally vulnerable when having sex: "dol éventuel" in Switzerland.  

2004: the Arnhem (NL)  judgement breaks new ground: given current clinical practice, there is not enough weight to he argument that an HIV transmission is GBH any more.  

2007: BH/PV/EKAF state that adequate ARV treatment achieves as good if not better protection than condoms: it follows that HIV+ people seeking diagnosis and adhereing to treatment are pro-actively contributing to limit the spread of HIV. (e.g. statement by HIV-positive person in CH in second part of presentation)  

If HIV treatment is not taken into account as a exonerating (or at the very least mitigating) factor by a court in which a person is accused of reckless transmission, we are facing a basic human rights infringement. In the logic of rights/duty duality, seeking and following treatment is a duty (in a public health perspective, if only that), what then are the rights that follow?

 ·   The right not to be subjected to harassment for one's HIV infection: tort moral judgements applied more out of victim sympathy (esp. Women in relationships with migrant men, i.e. France, Switzerland) than as a juridical measure to sustain public health or to compensate GBH constitute legal harassment.

·   The right to access social security provisions (complementary health insurance, life insurance, mortgages, etc.) traditionally excluding "bad risks" and, since 1987 off limits to people declaring or known to have had positive HIV antibody testing (irrespective of any improvements in HIV clinical care).

 ·   The right not to be turned back from a border because of HIV infection. This needs to be immediately implemented in the case of business or leisure travellers in posession of HIV treatment (which, ironically, is the only means to identify an HIV-positive traveller since personal border declarations are routinely answered incorrectly). The question of HIV positive persons seeking treatment in a foreign country is a sensitive one and needs to be addressed, but it is not relevant to the point at hand.

  Problem: there is no article in the UDHR specifying access to medical care as a human right, only social security (art. 22), and the right to a standard of living adequate for the health and well-being of himself and of his family including food, clothing, housing and medical care and necessary social services (art. 25) (my italics)  

The UDHR does not provide much scope for a rationale implicating HIV-positive people as agents in improving public health. Since the declaration is concerned principally with the rights of the individual, it follows that human rights issues pertaining to the collective can only be construed from the angle that whatever benefits the individual's general quality of life should also have positive implications on the welfare of society at large.

  Still, there are some aspects deriving from the adequate provision of medical care for the individual that need to be stressed, in the interest of empowering HIV-positive people in accessing medical care and acting in the improvement of public health and the welfare of society.

  *Treatment as prevention:  
Access to treatment as a preventive measure: BH/PV/EKAF compare the failure rate of prevention  strategies at 1/100'000 (condom protection) vs 1/30'000 (ARV protection) BH states in response to the Canadian AIDS Society critique of Some patients derive additional motivation for increased adherence from out statement. To quote one of them:  For years we have been impatiently waiting for such a statement.  It takes a load off those who are infected with the virus, and who fear, more than anything, to be the source of a new infection.  (…)  Knowing the preventive effect of treatment we will be doubly motivated to take our pills (…) and will fight with newfound resolve against discrimination and stigma.

  *Treatment as a reproductive right  
UDHR Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

   Right to marry: Of course, HIV infection has never stopped men and women from marrying or from founding a family. Some countries do however demand HIV testing before marriage  and access to marriage will be denied in case of a positive test.   Right to found a family In Switzerland, which is certainly an example of a country with optimal HIV clinical care, the impact of ARV on mother-to-child transmission has been sufficiently evident for the past eight years that it can safely be said that no HIV-positive woman will currently be coerced into having an abortion "for the sake of her unborn child". This argument still holds strong in other countries, understandably those where access to treatment is limited or impossible. Levels of HIV competence in the medical profession in intermediate clinical contexts vary however enormously and, even when ARV treatment is accessible, some medical professionals may still encourage HIV positive people to abstain from founding a family (or even go so far as to encourage them to abstain from sexual relations full stop!). in this respect, people living with HIV need to be made aware of the real implications of ARV treatment and the security it provides to uninfected partners and children born without HIV. This will also impact on negative attitudes to HIV people as parents and carers, formed in the initial years of the HIV epidemic and still present in society-at-large, even in countries with optimal clinical care such as Switzerland.

  *The right/duty dialectic and visiblitiy of people living with HIV

   Disclosure   .

  Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

  Should the disclosure of HIV infection be explicitly demanded by law before sexual or other relationships where HIV transmission may occur?

   This is the case in Sweden since the beginning of the HIV epidemic and has caused a great deal of controversy over issues of privacy, protection of personal data, etc. However, the legal framework in Sweden also provides optimal protection from HIV discrimination in the workplace, in commercial practice and in institutions. This is ultimately an example of a functional agreement (if somewhat extreme, from a Swiss perspective) between rights and duty.

  It is not possible to determine a hard and fast rule, applicable over all national and regional contexts, governing the obligation to disclose in private contexts. It seems however reasonable, especially given the universal recognition that ARV treatment is a life- and productivity-prolonging factor, that any kind of obligation to disclose to employers, insurance, academic institutions and governement agencies has no particular impact on the "due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society".

   Beyond this concern, LHIVE holds to the belief that the more people disclose their HIV infection in contexts beyond the immediate sexual or private sphere, the more likely negative attitudes to HIV infection will benefit positively from the kind of enlightenment that public health authorities campaigning and education, with its limited priorities, finds difficult to achieve.