US: American Academy of Pediatrics clarifies breastfeeding guidelines for people with HIV

New guidelines clear the way for HIV-positive people to breastfeed

Parents with HIV who want to breastfeed are now able to — with the blessing of their pediatrician — after a game-changing report was released this spring.

The 11-page report, “Infant Feeding for Persons Living With and at Risk for HIV in the United States: Clinical Report” was published in the medical journal Pediatrics in May by Drs. Lisa Abuogi and Christiana Smith, both pediatricians with the University of Colorado School of Medicine, and Dr. Lawrence Noble, a pediatrician at Icahn School of Medicine at Mt. Sinai in New York.

“The American Academy of Pediatrics for the first time is fully supporting breastfeeding for women and other parents with HIV who are on treatment and virally suppressed,” said Dr. Abuogi in a recent virtual interview. “And that’s a result of increasing research showing that it can be done safely and improving antiretroviral regimens that improve the chances of staying virally suppressed.”

She added: “I think it opens up having the choice and having the ability to be supported to do that, which for decades they have not had. So it’s a pretty big sea change that’s happening in the field of HIV.”

The change came as welcome news to Ci Ci Covin, an HIV-positive mother who, because of her status, was devastated not to be allowed to breastfeed her son, Zion, now a teenager. She did, however, breastfeed her 3-year-old daughter Zuri secretively, with the support of clandestine providers who promised not to turn her in to child protective services for planning to breastfeed while living with HIV, something women in other countries have long been able to do.

Now that it doesn’t have to be done in secret, she said, the new guidelines brought a wave of relief.

“It felt like a breath that I was finally able to exhale on,” she said, “that I had been holding in for so many years.”

Breastfeeding with HIV has traveled a long road to acceptance. In 1985, the American Association of Pediatrics recommended parents who were HIV-positive not breastfeed, because of the slim chance of transmission of the infection via the breast milk to the baby. Those choosing to disregard the guidelines could be reported to state child protective agencies.

Others didn’t see the risk in the same way — in some African countries for example, babies were breastfeeding from HIV-positive parents on antiretroviral drugs whose load was so low as to be undetectable while also receiving prophylaxis drugs that blocked the transmission of the virus to the baby; studies there were finding no HIV transmission.

But the U.S. stood fast on its ban — until January 2023, when the National Institutes of Health released a paper “Update to Clinical Guidelines for Infant Feeding Supports Shared Decision Making: Clarifying Breastfeeding Guidance for People with HIV.”

“Clinicians should support the choices of people with HIV to breastfeed (if they are virally suppressed) or to formula/replacement feed,” the paper stated, adding: “It is inappropriate to engage child protective services (CPS) or similar services in response to infant feeding choices of [people with HIV].”

The NIH influenced the Department of Health and Human Services, which that year relaxed its own guidelines against restricting HIV-positive people from breastfeeding, but the HHS has a smaller audience, and it’s the American Association of Pediatrics from whom pediatricians specializing in labor and delivery take their cues, not HHS.

The paper Abuogi and her co-researchers published about a year and a half later was what made the change in the AAP guidelines. Their report, she said, consisted less of original research on the topic and more of a distillation of research. “We review all of the literature, the history, and the latest research to inform the guidelines,” she said.

According to the paper, health care professionals should plan to talk with patients who want to breastfeed their child, and when they do, they should explore the parents’ reasoning, suggest possible alternatives that allow a bond with the infant, and validate the parent’s role, regardless of how the infant will be fed. The paper also recommends that parents know the risk of HIV transmission — which is about 1 percent or less — and are aware that antiretroviral drugs suppress the chance of transmission, but don’t completely eliminate the risk.

“Breastfeeding should be supported for people with HIV who strongly desire to breastfeed after comprehensive counseling,” the paper recommends, “if all of the following criteria are met: (anti-retroviral therapy) was initiated early in or before pregnancy; there is evidence of sustained viral suppression in the parent; the parent demonstrates a commitment to consistently taking their own (anti-retroviral drugs) and to giving infant (anti-retroviral) prophylaxis; and the parent has continuous access (to those drugs).”

The new guidelines are being made widely known through email blasts, the AAP’s podcast, and social media posts to the country’s 39,000 pediatricians who specialize in labor and delivery, about 2,000 of whom practice in Colorado, according to Dr. Aguobi.

Ci Ci Covin, 36, a mother of two who has a bachelor’s and master’s degrees, now lives outside Philadelphia, Pennsylvania, with her partner, son, and daughter. She had been diagnosed with HIV in her early 20s — she said she got the virus having unprotected sex with men growing up in rural Georgia. She didn’t breastfeed her son because she had the virus, and was told she should be happy to give birth at all, given her status.

Her first-born child, Zion, was born premature and spent nine days in the NICU, during which time Covin stayed in a nearby Ronald McDonald House. One day, she recalled, “I stood in that shower with my breasts full of milk and in pain and just watched it all just waste down the drain, knowing that HIV was the only thing that was causing that right now. It was so painful.”

She spiraled into post-partum depression, “beating myself up again for this diagnosis because that was what was stopping me from being able to feed my child … all of my parental autonomy had been taken away from me. That was a rough time.”

Guidelines shared with her by her health care provider kept her from breastfeeding. Over the next few years, she began hearing that women who were living with HIV were breastfeeding in some African countries. About a decade later, she found a new partner and became pregnant again, this time with a baby girl she’d call Zuri, now 3 years old. This time, she wanted things to be different. She had befriended an HIV-positive mother in Virginia for whom things were different: Her new friend Heather’s health care provider had asked her how she wanted to feed her newborn, rather than telling her that her choice was limited so as not to include breastfeeding — a shocking statement to Ci Ci’s ears.

Heather’s disclosure made Covin think she could do the same, so she ran the possibility past her provider. She was shocked by what she was told: There was “no provider in America who would work with me if that’s what I wanted to do,” Coving explained, her voice quivering with emotion.

“And she told me that if that was something that I wanted to do, then I was going to have to be quiet about it because their facility is known to call child protective services on parents who breastfeed while living with HIV.”

The threat left her stunned. “I’m only six weeks pregnant; we don’t even know if this baby’s going to stick yet, and I’m being threatened by CPS … which really put a fork in that relationship that I had built with that provider.”

With her friend Heather’s help, Covin found a new health care team in Philadelphia consisting of an OB-GYN, a social worker, a high-risk nurse, and a pediatrician — all of whom felt the benefits of breastfeeding with HIV outweighed the slim risk of transmission. In the small community of HIV-positive parents, this team was known through whispers as the ones to go to if you had HIV and wanted to breastfeed without getting reported to child protective services.

Initially, she was undecided on breastfeeding the daughter she was expecting.

“Some days I would go in there and say, ‘Yes, I’m doing it.’ Then other days I’d be like, ‘No I’m not doing this.’ And they did that tango with me, just informing me of all of the things, the research, what they’ve seen in previous patients and children. It was awesome. I had options. I could choose what life was going to look like for me and my baby moving forward.”

Under the new provider’s care, Covin gave birth to Zuri, then spent the next seven months breastfeeding her daughter, who also received prophylactic medications during and after that time period.

“It felt beautiful. It felt so natural. I couldn’t believe that it was happening, that I was able to do it in front of people in scrubs,” she said, rather than hiding it from them.

Per protocol, Covin and Zuri both took medications to lower the transmission risk.

“We started on one type of treatment for the first four weeks after she was born, and then we switched into another treatment that had less medication in it, less types of drugs,” she said. “We did that for the length of time that we breastfed plus a month afterwards,” she said, adding that both children are now thriving and doing well and that neither has the virus.

Covin now works as a senior manager of community programming with The Well Project in Philadelphia (a nonprofit organization that serves women living with HIV and those vulnerable to it across the gender spectrum). She is one of a small subset of HIV-positive parents who want to breastfeed — estimated to be about 5,000 large annually nationwide — who are potentially impacted by the AAP’s new guidelines. The new rules mean that people like Covin won’t have to go to the trouble of finding a doctor breaking guidelines to be supportive of women breastfeeding while living with HIV; instead, doctors will just start openly presenting doing so as a legitimate option.

“The 5,000 number is the number of women living with HIV that we think become pregnant annually in the United States, and in Colorado, that number is probably closer to 50 or 60,” said Dr. Abuogi, who added that many are women of color. But the number and background of the people impacted isn’t the point.

“All women and mothers want to have the full range of choices and options to make the best infant feeding decisions for their children,” she said.

Of the new guidelines, she said they could make a difference in the parenting experience. “This gives these women that option if they’re able to be on their treatment and doing well.”

US: New report from the Williams Institute examines the enforcement of Indiana’s HIV-related criminal donation laws

Enforcement of HIV Criminalization in Indiana: Donation Laws

The Williams Institute analyzed data from the Indiana courts regarding individuals arrested and prosecuted for an HIV-related donation crime in that state. Indiana has six laws criminalizing people living with HIV (PLWH), spanning the criminal code and public health code. This report—one in a series examining HIV criminalization in Indiana—analyzes the enforcement of two laws that criminalize the donation of blood, plasma, and semen for artificial insemination if the person knows they have HIV:

  • Indiana Criminal Code § 35-45-21-1 Transferring Contaminated Body Fluids (enacted in 1988)
  • Indiana Health Code § 16-41-14-17 Donation, Sale, or Transfer of HIV Infected Semen; penalties (enacted in 1989)

The data were obtained between January 2022 and March 2024 and cover enforcement of the laws between 2001 and 2023. We identified 18 unique individuals charged with 21 violations of the state’s criminal donation law related to HIV, resulting in 18 court cases. While other states have similar HIV-related criminal donation laws, Indiana had the greatest number of convictions under a donation law documented in a single state.

Key Findings

  • Indiana’s HIV-related donation crimes were created nearly four decades ago (1988 and 1989) before effective and easily accessible testing and treatment for HIV was available.
  • All 18 cases stemmed from an attempt to donate at a plasma center.
  • No cases (0) involved attempts to donate whole blood or semen.
  • No people (0) were charged under the provision of the code penalizing actual HIV transmission.
  • Marion County—home to Indianapolis, the state capital and largest city—was substantially overrepresented in arrests: it accounted for about 14% of the state’s population and 41% of PLWH in 2021 but nearly 80% of all donation-related arrests. Only three other counties had arrests.
  • Alleged violations of the donation laws regularly occurred between 2001 and 2018, with the most recent arrest happening in 2019 for an incident in 2018. On average, one court case was filed per year for an alleged violation of Indiana’s HIV blood donation law during this time period.
  • The demographic data reveal that:
    • The range for age at time of arrest was between 20 and 58 years old; the mean (average) age at time of arrest was 33 years old.
    • Men were 72% of people arrested while women were 28%.
    • Black people were nearly eight in ten (78%) of all people arrested. White people were the remainder (22%) of those arrested. However, Black people were only 38% of PLWH in Indiana in 2021 and just 10% of the state’s population. No other race/ethnicity group was represented among those arrested.
  • In total, 17 of the 18 people charged were found indigent and assigned a public defender.
  • More than four-fifths (89%) of people arrested were convicted of at least one HIV-related crime.
  • The Indiana Department of Health (IDOH) devoted resources to determining whether a possible crime was committed—a public health investigator (PHI) routinely referred cases to law enforcement and provided them with personal HIV information in accordance with IDOH policy at the time.
  • • The criminal law has not been enforced since the last court case was filed in 2019, suggesting a recent decline in the use of Indiana’s HIV-related donation crime laws.

To our knowledge, this report is the first comprehensive look at the enforcement of HIV criminal donation laws in a single U.S. state, and it demonstrates one of the highest levels of enforcement observed in any state to date.

This report found that people who know they have HIV can, and have, been prosecuted under Indiana’s HIV criminalization donation laws for acts that pose no HIV transmission risk. Because of universal screening for HIV antibodies, donated blood, plasma, and semen are now safe from HIV for recipients. Moreover, plasma—which represented 100% of attempted donations in this study—is heat treated, which inactivates all bloodborne pathogens, including HIV. There has not been a reported case of HIV transmission from plasma donation in nearly 40 years. Yet, as recently as 2019, Indiana arrested, prosecuted, and convicted a person for attempting to donate at a plasma center in the state.

Further, HIV criminalization laws could undermine the state’s efforts to work cooperatively with the communities most impacted by the HIV/AIDS epidemic. In recent years, there has been growing consensus among public health and medical experts that ending the HIV epidemic requires modernizing a state’s HIV criminal laws to reflect what is known about HIV science today. Indiana’s own statewide plan to end the HIV epidemic in the state by 2030, called Zero is Possible, includes criminal law modernization as one of the current approaches and priorities. The plan echoes the Centers for Disease Control and Prevention (CDC) and the White House’s Office of National AIDS Policy (ONAP) position on HIV-specific criminal laws, both of which call on states to modernize their HIV criminal laws to reflect advances in treatment and what we know today about how HIV is—and is not—transmitted.

Download the full report

2023 in review: A delicate balance

A DELICATE BALANCE

Working to end punitive laws and policies that impact people living with HIV is never easy, but this year has been especially hard, as we fought to maintain that delicate balance between moving forward in our advocacy and preventing the erosion of our previous gains fuelled by the anti-rights movement and the growth of right-wing populism.

For the first time since the COVID-19 pandemic hit, we saw an increase in the number of reported HIV-related prosecutions: 86 cases in 18 countries. This compares with 49 cases in 16 countries last year and 54 cases in 20 countries in 2021. This year, as in previous years, the highest number of case reports come from the EECA region (Uzbekistan and Russia), followed by the United States (10 cases – a significant decrease) and the United Kingdom (5 cases – a worrying increase).

It is possible that we were seeing more case reports because there were actually more cases, but we must always consider these reported cases to be illustrative of what is likely to be a far more widespread, poorly documented use of criminal law against people living with HIV.

Although many people arrested or prosecuted were heterosexual men, we also saw a range of intersectional identities impacted by HIV criminalisation – particularly sex workers who may also have been transgender and/or people of colour and/or with a migration background.  It is clear that a convergence of multiple levels of criminalisation, discrimination and other vulnerabilities leads to over-policing of the bodies and behaviours of people living with HIV.

LATIN AMERICA

Some of the most exciting and promising developments in 2023 came from Latin America. In June, Belize repealed its HIV-specific criminal law, enacted in 2001 but never applied, primarily to enable the country to be certified as having eliminated vertical transmission. And in August, Costa Rica’s People Living with HIV organisation pushed back against a parliamentarian’s proposal to reinstate an HIV criminalisation law.

It’s also clear that sustained advocacy by civil society in Mexico – which began in earnest when the HIV JUSTICE WORLDWIDE coalition supported the creation of the Mexican network in 2017 – is really making a difference. In March, the state of Nayarit repealed its infectious disease law that had mostly applied to people with HIV. The district of Mexico City is on its way to repeal a similar law. And another Mexican state, Baja California Sur, modernised the wording of the same law to attempt to destigmatise it, by removing the concept that communicable diseases are only prosecutable if sexually transmitted.

In November, a proposal for a new HIV criminalisation law in the state of Puebla was withdrawn following criticisms from HIV and human rights organisations, and a month later there are now proposals to reform the existing law. And civil society pressure to remove the federal HIV criminalisation law on constitutional grounds may have led to Mexico’s first trans congresswomen advocating for the repeal of the law in parliament. Given Mexico’s rights-based approach to SRHR – the country decriminalised abortion earlier this year – at least one of these repeal pathways are likely to succeed next year.

NORTH AMERICA

In the United States, we continued to see a marked reduction in the number of cases as the movement to repeal or modernise HIV criminalisation laws continued to grow due to ongoing, sustained advocacy by networks of people living with HIV with support from philanthropic funders as well as federal and state political leaders and public health institutions. Although, no states fully repealed their HIV-specific laws in 2023, and law reform proposals in Indiana, Minnesota, and North Dakota failed to pass, there were some important victories in Tennessee. Here, both law reform and strategic litigation bore fruit, the former by removing mandatory sex offender registration for those convicted under the HIV law, and the latter resulting in a ruling that Tennessee’s ‘aggravated prostitution’ statute violated the Americans with Disabilities Act.

Canada – another former global HIV criminalisation leader – continued to report fewer cases, with just one new reported case in 2023. As in the United States, this is the result of many years of sustained advocacy, although the federal government has still not responded formally to its 2022 public consultation on substantially reforming its approach to HIV criminalisation. The Canadian Coalition to Reform HIV Criminalization, led by HIV JUSTICE WORLDWIDE coalition partner, the HIV Legal Network, issued a strong statement on World AIDS Day calling for action.

AFRICA

Unlike previous years, the only country on the African continent with reported new HIV criminalisation cases in 2023 was Kenya, where lawmakers are still planning to follow Uganda in enacting even more criminalisation aimed at LGBTI people – as are Botswana, Ghana, and Niger. Following the December 2022 dismissal of the constitutional challenge to Kenya’s HIV-specific provisions in the Sexual Offences Act, there are plans to appeal and to continue to lobby for change.

Strategic litigation led by KELIN was ultimately successful in establishing that women living with HIV possess the inherent right to make informed choices regarding their reproductive decisions following a nine-year process, so sustained advocacy – and patience – may be required. Patience may also be needed in South Africa where long-awaited sex work decriminalisation was further postponed, although parliament did agree to clear COVID lockdown criminal records. Elsewhere, another positive development in the region was the repeal of Mauritius’ colonial-era sodomy law which means that the number of nations with laws against gay sex has now fallen to 66.

EASTERN EUROPE / CENTRAL ASIA

People living with HIV in the EECA region continue to face multiple challenges. In just the first six months of 2023, there were 20 cases of alleged “intentional HIV transmission” to sexual partners in Uzbekistan’s Tashkent region – the highest HIV criminalisation case count anywhere in the world. The majority of those prosecuted appeared to be women. This comes as no surprise given that an analysis of cases and laws across the ECCA region by our HIV JUSTICE WORLDWIDE partners, the Eurasian Women’s Network on AIDS (EWNA), found that women living with HIV bear the brunt of the “legalised stigma” of HIV criminalisation in the region.

One of the main reasons for the high number of cases in the EECA region is the integration of HIV criminalisation within healthcare policies: newly diagnosed individuals are made to sign a paper acknowledging their legal liability for HIV prevention often without receiving adequate or meaningful counselling or support. In Russia – where the second highest number of cases were reported – a study found that most HIV clinicians support HIV criminalisation, and in Kazakhstan it was revealed that 1-in-1000 people newly diagnosed with HIV in 2022 filed a police report blaming someone else for their infection.

The legal environment for people living with HIV in Russia continues to worsen, as it does for all its citizens, especially LGBTI people – with trans women sex worker migrants facing the brunt of the Russia’s anti-LGBT “propaganda” law. And in Tajikistan, homophobic and HIV-phobic law enforcement practices resulted in ten gay men being arrested Dushanbe on suspicion of “infecting 86 people with HIV.” The only positive news for the region came from Ukraine, where a new protective HIV law was adopted earlier this year, although criminal liability for HIV exposure or transmission remains a possibility.

WESTERN EUROPE

December saw two contrasting developments in Western Europe. Just as Ireland’s Supreme Court overturned the country’s first-ever sexual HIV criminalisation case  – partially based on now well-established limitations of scientific evidence being able to prove who infected whom – a lower court in Latvia convicted someone of alleged HIV transmission for the first time.

And although in the United Kingdom, a long-awaited update to the Crown Prosecution Service’s guidance now unequivocally states that an undetectable viral load stops HIV transmission, five HIV criminalisation cases still took place, along with a highly publicised civil case. Per capita, this meant that in 2023 the UK had a five-fold incidence of reported HIV criminalisation cases compared to the United States!

ASIA PACIFIC

Singapore continues to lead the Asia Pacific region with four reported HIV criminalisation cases in 2023: one for blood donation, two for biting, and one involving a transgender sex worker for alleged HIV exposure. Although South Korea’s constitutional court ended up declaring most of its HIV criminalisation provisions constitutional, their recognition that U=U suggests the law may evolve to recognise up-to-date science.

Although ending HIV criminalisation cannot rely on science alone, it can help limit unjust prosecutions while we work to end the HIV-related stigma, discrimination and structural inequalities that drive criminalisation.

BRINGING SCIENCE TO JUSTICE

This year, we celebrated five years since the publication of the ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’ with our ‘Five-Year Impact Report’ and an HIV Justice Live! webshow focused on bringing science to justice. Both proved that the Expert Consensus Statement remains relevant, accurate and extremely useful.

Given this delicate balance between moving forward and preventing the erosion of hard-won rights there is still so much more to do to reach the global target of fewer than 10% of countries with punitive laws and policies that negatively impact the HIV response.

LET COMMUNITIES LEAD

To ensure that communities continue to lead, and to further enable the building of an intersectional movement to end punitive laws and policies that impact people living with HIV in all diversity, we made our online platform for e-learning and training, the HIV Justice Academy, more widely available in Spanish and Russian, to complement our English and French versions.

In 2023, the HIV Justice Academy was visited by several thousand learners from 110 countries. We were thrilled to learn that graduates of our flagship HIV Criminalisation Online Course told us that they really benefitted from the course, finding it relevant, interesting, and engaging.

RENEWED FOCUS FOR 2024

We will begin 2024 with a renewed focus to achieving HIV justice as we continue to:

  • build the evidence base by gathering relevant data and information from around the world. 
  • raise awareness across multiple platforms and communities of the harms of HIV criminalisation. 
  • create, collate, and disseminate advocacy tools and resources to foster more effective responses to damaging laws, policies, and media narratives; and
  • bring individuals and national, regional, and global networks and organisations together, as part of the HIV JUSTICE WORLDWIDE coalition, to catalyse change.

WHO publishes new policy guidelines describing the role of HIV viral suppression on stopping HIV transmission

New WHO guidance on HIV viral suppression and scientific updates released at IAS 2023

The World Health Organization (WHO) is releasing new scientific and normative guidance on HIV at the 12thInternational IAS (the International AIDS Society) Conference on HIV Science.

New WHO guidance and an accompanying Lancet systematic review released today describe the role of HIV viral suppression and undetectable levels of virus in both improving individual health and halting onward HIV transmission. The guidance describes key HIV viral load thresholds and the approaches to measure levels of virus against these thresholds; for example, people living with HIV who achieve an undetectable level of virus by consistent use of antiretroviral therapy, do not transmit HIV to their sexual partner(s) and are at low risk of transmitting HIV vertically to their children. The evidence also indicates that there is negligible, or almost zero, risk of transmitting HIV when a person has a HIV viral load measurement of less than or equal to 1000 copies per mL, also commonly referred to as having a suppressed viral load.

Antiretroviral therapy continues to transform the lives of people living with HIV. People living with HIV who are diagnosed and treated early, and take their medication as prescribed, can expect to have the same health and life expectancy as their HIV-negative counterparts.

“For more than 20 years, countries all over the world have relied on WHO’s evidence-based guidelines to prevent, test for and treat HIV infection,” said Dr Tedros Adhanom Ghebreyesus, WHO Director-General. “The new guidelines we are publishing today will help countries to use powerful tools have the potential to transform the lives of millions of people living with or at risk of HIV.”

At the end of 2022, 29.8 million of the 39 million people living with HIV were taking antiretroviral treatment (which means 76% of all people living with HIV) with almost three-quarters of them (71%) living with suppressed HIV. This means that for those virally suppressed their health is well protected and they are not at risk of transmitting HIV to other people. While this is a very positive progress for adults living with HIV, viral load suppression in children living with HIV is only 46% – a reality that needs urgent attention.

Coming soon:
HIV Justice Live! Episode 5: Bringing Science to Justice

Five years ago, twenty of the world’s leading HIV scientists published the ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’ to address the misuse of HIV science in punitive laws and prosecutions against people living with HIV for acts related to sexual activity, biting, or spitting.

More than 70 scientists from 46 countries endorsed the Expert Consensus Statement prior to its publication in the Journal of the International AIDS Society (JIAS). The Statement was launched on 25th July 2018 at AIDS 2018, with the press conference generating global media coverage.

Building upon our initial 2020 scoping report, we recently undertook further extensive research to examine the impact of the Expert Consensus Statement in the five years since its publication.

On 25th July 2023 – exactly five years to the day of the original launch – we will not only be presenting our findings at the 12th IAS Conference on HIV Science (IAS 2023), we will also be launching the five-year impact report during our live webshow, HIV Justice Live!

Hosted by HJN’s Executive Director, Edwin J Bernard, the show will include a discussion with the report’s lead author, HJN’s Senior Policy Analyst Alison Symington, as well as interviews with Malawian judge Zione Ntaba, Taiwan activist Fletcher Chui, and SALC lawyer Tambudzai Gonese-Manjonjo on the Statement’s impact.

We’ll also hear from some of the Expert Consensus Statement’s authors, including Françoise Barré-Sinoussi, Salim S Abdool Karim, Linda-Gail Bekker, Chris Beyrer, Adeeba Kamarulzaman, Benjamin Young, and Peter Godfrey-Faussett.

Ugandan lawyer and HJN Supervisory Board member Immaculate Owomugisha will also be joining us live from the IAS 2023 conference in Brisbane, Australia where she is serving as a rapporteur, to discuss the Statement’s legacy and relevance today.

There will be opportunities to let us know the impact the Expert Consensus Statement has had in your advocacy and to ask questions live, so please save the date and time.

HIV Justice Live! Episode 5: Bringing Science to Justice will be live on our Facebook and YouTube pages on Tuesday 25th July at 3pm CEST (click here for your local time).

 

2022 in review: A turning point for HIV justice?

Looking back on all that happened in 2022, we are cautiously optimistic that 2022 will be seen as a turning point in the global movement to end HIV criminalisation. We celebrated promising developments in case law, law reform and policy in many countries and jurisdictions over the past year, building on the momentum of 2021. Although there is much more work yet to do, it’s clear that progress is being made — thanks primarily to the leadership of people living with HIV.

Continuing a trend that began two years ago, overall there seems to have been a decline in the number of HIV-related prosecutions. This year we identified media reports of 49 new HIV criminalisation cases in 16 countries plus seven US states. This compares to 54 new cases in 20 countries last year (which was still fewer than reported in previous years). This year, the highest number of case reports came from Russia, followed by the United States (with multiple cases in the state of Florida), and France. 

It is possible that we are seeing fewer media reports because there are actually fewer cases, but we must always consider these known cases to be illustrative of what is likely a more widespread, poorly documented use of criminal law against people living with HIV. The media, public health authorities and law enforcement may still be distracted by the global financial crisis precipitated by Russia’s invasion of Ukraine and the impact of COVID-19 — a pandemic that continues to disproportionately impact people living with HIV.

After being near the top in previous years, Belarus has been bumped off the ‘most cases’ list. Last year, the Belarus Investigative Committee reported 34 new HIV-related criminal cases. It’s highly likely that this year there were some (unreported) cases, but it’s also clear that the number of cases has been slowing down since 2020, possibly due to ongoing discussions with the government to limit the use of the criminal law.

Canada used to be a global leader in HIV criminalisation, but no new cases were reported this year. In fact, the only case reports from Canada were about the overturning of a conviction by the Ontario Court of Appeal after it accepted there was no realistic possibility of transmission as the accused woman had an undetectable viral load, and another Ontario Court of Appeal acquittal based on the accused man’s elite controller status. These positive rulings follow many years of sustained advocacy, which has also led to the federal government opening a public consultation on reforming the criminal law. The Canadian Coalition to Reform HIV Criminalization has welcomed this consultation as a first step to concrete action on law reform.

Earlier this year, Taiwan’s Supreme Court also recognised the prevention benefit of treatment by upholding the acquittal of a man with an undetectable viral load who was accused of alleged HIV exposure. But elsewhere in Asia, Singapore continues to unjustly prosecute gay men living with HIV under draconian laws, despite being celebrated for recently repealing their colonial-era law that criminalised sex between men. Singapore is also the world leader in prosecuting gay men for not disclosing a possible HIV risk before donating blood. That’s why we issued our Bad Blood report in September, which concludes that the criminalisation of blood donations by people with HIV is a disproportionate measure — the result of both HIV-related stigma and homophobia, and not supported by science.

In the United States, we continued to see a reduction in the number of states with HIV-specific criminal laws thanks to the ongoing advocacy by networks of people living with HIV supported by human rights and public health organisations. In 2022, Georgia modernised its law and New Jersey became the third US state to fully repeal its HIV-specific criminal law. President Biden again highlighted HIV criminalisation in his World AIDS Day proclamation stating that “outdated laws have no basis in science, and they serve to discourage testing and further marginalize HIV-positive people.” In October, the Presidential Advisory Council on HIV/AIDS unanimously passed an historic resolution on molecular HIV surveillance that will be critical to protecting the human rights and dignity of people living with HIV. But problematic new laws continue to be enacted despite strong opposition from civil society. In November, Pennsylvania’s Governor, Tom Wolf, signed into law an overly broad, unscientific statute that makes it a felony to pass on a communicable disease, including HIV, when someone “should have known” they had the disease.

There was also mixed news from the African continent. In March, Zimbabwe became the second African country to repeal its HIV-specific law (the Democratic Republic of Congo repealed its law in 2018). This victory is testament to the effectiveness of a multi-year, multi-stakeholder campaign that began with civil society advocates sensitising communities and parliamentarians, notably the Honourable Dr Ruth Labode, Chairperson of Parliamentary Portfolio Committee on Health and Child Care. She began pushing for a change in the law in 2018, having previously been in favour of the provision which she thought protected her female constituents. And in October, the Central African Republic also enacted a new HIV law that focused primarily on social protections for people living with HIV, without any criminalising provisions.

Also in October, the Lesotho High Court issued a positive judgment following a constitutional challenge to sections of the Sexual Offences Act that impose a mandatory death sentence on persons convicted of sexual offences if they were living with HIV.  Following interventions from members of the HIV JUSTICE WORLDWIDE coalition and others, the Court ruled that people living with HIV have the same right to life as all others — and commuted the sentence.

The news elsewhere on the continent, however, wasn’t so positive. After six years of waiting, a constitutional challenge to some of the most problematic, criminalising sections of Uganda’s HIV/AIDS Prevention and Control Act was dismissed outright in November. We are anxiously awaiting the ruling in a similar challenge in neighbouring Kenya. It was filed five years ago and has since been postponed several times. This year, we also lost Ugandan nurse and HIV criminalisation survivor, Rosemary Namubiru, who was a posthumous recipient of the Elizabeth Taylor Legacy Award at this year’s International AIDS Conference.

Women — who were accused in around 25% of all newly reported cases this year — also face criminal prosecution in relation to breastfeeding or comfort nursing, mostly across the African continent. In addition, women living with HIV continue to be threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries. That’s why this year we created the short film, Mwayi’s Story, to highlight the injustice and facilitate discussion about HIV and breastfeeding. We also worked with our HIV JUSTICE WORLDWIDE coalition partners to publish a paper in the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases to highlight these problematic and unjust approaches to women with HIV who breastfeed or comfort nurse.

This year, we learned from the Eurasian Women’s Network on AIDS, working with the Global Network of People Living with HIV, about how women living with HIV are both disproportionately impacted by HIV criminalisation across the Eastern Europe and Central Asia (EECA) region and also leaders in research, advocacy and activism against it. Their report illustrates how HIV criminalisation and gender inequality are intimately and inextricably linked. Case studies include a woman in Russia who was prosecuted for breastfeeding her baby and several women in Russia who were blackmailed by former partners who threatened to report them for alleged HIV exposure as a way to control, coerce, or abuse them.

The disproportionate impact of HIV criminalisation on women was also the focus of a World AIDS Day statement by the Organization of American States (OAS) calling on Member States to end HIV criminalisation. Earlier in the year, Argentina had enacted a new, comprehensive and non-punitive HIV, STI and TB law. 

Nevertheless, there is still so much more to do to reach the global target of fewer than 10% of countries with punitive laws and policies that negatively impact the HIV response. To keep up the momentum, we continued to produce reports and analysis — including our flagship Advancing HIV Justice 4: Understanding Commonalities, Seizing Opportunities — as well as contributed to peer-reviewed journal articles, such as So many harms, so little benefit in the Lancet HIV and Punishing vulnerability through HIV criminalization in the American Journal of Public Health. We’re also doing our best to ensure we change the media narrative on HIV criminalisation, including by contributing to The Guardian’s World AIDS Day podcast on HIV criminalisation.

Our greatest achievement this year was the creation of the HIV Justice Academy. We are very proud of this online platform for e-learning and training which we believe will be a catalyst in building the wider movement to end punitive laws and policies that impact people living with HIV in all their diversity. Already available in English and French, we’ll be launching in Spanish and Russian early next year.

Did we turn the corner in 2022? Only time will tell, but if there is one thing we know for sure it is that changing hearts and minds with respect to HIV criminalisation is a long road with many ups and downs along the way. We know that important progress was made in 2022 and that we begin 2023 with fresh analysis, new tools and a renewed spirit of solidarity.

Lesotho high court finds imposition of death sentence solely on the basis of HIV status unconstitutional

Court decision upholds that people living with HIV have the same right to life as all others

Joint news release from the Southern Africa Litigation Centre, AIDS and Rights Alliance for Southern Africa, Lesotho Network of People Living with HIV and AIDS, HIV Legal Network and HIV Justice Network

 

On 25 October 2022, the High Court of Lesotho in the case of MK v Director of Public Prosecutions and Others issued a judgment on a constitutional challenge to certain sections of the Sexual Offences Act that impose mandatory HIV testing on persons accused of sexual offences, and subsequently impose a death sentence on persons convicted of sexual offences solely based on their HIV-positive status.

The case was supported by the Southern Africa Litigation Centre (SALC), AIDS and Rights Alliance for Southern Africa (ARASA), HIV Legal Network – all members of HIV JUSTICE WORLDWIDE (HJWW) Steering Committee coordinated by the HIV Justice Network (HJN) – as well as Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN). Lesotho Network of People Living with HIV and AIDS (LENEPWHA) was admitted as Amicus Curiae. The petitioner and Amicus Curiae were represented by Advocate Molati, Advocate Mokhathali, Advocate Masaeso, Advocate Mohau (K.C) and Advocate Letuka.

The petitioner challenged the constitutionality of section 32(a)(vii) of the Sexual Offences Act which appeared to impose a mandatory death sentence on people convicted of sexual offences who were HIV-positive and were aware of their status. The petitioner also challenged section 30 of the Act, which requires mandatory HIV testing for persons arrested and charged under the Act. The petitioner argued that the imposition of a mandatory death sentence solely on the grounds of HIV status, and mandatory HIV testing upon arrest, breached the constitutional rights to life, equality and non-discrimination, equal protection of the law, privacy, and dignity and that they contribute to stigma against people living with HIV.

In a judgment written by Justice Makara, the High Court, sitting as a Constitutional Court, declared that section 32(a)(vii) of the Sexual Offences Act was unconstitutional to the extent that it imposes a death sentence solely on the basis of a person’s HIV status, as this was discriminatory and amounted to inhumane treatment. The Court said that people convicted of sexual offences should be sentenced according to the mitigating or aggravating circumstances rather than HIV status alone, and that the law should be interpreted so as not to require a mandatory death sentence for a person living with HIV.

“People living with HIV have the right to life, as all people do. Imposing the death penalty based on a person’s HIV-positive status is the most extreme form of discrimination possible. We welcome the Lesotho High Court’s decision to end this terrible human rights violation.” Edwin J Bernard, HIV Justice Network, global coordinator, HIV JUSTICE WORLDWIDE.

“While recognizing the serious impact of sexual violence, the judgment is an acknowledgment that the over-broad use of criminal laws and sanctions solely based on HIV status is unjust and not justified by a scientific and human-rights based approach” Maketekete Alfred Thotolo, Executive Director, LENEPWHA.

 

Download the pdf of the news release here