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

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).

 

When law and science part ways: the criminalization of breastfeeding by women living with HIV

The HIV Justice Network (HJN) has been monitoring a disturbing phenomenon — at least 12 women living with HIV have faced criminal prosecution in relation to breastfeeding or comfort nursing.  

In addition, women living with HIV have been threatened with punitive public health processes and child protection interventions for breastfeeding their children in multiple countries.

To bring this important issue to the attention of women’s health experts and advocates, HJN worked with our HIV JUSTICE WORLDWIDE partners to write a paper for a Special Collection on Women’s Health and HIV for the peer-reviewed, open access journal Therapeutic Advances in Infectious Diseases.     

In “When law and science part ways: the criminalization of breastfeeding by women living with HIV,” published last week, Alison Symington (HJN’s Senior Policy Analyst), Nyasha Chingore-Munazvo (Programmes Lead, AIDS and Rights Alliance of Southern Africa) and Svitlana Moroz (Chair of the Eurasian Women’s Network on AIDS) place the criminalisation of women with HIV for breastfeeding within the context of current medical recommendations and cultural views of breastfeeding. They review the criminal cases against women living with HIV for breastfeeding around the globe, examine the injustice of these prosecutions, and provide recommendations for decriminalisation.

This Special Collection includes papers addressing a wide range of health issues impacting women with HIV. According to lead author Alison Symington, “We felt it was important to submit a paper on breastfeeding and HIV criminalisation because so few people are aware of these horrible cases. Healthcare providers have an important role to play in protecting women from punitive actions and providing them with information and support so that they can make the best decisions for themselves and their children.”

To make the paper even more widely accessible, HJN has provided translations into French, Russian and Spanish.

It is HJN’s aim to collaborate with advocates, researchers, service providers, organisations and community members around the world to raise awareness and prevent further unjust prosecutions against women living with HIV who breastfeed or comfort nurse. We are therefore grateful to both the Elizabeth Taylor AIDS Foundation and the Robert Carr Fund for their financial support for this work.

Further resources

Mwayi’s Story is a short film about courage, and about women standing up for their rights. The film is based on a real case in Malawi and the subsequent successful advocacy to prevent an HIV criminalisation statute being passed. The full story of the woman who was prosecuted for briefly breastfeeding another woman’s baby is told in an HJN feature, It Takes More Than A Village to End HIV Criminalisation, by Sally Cameron, based on a report by Peter Gwazayani, Edna Tembo and Charity Mkona.

 

 

Mwayi’s Story: a short film about courage,
women’s rights, and HIV justice

Today we are delighted to share with the world a new short film, Mwayi’s Story, produced by the HIV Justice Network on behalf of HIV JUSTICE WORLDWIDE.

Mwayi’s Story is a story about courage, and about women standing up for their rights. The film is based on the story of a woman in Malawi who was prosecuted for briefly breastfeeding another woman’s baby and the subsequent successful advocacy in Malawi to prevent an HIV criminalisation statute being passed.

Ultimately, Mwayi’s Story is about HIV justice!

We wanted to produce a film that was authentic to the lived experience of an HIV criminalisation survivor but without making her go through the trauma of having to relive the experience by telling her story again.

HJN’s video, visuals and webshows consultant, Nicholas Feustel, who produced and directed the film, said: “Since this story is primarily about mothers and children, we decided to produce the film in the style of an illustrated children’s storybook. We searched for a female illustrator working in sub-Saharan Africa and found the wonderful Phathu Nembilwi of Phathu Designs.

“For our narrator, we found Upile Chisala, a storyteller from Malawi known for her short and powerful poems.”

The script by HJN’s Senior Policy Analyst, Alison Symington, was written in consultation with our Supervisory Board member, Sarai Chisala-Tempelhoff, a Malawian human rights lawyer and legal researcher with over 15 years of experience in women’s access to justice.

We also worked with our HIV JUSTICE WORLDWIDE partners, Southern Africa Litigation Centre (SALC) and AIDS and Rights Alliance for Southern Africa (ARASA), to ensure that the film was relevant to their ongoing advocacy in the region. In fact, Mwayi’s Story had its world premiere last week on Zambia’s Diamond TV, in anticipation of a verdict in a similar breastfeeding case.

The film will be shown in a number of forums over the next few months, including at AIDS 2022. It will soon be subtitled in French, Russian and Spanish, and we are also looking for partners to translate additional subtitles if they think the film can be useful in their own advocacy. If you’re interested you can get in touch with us at breastfeeding@hivjustice.net. We will send you the English subtitle file for translation. After you return the file to us, we will upload it to YouTube.

Mwayi’s Story is part of our ongoing work to end the criminalisation of women living with HIV for breastfeeding and comfort nursing, including our Breastfeeding Defence Toolkit. It is our goal to collaborate with advocates, researchers, service providers, organisations and community members around the world to raise awareness and prevent further unjust prosecutions against women living with HIV who breastfeed or comfort nurse. We are grateful to both the Elizabeth Taylor AIDS Foundation and the Robert Carr Fund for their financial support for this work, and this film.

New Breastfeeding Defence Toolkit
launched at Beyond Blame 2021

Criminal prosecutions related to presumed HIV exposure via breastfeeding are all-too-often driven by stigma, misinformation, and the desire to protect a child from exaggerated risk.  People living with HIV require a vigorous defence based on principles of justice and human rights, good public policy, and accurate science.

Which is why this week we have launched the Breastfeeding Defence Toolkit as a new section of our HIV Justice Tookit.

The Breastfeeding Defence Toolkit provides materials to support lawyers and advocates supporting people living with HIV who face criminal charges or other punitive measures for breastfeeding, chestfeeding, or comfort nursing.

Although the Breastfeeding Defence Toolkit is currently only available in English, we are working on French, Russian and Spanish versions.  In addition, new resources will be added to the Toolkit as they become available.

The Breastfeeding Defence Toolkit was launched at Beyond Blame: Challenging Criminalisation for HIV JUSTICE WORLDWIDE on Tuesday 30 November 2021.  Watch the 10 minute segment below.

Background

In 1986, it was discovered that HIV could be transmitted from a woman to a child through 
breastfeeding. Since this time, women living with HIV have borne the weight of the 
responsibility of preventing HIV transmission to their offspring. This responsibility has been 
used to justify surveillance, judgement, and limitations on autonomy and decision-making for 
women living with HIV.

Some women living with HIV have faced criminal prosecution for exposing fetuses and/or 
infants to a risk of HIV infection, especially through breastfeeding. These numbers may be small 
compared to the number who have faced criminal charges with respect to HIV non-disclosure, 
exposure and transmission in sexual contexts, but cases are increasing.

The HIV Justice Network 
is aware of at least 13 such cases in the past decade, with a growing number of criminal prosecutions taking place 
across the African continent as well as in Russia since 2018. We are also aware of several cases 
that took place in North America and Europe between 2005 – 2012.

These cases include charges laid against mothers, community members and domestic 
employees. Various criminal charges have been used in these cases, including failure to provide 
the necessaries of life, grievous bodily harm, unlawfully doing an act likely to spread a 
dangerous disease, and deliberately infecting another with HIV.

In addition to these criminal 
cases, many more women have experienced punitive responses from service providers, public 
health, and child welfare authorities.

Criminal prosecutions and other punitive responses to breastfeeding by women living with HIV 
pose significant harms to both the accused and the child. HIV criminalisation threatens the 
health and well-being of people living with HIV and jeopardises the goals of ending HIV 
discrimination and, ultimately, the epidemic. Not only do punitive laws targeting people living with HIV lack a scientific evidence base they also serve as barriers to HIV prevention, treatment, 
and care, and perpetuate stigma.

Infant feeding choices should not be a criminal issue. Parents should be provided with full 
information to make the best choices for their families and infant feeding should be managed 
through clinical support. Science supports that the best outcomes for a mother and a child 
result from proper medical care, access to treatment and openness. Criminalising maternal and 
child health issues generally risks worse outcomes for the infant.

[Feature] It Takes More Than A Village to End HIV Criminalisation

The proverb says, “It takes a village to raise a child”. But what if a mother in the village is living with HIV, and some of the villagers stigmatise her? What if that stigma creates a situation where the mother living with HIV is unjustly criminalised because of her HIV status? Then it takes more than a village to get justice for that woman. It takes a global movement to end HIV criminalisation to sensitise and train lawyers and expert witnesses.  It takes national communities of women living with HIV to support that woman following her release, and to educate the community in which she lives about HIV.

Introduction

In 2016, a Malawi court convicted a woman living with HIV of “negligently and recklessly doing an act likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code. She had attended a village meeting with her baby which she breastfed as usual before passing the child to her grandmother. Another woman then asked her to hold her baby. It was alleged that this child began breastfeeding briefly before the woman realised what was happening. The child’s mother then reported the incident to the police. The woman was arrested and without legal advice or representation, pleaded guilty, was convicted, and sentenced to nine months’ imprisonment with hard labour.

The circumstances of the case are all the more shocking because women living with HIV are encouraged to breastfeed in Malawi (and in other countries with high HIV prevalence and settings in which diarrhoea, pneumonia and undernutrition are common causes of infant and child deaths) and because HIV-related prosecutions involving breastfeeding are exceedingly rare. Unfortunately, we have seen an increase in the number of such cases since 2016. HJN is working to address this in a number of ways because we believe there should never be prosecutions of women living with HIV for breastfeeding.

In addition, the accused woman was taking antiretroviral therapy. The chances of HIV transmission through even long-term breastfeeding are very low (which is why WHO guidelines recommend it when access to infant formula and clean water are limited) and the chances of transmission during the brief period the baby allegedly fed were infinitesimally small. In fact, the accused woman’s own child, who was routinely breastfed, has not acquired HIV, calling into question any suggestion that she intended to cause harm to the other woman’s child. Perversely, for a system that unjustly condemned her for risking harm to the other woman’s child, her own baby was imprisoned with her, without any arrangements for appropriate feeding and care, negating any notion that the legal system’s purpose was to protect children.

Following media reports of her initial conviction, numerous individuals and organisations – including HJN and our HIV JUSTICE WORLDWIDE partners, ARASA and SALC – became involved in the case, ultimately changing the outcome for the woman and her family, and laying the groundwork for further anti-HIV stigma advocacy and education in the region. Her story demonstrates the vital role that education, training, strong networks, and community play in the pursuit of HIV justice.

Living with HIV-related stigma

When interviewed at her home in 2019, the woman referred to as “EL” talked about her life:[1]

[1] The initials EL are used instead of her full name following a court order of anonymity to protect her privacy. The interview took place in 2019, during the village visit described later in this article.

“As kids, there were the two of us — me and my brother. My parents faced challenges raising us. Finding the basic necessities like soap and food was a tall order, let alone talking about going to school. It was difficult to get learning materials as well as proper clothes to wear at school. I worked hard in class but couldn’t get past Standard 5 at primary school. Eventually I dropped out, and my brother did the same, … My daily life was taken up doing house chores just like any other girl in the village, as well as helping my parents with farming. At 16, I got married.”

EL further described how she was diagnosed HIV-positive in 2015 after a de facto compulsory HIV test at an antenatal visit. She already had two children and was pregnant with her third. She had heard about HIV but did not know much about it. EL said that the healthcare workers provided a lot of assistance, giving her accurate information about HIV, including the importance of adhering to her antiretroviral treatment (ARVs).

EL and two of her children. Photo: Amos Gumulira/UNDP Malawi

EL said that she generally enjoyed life in her village, although at times she was subject to stigma and discrimination:

“When I went to fetch water at the community borehole, people would laugh at me, and whenever I wanted to participate in community work, you would find pockets of community members talking ill about me. Some people used to insult me, calling me names. But I persevered because my relatives, including the Village Headman himself, gave me support and always stood by my side.”

Members of EL’s family also faced discrimination. “Due to lack of information, a lot of people thought HIV was hereditary and because I was diagnosed HIV-positive, this meant that all my family members had HIV, and they were discriminated against,” EL said.

EL wonders if more could have been done to help her fight stigma. In particular, EL gained a lot of knowledge about HIV from the counselling she got when diagnosed, but perhaps she could have been better equipped with information to share with people in her community:

“A lot of people don’t know that if you adhere to ARVs, you reduce the risk of transmitting HIV to others. This information needs to be passed on to many people. There are also other issues to do with ARVs. A lot of people don’t have adequate information on the effects of ARVs and at the end of the day, they start pointing fingers at each other, giving people room to start speculating about issues to do with witchcraft.”

EL’s prosecution had repercussions for her whole village. One woman from the community explained:

“I was there and very close to where EL was sitting. Yes, she was carrying another woman’s child. This other woman had given the child to EL for safe keeping while she went to stand in a queue, but honestly speaking, I didn’t see EL breastfeed the child. I just heard some people who were sitting a distance from where we were sitting, as they started pointing accusing fingers at her.”

She said that things moved so fast that before they could think of anything to stop what she called “the rumour.” It had gotten out of hand and people started saying that EL had intentionally breastfed the child to transmit HIV.

After receiving a summons, EL voluntarily turned herself in at the police station. She was accompanied by the Village Headman (her grandfather) who wanted first-hand information about what crime she was alleged to have committed. That same day, police transferred EL to a larger town, where she was remanded for three days. At the age of 29, this was the first time that EL had ever left her village.

Days later, she appeared in court and the charge sheet was read out. EL recounted that she had not understood what was happening and could not make arguments because she had no legal representation. EL agreed with the summary of events as they were described, so she was found guilty and was imprisoned together with her youngest child.

She described life in prison as “hell”:

“After a week, my brother showed up to give me my ARVs. All this talk about a woman with HIV breastfeeding. I breastfed but I also found it tough to feed my baby while in prison because there was no provision of special food for babies. We were eating nandolo (pigeon peas) almost every day with Msima ya Mgaiwa (maize meal). And there was only one toilet for a cell of more than 50 people.”

After some time, relatives and other members of her community started visiting, giving her money she could use to buy soap and food for her baby. “When we heard from our Village Headman that she had been arrested, we were so devastated”, a woman from EL’s village explained. “We raised funds for some members to go and give her support only to learn that she had been transferred to one town, then another, but some of us did manage on several occasions to visit her and offer our support when she was in prison.”

Then, out of the blue, EL received a message that some people had come looking for her. She went to meet them: a lawyer, Wesley Mwafulirwa, and his paralegal. They explained why they were there and asked if she would like them to appeal on her behalf. She accepted enthusiastically. “I was excited but at the same time I was confused because I could not believe that I could be so lucky to have these people come to help me.”

Fighting the charges

Solicitor Wesley Mwafulirwa had volunteered to attend training to address legal barriers to prison health and human rights presented by the Southern African Litigation Centre (SALC). He travelled from Malawi to South Africa to attend the training which addressed useful regional and international mechanisms, and presented insights about legal practice and strategic litigation to support prison health and human rights, particularly for those facing heightened vulnerability to HIV and TB.

Wesley Mwafulirwa Photo: Amos Gumulira/UNDP Malawi

At the training, two lawyers spoke about their pro bono work. Wesley remembers one of them, Allan Maleche (Executive Director of KELIN), saying that each participant should take at least one case when they go back to their country. It was a turning point in Wesley’s career.

He had not been home long when he saw an article in the newspaper about an HIV-positive person convicted for trying to spread HIV. That person was EL.

Wesley, who lives in a small town in northern Malawi, drove for more than ten hours to get to the jail where EL was incarcerated. He explained his determination, saying “I was so fired up! I’d just come from SALC’s training … and I said, ‘I want to take up this case’.”

Wesley interviewed EL and offered to take her case pro bono. Wesley contacted SALC, who offered technical support. Their first step was to get an order for anonymity to protect EL’s identity and gain greater control over media reporting. Next, they faced an ethical question. They wanted to challenge the constitutionality of the law but that would take a long time. Because EL was in prison, they decided to undertake a criminal appeal instead. They applied for EL to be let out of custody on bail pending appeal. This is usually a difficult application to win, but they were successful and EL was released from prison.

In the appeal, the court was asked to consider whether the conviction could be justified, whether the penal provision was constitutional (arguing it was overly broad and vague), and whether the sentence was manifestly unjust. Wesley used his learnings from the SALC training to raise international principles and instruments relating to sentencing, which the court referenced and upheld. Michaela Clayton, then Executive Director of the AIDS and Rights Alliance for southern Africa (ARASA), and now a member of HJN’s Supervisory Board, provided expert testimony. Another expert witness, Dr Ruth Brand, identified through HJN’s global network, gave expert scientific evidence to show the risk of HIV transmission had been “infinitesimally small.”

The case was heard by Honourable Justice Zione Ntaba, who held that the proceedings in the trial court were irregular and “blatantly bias” against EL, compromising her right to a fair trial. Justice Ntaba found the charge sheet had been defective and therefore EL’s plea should not have been recorded as guilty. She noted the law must be sensitive to the accused’s knowledge or belief (or lack of) that HIV would be transmitted. Justice Ntaba decided the conviction could not be justified, acknowledging human rights principles against the overly broad criminalisation of HIV non-disclosure, exposure, or transmission. EL’s sentence was set aside. (The Constitutional challenge was referred to a full-member panel of the Constitutional Court although the case was not pursued.)

Notably, Justice Ntaba was a member of the African Regional Judges Forum to discuss HIV, TB and Human Rights (a process which is owned and planned by the judges and run with support from UNDP and funding from the Global Fund).

Fighting the stigma

Shortly after EL’s arrest, the Coalition of Women and Girls Living with HIV and AIDS in Malawi (COWLHA) and the Malawi branch of the International Community of Women Living with HIV/AIDS (ICW-Malawi) discussed the case at a roundtable meeting. At first, everyone was surprised and even laughed, questioning how she could have breastfed someone else’s child. They had never heard of a criminal case involving infant feeding and did not understand what they were dealing with.

During their discussions, COWLHA and ICW-Malawi agreed that the prosecution of EL was a manifestation of stigma and misinformation about HIV in the community. They learned more about the unjust measures that EL had experienced, like being imprisoned without being given a chance to be heard and not being given the chance to prepare and take her medication and things she needed to care for her child. COWLHA and ICW decided to get involved.

Representatives from COWLHA and ICW meet with members of EL’s village. Photo: COWLHA/ICW

Concerned that EL could face social and community hostility after her release, COWHLA and ICW planned a visit to the village to provide psychosocial support to EL and to work with traditional community leaders to provide community sensitisation on HIV, addressing issues of stigma and discrimination. Their efforts helped change some community members’ ideas about HIV.

The community formed two support groups— one for youth and another for adults (notably both were predominantly female groups). They have conducted numerous activities, including home visits, supporting children to go to school, helping the elderly with house chores, and they have a garden where they grow vegetables and rice. They hoped to access loans to become self-reliant. They also had a list of issues they wanted to learn more about, including preventing mother-to-child transmission, sexual and reproductive health, positive living, stigma and discrimination, and treatment literacy.

Visiting EL at home

In September 2019, a three-member team comprising Edna Tembo (Executive Director of COWLHA), Charity Mkona (ICW Board Chair), and Peter Gwazayani (media consultant), set out for EL’s village.

The team was welcomed by the Group Village Headman, who took them to EL’s house. EL recognised Edna from the work COWLHA and ICW-Malawi had done in the community previously. EL welcomed the team with a big smile.

EL and her husband looked cheerful as they laid a mat on the veranda of their house for the visitors. Her mother later joined the discussion.

EL was interested to learn that HJN wanted to write about her case and the type of interventions that had been helpful, to share the story with advocates for HIV justice around the world.

EL recounted that when she returned to the village, “most members of my community received me with happiness, particularly my relatives. The day I arrived, they were jubilant. They celebrated with songs that we normally sing during special occasions in the village.”

COWLHA ED Edna Tembo and Charity Mkona of ICW chat with EL, her husband and her mother (at far distance). Photo: COWLHA/ICW

EL lives with her husband, five children and her mother in a compound made up of three grass thatched houses. She introduced her children:

“The oldest is 13 and she goes to school, as do the second and third. The fourth, a little girl, is the child I was with in prison. She has not yet started school. And then there is this one, who I am breastfeeding. She is the fifth one. She has been tested for HIV on two occasions and will be going for the last test soon. The other two tests have come back HIV-negative.”

EL’s accuser and her family still lives in the same village which has presented some difficulties. EL said that on several occasions she had tried to greet them when they passed each other, but she had been ignored. “They don’t talk to me but from deep down in my heart, I have no grudges against them,” EL said.  “I am just living my normal life,” EL says, although now she says that she would never agree to carry anybody else’s child, for any reason.

Moving beyond criminalisation

With respect to the community-level interventions, lawyer Annabel Raw, who worked at SALC during the time they supported the EL case said:

“As lawyers, we would never have thought to consider such an intervention had ICW-Malawi and COWLHA not shared their insights and been willing to support the client and her community. Their work has been so important to ensuring that meaningful justice was done to combat the actual root cause of the prosecution — stigma and discrimination — and to reconcile EL with her community.”

Engaging with the community also influenced ICW-Malawi and COWLHA’s thinking about HIV criminalisation. COWLHA’s Edna Tembo noted that:

Supporting people who have been prosecuted, particularly women, gives them power, … However, it is very important to stress that psychological support is absolutely vital for those who have been prosecuted. That includes family support, and a supportive community environment enabling acceptance of an individual accused.”

Tembo was also quick to emphasise that there is more work to be done. That work includes awareness raising and ongoing support to the community, especially to identify and train volunteers, empowering them to provide services at community level and to link them to health facilities and district offices for continued support and mentorship.

EL carries her youngest child home. Photo: Amos Gumulira/UNDP Malawi

EL described her dreams for the future:

“My wish now is to see my children progress in school so that they become productive citizens in this community and help it grow. That’s my dream. If they get educated, they will be able to stand on their own and support others. My husband is not employed and it is a challenge to get money for school fees for our children. We would love to get a loan or training to have greater knowledge of economic empowerment because we want to be self-reliant. We would then love to lease some land to grow rice to sell to pay back the loan.

“It’s also my wish to see the lives of all people in the community uplifted. We farm but on a small-scale. If we were to be supported with funds, I’d love to see the community establish big rice farms, working in groups, harvesting for consumption and for sale. In so doing, we would be able to uplift our lives for the better.”

Further Information

Learn more about Wesley’s experiences in EL’s case here and here.

Learn more about the African Regional Judges Forum here.

The full High Court judgement is available here, with a summary included here.

Read more about the successful HIV and AIDS Management Act community advocacy here.


This article is based on information provided by ICW-Malawi and COWLHA following their visits to EL’s village, and an interview with Wesley Mwafulirwa published by UNDP. HJN provided financial and logistical support for the village visits thanks to a grant provided to the HIV Justice Global Consortium from the Robert Carr Fund for civil society networks.