The Center for HIV Law and Policys (CHLP) legal and policy outline for advocating for sexual health and HIV prevention programming for youth in state custody. Youth in the state welfare and juvenile justice systems, especially lesbian, gay, bisexual, transgendered and questioning youth, are at alarmingly high risk of becoming HIV-infected. There is a critical need to address discriminatory treatment and the lack of policies, staff training and services that endanger and stigmatize these youth. Targeting advocacy in this direction has a potentially significant impact for the health of at-risk youth and the communities to which they return. The outline highlights various strategies for addressing the states failures; for example, policy and regulations reforms and using existing state laws governing adolescents autonomy and sexual orientation discrimination, as well as state and federal privacy, equal protection, substantive de process and first amendment guarantees to gain legal inroads to securing statesponsored sexual health care services for detained youth.
This complaint was filed on behalf of a woman who was tested for HIV during her pregnancy without her consent, followed by the unauthorized disclosure of her positive HIV serostatus, the involvement of state child protective services, and the forced antiretroviral treatment and temporary removal of her newborn infant. The complaint alleges that the defendants’ actions violated the Americans with Disabilities Act, the Rehabilitation Act, the New Jersey Law Against Discrimination, the New Jersey AIDS Assistance Act, the United States Constitution, and the New Jersey Constitution. The complaint further alleges tortious interference with parental rights, negligence, failure to investigate, and a violation of privacy and familial relationships. The complaint thoroughly explains the factual basis for each allegation and describes how the defendants’ unlawful actions caused the plaintiff unnecessary suffering. Although based in part on New Jersey law, the complaint provides a useful template for advocates representing parents whose difficulties or disagreements with health care providers result in the involvement of child protective services and challenges to their fitness as parents. The complaint’s state law claims could easily be adapted to meet the requirements of other state laws.
This article, written by Lauren Shapiro of South Brooklyn Legal Services, and published in 1998, provides an overview of how the law at the time treated HIV-positive parents involved in custody disputes in family court. The author draws on her own experience representing clients, almost all of whom were poor women of color, in cases involving their HIV status in relation to custody of their children. The author also identifies and analyzes several cases that highlight how challenging it can be for an HIV-positive parent lost in the abyss of the family court system. The discussion includes the impact of HIV on women, HIV as a disability, disability as a factor in custody disputes, and the treatment of HIV-positive parents in New York family court. Based on her experience in family court, the author offers other advocates some recommendations for effective representation of HIV-positive parents.
The Convention on the Rights of the Child (“CRC”) is an international treaty that discusses many of the rights children, some of which are in addition to those also enjoyed by adults. Particularly relevant to HIV/AIDS issues are: the right to life and corresponding obligation of the state to ensure to the maximum extent possible the survival and development of the child (Article 6); the right to seek, receive, and impart information (Articles 13, 17); the right to education (Article 28); the right to the highest attainable standard of health, including preventative health care, guidance for parents, and family planning education and services (Article 24); rights of disabled children to special care and to conditions that ensure dignity and facilitate active participation in the community (Article 23);the right to a standard of living adequate for physical, mental, spiritual, moral, and social development (Article 27); and the right to be actors in their own development and to express their opinions in all matters affecting the child (Article 12). States are also obligated to respect and ensure the rights in the CRC without discrimination of any kind, irrespective of the child’s or his or her parent’s disability (Article 2). The best interests of the child must be a primary consideration in all actions concerning children (Article 3). Moreover, states are obligated to ensure that the child as such protection and care as is necessary for his or her well-being, and to ensure that institutions, services, and facilities responsible for the care or protection of the child conform with the standards established by competent authorities, particularly in the area of safety and health (Article 3).
As a treaty, the CRC is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. State parties must submit periodic reports to the Committee on the Rights of the Child detailing their progress on upholding the treaty’s provisions.
General Comment No. 3 of the Committee on the Rights of the Child, available separately in the Resource Bank, analyzes the obligations of the CRC in the context of HIV/AIDS.
The United States has signed, but not ratified, the CRC.
A revised and consolidated version of the original guidelines published in 1996, the purpose of the Guidelines is “to assist States in creating a positive, rights-based response to HIV that is effective in reducing the transmission and impact of HIV and AIDS and is consistent with human rights and fundamental freedoms.” The Guidelines are a joint project of the United Nations Office of the High Commissioner for Human Rights and UNAIDS. The consolidated guidelines include the revised Guideline 6, which reflects the human rights dimensions of access to HIV prevention, treatment, care, and support. The document consists of three parts: 1) twelve guidelines for state action; 2) recommendations for dissemination and implementation of the Guidelines; and 3) a description of the human rights principles underlying a positive response to HIV. The primary users are intended to be states, but it is also meant to inform intergovernmental organizations, non-governmental organizations, networks of people living with HIV, community-based organizations, networks on ethics, law, human rights, and HIV, and AIDS service organizations. It is also useful for any person looking for interested in a rights-based approach to HIV/AIDS and specific steps needed to implement such an approach.
This recent convention reaffirms and seeks to enforce established rights for those with disabilities. Articles of the convention that are particularly relevant to HIV/AIDS issues cover: recognition of equality and prohibition of discrimination (Article 5); the right to liberty and security of person (Article 14); the right to liberty of movement and to acquire and change nationality with discrimination on the basis of disability (Article 18); the right to privacy of personal, health, and rehabilitation information (Article 22); the right to respect for home and family and prohibition on discrimination against persons with disabilities in all matters relating to marriage, family, parenthood, and relationships (Article 23); the right to education (Article 24); the right to the enjoyment of the highest attainable standard of health (Article 25); states’ obligations to take measures to enable persons with disabilities to attain and maintain maximum independence (Article 26); the right to work (Article 27); the right to an adequate standard of living and social protection (Article 28); the states’ obligation to comply with legally established safeguards to ensure confidentiality and privacy in the process of collecting and maintaining data on persons with disabilities, and to comply with internationally accepted norms to protect human rights and fundamental freedoms and ethical principles in the collection and use of statistics (Article 31).
The Convention also establishes a Committee on the Rights of Persons with Disabilities and requires parties to the Convention to submit periodic reports to the Committee on measures it has taken to implement the Convention.
The Optional Protocol to the Convention allows individuals who are victims of violations of Convention to present complaints before the Committee against a state that has ratified the convention and violates its obligations.
As of August, 2008 the United States had not yet signed or ratified the Convention or the optional protocol.
This opinion holds that an HIV-positive mother’s refusal during pregnancy to take antiretroviral medication (ARVs) to reduce the risk of transferring HIV to her fetus does not constitute an act of neglect or abuse under New Jersey law. New Jersey’s Division of Youth and Family Services (DYFS) filed this action against a mother after her child was born, alleging abuse and neglect of her child. The court rejected the state’s argument on several grounds. First, the court held that a pregnant woman’s right to choose what medications she will take is protected under her right to privacy, which includes “the ability to refuse medical treatment, even at the risk of her death or the termination of her pregnancy.” Her decision to refuse ARVs was protected from state interference even though it would increase the risk of transmission to her fetus. Second, the New Jersey child abuse statute requires proof that the child was harmed as a result of the parent’s actions. Because the statute protected only born children, the state had to demonstrate that the mother’s actions while pregnant resulted in harm to the child after it was born. The state, however, failed to demonstrate that the child was HIV-positive, and thus could demonstrate no harm. Moreover, even if the child were HIV-positive, there would have been no guarantee that the child would not have been born HIV-positive even if the mother had taken ARVs, since the medication only reduced, rather than eliminated, the risk.
The L.V. case demonstrates the substantial rights pregnant women have to determine the course of their medical treatment and the complexities involved in mandating ARV treatment. While L.V. is not dispositive in other jurisdictions, it is persuasive, especially given the lack of case law on ARV administration during pregnancy.
