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.
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