El Salvador

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Overview

El Salvador has both HIV-specific laws and general provisions which have the potential to criminalise people living with HIV.

In 2017 a new law was introduced, Decree No. 562 of 2017, the Law on the Control and Prevention of Infection Caused by the Human Immunodeficiency Virus. This law contains a number of duties and restrictions, as well as protections, for people living with HIV. It repealed and replaced Decree No. 588 of 2001 which included many of the same restrictions and obligations.

Article 15 imposes a “duty to communicate” for people living with HIV, meaning any person who is aware of being HIV-positive must disclose this to their partners, permanent or temporary, as well as to their healthcare providers. A failure to disclose is considered a serious infringement under Article 33 and is penalised with a fine of ten to fifty minimum salaries.

Article 16 prohibits people living with HIV from donating organs, blood or other tissues, or sperm, ovaries or breastmilk, except for research purposes. Violation of this provision is considered a very serious infringement under Article 34 and carries a penalty of a fine of fifty-one to one hundred minimum salaries. Furthermore, this provision states that anyone who transmits HIV through improper, reckless or negligent use of human fluids or derivatives is liable to punishment under the Criminal Code.

Article 25 allows for forced testing in criminal proceedings following an order from a judicial authority.

There have been no known prosecutions of people living with HIV in El Salvador.

Laws

Decree 562 of 2017 – Law on the Control and Prevention of Infection Caused by the Human Immunodeficiency Virus

HIV-specific criminal law (active)
Year enacted
2017
Relevant text of the law

Decree 562 of 2017 – Law on the Control and Prevention of Infection Caused by the Human Immunodeficiency Virus

Sexual practices
Art. 14.- It is the responsibility of people in general to inform themselves and to practice their sexuality using scientific prevention methods
to minimize the risks of acquiring HIV.
People living with HIV are obliged to practice their sexuality, using scientifically proven prevention methods, in order to to minimise the risks of transmission of the virus to other people.

Duty to communicate

Article 15 

The members of the National Health System and the providers Private institutions should develop measures and actions to sensitize people with HIV, allowing them to have safer sex and their ethical responsibility in disclosing their serological status for the safety of your partner. The institutions will develop counseling to guide on the importance of disclosing your condition to your partner and for the correct use of barrier methods.

Any person who has been notified of their serological condition is obliged to communicate such situation to their partner, whether permanent or temporary.

It is the obligation of every person living with HIV to inform the health personnel who treat them about their condition.

The same obligation, applies to relatives or close friends in case the person with HIV is not able to report it.

Chapter II – OBLIGATIONS

Prohibition of donation

Article 16. (…)

No one living with HIV/AIDS may be a donor of organ, blood, or other human tissue for therapeutic use; nor can donate semen, ovules, breast milk or breastfeed, except for research purposes.

Anyone who makes improper, reckless or negligent use of human fluid or derivative resulting in the infection of other persons with HIV, will be punished in accordance with the Criminal Code and other respective laws.

CHAPTER III – 
From the diagnosis
Diagnosis
Art. 25.- The performance of any test for the purpose of diagnosing HIV infection, and the results thereof, shall be carried out in accordance with the rights set out in articles 13 and 14 of the Law on Duties and Rights of Patients and Healthcare Providers, before and afterof the test, except for the following cases:
a) That, in the doctor’s opinion, there is a need to carry out the test for the sole purpose of the patient’s health care, in order to count
with better criteria to establish diagnosis and therapy; this circumstance should be recorded in the respective clinical file.
b) In the case of the donation of maternal milk, blood, semen, organs or tissues.
c) When it is required for procedural and criminal purposes and with a prior order from the competent authority.

Chapter IV
Infringements, sanctions, jurisdiction and procedure
Serious infringements
Art. 33.- The following actions or omissions shall be considered serious infringements:
a) Denying access to HIV information.
b) Denying access to HIV prevention and care related counseling and guidance.
c) Discriminating against or stigmatizing a person because of his/her HIV status.
d) Failure to guarantee access to prevention methods.
e) Failure to communicate about their serostatus, as described in Art. 15
f) Refusal to inform the Ministry of Health of persons diagnosed and of HIV-related deaths, by institutions
and health professionals.

Very serious infringements
Art. 34.- The following actions or omissions shall be considered very serious infringements:
a) Denying voluntary access to HIV testing.
b) Mandating an HIV test.
c) Disclosing information without consent on the status and diagnosis of a person with HIV.
d) Refusing to provide comprehensive care for people with HIV.
e) To deprive the rights recognized in Articles 10 and 11 of this law.
f) Refuse to apply high quality, safe and effective procedures to both donors and recipients of organs, blood and
other human tissues, in the donation process.
g) Donate organs, blood or other tissues, in the knowledge of their HIV status
h) Not informing the patient of his/her serological condition.
i) Failure to comply with biosafety regulations.
j) Violating the technical standards, protocols and clinical laboratory procedures approved by the Ministry of Health in relation to this suffering.

 

Decree n° 588 of 2001 - Law on the Control and Prevention ff Infection Caused by the Human Immunodeficiency Virus (Repealed by Decree 562 of 2017)

HIV-specific criminal law (superseded)
Year enacted
2001
Relevant text of the law

Decree n° 588 of 2001 – Law on the Control and Prevention of Infection Caused by the Human Immunodeficiency Virus (Repealed by Decree 562 of 2017)

The difference from the new decree to the old decree is that the new one does not impose the penalty of suspension of the exercise of the profession during the term of the sentence.

TITLE II – RIGHTS AND OBLIGATIONS

Prohibition of donation

ART. 10.- No one living with HIV/AIDS may be a donor of organ, blood, or other human tissue for therapeutic use; nor can donate semen, ovules, breast milk or breastfeed, except for research purposes. Anyone who makes improper, reckless or negligent use of human fluid or derivative resulting in the infection of other persons with HIV, will be punished in accordance with the Criminal Code, and will also be suspended for the exercise of the profession or trade during the term of the sentence.

Serious infractions:

Art. 33. – The following actions or omissions are considered serious crimes:

  1. e) to not communicate one’s seroligical status as described in article 15

Very serious infractions:

Art. 34.- The following actions or omissions are considered very serious crimes:

g) donating organs, blood or other human tissues while being aware of one’s positive status.

CHAPTER III

EPIDEMIOLOGICAL SURVEILLANCE DUTY TO COMMUNICATE

Art. 28.– Any person who has been notified as being HIV positive is obliged to communicate this situation to his or her partner, whether permanent or temporary, present or past, and other persons with whom he or she has had, has or may have risk contacts. It is the obligation of every person living with HIV/AIDS to inform the health care personnel who treat him/her about his/her condition. The same obligation will apply to family members or relatives if the person with HIV/AIDS is not able to inform them.

This information was last reviewed in October 2020