Bahrain: Proposed law would require people with HIV to obtain judges' permission to marry

Bahrain citizens suffering from a hereditary or incurable disease – such as sickle cell anaemia, HIV, and hepatitis – will need to get permission from the courts to get married under a new draft bill currently being considered by the government, it has been reported. Under the current law, in place since 2004, it is compulsory for all engaged couples to get a certificate from the Health Ministry that states they have undergone premarital check-ups, where they are tested for hereditary diseases such as sickle cell anaemia and thalassaemia, and incurable diseases like HIV, and hepatitis.

While the outcome of the check-ups does not currently restrict them from going ahead with the marriage, a new bill could mean those who test positive for any of the hereditary or incurable diseases will need to get permission from the courts to pursue the marriage, according to a report by Gulf Daily News. A draft of the law is now before the National Assembly for revision. However, the Supreme Council for Islamic Affairs has already objected to the move and said it was against Sharia Law and basic human rights to stop anyone marrying someone they want to on the grounds of their health conditions. A doctor who is behind the proposal reportedly said “it was essential for judges to take the decision in such cases to prevent emotions from getting in the way.”

Botswana’s draconian Public Health Bill approved by Parliament, BONELA will challenge it as unconstitutional once President signs into law (Update 3)

Update: April 5th 2013

Very disappointing news from Botswana. The Public Health Bill – including all of its draconian provisions on HIV – has been approved by Parliament.

BONELA issued this press release last week just prior to the vote.

MEMBERS OF PARLIAMENT (MPs) ARE THE ONLY ONES WHO CAN SAVE US FROM THE PROPOSED PUBLIC HEALTH BILL…..IT IS IN THEIR HANDS

We knew that the Public Health Bill will be back in Parliament for further debate. However, we had anticipated that the Ministry of Health would heed calls made by stakeholders such as BONELA, UNAIDS, WHO, SALC, AIDS Alliance, ARASA, Ditshwanelo and other concerned Batswana and make amendments to the bill, particularly on the controversial, offensive and invasive provisions.

To our utter shock, the Ministry of Health intends to make no changes to the bill at all; even with the benefit of information on best practices availed to them. This to us; is a clear case of indifference and a deliberate plan to violate people’s rights.

BONELA and its stakeholders have done all that is possible to raise awareness, especially to the general public who would be affected by this law. It is now up to MPs to propose and vote on the amendments.

If MPs fail or decide not to discharge that constitutional mandate, as concerned stakeholders, we would know that our MPs are happy to see people’s rights being violated-that they are happy to see Batswana being tested for HIV without their consent, happy to give doctors sole mandates on deciding when and what to do with patients without consultations.

We would also know that MPs by failing to do their duty are happy to see litigants in court pleading not to be tested for HIV because their government want them to. Moreover, we would know that our MPs are happy to place responsibilities of sexual matters ONLY on those who are HIV positive by agreeing with forceful disclosure to all potential sexual partners by people living with HIV even if they are using protection.

Lastly, our MPs will be happy to see that whoever seeks dental services is required to do an HIV test before such services are meted.

It is therefore, in the hands of MPs to exercise their power to propose and vote for a sound Public Health bill. It is in your hands……

According to this APA piece, published on Wednesday, the Bill was approved by parliament. BONELA is now waiting for Botswana President, Ian Khama, to sign the Bill into law before it can approach the High Court to challenge the offending clauses as unconstitutional.

Botswana’s Health Minister, Dr John Seakgosing on Tuesday said the Public Health Bill, which seeks among other things, to isolate people who infect others with sexually-transmitted diseases such as HIV/AIDS, while knowing their status, will apply to Members of Parliament, cabinet ministers and even the president.

He explained to APA in an interview that the Bill that was passed last week, will not apply only to ordinary citizens.

According to Seakgosing, if the president, ministers and legislators are found to be infecting others carelessly, they will be brought before the courts where the magistrate will take a decision to isolate them from the public.

While he explained that the Bill does not seek to empower medical practitioners to force clients to undergo tests, but Clause 104 (3) (b) provides that “the director or a person authorised by him may where necessary and reasonable, require a person or a category of persons to undergo an HIV test”. Clause 104 (4) then provides that “where a person required to undergo a test under Clause 104 (3) refuses to do so, the director may apply to a magistrate for an order requiring that person to undergo the test.”

But some HIV/AIDS activists are up in arms saying the Bill will reverse the gains achieved in fighting the HIV scourge as it encourages discrimination.

AIDS advocacy group Botswana Network on Ethics Law and HIV/AIDS (BONELA) says it intends to take the government to court over the Public Health Bill that has been approved by parliament.

BONELA director, Uyapo Ndadi, said in an interview that his organisation is only waiting for President Ian Khama to sign the Bill into law before it can approach the high court to challenge certain clauses in it as they are unconstitutional.

Update: December 14th 2012

The Public Health Hill has been shelved until next February thanks to the advocacy against the “outrageous” HIV-related provisions (see below) spearheaded by the Botswana Network on Ethics, Law and HIV/AIDS (BONELA). That’s the good news this morning, according to Uyapo Ndadi, BONELA’s Executive Director:

I am happy to inform you that the outrageous Public Health Bill has been shelved, at least until next year February when parliament resumes business. Our collective advocacy has helped to thwart cabinet’s plans to have the bill passed into law during this sitting.

I am happy to further inform you that UNAIDS has also written to our government to remove the draconian provisions from the bill.

It is now hoped that in the intervening months, BONELA and other human rights advocates will add to the pressure created by UNAIDS to make the Government see that in order to save face internationally, they must either substantially rewrite the Bill or drop it completely.

Update: December 11th

Disappointing and worrying news today from BONELA:

Parliament yesterday voted in favour of passing the Bill from the 2nd reading stage to the Committee stage. Amendments to the Bill may be made at the Committee stage. It means that our efforts to get the Minister to withdraw the bill for lack of consultation have failed. Our hope now is that Parliament will remove from the bill the draconian parts of it.

A report in BOPA daily news highlights the debate yesterday

The Member of Parliament for Lobatse, Mr Nehemiah Modubule says he does not support the Public Health Bill in its current state. Debating the bill in parliament on Thursday, Mr Modubule said it should first be put into perspective, as some of the clauses are contradictory. He argued that they would have a hard time trying to amend such clauses if the bill passes to the committee stage. He noted that consultations with some stakeholders such as Botswana Network on Law and AIDS (BONELA) were not done. Furthermore, he said, the minister of health should have done justice to the bill by deferring it for further consultations, as some clauses touch on customs and practices of Batswana.

In his contribution, the MP for Moshupa, Mr Mokgweetsi Masisi supported the bill, arguing that prevention and control of diseases is not peculiar to Botswana, more so that new communicable diseases continue to emerge. Mr Masisi said the bill conforms to international practices in terms of public health, adding that consultations had been done and they should not delay the bill.

Original post: December 10th

On Friday, Botswana’s Parliament debated the proposed Public Health Bill which contains some shocking and regressive HIV-related provisions that, according to a strongly-worded press release from the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) “have no place in a democratic and modern day Botswana..that are counter-productive, discriminatory, unconstitutional and barbaric.”

The relevant passages of the Bill are available to download here (Botswana Public Health Bill 2012.pdf, 1.4MB)

Some of the most problematic provisions as highlighted by BONELA, are below.

Clause 104 (3) b – empowering medical practitioners to force their patients to undergo HIV tests without their consent.

The Director, or any person authorised by him or her, may, where necessary and reasonable require a person or a category of persons to undergo an HIV test.

Clause 105 (2) b – empowering doctors to test patients without their knowledge.

A medical practitioner responsible for the treatment of a person may conduct an HIV test without the consent of that person where —  (b) the medical practitioner believes that such a test is clinically necessary or desirable in the interests of that person.

Clause 109 (3) – allowing surgeons or dentists to test a patient for HIV before deciding on whether to carry out a non-urgent procedure.

Where, in the opinion of a medical practitioner, nurse or dental practitioner, the surgical or dental procedure is not urgently required in respect of a person, the medical practitioner, nurse or dental practitioner may require the person to undergo an HIV test before carrying out that procedure.

Clause 116 (1) – mandating HIV disclosure to all potential sexual partners or care giver and allowing prosecution for placing another at risk.

A person who is aware of being infected with HIV or is carrying and is aware of carrying HIV antibodies shall — (a) take all reasonable measures and precautions to prevent the transmission of HIV to others; (b) inform, in advance, any sexual contact or care giver or person with whom sharp instruments are shared, of that fact; and (c) not place another person at risk of becoming infected with HIV.

Clause 116 (7)  empowering doctors to disclose their patient’s HIV status to their sexual partner without their consent.

A medical practitioner who is responsible for the treatment of a person and who becomes aware that the person has not, after a reasonable opportunity [disclosed their HIV status] may, after consultation with an approved specialist medical practitioner, inform any sexual contact or care giver of that person of the HIV or HIV antibody status of that person.

Clause 116 (9-12) –  limiting the right to freedom of movement for people with HIV without sufficient legal checks and balances.

(9) The Director or any officer representing the Director may, in writing, apply to a magistrate for an order where the Director reasonably believes that a person infected with HIV — (a) is not complying with this Part; b) knowingly or recklessly places another person at risk of becoming infected with HIV without the knowledge of that person of the infected person’s HIV status; or (c) is likely to continue the behaviour referred to in paragraph (b).  (10) For the purpose of subsection (9), a magistrate may make any or all of the following orders — (a) an order that the person infected with HIV undergo such medical and psychological assessment as the Minister determines; (b) an order imposing restrictions on the person for a period not exceeding 28 days; or (c) an order requiring that the person be isolated and detained by a person, at a place and in the manner specified in the order for a period not exceeding 28 days. (11) In making an order in respect of a person under subsection (10), a magistrate shall take into account the following matters — (a) whether, arid by what method, the person transmitted HIV; (b) the seriousness of the risk of the person infecting other persons; (c) the past behaviour and likely future behaviour of the person; and (d) any other matter the magistrate considers relevant. (12) The Director may, in writing, apply to a magistrate to renew an order made under subsection (10) for a further period or periods not exceeding 28 days.

According to BONELA, the Bill appeared from out of the blue without any public consultation.

We are concerned by government attitude and tendency of introducing Bills in Parliament and debating them before engaging all stakeholders, including the civil society and Batswana as a whole. We know that the Botswana Health Professions Council is not aware of this Bill for they have not been consulted on it. As custodians of health we expect them to be intimately involved as this Bill is going to affect the way they work. This bill is significant in the lives of all of us and we therefore call upon [Minister of Health] Reverend Dr. John G.N. Seakgosing [contactable via phone on +267313632521] to withdraw it and if he refuses to, we urge MPs to reject it.

Although the Bill was discussed last Friday – and a copy of the Bill obtained only then – Parliament adjourned before voting, but will continue this week.  Action, therefore, is urgently required.

 

US: How well-meaning ideals of constitutional 'equality' are leading to a law that may be used to harass and control people with HIV in Kansas

A bill that a leading gay rights advocate says will lead to the harassment of people with AIDS appears headed toward approval. House Bill 2183 would repeal a 25-year-old law that prohibits state and local health officials from quarantining people with AIDS or HIV, the virus that causes AIDS.

Mich. HIV data collection violates intent of statute, says lawmaker who helped create law

LANSING, MICH. – Michigan’s health department is violating the legislative intent of an HIV-related statute – and maybe the law itself – by indefinitely collecting information on people who test for HIV at federally funded clinics, says a former state lawmaker, who helped pass sweeping health reforms in the wake of the AIDS epidemic.

Canadian lawyer, Louise Binder, on the impact of Supreme Court decision on women

Recent court decisions in Canada on HIV non-disclosure are bad science, bad public health policy, and bad medicine for women, says Louise Binder The theme of the 57th session of the UN Commission on the Status of Women now underway in New York is gender-based violence.

US: Journalist Todd Heywood discovers that Michigan health department have been secretly collecting HIV testing information for the past decade

Since 2003, the Michigan Department of Community Health has been secretly collecting the names, dates of birth, risk categories, and other demographic information of people submitting for confidential HIV testing at grant-funded locations throughout the state and storing them in a massive database, a months-long investigation by The American Independent has discovered.

Greek HIV case – Interview with Zoe Mavroudi from Radiobubble

We’re working to support Radiobubble to produce a documentary about the Greek HIV case – the women who were arrested and imprisoned after forced HIV tests. Zoe Mavroudi is directing the documentary. Here Radiobubble interviews her about the progress of the case and the making of the documentary.

Ex-Phoenix officer in sex case fighting HIV-test order

It was almost an afterthought when a Maricopa County Superior Court judge ordered former Phoenix police Officer Christopher J. Wilson to submit to an HIV test while he awaited trial on allegations of sexual misconduct with a minor. The law allowing judges to order such tests for defendants suspected of certain crimes has been in place for about 20 years, and they are routinely submitted without legal challenges. But Wilson chose to fight it. His first challenge was rejected in Superior Court, but his attorney, Robert Campos, said he plans to file an appeal with the Arizona Supreme Court, arguing that forcing Wilson to submit to the test without an evidentiary hearing amounts to a violation of his client’s constitutional protection against unreasonable search and seizure.

British Columbia's Emergency Intervention Disclosure Act to allow court-ordered HIV testing of anyone who exposes their "bodily substance" to first responders

The Emergency Intervention Disclosure Act was passed on May 31, 2012 and will come into play March 2, 2013. The new regulation sets out the legal and procedural details that support the act, including adding victims of crime to those who can apply for a testing order.

First responders are pleased that in just a month, they’ll have more peace of mind about being exposed to open wounds and needles on the job. In the past victim’s haven’t had to give a blood sample, but now paramedics and firefighters can get a court order. Before this, first responders would often go months wondering if they had contracted a disease like HIV or Hepatitis.

UN Commission on the Status of Women Accepts Statement on HIV Criminalization and Women

The 57th Session of the UN Commission on the Status of Women accepted for publication a Statement calling for the repeal of all laws criminalizing HIV transmission, exposure to HIV, or failure to disclose HIV status.