HIV/Aids and human rights |
 J.M. Vorster |
Introduction
The rate of HIV-infection today compels researchers in the medical and sociological fields to speak of a pandemic rather than an epidemic. The 2003 statistics of UNAIDS describes the current situation regarding the impact of HIV over the world in no unclear terms. An analysis of these statistics reveals the following distressing facts:
· People living with HIV/Aids worldwide at the end of 2002: 42 million;
· People newly infected with HIV worldwide during 2002: 5 million;
· Cumulative AIDS deaths worldwide by the end of 2002: 28 million;
· AIDS deaths worldwide during 2002: 3,1 million;
· New adult/adolescent HIV infections among women worldwide at the end of 2002: 48%;
· Adults/adolescents living with HIV/AIDS who are women worldwide by the end of 2002: 50%;
· People newly infected with HIV who are under age 25 worldwide at the end of 2001: 58%
· Young people living with HIV/AIDS, ages 15-24, worldwide by the end of 2001:12 million;
· Children who have lost one or both parents due to HIV/AIDS worldwide by the end of 2001: 14 million.[1]
These statistics will be outdated very soon, but it provides enough proof to say that humankind deals with a grave and worsening pandemic.
The South African scene is even gloomier. In dealing with the human rights issues regarding HIV prevention and treatment, the situation in South Africa can be used as a useful casestudy. Therefor an indication of the seriousness of the pandemic in this part of the world is extremely valuable. The Actuarial Society of South Africa (ASSA) has developed a demographic model that has been used to project the impact of the disease on each of the nine provinces in South Africa. The statistics provided by way of this model were used as the HIV indicators for 2002 in the study done by Dorrington, Bradshaw and Budlender, based on the Secure the Future Project of Bristol-Myers Squibb and UNICEF.[2]
According to this study: "The ASSA model estimates that there were 6,6 million people in South Africa living with HIV/AIDS on 1 July 2002. Of these, over 6,1 million (95,1%) were in the age group 18-64 years. This also is the age group, which is the most likely to form part of the labour force. An estimated 3,2 million women of childbearing age (15-49 years), were living with HIV/AIDS. This group accounted for around half (49,5%) of all infections. In all adult age groups, there were more women than men living with HIV/AIDS. The gender imbalance is most stark among youth, aged 15-24 years, where there were close on four infected women for every infected young man. The numbers of children under the age of 15 years infected is relatively small when compared with the numbers for other age groups below the age of 65.
The following table based on the ASSA model outlines the magnitude of the pandemic in the various provinces of South Africa:[3]
People living with HIV/AIDS |
EC |
FS |
GT |
KZ |
LM* |
MP |
NC |
NW |
WC |
SA |
Total HIV infections |
805 879 |
487 772 |
1 449 899 |
1 745 490 |
600 713 |
518 156 |
78 426 |
582 089 |
192 946 |
6 461 372 |
Adults (18-64) |
758 570 |
467 542 |
1 404 473 |
1 639 263 |
562 178 |
490 228 |
75 612 |
556 640 |
187 073 |
6 141 578 |
Adult men (18-64) |
316 231 |
244 344 |
782 996 |
775 787 |
251 296 |
241 951 |
35 883 |
287 988 |
79 604 |
3 016 080 |
Adult women (18-64) |
442 339 |
223 197 |
621 477 |
863 475 |
310 882 |
248 277 |
39 729 |
268 652 |
107 469 |
3 125 498 |
Child-bearing age women (15-49) |
455 965 |
227 703 |
627 254 |
888 120 |
322 930 |
254 155 |
40 179 |
274 970 |
108 217 |
3 199 493 |
Youth (15-24) |
197 875 |
84 772 |
163 283 |
371 676 |
151 959 |
99 211 |
12 779 |
104 439 |
24 754 |
1 210 749 |
Male youth (15-24) |
38 213 |
17 802 |
35 814 |
85 742 |
34 428 |
21 835 |
2 556 |
22 536 |
4 144 |
263 069 |
Female youth (15-24) |
159 661 |
66 970 |
127 470 |
285 934 |
117 532 |
77 376 |
10 224 |
81 903 |
20 610 |
947 680 |
Children (0-14) |
29 018 |
12 776 |
31 488 |
68 208 |
23 204 |
18 379 |
1 904 |
15 830 |
4 327 |
205 134 |
* The model does not fit this province very well and as a result probably overstates the impact of the epidemic. |
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By the year 2015, an estimated 12,5 million South Africans will have died of the disease.[4]
In South Africa, several factors have been identified that contribute to the rapid spread of the disease. The most important of these are:
· New patterns of sexual behaviour.
· The destruction of the family and community-life of black South Africans because of the migrant labour system.
· The good infrastructure promotes the rapid spread of the disease to new rural communities.
· The high level of poverty and inequality in income.
· The high level of other sexually transmitted diseases in comparison with other countries.
· The inferior position of women in society. Male domination makes it difficult for women to protect themselves against HIV infection.
· New social and sexual patterns promote relations with more than one sex-partner.
· Resistance against the use of condoms promotes the danger of infection.[5]
These factors make it clear that the pandemic does not only infect individuals, but also society at large. In a comprehensive study on the human rights implications of this pandemic, the University Of Pretoria says the following in its Aids Review 2002: “It is becoming more apparent that AIDS is something of a unique virus for it has not one, but two, forms of impact – the one being on the individual and the other being on the society. The physiological and biological consequences of infection of the individual are well documented. The consequences of its infection of a society, however, are only now being understood and it is by no means clear whether this is indeed the sum of its impact. For now, it is known that it has the potential to affect the workforce, health care and social security to the point of almost crippling them with the burden it inflicts. It strains national budgets; pension funds and medical care facilities well beyond projected and expected valuations. It affects business and government in economic or financial terms that are difficult to ignore. It causes deaths in numbers impossible to comprehend and creates new generations of babies with HIV and AIDS and “AIDS orphans.“[6]
This situation necessitates a study on HIV from the perspective of the ethics of human rights.[7] Nowadays, studies in this field are vibrant. Publications from different juridical perspectives appear in increasingly numbers. The affect of the pandemic on society also underlines the importance of ethical perspectives on human rights issues in the current HIV debate. Important issues resulting from the effect of the pandemic on society at large, the conduct of individuals and communities and the role of cultural, social and religious institutions, should be part of ongoing ethical reflection. The purpose of this article is to deal with some of these issues from a Reformed Christian ethical perspective.
The first ethical issue at stake is whether the HIV pandemic should be seen as a state of emergency requiring extraordinary measures. Many scholars begin to speak of a “crisis” and a “state of emergency”. For much lesser than this pandemic, such as natural disasters and political conflicts, states of emergency have been declared in various countries in recent years. Some scholars conclude that the HIV crisis in South Africa indicates an “emergency situation” and that radical decisions have therefor become necessary. Christian ethics indeed recognises an “emergency ethics” to deal with important issues in an emergency situation. Such an emergency situation produces conflicts in ethical decisions and directives in the management of moral conflicts then have to be defined by Christians. These conflicts usually figure around the right of the individual versus the interests of the community. This is also the case with the HIV pandemic in South Africa, where the following fundamental rights and obligations are relevant:
· non-discrimination, equal protection and equality before the law;
· life;
· the highest attainable standard of physical and mental health;
· liberty and security of person;
· freedom of movement;
· seeking and enjoying asylum;
· privacy;
· freedom of opinion and expression and to freely receive and impart information;
· freedom of association;
· work;
· marriage and establishing a family;
· enjoying equal access to education;
· having an adequate standard of living;
· social security, assistance and welfare;
· sharing in scientific advancement and its benefits;
· participating in public and cultural life; and
· being free from torture and cruel, inhuman or degrading treatment or punishment.
Secondly, the statistics indicate that the treatment and prevention of HIV pose not only a huge challenge to medical care, social resources, state finances and policies, but also confronts the present ethics and human rights debate with a serious moral dilemma. Important issues at stake are, amongst others the stigmatisation of HIV infected people and discrimination against them and the consequent problems regarding the disclosure and notification of the disease. These issues will be discussed in this article from an ethical point of view. Firstly, the moral dilemma will be explained. This discussion will be followed by a discussion of the human rights issues at stake and on completion of this discussion the role of the Church regarding sexual education and pastoral care and the role of the State in prevention and treatment of HIV patients will be considered.
The moral dilemma
In considering the moral dilemma, the following question arises: Should HIV be regarded as a state of emergency requiring extra-ordinary measures? Parnett and Jackson offer an interesting argument when they argue for a new approach, viewing the pandemic not as a plague, but just as another social problem confronting humanity.[8] They propose a change from the plague metaphor to the idea of a chronic disease.[9] They in fact already discern a new social construction of HIV that does exactly this. It provides people with a better understanding and handling of the situation. When HIV is seen as one of many social problems humankind has to deal with, extreme positions may be avoided. On the one hand the discrimination against HIV patients and the violation of their human rights will be reduced. On the other hand the strong reaction against discrimination in the form of a radical protection of the rights of the individual might be curbed. Why should the HIV patient’s right to privacy be emphasised over and above the same right of the sufferer of malaria, tuberculosis and meningitis with regard to for example the notification of the disease to the authority?
The position taken in this article is that it is not necessary to speak of HIV as a “plague” or a state of emergency, but as Parnett and Jackson propose, as a new social problem. Consequently, it will not be necessary to develop ethical directives necessary for a state of emergency. However, to define HIV as “another social problem” as Parnett and Jackson does not clear away the moral dilemma surrounding the pandemic. Difficult decisions still have to be made in the field of human rights with regard to HIV.[10] The following examples are an indication of these decisions:
· At the moment the community is faced with a conflict between the right to privacy and the right to information. It is generally accepted that HIV status is a private matter.[11] The question arises: Should the HIV patient be obliged to disclose his/her status to a partner? If not, what about the health of the partner, and what will be the legal consequences if the partner becomes infected too? Should the person who infects a partner by withholding the information about his/her status be charged with homicide?
· In the administration of justice a conflict may emerge involving the relation between the right to privacy and the right to information, and the security of a person and the health risk of others (e.g. Health workers).[12] Oosthuizen illustrates this dilemma as follows: “As a general rule, a doctor should investigate or treat a patient for HIV infection only with the informed consent of the patient. Every effort should be made to adhere to this principle, including provision for skilled pretest counselling by the doctor or an appropriate counsellor. The patient should, whenever possible, clearly understand what advantages or disadvantages testing may hold for him/her, why the doctor wants this information and what influence the result of such testing may have on his/her treatment. The counselling procedure should be one that is appropriate to the setting and is least burdensome to the person being tested, as well as to those responsible for testing”[13] When consent is refused the surgeon may discontinue treatment, but the surgeon should be able to proof that he/she cannot proceed with the appropriate treatment without knowledge of the HIV status.
· The conflict of interests also manifest itself in the “maternal-fetal” conflict. This entails the conflict that arises between the right of the mother and the interest of the unborn child. The right of the mother includes the right to privacy and the right to be free from stigmatisation and discrimination. Therefore, she has the right to refuse consent for HIV/Aids testing. However, she may be HIV positive, and it will be in the interest of the unborn child that she receives ZDV treatment in an early stage of pregnancy. The question arises of whether the interest of the child should be seen as more important than the mothers’ right to privacy and that whether testing should proceed without consent.
· Another indication of the moral dilemma is the argument that it is better to concentrate on prevention rather to “waste” effort and expense on the affected for which nothing can be done. Prevention should have preference above treatment.[14]
The moral dilemma poses a huge challenge to Christian ethics. Actually this dilemma boils down to one particular problem, and this is the phenomenon of stigmatisation of HIV patients and subsequent discrimination against them. Why do people stigmatise sufferers of HIV? Why do we find discrimination in this field and not with other highly infectious diseases? These questions should be addressed because any attempt to deal with HIV hinges on the solution of the problem of stigmatisation and discrimination.
Stigmatisation and discrimination
HIV positive people are still stigmatised in modern-day society. They are therefor the victims of all forms of discrimination in working places, educational institutions and even in religious communities. The main reason for this reality is that the disease is perceived to be the result of unacceptable sexual and moral behaviour or other “bad habits”. In the 1980’s it was seen as the illness of homosexuals and drug addicts, and since then it has been looked upon as the illness of heterosexual people with a promiscuous lifestyle. In African societies it is sometimes described as the “sickness of bad people”.
This stigmatisation and discrimination are the most inhibiting factors in the prevention and treatment of HIV/Aids. A study by the World Council of Churches argues that stigmatisation of persons because of their social status, sexual orientation or addiction to drugs makes people even more vulnerable to risks including the risk of infection. “If such people feel excluded and are afraid of having their identity revealed they are less likely to seek care and counselling, to have access to health information and to co-operate with Aids prevention programmes.”[15]
One reason for the stigmatisation of HIV infected people is the fact that they are coming from communities which are already marginalised and the victims of discrimination. The facts prove that people such as homosexuals, drug addicts, the homeless, the poor; the jobless and prostitutes are more prone to HIV infection. In the USA it was these already outcasted groups who contracted the disease first. They then bear the burden of the stigmatisation attached to their social group. They are usually the people with little access to information, medical care and treatment.
The roots of stigmatisation should also be searched for in the way sexuality was perceived throughout the history of moral thinking. Why are illnesses related to sexuality stigmatised and others not? The historical view of sexuality as something impure, something of a lower order over and against the superiority of the “spiritual things,” has a lot to do with this perception. Within the Western world this idea of the inferiority of sexuality in human conduct can be traced back to some schools in Greek philosophy, especially the neo-Platonism with its separation of the spiritual “higher” realm and the material “lower realm”. Sexuality was seen as part of the latter. This dichotomy between the sacral and material became part of the Gnostic worldview during the time of the early development of Christianity. Gnosticism as the “Church’s permanent shadow” imprinted this cosmology on certain influential ideas in the forming of a Christian worldview.[16]
Gnosticism during the first centuries AD transferred this idea to Christianity. According to this worldview two parallel worlds exist: the original, divine world of the spirit and the spiritual dimension of life and the inferior material world. The first world is called the Fullness (pleroma) and the latter the Void (kenoma).[17] Therefor Gnostic ethics was marked by hostility towards the body and striving to escape from the world. Sexuality, being part of the incomplete material world, was regarded as a degraded unholy part of life, which should be sacrificed in favour of an ascetic lifestyle.[18] Even the influential Christian theologian Augustine regarded sexual intercourse as something tainted by concupiscence and the lingering effects of original sin. A couple can avoid this sin only when they engage in sex for the purpose of procreation. Subsequent Christian authors tended to affirm Augustine’s pessimistic view.[19] In his thorough study of sexuality throughout the history of Christian ethics, De Bruyn indicates that the idea of sexuality as inherently unholy became part of the ethics of many of the Church fathers, Roman Catholic theologians during the Middle Ages, Reformers and ecclesiastical movements in the period of modern church history.[20]
The devaluation of sexuality to an inferior part of human existence is also evident in other religions and cultures. Although the sexual revolution of the sixties and seventies of the previous century intended to bring about a liberation of sexuality from these Stoic ideas, the perception of sex as something unholy still roots deeply in modern societies. Illnesses related to sexual conduct are seen as something “people brought unto them” by a sinful and impure lifestyle. Another important factor is the deep resentment in indigenous cultures for homosexual behaviour.
Ideas about sexuality that developed over centuries and are embedded in religious and cultural views and customs, can rightly be regarded as an important part of the reasons for the stigmatisation of HIV infected people. While customs are not easy to change, the issue of sexuality as a gift from God and as an essential part of life within certain relations, should be addressed by educational and religious institutions. Stigmatisation and the subsequent discrimination require a thorough re-evaluation of deeply rooted historical perceptions.
The reality of stigmatisation is the root cause for the failures of other preventive measures such as the need for disclosure and notification of the disease. For fear of stigmatisation and subsequent discrimination, HIV infected people are reluctant to disclose their status to their partners and to the authorities. This stigmatisation is against the very essence of the Christian message of love as it is evident from the life of Jesus himself. Christ himself exercised fellowship and had empathy with the marginalised and outcasts of his own society, such as the lepers, the poor, prostitutes, the sick and publicans. He preached love to the hungry, the prisoners and the sick as the practical way to serve God (Mt. 25:31-46). The Christian message of reconciliation means not only to be reconciled with God, but also to fellow human beings in a relationship that annul social elitism, bias, class differences and superiority. Christian ethics should deal with the moral dilemma regarding HIV from this biblical perspective. The principle of reconciliation can also be a moral directive in arguing the necessity of notification and disclosure.
Disclosure and notification
Disclosure
Edge voices the opinion of many health workers with his plea that HIV infection should be brought out of the closet, that it should be made a notifiable disease, that it should be vigorously pursued by large-scale if not universal testing, and that infected persons should be readily identifiable.[21] However, the fear of stigmatisation and discrimination inhibits HIV patients to disclose their status. Even the idea that condom use might indicate their HIV positivity results in unprotected sex.[22]
At the moment, testing for HIV may only be under the following circumstances in South Africa:
· With individual request and the informed consent of the individual.
· On the recommendation of a medical doctor that such testing is clinically indicated, and with the consent of the patient.
· As part of HIV testing for research purposes, with consent of the individual.
· As part of the screening of blood donations.
· As part of unlinked and anonymous testing for epidemiological purposes, with informed consent.
· Where an existing blood sample is available, and an emergency situation necessitates testing the source patient’s blood.
· Where statutory provisions or other legal authorisation exists for testing without informed consent.
· Proxy consent may be given where the individual is unable to give consent.
· Routine testing to protect a health worker is impermissible, as well as HIV testing of an employee in the workplace.[23]
It is clear that the HIV patient cannot be forced to disclose his/her status, not even to his/her partner. This current state of affairs raises immense questions such as: What about the health of the uninformed partner and what about the interest of the health worker? There is a moral conflict between the right to privacy on the one hand and the right to health and information on the other hand. The same problem emerges when the issue of obligatory notification is discussed.
A second question is whether these rules can be enforced. One example can be mentioned to validate this question. The Aids Law Project complained to the Public Protector that the Health Professions Council of South Africa (HPCSA) is failing in its duty to ensure that its members respect the human rights of HIV infected people. The result was that not a single doctor among 28 cases referred to the HPCSA involving alleged illegal HIV testing and subsequent illegal status disclosure, has been found guilty of unprofessional conduct.[24]
Notification
The question may be asked whether the declaration of HIV as a notifiable disease will promote the treatment and subsequent prevention of this disease? Notifiable diseases are diseases that must be reported to the health authorities of the state by any medical practitioner when they are diagnosed. The purpose is to enable the authorities to act immediately to prevent the spread of these diseases. Such a notification is also helpful in the determination of valuable statistics of the status of the disease and the rate of infections.
The valid list of notifiable diseases in South Africa as declared by the minister of health in South Africa, Me Zuma are the following: Acute flaccid paralysis, Acute rheumatic fever, Anthrax, Brucellosis, Cholera, Congenital ayphilis, Diphtheria, Food poisoning (outbrakes of more than four persons), Haemophilus influenza type b (Hib), Haemorrhagic fevers of Africa (Congo fever, Dengue fever, Ebola fever, Lassa fever, Marburg fever, Rift Valley fever), Lead poisoning, Legionellosis, Leprosy, Malaria, Measles (rubella), Meningococca infections, Paratyphold fever, Plague, Poliomyelitis, Rabies (specify whether human case or human contact), Smallpox and any smallpox-like disease - excluding chickenpox, Tetanus, Tetanus neonatorum, Tracnoma, Tuberculosis, Typhoid fever, Typhus fever (epidemic louse-brontyphus fever, endemic flea-borne typhus fever), Viral hepatitus A, B, non-A, non-B and undifferentiated, Whooping cough and Yellow fever.[25]
Should HIV/Aids be declared a notifiable disease? The South African Government considered such a step. On 23 April 1999, the Minister of Health decided to make HIV/AIDS a notifiable disease and the decision was published in the Government Gazette.[26] The changes to health regulations, to be promulgated in three months’ time, would compel health care workers to disclose the status of HIV positive patients to government officials, health care workers involved with the patient and the patient’s immediate family. Health care workers widely supported the new measures, but AIDS activists said that, because of the high level of stigmatisation, it would drive the epidemic underground and would increase the country’s infection rate. It would also abrogate the principles of confidentiality and anti-discrimination endorsed by the Constitution and the National AIDS plan.[27] The decision of the Government was then withdrawn.
Ethical perspectives
The problems regarding disclosure and notification centre around one particular question, namely: What is more important: the rights of the individual or the health of the community? South Africa has a strict policy in this regard, namely to protect the privacy of the individual. The right to privacy is a fundamental right enshrined in chapter 3 (article 13) of the South African Constitution. This fundamental right is used in the protection of HIV patients.[28] The question may be asked why this principle is not used in the case of the other notifiable diseases? The obvious answer is the fact that HIV patients are stigmatised by the community. This situation proves that the government has a pragmatic approach that will lead nowhere. When the privacy of the individual overrides the interests of the community, then the right to privacy should be, limited as in the case of the sufferers of all the other notifiable diseases. This right to privacy cannot be interpreted and applied in an absolute sense.[29]
To answer this question, the moral conflict between the various fundamental rights must be solved. In managing such a conflict the following ethical directives are important:
· The end must be good. The question should be asked: “What is the purpose of disclosure and notification?” The purpose is clearly to curb the spreading of the disease and to protect people from being infected. Furthermore, the information gained can be used for better and more effective treatment. More information and transparency could be beneficial to the struggle against stigmatisation and discrimination. On the other hand, it has become clear that the secrecy surrounding HIV infection obstructs the forming of a new social construction of HIV where the disease is not seen as a plague, but as another social problem man has to deal with.
· The deed must be motivated by love. In this context Christian love will have two focal points. On the one hand the HIV patient must be protected against all forms of discrimination. On the other hand the community must be protected against the rapid spreading of the disease. Disclosure and notification can achieve both if it is handled correctly. In South Africa the disease is currently perceived as an “enemy in the dark” surrounded by false perceptions, suspicion and distrust. As in the case of for example tuberculosis, notification can cultivate a spirit of acceptance and an urge to deal with the real problem.
· The attitude of a Christian must be the image of the attitude of Christ. In Phil. 2:5 the Bible instructs Christians to act according to the attitude of Christ. The main characteristic of this attitude is self-sacrifice. Christ sacrificed himself and his whole life was a life of deputyship. According to this instruction the life of the Christian should also be a life of deputyship. This deputyship manifests itself in the complete surrender of one’s own life to the other man. “Only the selfless man lives responsibly, and this means that only the selfless man lives.[30] Seen from a Christian ethical point of view, the interest of the community and the “other” should have preference.[31] This principle can be derived from the self-sacrificial love of Christ and the calling of Christians to love according to the example of Christ. Applying this principle to HIV will mean the self-sacrifice of the individual in favour of the health of the community. The health of the community and the right to gain information should receive preference over the right of privacy of the individual.
In view of these principles, disclosure and notification should be considered.[32] This plea for disclosure and notification supposes a revision of the current practices in South Africa. Although he disagrees with notification, Abdool Karim indicates that HIV notification can be used to improve the entire notification system. The specific aim should then be the rebuilding of the foundations of the notification system in order to reduce under-reporting to acceptable levels, or at least to a stable reporting rate, so that trends can be interpreted.[33] The inadequacy of the present system should not be used to reject the plea for notification.
The role of the church
A lot has already been said about the task of the Church in an environment struggling with this pandemic. The study document of the WCC is indeed useful in informing churches and in stimulating an awareness of the problem. One cannot but agree with the call for the process of discernment, the offering of moral guidance, the education of people to make responsible decisions, the promotion of an environment where responsible decisionmaking is possible and addressing the poor socio-economic factors that prevents the exercise of personal and social responsibility[34] The purpose of this article is not to repeat these guidelines of the WCC document. This report deals with these issues in a convincing and appealing way.
However, the debate about the role of the church needs to continually address the prominent ethical issues such as the disturbing factor of stigmatisation and a Christian ethical perspective on sexual conduct. The following remarks can be considered in this debate.
Ethical perspectives on stigmatisation
In view of the biblical principles mentioned before, the church must act as the advocate for the rights of the marginalised. According to the example of Christ, Christians should identify with the HIV infected person and be his/her advocate for better understanding and treatment. As with other issues in the human rights debate, the church must be the promoter of a culture of respect and dignity for every person. Gender equality must be promoted, especially where the inferior position of women in certain societies can be ascribed to fundamentalist interpretations of religious texts. Furthermore, Christians should define the biblical concept of hope in a contextual sense for people who can see no brighter future. The local congregation, as a caring community, must provide a sphere of acceptance, fellowship and understanding for the people suffering from HIV.
Ethical perspectives on sexuality
Sexual behaviour is largely responsible for the transmission of HIV. Open and free sexual relations provide a fertile ground for the rapid spread of the disease. In the modern Western environment these open and free sexual relations have become the acceptable pattern. South Africa experiences an interesting clash in attitudes to regarding sexual behaviour. On the one hand people infected with HIV are stigmatised because they are seen as people who “brought the illness upon themselves through promiscuous behaviour”. Reasons for this attitude have been discussed earlier. On the other hand, sexual promiscuity and free sexual relations increased at an alarming rate in the last decade of the previous century. The very same community stigmatising people with HIV, are engaging more and more in this very liberal and irresponsible sexual pattern.
Posel presents a very interesting insight in the change of sexual behaviour in South Africa. She proclaims that although evidence of the disease was undeniable during the 1980s, the issue of HIV/AIDS has largely been a post-Apartheid problem. The pace of the epidemic in South Africa has lagged about 15 – 20 years behind that of other parts of Africa. As late as 1990, the estimated prevalence of HIV infection in SA was less than 1%. These figures grew dramatically more serious by the mid-1990s, reaching 22,8% by 1998 (and as high as 32,5% in some parts of KwaZulu Natal). In other words, during the Apartheid era, the spread of disease within South Africa remained relatively slow. Its acceleration occurred in the wake of the transition. She attributes this situation to the fact that sex has been politicised. During the Apartheid era rigid laws controlled sexual behaviour, and liberation from the system also entails a liberation from and reaction against the old system.[35]
Free sexual relations are part of the experience of being free. She continues: “In the aftermath of political liberation, and in the midst of the widespread demobilisation of political movements, sex has become a sphere – perhaps even pre-eminently the sphere – within which new-found freedoms are vigorously asserted. Popular magazines targeting the aspirant black elite, and advertising campaigns aimed at black consumers, craft the message that blackness – and the newfound freedom to be and assert a stylish blackness – is sexy; consumption is replete with desire. And for black youth – particularly women – asserting a sexualised ‘freedom’ may be a statement of the rupture between the Apartheid and post-Apartheid generations, as much as a symptom of the erosion of parental authority.[36] Sexuality is openly and boldly on display.
Furthermore, in this culture sex is often the indispensable vehicle of consumption. “In the midst of powerful hankerings for designer labels, cell phones, access to smart cars etc., as the conditions of social status and style, transacting sex either for immediate payment, or more regular financial support (in the case of an ongoing relationship) or directly for the goods themselves, is often the condition of their acquisition.”[37] This opinion of Posel can be questioned with the argument that HIV infection is also growing in other countries in Africa where a system of Apartheid did not exist. However, her indication of the new sexual patterns that emerged over the last decade should be taken seriously in any preventive strategy.
One must also acknowledge that the new sexual patterns in South Africa can not only be ascribed to the political liberation, but also to the influences of modern Western culture. The Western sexual revolution of the sixties and seventies of the previous century promoted a new pattern of sexual conduct. As in other countries in the Western world, promiscuity became socially acceptable and a result of a highly hedonistic and materialistic culture. Free sexual relations, for example, are portrayed by the entertainment industry as a normal style of living over and against the various cultural and religious patterns of the past.
The church has to address these new sexual patterns from a Christian ethical perspective. For some time now, Christian ethics focussed more on political and environmental issues and neglected sexuality in the modern society. In this respect the church has an immense role to play by providing clear, explicit and concrete testimony on the biblical perspectives on sexuality and the calling of Christians in this regard. The contents of this testimony can be summarised by the following statements:
· The Bible describes sexuality as a gift from God. This principle can be derived from the biblical themes of creation and redemption in Christ. God created man and women to become “one flesh” (Gen. 2:24). The bond between man and woman is a reflection of the love of God and this reflection should be discerned in sexuality. Therefor, sexuality is more than just the unlimited fulfilment of sexual desires. When Jesus instructs his audience not to commit adultery he also warns against the lustful coveting that they might commit in their hearts (Mat. 5:27-32). A sexual relationship should be a relationship of love, faithfulness and compassion. In this regard, McCormick and Connors say: “Christians must also be committed to expressions of sexuality that are characterised by justice, respect, fidelity, mutuality and equality, and must resist every sort of sexual abuse, manipulation, violence, domination, oppression or marginalisation”.[38]
· Being a gift of God, sexuality cannot be degraded to something of a lower order. Although sin and the total depravity of humankind have blemished sexuality as well as the other human activities, sexuality in itself is not unholy. This gift can be practised within the parameters of the biblical directives for sound sexuality.
· However, sexuality is a gift that should be exercised within a marital relationship. Marriage is also an institution of God (Gen. 2:24; Mat. 19:6) and such a relationship should be founded on love, devotion and faith (Prov. 3:3-4; Ef. 5:25).[39] In scripture marriage is meant ideally to be a living sign of God’s passionate, faithful and enduring love. It is a covenant relationship and this covenant presumes the giving of oneself to another in a bond that is faithful, fruitful, exclusive and permanent. Both the Old Testament and the New Testament prescribe a sexual relationship in the safe sphere of this permanent marital relationship (Deut. 22:28-29; 1 Cor. 5 and 7:9, 36).
· Marriage may take several forms in various cultures. Whatever the cultural form of a marital relation may be, the main biblical principles remain the same, namely love, faithfulness and permanency.
The biblical idea of sexuality is quite different from the idea that existed in early Greek philosophy and that influenced Christian ethics through the centuries. Sexuality is not an inferior part of life over and against the spiritual superior realm. Sexuality is a gift from God, given for procreation and recreation. It is the deepest expression of love between two people. While the Bible condemns sexual promiscuity and prostitution, it portrays sexuality in a marital relation as a reality of human life that is an integral part of a faithful relation between two individuals in love. The Church has a special responsibility in this age to promote this biblical idea of sexuality. In the long run, the enjoyment of sexuality in a close relation between two individuals is the best guarantee against the spread of HIV.
In dealing with a Christian perspective on sexual behaviour, the issue of promotion of condoms should also be addressed. Can the church approve of the slogan of “condomise” to help people to protect themselves against HIV infection? Churches have rejected the slogan of “condomise” in HIV prevention programmes in the recent past with the argument that the promotion of the use of condoms will promote sexual promiscuity. As opposed to this point of view, the WCC report calls for a more pragmatic approach and came to the following conclusion: “Without blessing or encouraging promiscuity, we recognise the reality of human sexual relationships and practice and the existence of HIV in the world. Scientific evidence has demonstrated that education on positive measures of prevention and the provision of the use of condoms help to prevent the transmission of the virus and the consequent suffering and death for many of those infected. Should not the churches, in the light of these facts, recognise the use of condoms as a method of prevention of HIV?”[40] Following the same line of thought, one can ask whether it will be responsible for the church to accept the reality of drug addiction and to support a call for the provision of clean needles for these people? Can Christian ethics make provision for a pragmatic approach in the case of a pandemic, even when this approach runs against the main thrust of biblical morality?
The point of departure should be the uniqueness of the testimony of the church. This testimony should be based on the truths of the revelation of God and the moral guidance of the Ten Commandments. In the field of sexual conduct the church must be obedient to the biblical instruction of faithfulness and sexual relations only in the safe environment of a marriage, however marriage may be defined in various cultures. In other words, sexuality must be confined to the close faithful relationship of two people. Within this relation condoms for protection may be used and the church should encourage such a practice. A call for the indiscriminate use of condoms should not be part of the message of the church because such an approach will compromise the uniqueness of the church and the message of Christ. The same argument will apply to the call for the provision of clean needles for drug addicts.
The role of the state
The office of the United High Commissioner for Human Rights and the Joint United Nations Programme on HIV/Aids have issued international guidelines about the role of the state in the prevention and treatment of HIV.[41] An ethical evaluation of the role of the state should take cognisance of these guidelines and it is therefor worthwhile to quote the whole text:
GUIDELINE 1: States should establish an effective national framework for their response to HIV/AIDS which ensures a coordinated, participatory, transparent and accountable approach, integrating HIV/AIDS policy and programme responsibilities across all branches of government.
GUIDELINE 2: States should ensure, through political and financial support, that community consultation occurs in all phases of HIV/AIDS policy design, programme implementation and evaluation and that community organisations are enabled to carry out their activities, including in the field of ethics, law and human rights, effectively.
GUIDELINE 3: States should review and reform public health laws to ensure that they adequately address public health issues raised by HIV/AIDS, that their provisions applicable to casually transmitted diseases are not inappropriately applied to HIV/AIDS and that they are consistent with international human rights obligations.
GUIDELINE 4: States should review and reform criminal laws and correctional systems to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV/AIDS or targeted against vulnerable groups.
GUIDELINE 5: States should enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities from discrimination in both the public and private sectors, ensure privacy and confidentiality and ethics in research involving human subjects, emphasise education and conciliation, and provide for speedy and effective administrative and civil remedies.
GUIDELINE 6: States should enact legislation to provide for the regulation of HIV-related goods, services and information, so as to ensure widespread availability of qualitative prevention measures and services, adequate HIV prevention and care information and safe and effective medication at an affordable price.
GUIDELINE 7: States should implement and support legal support services that will educate people affected by HIV/AIDS about their rights, provide free legal services to enforce those rights, develop expertise on HIV-related legal issues and utilise means of protection in addition to the courts, such as offices of ministries of justice, ombudspersons, health complaint units and human rights commissions.
GUIDELINE 8: States, in collaboration with and through the community, should promote a supportive and enabling environment for women, children and other vulnerable groups by addressing underlying prejudices and inequalities through community dialogue, specially designed social and health services and support to community groups.
GUIDELINE 9: States should promote the wide and ongoing distribution of creative education, training and media programmes explicitly designed to change attitudes of discrimination and stigmatisation associated with HIV/AIDS to understanding and acceptance.
GUIDELINE 10: States should ensure that government and the private sector develop codes of conduct regarding HIV/AIDS issues that translate human rights principles into codes of professional responsibility and practice, with accompanying mechanisms to implement and enforce these codes.
GUIDELINE 11: States should ensure monitoring and enforcement mechanisms to guarantee the protection of HIV-related human rights, including those of people living with HIV/AIDS, their families and communities.
GUIDELINE 12: States should cooperate through all relevant programmes and agencies of the United Nations system, including UNAIDS, to share knowledge and experience concerning HIV-related human rights issues and should ensure effective mechanisms to protect human rights in the context of HIV/AIDS at international level.
These guidelines provide clear information for states to define policies for prevention and treatment.
In dealing with the role of the state, two other points of departure are important to reiterate from a Christian ethical perspective. Firstly, it must be accepted that human rights are not indivisible, but interrelated. No right can be seen as absolute and constitutions, also the South African Constitution, makes provision for the limitation of certain rights in certain situations. When moral conflicts arise and a clash of interests appears, the state has to make a moral choice. As indicated above, the choice in this pandemic is a choice between certain individual rights of the HIV infected person and the health of the community. The health of the community should override the rights of individuals.
Secondly, it is important to recognise the fact that a government has to promote law, order, justice, peace and prosperity in a pluralistic society. A state deals with people of different persuasions. Various ideologies, religions and philosophical convictions create a large variety of moral opinions. The principle of religious freedom also prohibits a government to apply the morals of one religion or persuasion on society at large. In the case of the occurrence of an extra-ordinary social problem, a government should do what it takes to curb the spread of the disease. This will require a pragmatic approach.
Based on the conclusion that the health of the community should have preference over the rights of the individual, the role of the state will require a few very bold and drastic steps, which can be summarised in the following statements:
· Education programmes can be introduced that will deal not only with prevention but also issues like stigmatisation, the inferior position of women and responsible sexual conduct. In this respect the following statement of Shisana, the Director-General of the Department of Health in South Africa, should be taken seriously: “It is unacceptable in the current climate to expect people to be trailblazers and reveal their status unless society, led by government initiatives, is one in which prejudice and discrimination is both morally and ethically unacceptable.“[42]
· HIV should be declared a notifiable disease and health personnel should be allowed to disclose a patient’s HIV status when they deem it necessary for the health and benefit of partners.[43] The status of the HIV patient must be disclosed to the state clinics as well as to such persons’ sexual partner(s).
· The government should consider how to administrate justice with regard to HIV infection in cases of rape, malicious infection and infection on purpose. The Kelly case in the United Kingdom in February 2001 was the first prosecution in that country for the sexual transmission of HIV. Stephen Kelly was convicted in Glasgow of recklessly injuring his former girlfriend by infecting her with HIV.[44] The Canadian Supreme Court ruled that failure to disclose HIV positive status to sexual partners is a form of assault.[45] These cases criminalised HIV transmission. In South Africa Acts 85 and 105 of 1997 are steps in the right direction. These acts deny bail to persons who have HIV/AIDS and are accused of rape, unless there are exceptional circumstances. A mandatory minimum sentence for life is applicable to HIV-infected persons who are convicted of rape while the minimum mandatory sentence for uninfected persons is 10 years. The mandatory life sentence is applicable unless exceptional circumstances are present, but these exceptions are not listed and therefore are within the discretion of the judicial officer. Such jurisprudence can be founded in the fundamental right to health and right to information of individuals.
· Define hope in an contextual sense by protecting the normal functioning of the HIV patient in society with regard to job security
· The inferior position of women should be addressed. Many women cannot own property because of their de jure and de facto inferior status. Therefor they cannot negotiate for an environment free of the factors that increase their vulnerability to HIV/Aids.[46]
· Funding for research, treatment and the provision of antiritroval drugs to all patients.
· The A (abstinence), B (be faithful) and C (condomise) programme should be promoted vigorously. A government has no other choice but to provide condoms and to promote the use of it in societies with sexual behaviour other than what is requested by Christian ethics. It is indeed alarming that condom use in countries with a growing rate of infection is extremely low.[47] However, the use of condoms must be seen as the last resort.
Conclusion
Dealing with HIV in an effective and responsible way challenges the ethics of human rights. Bold choices have to be made that may lead to limitations of certain rights. It seems that in the current crisis in South Africa preference should be given to the health of the community and people’s rights to gain information while individual rights such as privacy, liberty and security of person might be limited. Obligatory disclosure and notification will be unavoidable if the community wants to bring HIV out of the cloud of secrecy and suspicion. These choices are indeed harsh and radical, but that seems to be the only way to prevent the spreading of the disease. Even these measures will be in vain if the current culture of stigmatisation persists. The community must be educated to see HIV as a new social problem that can be dealt with when people change their predjuces, attitudes, lifestyles, fears and perceptions.
[1] Global fund to fight Aids, Tuberculosis, and Malaria; Kaiser Family Foundation; UNAIDS; U.S. Center for Disease Control and Prevention; U.S. Bureau of the Cencus. http://www.kaisernetwork.org/static/spotlight_hivaids_factsataglance.cfm 2/19/03.
[2] R.E. Dorrington; D. Bradshaw and D. Budlender. HIV/AIDS profile in the provinces of South Africa, Indicators for 2002, Centre for Actuarial Research, Medical Research Council and Actuarial Society of South Africa, Rondebosch, University of Cape Town, 2002, p.1.
[3] Ibid., p.8.
[4] H. Oosthuizen, National policy on testing for HIV in South Africa: an urgent need, Medicine and Law, volume 20, 3, 2001, p.438-439.
[5]See also S. Pick, MIV/Vigs, ons grootste uitdaging nog! Die pad vorentoe vir die kerk in Suid-Afrika. Wellington: Lux Verbi, 2002, p. 21.
[6] University of Pretoria, Who’s right? Aids Review 2002. Pretoria, Centre for the study of Aids, 2002, p.9. See also Oosthuizen, op. cit. p.440.
[7] See in this regard J. Dussault, The stigma of Aids, Unesco Courier, volume 52, 10, 1999, p.2.
[8] W.E. Parnett and D.J. Jackson, No longer disabled: the legal impact of the new social construction of HIV, American Journal of Law and Medicine, volume 23, 1, 1997, p.8.
[9] Ibid., p.35.
[10] University of Pretoria, op cit., p.52.
[11] J. van Heerden, Compulsory HIV testing for medical students, South African Medical Journal, volume 88, 2, p.154.
[12] M. Hayter, Confidentiality and the Acquired Immune Deficiency Syndrome (Aids): an analysis of the legal and professional issues, Journal of Advanced Nursing, volume 25, 6, 1997, p.1162.
[13] Oosthuizen, op. cit., p.438-439.
[14] B. Edge, AIDS and informed consent, South African Medical Journal, volume 88, 3, 1999, p.218.
[15] World Council of Churches, Facing Aids, The Churches’ response, A WCC study document, Geneva, WCC Publications, 1997, p.13.
[16] J. van Oort, Christian Gnosis and New Age, Some views of the past: some prospects of the future? Studia Historiae Ecclesiasticae, volume XXVII, 1 June 2001, p. 120.
[17] W. Walker, A History of the Christian Church, Edinburg, T&T Clark, 1992, p.63.
[18] P. Nagel, Gnosis, Gnosticism. (In E Fahlbush, ed., The Encyclopaedia of Christianity, volume 2, Leiden, Brill, 2001, p.419.)
[19] P.T. McCormick & R.B. Connors, Facing ethical issues, Dimensions of character, choices and community, New York, Paulist Press, 2002, p.149.
[20] P. de Bruyn, Ethical perspectives, Potchefstroom, PU for CHE, 1999, p.20ff.
[21] Edge, op. cit., p.218.
[22] L. Cusick and T. Rhodes, The process of disclosing positive HIV status: findings from qualitative research, Culture Health & Sexuality, Feb, volume 1, 1, 1999, p.11. See also, Q. Abdool Karim and S.S. Abdool Karim, Informed consent for HIV testing in a South African hospital: Is it informed and truly…? American Journal of Public Health, volume 88, 4, 1998, p.638.
[23] Oosthuizen, op. cit., p. 446-447.
[24] C. Bateman, HPCSA Aids cases under scrutiny, South African Medical Journal, volume 91, 4, p.283.
[25] N.D. Zuma, Declaration of medical conditions to be notifiable medical conditions in terms of section 45 of the Health Act, 1977. (Act No. 63 of 1977, Pretoria, Government of South Africa, 2000.)
[26] Government Notice R485 of 23 April 1999.
[27] Oosthuizen, op. cit., p.445. See also S.S.Abdool Karim, Making Aids a notifiable disease – Is it an appropriate policy for South Africa? South African Medical Journal, volume 89, 6, 1999, p.609ff.
[28] In dealing with laws regarding privacy and confidentiality in the UK, Hayter points out these laws in the UK make provision for breaching confidentiality especially where the public interest overrides the duty of confidence. In fact there is no law of privacy in the UK and this will also have a bearing on HIV. See Hayter, op. cit., p.1163.
[29] J. Neethling en J.M. Potgieter, Aspekte van die reg op privaatheid, Tydskrif vir hedendaagse Romeins-Hollandse reg, volume 57, I, 1994, p. 705.
[30] D. Bonhoeffer, Ethics, London, Touchstone, 1995, p.222. and D. Sölle, Stellvertretung, Stuttgart, Kreuz-Verlag 1965, p.
[31] Such a point of view is also according to the Syracuse principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (ICCPR) of the United Nations. These principles established that the restrictions prescribed by law in a democratic society must be neither arbitrary nor discriminatory, based on objective considerations, necessary to protect a valued social goal, such as protecting the public health or general welfare, and proportionate to their social aim and narrowly tailored to achieve their goal. The ICCPR provides three guidelines to determine the public good and, therefore, conditions under which a limitation on the rights of the individual may occur. These are first a recognition and respect for the rights of others – of the ‘group’; secondly, the need to meet the just requirements of morality, public order and general welfare of the broader community and society; and finally situations of emergency when a threat to the interests of the nation exists. See University of Pretoria, op.cit., p.18.
[32] See in this regard also W.G. Collins, Medical Ethics – promoting Aids? South African Medical Journal, volume 89, 3, 1999, p.216.
[33] Abdool Karim, op. cit., p.610.
[34] WCC, op. cit., p.47-49.
[35] D. Posel, “Getting the Nation Talking about Sex”: Reflections on the Politics of Sexuality and “Nation-Building” in Post-Apartheid South Africa, Wits Institute for Social and Economic Research, Johannesburg, University of Witwatersrand (unpublished), 2003, p.9.
[36] Ibid., p.10.
[37] Ibid., p.7.
[38] McCormick and Connors, op. cit., p.155.
[39] J.H. van Wyk, Etiek en eksistensie in koninkryksperpsektief, Potchefstroom, Potchefstroomse Teologiese Publikasies, 2001, p.293ff.
[40] WCC., op. cit., p.62.
[41] United Nations, HIV/Aids and Human Rights. International guidelines, Geneva, United Nations, 1998, p.6.
[42] I. Van der Linde, Drop secrecy around HIV/Aids, South African Medical Journal, volume 87, 1, 1997, p. 13.
[43] See in this regard P. Allmark, HIV and the boundaries of confidentiality, Journal of Advanced Nursing, volume 21, 1, 1995, p158ff and S.W. Key and D.J. DeNoon, Lawmakers call for mandatory HIV notification, AIDS Weekly Plus, 04/06/98, p.1ff.
[44] J. Chalmers, The criminalisation of HIV infection, Journal of Medical Ethics, volume 28, 3, 2002, p.160ff. On 23 September 1998 the Supreme Court of India even went so far as to suspend the right of people living with HIV to marry. See M. Dhaliwai, Rights of those with HIV to marry suspended in India, Reproductive Health Matters, volume 7. 14, 1999, p.2. Such a drastic step should not be deemed necessary because antiritroval drugs and other means of protection can protect the partner. However, the condition should be that the status is disclosed to the partner.
[45] W. Kondro, Canadian Supreme Court rules on disclosure of HIV status to sex partners, Reproductive Health Matters, volume 6, 12, 1998, p.174.
[46] University of Pretoria, op. cit., p. 22.
[47] United Nations, HIV/Aids, Awareness and behaviour, New York, United Nations, 2002, p. 28.
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