Court urges change to law criminalising women who pass HIV to baby

The law criminalises pregnant women who pass HIV/AIDS to their babies, potentially discouraging people from finding out their status. PHOTO | FILE 

By KATY MIGIRO

In Summary

• The High Court ruled this section of the law unconstitutional on March 18 as "it could be interpreted to apply to women who expose or transmit HIV to a child during pregnancy, delivery or breastfeeding".

Human rights groups have welcomed moves to change a Kenyan law passed to curb the spread of HIV/AIDS, which criminalises pregnant women who pass HIV/AIDS to their babies, saying it discouraged people from finding out their status.

The 2006 law says that a person who knows they are HIV positive must tell "any sexual contact" of their status in advance and could be jailed for seven years if they "knowingly and recklessly" placed another person at risk of being infected.

The High Court ruled this section of the law unconstitutional on March 18 as "it could be interpreted to apply to women who expose or transmit HIV to a child during pregnancy, delivery or breastfeeding".

The law was introduced to curb the spread of HIV/AIDS in Kenya, which has the fourth largest HIV positive population in the world - 1.7 million people.

Rights groups argue that it discriminates against women, who are often the first members of a family to find out their HIV status as they are usually tested while pregnant.

"This law has inflicted fear, shame and punishment on countless Kenyans, especially pregnant women," Evelyne Opondo, Africa director of the New-York based Center for Reproductive Rights (CRR), said in a statement on Monday.

"Now is the time for the Kenya government to immediately amend this legislation and ensure people living with HIV can get the care they need without fear of discrimination or criminalisation."

CCR submitted an amicus brief in a case brought against the government by the AIDS Law Project, a charity providing legal services and counselling to people living with HIV.

The charity argued that the law discourages people from finding out their status and could even prevent those with HIV giving first aid or playing sports for fear of being prosecuted.

The law also puts women at risk of violence or rejection by their husbands because it allows doctors to disclose patients' status to their next of kin, it said.

"If we want to reduce the spread of HIV and AIDS and put an end to the stigma, violence and discrimination surrounding the disease, our public policies must be based on medical evidence and grounded in human rights," Jacinta Nyachae, executive director of the AIDS Law Project, said in the statement.

The High Court advised the government to review the law to avoid further litigation.

-Reuters-