Over the past decade, criminal prosecutions against women for alleged exposure to HIV or transmission through breast milk have increased. This is particularly concerning in sub-Saharan Africa, where nine such cases have been reported since 2013.
Alison Symington of the HIV Justice Network and Nyasha Chingore of the AIDS Rights Alliance for Southern Africa (ARASA) reported on the criminalization of HIV and breastfeeding at the recent Beyond Blame: Challenging Criminalization for HIV Justice Around the World Meet.
Currently, 77 countries have specific HIV criminal laws. These laws cover non-disclosure to sexual partners, potential or perceived exposure, and transmission. Other countries have applied general criminal laws – such as for sexual assault and attempted murder – to people living with HIV. In most cases, the intention to transmit HIV does not need to be proven. Many of these laws fail to recognize that, regardless of treatment, the possibility of HIV transmission from a single act of exposure is very low, or that effective treatment completely eliminates the risk of sexual transmission (Undetectable = Not transferable, or U=U).
Medical and public health experts agree that overly broad HIV criminalization laws are ineffective in preventing transmission and only further stigmatize people living with HIV.
Based on stigma, not science
Symington reported that 13 known breastfeeding-related cases have been brought against women living with HIV. This has happened in Canada and the United States, but has mainly happened in sub-Saharan Africa, including Zimbabwe, Kenya, Malawi, Zambia, Uganda and Botswana since 2013. Women have been accused of various offences, ranging from “unlawfully doing an act likely to spread a dangerous disease” to “deliberately infecting others with HIV”.
“These lawsuits stem more from an overreaction to an exaggerated threat based on HIV-related stigma, misinformation about HIV transmission, as well as the fact that the burden of preventing transmission to children rests on the shoulders of the women,” Symington said.
A striking feature in some of these cases, such as those in Kenya, is that it is not the child’s mother who is prosecuted but rather a carer. In some African countries, it is common for domestic workers to breastfeed or comfort their employer’s children. Chingore spoke of a moral panic that characterizes these cases – linked to the stigma surrounding HIV transmission and because it is a domestic worker’s breast milk. This leads to very biased criminal trials, based on stigma, not science. “It is concerning that this tends to affect women of lower socio-economic status, women who are generally vulnerable to employer-employee dynamics,” Chingore added.
breastfeeding woman living with HIV in Malawi was sentenced of “negligently and recklessly doing an act likely to spread infection” after briefly holding another woman’s baby during a village meeting in 2016. Community members, knowing the woman was positive, alleged that she breastfed the baby during this brief period. Although she was on HIV treatment and her own child had not contracted HIV, the incident was reported to the police, resulting in a nine-month jail term and hard labor. This conviction was later overturned on appeal, based on expert testimony indicating that the actual risk of HIV transmission in this case would have been infinitesimally small.
This case shows how HIV-related stigma and lack of knowledge about HIV transmission during breastfeeding can have devastating consequences for women living with HIV.
Risk of HIV transmission through breast milk
While U=U does not apply to breastfeeding, the risk of HIV transmission through breast milk is still very low if the breastfeeding person is on antiretroviral therapy. Some estimates put the risk of transmission at 1% if the baby is breastfed for six months and nearly 3% for a year. However, the PROMISE studyin which mothers were offered HIV treatment for the duration of breastfeeding, placed the risk of transmission at 0.3% after six months and 0.6% after one year.
“We now know that this study represents some overestimation of the true risk of transmission due to various factors in the study,” Symington said, referring to the PROMISE results. “If women are on treatment throughout pregnancy and while breastfeeding, the risk is not the same as U=U, but it is close.”
Currently, most low- and middle-income countries recommend breastfeeding for all women living with HIV, while high-income countries recommend the use of infant formula. Chingore pointed out that in African countries where lawsuits are pending, HIV-positive women are recommended to breastfeed, provided they are on treatment, as it is the safest and most affordable approach. in places where the water supply is unsafe and bottles cannot be sterilized.
However, being on effective treatment and having an undetectable viral load has not always worked as an effective defense for women on trial. Thus, it is crucial that a human rights-based approach be combined with science in HIV criminalization trials.
What is done?
Chingore and her colleagues have called for the African Commission on Human and Peoples’ Rights to clarify its position on the criminalization of HIV and breastfeeding. Although the commission has generally condemned the over-criminalization of HIV and provided guidance to member states in this regard, it has yet to adopt a resolution specific to the criminalization of HIV in the context of breastfeeding.
The HIV Justice Network has produced a Breastfeeding Defense Toolkitcontaining legal documents, scientific information and political documents to help defend women living with HIV prosecuted under these laws.