18 Child. Legal Rts. J. 6 (1998)
Perinatal HIV Transmission: A Children's Human Rights Perspective

handle is hein.journals/clrj18 and id is 88 raw text is: Children's Legal Righ  Journal

Perinatal HIV Transmission:

A Children's Human
by James G. Hodge, Jr., J.D., LL.M.* and
Michael J. Parini **
I. Introduction
Since the inception of the HIV/AIDS epidemic,
perinatal HIV transmission, or the transmission of
the human immuno-deficiency virus from a mother
to her fetus or infant child,' has presented an epide-
miologic quandary.2 How do we prevent perinatal
transmission? Answering this question is not
merely an exercise in public health theory. The
health, lives, and futures of thousands of children
underlie the question.3 Invariably, a comprehen-
sive analysis of how to control the rate of perinatal
HIV transmission requires the examination of the
rights of the mother and the child. And yet, un-
avoidably, perinatal transmission is a public
health problem because the children of HIV-
infected mothers owe their collective future to ef-
forts to prevent perinatal transmission.
As stated by the Centers for Disease Control and
Prevention (CDC), [tihe best means of preventing
HIV infection in children is to prevent infection in
their parents.4 Universal HIV prevention among
adults, however, is unrealistic for the immediate
future without the benefit of effective treatment or
a vaccine.5 Moreover, the epidemic continues to
spread from its original bases (gay communities
and injecting-drug users) to women infected
through heterosexual contact. The CDC reported
that the number of child-bearing women in the
United States infected with HIV rose 60 percent
between 1991 to 1995.6 Such increases threaten to
diminish the effect of promising preventive meas-
ures for perinatal transmission. In 1994, medical
science determined that a tripartite AZT treatment
for pregnant women and their post-partum infants
reduces the rate of perinatal transmission by 67
percent Special protections during delivery con-
tribute to lowering rates of perinatal transmission.
Avoidance of breast-feeding can significantly lower
risks as well. These measures have contributed to
a 43 percent decrease in the number of HIV-

Rights Perspective
infected women transmitting the virus to their ba-
bies between 1992 to 1996,8 reversing consecutive
years of rising rates of perinatal transmission since
Authorities in the United States have debated
numerous methods to lower prevalence, consistent
with traditional public health strategies. Propos-
als for screening and treating HIV-positive preg-
nant women through varying degrees of coercive
implementation have been considered.'0 Manda-
tory screening programs attempt to identify HIV-
infected pregnant women through required testing
and prevention efforts. Voluntary programs, on
the other hand, encourage women to seek HIV test-
ing, medical care, and prenatal treatment.
Each of these proposals offers potential public
health benefits. Mandatory programs target test-
ing and prevention efforts toward at-risk pregnant
women. These programs help to monitor the epi-
demic and require women's compliance with effec-
tive treatment plans. Voluntary programs raise
awareness of the threat of perinatal HIV transmis-
sion among consenting pregnant mothers so they
will assume and undertake risk-avoiding behaviors
and treatment. By coupling public health strate-
gies with effective treatment and other prevention
measures, either of these benefits arguably may
help to lower rates of perinatal HIV transmission.
The perinatal HIV quandary, however, requires
thoughtful inquiry beyond the traditional public
health perspective. Without discounting the con-
stitutional privacy rights of the mother, which may
invalidate coercive measures, or the parens pa-
triae powers of states, which may support such
measures, we analyze the government's human
rights obligations and how they interplay with pub-
lic health objectives. Though our concern lies with
preserving the child's human rights to life and
health, our analysis necessarily focuses on the im-
pact of public health schemes on the mother's hu-
man rights. There are two primary reasons for our
focus on the mother's rights: (1) not only are HIV-
positive mothers the primary vectors through

Vol. 18+No.2+Spring 1998

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