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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 1984.9 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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