The Threat Lives on: How to Exclude Expectant Mothers from Prosecution for Mere Exposure of HIV to Their Fetuses and Infants
31 Pages Posted: 13 Aug 2015
Date Written: September 30, 2014
There is a renewed interest in HIV/AIDS issues given that better treatment is available. The Department of Justice (DOJ), Civil Rights Division, recently published best practice guidelines to reform HIV-specific criminal laws to conform to modern science. The DOJ’s latest guidelines urge states to “reform and modernize” the laws to reflect modern science. There is a lot of unfinished work regarding the ineffectiveness and stigma associated with HIV criminal transmission laws as a whole. These laws are “no good” and counterintuitive in the fight against this unfortunate disease. There have been calls to repeal these laws in their entirety. That is not necessary. This Article re-emphasizes the gravity of this problem and suggests that one critical step forward is to amend the laws to remove any threat of prosecution of mothers who are HIV positive. Part II of the Article addresses the medical advances in HIV/AIDS treatment and prevention. Part III examines certain laws criminalizing HIV exposure and transmission and how these laws pose undue and unwise risks to HIV-positive expectant mothers. Part IV of the Article addresses how prosecution or the threat of prosecution of expectant mothers under HIV specific criminal law would harm rather than help society. Finally, Part V proposes a model for change in addressing these specific HIV criminal transmission statutes, particularly to remove any threat of criminal sanctions against HIV positive women who are pregnant or desire to become pregnant.
Keywords: family law, healthcare law, HIV/AIDS, in-utero, criminal, transmission, exposure, interpretation, statutory, repeal, amend, threat, prosecution, unfair, stigma, discriminate, punishment, prison, disease
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