Find us on Google+

Monday, 21 June 2010

Rights and HIV Mandatory Tests

A recent important court judgement on a contentious issue. Two ex-officers in Zambia's air force were awarded damages following claims they were tested and treated for HIV without their knowledge. The men had claimed they were fired for being HIV-positive, but the court decided not to reinstate them. Mandatory HIV screening is not legal in the military, and the government had denied the two men were tested. Some think forced screening is an invasion of privacy - others say it is needed to fight the virus.  What I found interesting was this quote from the BBC report :

Lloyd Bwalya from the Network of Zambian People Living with HIV/Aids told the BBC News website that the case will be a "signal to the rest of the country" that there should be "informed consent" before people are tested for HIV. But Zambia's health minister and some doctors are in favour of mandatory testing, arguing that not enough people are volunteering to be tested in a country were 15% of adults are thought to be HIV positive.
This is a complicated issue but the Minister's argument seems a bit poor. What doctors think surely is beside the point. However, although I can see the poverty of the Ministerial response, I have struggled to think through these questions myself. After much thought, I have at least concluded that Mr Bwalya's argument cannot be supported based on the "human right" arguments and that government is therefore free to consider the case for mandatory tests like any other issue.  This is slightly complex philosophical issue, and it is not my strong suit, so I welcome to hear what others think. My reasons are as follows.

The first question we must ask is whether being ignorant of your HIV status is a human right.  Rights are normative social relations and knowledge about things and others is part of that relationship. Therefore a person's claim to remain ignorant about something that occurs in the course of any transaction with other human beings seems valid. The question is whether the right to be ignorant is a human right . It seems to me that in line with Wolterstorff,  human rights are those rights that one does not have to be of a particular sort of human being to have that right. In this instance,  we can all agree that all human beings (including babies, mentally challenged) are capable of knowing, as such able to enjoy the right to ignorance (though they may not be equally capable of exercising it). As such I believe they are potentially wronged if they choose to to exercise the right to ignorance about their HIV status but are prevented from doing so due to mandatory testing. So the right to ignorance of your HIV status is at the basic level a human right.

This leads us to a related question of whether ignorance of your HIV status, though a human right, applies universally to everyone.  That is to say, whether every human being capable of knowing their HIV status has a human right claim against everybody else. It seems obvious to me that this is not the case. The main reason for this is that it is true of rights in general that one does not have a right against someone to some action or restraint on their part if they are incapable of bestowing that good (good thing) on one - or capable only at the cost of violating rights. The very idea of social interaction necessitates some degree of "knowing". As such one can conceive of many situations in life in which it is impossible for one party to keep any information away from the other. Unless they never meet or interact. So the right to ignorance of your HIV status is  a human right but not necessarily a universal right.

Now we must wrestle with a huge question - are we naturally compelled to honour this non-universal human right to ignorance of your HIV status? Put differently, is the non-universal  human right a natural right? Is the right to ignorance something that is not conferred to us by society, but we have on account of God's action of creating us? At present the "right to ignorance"  of your HIV status has been legally conferred by the government. [There's no legislation that forces mandatory testing of HIV or being tested without consent].  However, from our perspective, the fundamental question is whether this is a natural right for any human being i.e. whether without government being involved we necessarily  enjoy have this right.  The answer to that question has profound implications about how decisions must be reached. Central to this is our view of how natural human rights are grounded.

Natural human rights are inherent in the worth possessed by human beings. We violate these natural human rights when we treat human beings less than they are worth - that is the worth possessed by all human beings. Natural rights are what respect for that worth requires.   It is that inherent worth that is critical to determining whether by forcing people to know something they don't want to know, they are being wronged. To wrong a person is alter their moral condition as recipient of justice, in the moral order. Wolterstorff demonstrates that only on account of a theistic framework, specifically a Judeo-Christian framework, does wronging make philosophical sense - a non theistic grounding of rights fails miserably. Human beings have worth because it is bestowed by the Creator. We have inherent / natural human rights on account of the bestowed worth by God on human beings.  This worth is usually referred as "being made in the image of God", but Wolterstorff demonstrates that it is specifically it is the love of God for each and every human being equally and permanently, that ultimately grounds natural human rights.

This argument is important because it changes how we make the trade-offs. Specifically in assessing whether we need to make HIV tests mandatory, we should ask two important questions - first, is ignorance something that God would want to promote in human beings and therefore if we stopped it, we would be violating the moral order (God being the source of that moral structure)? Secondly, would we be committing greater rights violations by promoting people remaining ignorant? The answer to both is fairly obvious. A proper understanding of human rights in our appraisal does not lead to the rejection of mandatory HIV tests. Not only is the right to ignorance not a natural human right, ignorance of your HIV status can be argued to violate the sanctity of human life because it makes you less responsible and therefore if anything violates your inherent worth and of others (how many lives would be saved from such tests?).

This conclusion does not taking away the need to protect individuals against those in authority who may use mandatory tests as the basis for discrimination. There would also be need for having sufficient ARVs available to everyone, not to mention all the other things like emotional support. If we test people we must have sufficient support structures and strong enforcement of employment rules. Otherwise, mandatory tests simply create more problems than they solve. We should also consider the perverse incentives. If such tests were made mandatory would people stay away from hospitals altogether and therefore cause other rights human violations?

But in principle I have no problem with mandatory HIV tests  because ignorance of your HIV status is not a universal natural right. On the contrary it violate the natural human rights bestowed on us by the creator - the sanctity of human life. Morally the case for mandatory tests looks much stronger than the Minister may have considered.


  1. Chola, in Zambia knowing one's HIV status as well as someone knowing someone else's status means that the HIV positive person faces untold stigma. Ah, nibalya, kalyaka! Contrast that with the way HIV postive person is treated here (UK). The matter is between the HIV positive person and his doctor and the support mechanism that exists (if the ConDem don't wipe it out).

  2. As well as knowledge by the individual of his or her own status, there is the aspect of knowledge by medical staff. They need to know a patient's status in order to make reliable diagnosis so as to determine the best treatment, and also because they themselves may be at risk when treating an HIV infected patient.

  3. Gershom,

    Yes, there's a cost to knowing your HIV status. But you also impose costs on others by not knowing.

    I think the issue of "support" mechanism is absolutely vital.

    But those issues are issues that society can debate more broadly through a public consultation. The "rights" argument certainly has minimal import.

  4. Murray,

    Good point about the doctors.

  5. In urban Zambia, an estimated 70 percent of new HIV infections occur between couples who do not realize that one partner is HIV+ and the other is HIV-. Couples Voluntary Counseling and Testing (CVCT)gives couples the tools they need to protect and support each other. Once voluntary counseling and testing are accepted as part of the normal healthcare practices in Zambia, there will be no need for mantatory testing. Get tested with your partner today!

  6. I wonder whether this might be looked at in a similar way to the debate over mandatory vaccination campaigns. Should some individuals have the right to refuse vaccination when their individual decision can affect the health of society as a whole ?


All contributors should follow the basic principles of a productive dialogue: communicate their perspective, ask, comment, respond,and share information and knowledge, but do all this with a positive approach.

This is a friendly website. However, if you feel compelled to comment 'anonymously', you are strongly encouraged to state your location / adopt a unique nick name so that other commentators/readers do not confuse your comments with other individuals also commenting anonymously.