HIV/AIDS healthcare as a human right

Co-authored by Arjun Chopra

Right to Health

Under international human rights law, Article 12 of the ICESCR guarantees the right to the “highest attainable standard of health”[1]. Specifically, with respect to HIV, member states are under an obligation to “take measures to prevent, treat and control the epidemic and endemic diseases”[2]. The right to health entitles an individual to the right to a healthcare system that confers equal opportunity to enjoy the highest attainable level of health along with freedom from discrimination and the right to control one’s health and body.

The constitution of India doesn’t categorically recognize this right as a fundamental right however, the right to health has been read into Article 21 which guarantees the right to life and personal liberty. Additionally, The Indian Constitution engages with the right to health under Chapter IV on Directive Principles of State Policy (DPSP) under Article 39(e) which confers a duty on the state to “protect their (the citizen’s) health and strength from abuse”[3].  Article 47 lays down the state’s duty to inter alia “consider the improvement of public health as its primary duty”[4]

The Indian Supreme Court has played a proactive role in locating the right to health in Article 21. In Francis Coralie Mullin v. The Administrator, UT of Delhi[5] the apex court observed that the expression “life” under Article 21 means a life with human dignity and not mere survival or animal existence. This position has been reaffirmed by the apex court leading to the crystallization of the right to health.

Even though the existence of the right to health has been grounded in Article 21 jurisprudence, the specifics of this right and India’s obligations under international human rights law can be realized through concrete legislation and policies dealing with the challenges in the actualization of this right specifically in the context of HIV/AID

A funding crisis leads to global organizations filling in the gap

The HIV prevention campaigns in India have a major crisis of funding. Frequent budget cuts affect not only NACO but also the NGOs that are working on the ground to make sure that the service delivery system is intact. Budget cuts and lack of funding then act as demotivating factors for care providers in AIDS care centers with there even being reports [6] in the past that budget cuts led to the workers not getting paid for months and also a severe shortage of condoms and injecting needles. 

This is where international organizations such as Global Fund and UNAID come in with additional funding to support programs and NGOs. This additional funding is helping India reach the 95-95-95 targets faster and more efficiently. 

Lack of female-centric data 

Intravenous drug users (IDUs) are 35 times more likely to contract the virus than an average person. This is much higher than other high-risk populations due to the fact that users share the same needle to inject themselves with the drugs. Now, this may happen because there is a general lack of availability of needles and they may also feel like using the same needle brings them closer together emotionally. However, IDUs may also indulge in other risk behaviors including unprotected sex with their partner or multiple partners. While NACO puts an emphasis on identifying female IDUs, in my own research, I have only come across male-centric data [7] which means that the research is only focused on identifying risk behaviors and contact tracing of male IDUs rather than females. 

What is needed to bridge the gap?

In order to address the continued gap between HIV programs and key populations, we must fulfill two broad conditions. The first is to make the general population aware of the continued epidemic and prevention strategies. This will only be possible when societal stigmas that are associated with homosexual relationships and sex workers are addressed on a national level. It is important to understand that one of the reasons why HIV/AIDS continues to be an epidemic is because an HIV-positive person becomes a social outcast and often hides their status due to being perceived as a sexual deviant. 

The severe lack of sex education [8] must remain a responsibility of the state and not the people. The erroneous myth that the discussion of sex encourages the population to have more sex mostly among the youth only leads to misinformation and a lack of safe sexual practices within them. For example, in the year 2000, it was found that due to a lack of proper education, young men in Tamil Nadu believed that kissing and masturbation can spread HIV. 

Secondly, a more radical stance perhaps is to make HIV healthcare a fundamental right. The Human Immunodeficiency Virus And Acquired Immune Deficiency Syndrome (Prevention And Control) Bill, 2014 does not guarantee access to HIV Healthcare but merely sets up the mechanism through which one can avail of healthcare. If HIV care is enshrined under the Right to Health, it will automatically create accountability mechanisms within the system. India struggles to maintain patients on regular ART treatment and the last mile delivery of the services. The realization of HIV care as a right may open the door to the destigmatization of homosexual and transgender people who can now assert their right to receive services. 

Rights and community participation based approach to HIV/AIDS Epidemic: A model that might work

Many proposals have been made to increase HIV testing, often at the cost of consent and privacy[9]. Some argue that the right to privacy comes in the way of public health. But, it is important to understand that  HIV goals will never be achieved without human rights protection. The success of an HIV program depends on testing, support services and treatment that champion human rights.

A rights-based approach to HIV also must include a continuous and meaningful involvement of PLHIVs (People living with HIV) and communities; not only to consider their opinion but also to design, implement and monitor programs. The current scenarios remain tokenistic in nature. 

There must be a shift amongst all levels of healthcare governance where communities should not just be looked at as the subjects of interventions but as highly valuable collaborators in a partnership. A sustained partnership with the community will ensure community mobilization and empowerment. To take a concrete example: The HIV Collaborative Fund, a project of the International Treatment Preparedness Coalition (ITPC) provided funds to community networks all around the world and produced successful results. Two very successful models are listed below [10]:

• Positive Network of Mizoram (PNM), Aizawl, Mizoram, India – PNM launched the first-ever HIV treatment education campaign in Mizoram. During its first year, it provided treatment education training for 120 PLHIVs, healthcare providers and other contributors. It was the first to provide treatment advocacy training for 160 participants. These activities have increased the involvement of PLHIVs in public discussions about HIV treatment and have helped PNM to monitor and advocate for supplies of ART and opportunistic infection drugs (tuberculosis, STIs) in the state.
• Family Support and Orphan Care for PLWHA (FSOCHA), Jinja, Uganda – This project trained 30 FSOCHA members and community AIDS workers in HIV treatment literacy. Peer educators were supported by frequent meetings, 3430 printed manuals to distribute in the community, radio advertising and interviews, and community-wide meetings which focused on sensitization and treatment awareness.  The project was able to document a range of initial outcomes: there was a notable increase in the level of treatment adherence; increased numbers of PLWH seeking medicines for opportunistic infections. They also set up a redressal mechanism to write to service providers regarding important issues. 

Protection of human rights continues to be an essential component of successful HIV/AIDS programs. However, the complete eradication of new infections cannot be achieved unless the protection of human rights is at the center of it all. A top-down legal reform [11] when coupled with ground-up empowerment is vital to fully realize the health and rights of people who continue to fight HIV.

Co-Author’s Bio: Arjun Chopra is an Advocate practicing at Delhi High Court and Supreme Court of India. He has closely worked on the intersection of the Right to Housing, Right to Health, and Right to Food.

References

1. General Assembly resolution 2200A (XXI). “International Covenant on Economic, Social and Cultural Rights.” OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights 
2. General Assembly resolution 2200A (XXI). “International Covenant on Economic, Social and Cultural Rights.” OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights 
3. Constitution of India, 1950. https://www.constitutionofindia.net/constitution_of_india/directive_principles_of_state_policy/articles/Article%2039 
4.  Id, Article 47. https://indiankanoon.org/doc/1551554/ 
5. Francis Coralie Mullin vs The Administrator, Union. 13 Jan. 1981. https://indiankanoon.org/doc/78536/ 
6. Kalra, Aditya, and Zeba Siddiqui. “Funding Crisis Puts India’s AIDS Program, and Lives, at Risk.” Reuters, Thomson Reuters, 24 July 2015, https://www.reuters.com/article/us-aids-india-idUSKCN0PY1K320150724  
7. Cleland, Charles M et al. “HIV risk behaviors among female IDUs in developing and transitional countries.” BMC public health vol. 7 271. 1 Oct. 2007, doi:10.1186/1471-2458-7-271 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2140060/ 
8. Chakraborty, Palak, and Avantika Mishra. “Lack of Sex Education in India and Its Growing Importance in the Digital Era.” International Journal of Policy Sciences and Law (IJPSL), vol. 1, no. 4, https://ijpsl.in/wp-content/uploads/2021/05/Lack-of-Sex-Education-in-India-and-its-Growing-Importance-in-the-Digital-Era_Palak-Chakraborty-Avantika-Mishra.pdf 
9. “WHO/UNAIDS: Expanded Testing Guidelines Should Recognize Reality.” Human Rights Watch, 20 Oct. 2020, https://www.hrw.org/news/2007/05/29/who/unaids-expanded-testing-guidelines-should-recognize-reality 
10. Cleland, Charles M et al. “HIV risk behaviors among female IDUs in developing and transitional countries.” BMC public health vol. 7 271. 1 Oct. 2007, doi:10.1186/1471-2458-7-271 
11. Sanyal, Diksha. “The Right to Health in the Context of HIV Healthcare in India: Some Thoughts on the New HIV Bill.” LSE Human Rights, 3 Dec. 2020, https://blogs.lse.ac.uk/humanrights/2017/07/19/the-right-to-health-in-the-context-of-hiv-healthcare-in-india-some-thoughts-on-the-new-hiv-bill/