Vol 22, 2013 Annals of Health Law 403
DUTY TO WARN OF THE RISK OF HIV/AIDS
their status are estimated to number between 180,000 and 280,000
people.108 Warning those at risk of infection in order to get tested affords
them an opportunity to begin early treatment, thus avoiding the horror of
VI. OVERRIDING POLICY CONSIDERATION IN AFRICA
While the policy considerations in the previous section both support and
argue against the existence of a duty to warn, a major policy consideration
in the particular circumstances of Africa is the impact of a mandatory
disclosure requirement on vulnerable populations: forced warning may
accentuate their vulnerability. This is especially true of people in unequal
relationships and of lower socio-economic background – two characteristics
that define the status of women in Africa. Analysis of this issue captures
the objection of African scholars, noted in the introduction of this piece,
against involuntary disclosure of HIV status.
In Africa, about sixty-one percent of people that tested HIV positive are
women, and they are usually the first to know of their HIV status due to
routine antenatal screening.109 Being the first to know, African HIV
positive women are often accused by their husbands of infecting them with
the virus, even though such husbands were ignorant of their status and were
probably the true source of infection.110 Furthermore, the power-dependent
relationship of most women in Africa means that they are generally unable
to enforce the use of condoms by their husbands or partners, even when it
exposes them to the risk of HIV infection.111 Summarizing the socio-cultural plight of African women, which engenders their high rate of HIV
infection, a UNAIDS report observed: “Often treated as legal minors,
barred from owning or inheriting property, unable to make independent
financial decisions, women are vulnerable to poverty, exploitation, violence
– and ultimately to HIV infection, which lies at the end of this long causal
chain of injustice.”112 HIV positive women in Africa are reluctant to
disclose their sero-status to their husbands or sexual partners because of the
potential for violence against them. IRIN PlusNews reported that at least
108. Rochelle P. Walensky et al., Effective HIV Case Identification Through Routine
HIV Screening at Urgent Care Centers in Massachusetts, 95 AM. J. PUB. HEALTH 71, 71
109. Bernard, supra note 19.
110. UNAIDS, FACING THE FUTURE TOGETHER: REPORT OF THE SECRETARY GENERAL’S
TASK FORCE ON WOMEN, GIRLS AND HIV/AIDS IN SOUTHERN AFRICA 8, 16 (Advocacy ed.
2004) [hereinafter UNAIDS].
111. See Joseph-Mathew Mfutso-Bengo et al., Ethical Aspects of HIV/AIDS Prevention
Strategies and Control in Malawi, 29 THEORETICAL MED. BIOETHICS. 349, 350 (2008).