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Source: corresponsalesclave.org

In the search for a modern law for the HIV response in Costa Rica, a text that might compromise women’s freedom is being discussed these weeks.

By Lídice López Tocón

A new Law on HIV is being discussed since 2014 in Costa Rica. This law aims at addressing the new challenges and dynamics of the epidemics in the country, with gender, diversity and human rights approaches as its foundations. However, the human rights-based approach seems to be tottering regarding women’s situation.

In the past few months, the inclusion of key populations—specially trans women and men who have sex with men—and the gender approach in the regulation’s wording were discussed. Legislators, civil society organizations and activists had to fight in a public debate to guarantee the rights of people most affected by the epidemics, dealing with religious groups and conservative people who seek to cut off the rights of some groups. That debate is already over. Nevertheless, women’s right to information and self-determination is at risk.

Article 23 of the original bill included exceptions to consent for HIV tests in two cases: “(a) When a person has been appointed as guarantor, this person will decide whether or not to get tested by using this safeguard, and (b) When people want to donate human biological products, including blood, ovules, blood products, breast milk, semen, organs and tissue.” Nevertheless, through a motion, a new section is expected to be included in the article, which would force all pregnant women to get tested for HIV, without their informed consent.

Christian and conservative factions state the fetus should be protected over women’s right to information and freedom.

The introduction of this section could create obstacles for the HIV response or reinforce stigma and discrimination, which contravenes the commitments made by Costa Rica in the Political Declaration on HIV and AIDS in 2016.

On a Technical Information Note the UN Office sent the Congress a few months ago, the reasons why voluntariness to get tested must be ensured for everyone are listed: “Willingness to get tested and informed consent […] are among the foundations of HIV care and of a human rights-based response, being part of international standards on this topic. Based on experience, evidence shows that forcing women to get tested has adverse effects; plus, it does not contribute to increasing diagnosis and the subsequent adherence to treatment, being rather a hindrance thereto. […] As for pregnant women, there are international recommendations and agreements that explicitly state the need to remove/avoid compulsory testing for pregnant women from and in legislations, as well as the recommendation of ensuring conditions that will encourage these women to get tested, such as information, guidance and comprehensive counseling. […] If these conditions are ensured, it is very unlikely that women will refuse to get tested for HIV.”

Different women organizations and human rights defenders have rejected this section and have claimed the State is compelled to provide tests after providing information, educating and offering the choice to get tested. However, these obligations are not being complied with.

We talked to Guiselly Flores, President of the Peruvian Network of Women with HIV. Based on her experience, she told us that “In light of this regulation, the situational analysis and interviews organizations of women with HIV have carried out regarding this topic show that forced testing has been a tool for discriminating and exercising violence against pregnant women.”

Flores added that violence suffered by pregnant women forced to get tested without their consent has various dimensions. “Obstetric violence, because health facilities are the first place where they are diagnosed; therefore, under this regulation, tests are quickly conducted without consent and proper counseling. Mistreatment continues during pregnancy controls, labor and postpartum. Violence from the partner can be seen as well, since women apparently get diagnosed first (though it is not really that way) and are accused of being unfaithful or promiscuous. It will be much more difficult for them to negotiate safest sexual relationships, and they will become the subject of constant mistreatment. If their partner is serodiscordant (he does not live with HIV), violence becomes worse. There is also family and social violence because the regulation hastens information processes at the expense of confidentiality with respect to the family and community contexts. For instance, women will be questioned for avoiding breastfeeding and will be excluded from family reunions.”

The experience of the Peruvian Network of Women with HIV regarding its work with women with HIV reinforces what UN agencies and other international organizations anticipated. For this renown activist, laws as those expected to be implemented in Costa Rica—which are in force in Peru—are counterproductive for the objectives of the HIV response and global goals we want to achieve, particularly regarding the elimination of vertical transmission.

“We can clearly understand why many of our fellow pregnant women with HIV have run away from health services. They prefer giving birth with midwives or they attend private facilities. We know that some of them have been harassed by health workers when they have not returned to the facility, and they have been threatened with being reported to the district attorney,” said Guiselly Flores.

The bill is being discussed in Costa Rica’s Assembly of Deputies. We still have time to call for evidence-based decision-making, not based on biases. People’s rights must be at the center of the HIV response.

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