Compulsory HIV testing for pregnant women

/in /by

I am told a pregnant woman must undergo compulsory HIV testing when attending a heath care facility. Is this not contrary to the right to privacy which is a basic human right in our Constitution? Does the law really allow someone to be subjected to HIV test without his/her consent?
WM, Iringa

There are two laws that govern HIV testing which are the HIV and AIDS (Prevention and Control) Act, 2008 as amended by the Written Laws (Miscellaneous Amendments) Act No 14 of 2019 and the HIV and AIDS (counselling and testing, use of ARVs and Disclosure) Regulations, 2011. As a general rule section 15(3) of the Act prohibits compelling or procuring HIV testing of another without his or her consent.

If there are pregnant women who are subjected to a compulsory HIV testing, we think it is done so on misconception of section 15(5) of the Act which provides that “every pregnant woman and the man responsible for pregnancy or a spouse and every person attending a health care facility shall be counselled and offered voluntary HIV testing”. It is compulsory for a health care officer to counsel a pregnant woman or patient attending a health care facility to take voluntary HIV test with her or his spouse or partner. The law does not make it compulsory to subject a pregnant woman or any patient attending a health care facility to undergo HIV test.

It is an offence under section 15(7) of the Act to compel a person to undergo HIV testing or procure HIV testing of another without his or her knowledge. However, a person may be subjected to a compulsory HIV testing only where:

  1. There is an order of the Court that a person named in the order be subjected to the HIV test;
  2. The person to be tested is a donor of human organs and tissues;
  3. The one to be tested is accused of a sexual offence;
  4. The person to be tested is unconscious and unable to give consent;
  5. In emergency situations where due to medical or psychiatric condition of the client it is impossible to obtain consent of the client, the medical practitioner attending the client may proceed with HIV test without client’s consent;
  6. Medical or health practitioner believes that HIV test is clinically necessary or desirable in the interest of the person to be tested;
  7. Medical or health or occupational health officer has been exposed to blood or other body fluid of another person and that other person refuses to take voluntary test to determine whether he is infected or not. In such a situation, if blood sample of the person is available, his blood may be tested but he has no available blood sample, the person exposed to the danger may petition the Court for an order to subject the person to a compulsory HIV test.