Liability for transmission

It is an offence under the Indian Penal Code to knowingly transmit the HIV virus. But greater clarity is required to determine that criminal sanctions are warranted and to specify the cases in which they may be imposed, say Atiya Bose and Kajal Bhardwaj of the Lawyers Collective

Liability for transmission of the HIV virus looks at two separate issues. The first arises from the transmission of the virus through blood, blood products and organ transplants, or in other words, transmission of the virus in medical environments due to negligence or a lack of proper quality checks. The other is where an HIV-positive person is held liable for the transmission of the HIV virus and is criminally charged for acts that transmit or risk transmitting HIV.

Blood, blood products and organ transplants

Blood, when not properly screened, may transmit serious diseases like malaria, syphilis, hepatitis B, hepatitis C and HIV. In 2001, the transmission of HIV through blood products in India was estimated at 4%. Thus access to a safe and sufficient blood supply has become a vital medical need. The right to life and personal liberty guaranteed under Article 21 of the Constitution of India includes protection of the right to health and therefore the overall responsibility for providing safe blood lies squarely with the State.

Since it is the responsibility of the State to provide and ensure a safe supply of blood and blood products, a programme that enforces quality control procedures - to improve accuracy of laboratory tests, reduce clinical and technical errors, address the issues of pathological laboratories, hospital waste management and usage of disposable needles – must be established.

The National Blood Policy, 2002, lays down guidelines to be followed by blood banks for collection, testing, storage and distribution of blood and blood products, including screening for infectious diseases However, the paucity of resources has led to the proliferation of commercial blood and organ donation, where these checks cannot be maintained. Additionally, in rural areas, blood testing and storage facilities are virtually non-existent. HIV testing also poses unique problems, as it must account for the ‘window period’ during which a person infected with HIV will test negative for the virus.

In India, where the availability of safe blood is not guaranteed, the only recourse left to people who have been infected through blood transfusions is to seek redress in the courts. In M. Chinnaiyan v Sri Gokulam Hospital & Queen Mary's Clinical Laboratory [National Consumer Dispute Redressal Commission, 2006], a woman received two units of blood (through transfusion) in the course of a hysterectomy operation in 1990. A few years later, she was found to be HIV-positive and manifested symptoms of AIDS. She suffered from several AIDS related illnesses and infections, and ultimately died. Her husband filed a complaint before the State Consumer Redressal Forum. He sued the hospital where she had the surgery, and the pathology laboratory from where the transfused blood was procured under the Consumer Protection Act 1986.

When his complaint was rejected, he appealed to the National Consumer Dispute Redressal Commission, which ruled that the hospital was liable because they gave the woman a blood transfusion without obtaining her consent, and the doctor was also liable because he negligently transfused blood without informing the woman about the benefits, risks or alternatives of blood transfusion. These acts of omission amounted to deficiency of service under the Consumer Protection Act. The Commission also held the pathology laboratory liable for failing to ensure freedom from HIV antibodies in the blood they provided. The Commission awarded compensation of Rs 4 lakh with interest at the rate of 6% per annum.

In India, the most viable strategy to ensure a safe and adequate supply of blood is the recruitment, selection and maintenance of voluntary blood donors. In this, the principles of consent and confidentiality once again come into play. To ensure blood safety, detailed information about donors, specifically information about ‘risk’ behaviour, should be collected through a mandatory questionnaire. Keeping this donor information strictly confidential is not just an ethical matter it will also be the only way to ensure honesty in the answers.

Criminal Transmission

Though transmission of HIV is not commonly criminal or intentional, cases have been reported around the world in which PLHA have been criminally charged for a variety of acts that are believed to transmit or risk transmission of HIV. In some cases, penalties have been imposed on acts merely perceived to transmit HIV. These can be dangerous precedents particularly in environments such as India where accurate information on the modes of transmission are not known, and perceptions of risk of transmission are frequently based on half-truths. It is critical to scrutinise whether criminal sanctions are warranted and to specify the cases in which they may be imposed.

Internationally one of the most important judgments on the criminal transmission of HIV is R. v. Cuerrier, ([1998] 2 S.C.R. 371) in the Supreme Court of Canada, which deals specifically with the issue of consent in a case regarding criminal transmission. Henry Cuerrier was charged with two counts of aggravated assault for having unprotected sex with two women without informing them that he was HIV‑positive. Cuerrier knew he was HIV-positive, and had been instructed by a public health nurse to inform his sexual partners of this and to use condoms when he had sex, which he failed to do. Although the two women in question had consented to unprotected sexual intercourse with Cuerrier, they both testified that they would not have done so had they known that he was HIV‑positive.

Cuerrier was acquitted by the trial court, and the acquittal was upheld by the Court of Appeals. The Supreme Court, however, had a different opinion. They found that Cuerrier had committed a fraud on the women by withholding his HIV status. Since it was fraudulently obtained, the consent was nullified, and further, since the act put the women at risk of serious bodily harm, the sexual acts amounted to aggravated assault.

Various sections of the Indian Penal Code (IPC) cover causing hurt, voluntarily causing hurt, causing grievous hurt and voluntarily causing grievous hurt as offences. Sections 269 and 270, which criminalise a negligent/malignant act likely to spread infection or disease dangerous to life, are most specifically applicable in the HIV context. The main elements of these offences according to the law are unlawfulness, negligence, malignancy and knowledge on the part of the accused that the actions being engaged in will cause, or are likely to cause, harm.

It is clear that the IPC has enough provisions to cover the transmission of the virus, and India therefore does not need a specific criminal law to deal with the criminal transmission of HIV. That said, laws relating to criminal transmission must be used judiciously, and should only criminalise the wilful transmission of HIV and not the HIV-positive status of a person. This means that negligence or intention of the accused must be clearly established so as not to jeopardise the accused simply because of the act of transmission.

Under Indian law, it is unclear whether a person’s consent to sexual intercourse with their partner with the knowledge that the partner is HIV-positive, would be a defence available to the accused, and Sections 269 and 270 do not comment on it at all. Other sections provide little guidance, with Section 87 making consent an available defence, while Section 91 does not provide consent as a defence in cases of acts which are offences independent of any harm which they may cause.

Indian criminal law should be amended to include consent as an element in sections 269 and 270 or as a defence to allegations under these sections. Most importantly, charges of the commission of such offences should be brought only with the approval of public health authorities and criminal prosecutions should not be viewed as part of a public health strategy to prevent the spread of HIV.

(Atiya Bose is media and communications officer and Kajal Bhardwaj is head of the technical and policy unit at the Lawyers Collective HIV/AIDS Unit. The Lawyers Collective HIV/AIDS Unit was set up in 1998 based on a realization that law, policy and judicial action that upheld the human rights framework had a central role to play in effectively containing the HIV epidemic. The Unit comprises lawyers, law students and activists working in offices in Mumbai, Delhi and Bangalore, and offers free legal services to persons living with, affected by or vulnerable to HIV and undertakes advocacy and research initiatives related to law, rights and HIV.)

Infochange News & Features, February 2008