Voluntary and Compulsory “AIDS” Screening from the Perspective of Human Rights: A Study Based on HIV Exceptionalism
WU Danying* & LI Guanxiang**
Abstract: HIV screening can be used to detect, control and prevent the spread of HIV/AIDS. The attitude towards HIV screening relates to the general trend of human rights protection of AIDS sufferers and infectors. HIV exceptionalism has been adopted in traditional international practice. That means the specific notified, voluntary consent shall be obtained from examinees before they are screened. However, there is move to abandon HIV exceptionalism in order to detect more infectors and treat AIDS the same as another infectious disease. This has resulted in “compulsory screening” and “consent after notification”. In China, “voluntary” screening, “real-name detection” and “compulsory screening” exist in different regions. Thus, it is crucial to identify the legal regulation principle of HIV screening from the perspective of human rights.
Keywords: HIV screening ; international exceptionalism ; consent after notification ; human right ; right of privacy
Unlike other infectious diseases, HIV/AIDS is closely linked to vulnerable populations and specific behaviors. HIV/AIDS is not only a global public health problem, but also a comprehensive international problem involving politics, the economy, law and other fields. Traditionally, the international push for HIV exceptionalism requires special treatment for HIV prevention, detection, results notification, anonymity, “consent after notification” and other aspects. In the case of HIV exceptionalism, HIV screening requires notified, voluntary consent of the examinees, which is different from the general blood testing with principles of presumed consent and routine practices. With the effective development and efficient application of anti-HIV drugs, HIV has gradually transformed into a chronic disease that can be effectively controlled. To ensure more HIV diagnoses can be confirmed in a timely manner, there have been greater calls for HIV exceptionalism to be abandoned, with proponents arguing that HIV should be treated like any other infectious disease. Although the spread of HIV in China has a short history, it has developed rapidly and shows a trend of “spreading from high-risk groups to the general population”.1 The Chinese government attaches great importance to HIV prevention and control. In addition to adopting a “voluntary detection” system for HIV screening, the Chinese government has clearly stipulated the conditions in which testing should be carried out, and also called for “real-name detection” and “compulsory screening”, forming and strengthening the concept of HIV de-exceptionalism. From the perspective of human rights, this paper analyzes the current situation of HIV screening and human rights protection in China, and further clarifies that HIV screening and even the prevention and control of HIV by law is a key issue that cannot be avoided.
I. Prejudice and Tolerance: the Future of International HIV Exceptionalism
People infected by the human immunodeficiency virus (HIV), and patients in clinical practice may have neurologica, and other symptoms2, suffering both physical and psychological effects. The incubation period for AIDS is about 10 years, and an infected person who had no idea they were infected may continue to infect other people. As of 2017, there were about 36.9 million people infected with HIV in the world, of which about 1.8 million were newly confirmed and nearly 1 million died of AIDS in 2017. Of the global HIV infectors, sex workers accounted for 3 percent, those who shared needles accounted for 9 percent, men who had sex with men 18 percent, females (transgender) 1 percent, sex workers’ clients, and sexual partners of other key groups 9 percent, and the general population 53 percent, while in the Asia-Pacific region, the general population accounted for 16 percent, and the three groups related to sexual behavior made up 66 percent.3
There is widespread fear of AIDS among the public. The primary reason is that AIDS is incurable, fatal and contagious. In addition, AIDS is also highly moralized, for the public often associate AIDS with prostitution, homosexual behavior, drug abuse and drug trafficking, and discriminate and exclude those people known to be infected with HIV. Those infected with HIV feel that once their health status is exposed to the public they will face strong social discrimination. Being known to have HIV isolates people from family and friends, jeopardizes employment or risks being deprived of education, and their legitimate rights and interests are hard to be guaranteed. Under the huge psychological pressure and the cognitive doubt, they tend to exhibit adverse psychology such as seeking revenge against society. As a result, after much debate, the international community has tended toward HIV exceptionalism, the view that it is different from other diseases and therefore requires more than just the usual health interventions.
HIV exceptionalism means that medical institutions and policymakers take a differentiated approach toward HIV/AIDS than they do to other diseases, and do not completely adopt the traditional means of prevention and control, such as mandatory physical examination, screening, the report system breaking the private doctor-patient relationship, compulsory treatment and detention or isolation which deprives people of freedom, etc., but take personal rights protection as the core, with particular emphasis on protecting the autonomy and privacy of those with HIV in order to sustain the trust relationship between the examinees and medical institutions.
Due to the high sensitivity of HIV/AIDS, the exposure of HIV/AIDS-related personal information is very likely to cause those affected to suffer unfair treatment in society, or even violate their individual personality rights. Many countries tend to choose HIV exceptionalism so as protect individual autonomy and privacy, and implement HIV screening in three steps, namely, “full consultation”, “explicit consent” and “strict confidentiality”. Full consultation is required to ensure that an examinee fully understand the risks and benefits that he/she may face after screening. On the premise that the testing is absolutely voluntary, the screening is carried out while keeping strictly confidential the information collected of those infected with HIV.
In recent years, the international community has laid the emphasis again on equalization and HIV de-exceptionalism. The discovery and effective use of Highly Active Anti-Retroviral Therapy (HAART) can extend the life span of people infected with HIV effectively, even as much as non-infected people. In fact, it’s possible for anyone to get infected with HIV. A large number of infected people do not know they are infected. In May 2014, 27,405 people in Taiwan were known to be infected with HIV, and it was estimated that more than half of those infected did not know they had the virus, according to the Taiwan regional disease management department. If people receive regular testing and early treatment, those with HIV can avoid infecting anyone they have sex with and reduce the risk of mother-child infection; if Taiwan increased its screening rate to 90 percent, it is predicted that it could prevent 10,000 people from infection over five years and save NTD140 billion.4 Those who do not know they are infected are more likely to transmit HIV to others. In general, if a person knows he or she is infected with HIV, it reduces high-risk behavior. Early detection of those infected with HIV may help the government to take early intervention measures to help those with HIV/AIDS get treatment as early as possible, which would improve the survival rate, and reduce the social cost of HIV/AIDS treatment. To increase screening opportunities, the US health agency recommended in 2006 that routine HIV screening services be provided to patients between the ages of 13 and 46, unless the patient explicitly refuses. Singapore is trying to make HIV screening routine for inpatients by increasing the number of anonymous screening sites, providing quick screening and an HIV screening programmes for inpatients. European countries such as Denmark, Finland, the Netherlands, Norway, Spain, and the United Kingdom prefer the model of “consent after notification” in the screening of specific groups, such as pregnant women and those whose clinical symptoms indicate that they may be at high risk of infection. There has been a differentiated value orientation between the above countries’ screening modes and the “absolute voluntariness” emphasized in HIV exceptionalism.
“Absolute voluntariness” requires that medical institutions must fully explain the risks and interests of the those being screened for HIV, so they can make informed choices, “Full consultation” is the first link of the screening The “consent after notification” is seemingly also conducted on the premise that the HIV infectors or AIDS patients agree, but it has actually greatly reduced the “full consultation” process, and the relevant agencies need only provide the patients advice on screening, reducing the possibility of the recipient’s comprehensive knowledge of the risks and benefits of HIV detection, and concealing the premise that examinees are screened unless they explicitly refuse. No getting a “full consultation" before the screening undoubtedly damages the examinee’s right of being informed of the risks and benefits of HIV screening.
II. The Weakening Trend of HIV Exceptionalism: A Review of Chinese Practice
Since the discovery of the first AIDS case in 1985, HIV experienced a period of rapid transmission (1985-1988), a period of transmission (1989- 1994), a period of rapid rise (1995-2004) and a period of steady rise (2005-present).5 There is misunderstanding and discrimination against HIV/AIDS in Chinese society. In a 2008 survey titled “AIDS-related knowledge, attitudes, behaviors and practices”, 31.7 percent of respondents said those infected with HIV through sexual intercourse or drug use deserved it.6According to a 2011 survey report on discrimination against AIDS in the Guangxi Zhuang autonomous region, nearly 30 percent of people advocated exposing and isolating those people with HIV/AIDS, and deprive them of the right to work and study.7Social discrimination discourages people from having an HIV test.
Since 2007, sexual transmission has become the primary means of HIV transmission. In 2014, more than 100,000 new HIV cases were reported, more than 80 percent of which were due to sexual behavior. Among those infected in 2014, 7.7 percent were men who had sex with men.8 China’s 13th Five-year Plan of Action to Curb and Prevent AIDS (2016-20) reveals that China “has a certain number of infected people and patients not being confirmed by testing, sexual transmission has become the main means of transmission, the infection rate among homosexuals continues to rise, the number of young students infected is increasing faster, and prostitution and other illegal and criminal activities, synthetic drug abuse and unsafe sex exist in a certain range, and many other factors increase the risk of the spread of HIV. The widespread use of new social media has enhanced the concealment of those susceptible to AIDS, and the frequent population flows have made prevention and intervention more difficult”9.
The Chinese government attaches great importance to the prevention and control of HIV/AIDS, and has put forward that prevention and control of HIV/AIDS is “a major issue concerning the national quality and the rise and fall of the country, and must be taken as a strategic task related to the overall situation”.10 This is also a manifestation of China's sense of responsibility for to the international community and mankind.11 China implements a voluntary HIV/AIDS counseling and screening system12, but stipulates that the state may, under certain circumstances, clarify the circumstances under which testing shall be conducted.13 Currently, testing is mainly done voluntarily or with consent after notification, in which the testing is voluntary initiated by the examinee, who chooses to conduct anonymous screening in the relevant institutions, or else by consent after notification, health care staff will make screening proposal for a clinical patient and screening will be carried out without the patient’s explicit rejection. It is worth mentioning that if there is a positive result, a second real-name test is done for confirmation and the collected information will be uploaded to the center for disease control system. In some areas with high prevalence of AIDS in China, such as the Guangxi Zhuang Autonomous Region, a real-name screening system for AIDS is implemented,14 and it is required to inform the relevant person of the infection or illness within one month.15 According to regulations in Zhejiang province, doctors can ask specific patients to be tested for HIV according to how they present in clinic,16 and designated medical institutions shall provide AIDS counseling, diagnosis and treatment services for HIV-infected persons and AIDS patients. Here we skip the discussion on whether the local regulations are in contradiction with the upper level “AIDS Prevention and Treatment Regulations”. This mandatory real-name system no doubt goes further on the basis of AIDS de-exceptionalism.
III. Order Versus Freedom: A Legal-rational Analysis of the Two Models of HIV Screening
A. The relationship between “consent after notification” and “right to informed consent”
When discussing whether HIV exceptionalism should be retained, at the legal level, it should be first made clear whether the traditional right to know is equivalent to “consent after notification” in HIV detection. Right to know refers to the freedom and right to know and obtain information, including information that is known and obtained from official or unofficial sources.17 The public still lacks an understanding of HIV/AIDS to a certain extent, and even has misunderstandings. The understanding of the incidence, the harmful results and the transmission routes for the virus are quite limited. Comprehensive and objective consultation and notification should be carried out during HIV screening to ensure that patients are truly informed of the possible situation they may face after screening. It is a fundamental right endowed by the law to ensure that each examinee is aware of the information closely related to him/her. In the medical system, the patient’s right to know and consent refers to “the patient’s right to know about his/her condition, the risk and alternative plan of the proposed diagnosis and treatment measures, and the effect after the diagnosis and treatment measures”,18 including the right to know and the right to consent, are both indispensable. Medical institutions should ensure that patients have the right to make full decisions on medical behaviors that may cause their own damage, which is “related to personal dignity and personal freedom and reflects the essential attribute of the personality right”.19
With the progress of medical technology, the majority of HIV infected people can effectively prolong their lives with proper medical treatment. The country has established a special fund to support the treatment of those infected with HIV via blood transfusions through multi-channel targeted HIV treatment programs, such as methadone maintenance treatment aimed at curbing HIV transmission by illegal drug injection,20 popularizing and promoting condoms to reduce sexual transmission, making timely and effective treatment schedules for sexually transmitted diseases, anti-virus drugs preventing mother-to-child transmission and artificial dairy feeding. In addition, psychological counseling, emotional support and other relief channels are also provided for the psychological crisis and social discrimination barriers faced by infected people, so as to “help AIDS patients to improve their social difficulties, solve problems, improve their self-development ability and social quality of life, and achieve social acceptance and integration”.21 China’s HIV/AIDS epidemic is generally at a low level, but in recent years, the indicators of the epidemic have not declined, and the death toll and the number of new infections have not declined.22 These measures are targeted at known infected people, and unscreened “unknown” people infected with HIV or AIDS patients have limited access to relevant resources. In order to detect more infected people, some communities even carry out mandatory screening of newborns, use antiviral drugs on pregnant infected people and track people’s behavior.
HIV examinees are different from ordinary patients. HIV screening may target people who do not have any symptoms of disease, such as pregnant women and people infected with HIV in the incubation period. HIV is highly contagious and difficult to cure, different from common diseases. Therefore, the notification in a general sense may not be able to make the examinees be aware of the risks and consequences, which would lower the standard of full notification and fail to ensure that the examinees agree after being fully informed of the risks and consequences. It can be said that HIV screening in the mode of “consent after notification” hampers the right to know of the examinees to some extent. Moreover, in practice, there is no data to prove that under the mode of “consent after notification” or “compulsory screening”, the examinees of AIDS screening are effectively increasing in number. Instead, in compulsory screening mode, it has the potential to pose greater psychological pressure on those HIV infectors /AIDS patients, and is likely to affect their family relationships, work, study and such social attributes, which would cause greater panic among the public, and further intensify discrimination and isolation toward those with HIV or AIDS.
B. The relationship between the right to privacy of AIDS patients and the right to know about public health information
The right to privacy of HIV-infected people and the public’s right to know public health information have always been the focus of debate on HIV screening and AIDS prevention and control.
Public AIDS information refers to the information about the incidence of AIDS in a country or region, and makes the AIDS-related information to the public is a manifestation of social openness; Personal AIDS information refers to the information of individuals who have been tested for HIV or diagnosed with AIDS.23AIDS information refers to general information about individuals living with HIV or AIDS, including information about their work, study, family, etc. The country needs to collect, collate and use relevant information to serve as the basic data needed for the prevention and control of AIDS, so as to formulate more scientific and reasonable policies for AIDS epidemic prevention and control, and take it as reference for relevant laws and regulations. The purpose of collecting, managing and using public AIDS information is “to better protect human rights, protect the privacy of people infected with HIV and AIDS patients, and balance the information rights of the people living with HIV/AIDS and those interested”.24
Scholars who advocate HIV de-exceptionalism hold that although the constitutions of countries protect the rights of freedom and privacy, according to the principle of “the supremacy of state and public interests”, when there is a conflict between “legal interests of privacy rights” and “legal interests of social security”, the latter should be prioritized.25 Cicero makes it clear in the chapter on the state that true law is the right reason fitting well with nature: it is universal, unchangeable and eternal. It imposes obligations via its directives, and avoids wrongdoing with its injunctions. Moreover, it does not ineffectually impose its directives or prohibitions on the good, though it does nothing for the bad. It is not a sin to try to change this law, with no permission of abol-ishing any part of it or possibility of abolishing it entirely.26
According to HIV exceptionalism, HIV screening requires voluntary and specific consent from an examinee fully informed of the situation. This is different from the general blood test with the patient’s presumed consent and routine practice as the principle, which will undoubtedly raise the bar for the government and other public power holders to get access to adequate information of HIV-infected people or AIDS patients, increase the difficulty of the government to control the HIV/AIDS epidemic, and thus enhance the difficulty of providing timely treatment for those with HIV/ AIDS. In recent years, in order to discover more people infected with the virus, fully grasp more information of people living with HIV/AIDS, the World Health Organization and the United Nations Programme on HIV/AIDS (UNAIDS) and other health bodies have advocated to lower the requirements for pre-screening consultation and clear consent and adopt the physician- initiated screening model that medical personnel provide routine inspection and the patients have the right to refuse. There are two main AIDS screening methods in Taiwan: one is anonymous. After receiving counseling services before testing, the examinees will give a blood sample and the hospital will give them number and password. About a week later, they can call for screening result with their own number and password; the second is real-name screening. A pre-screening consultation is provided through the outpatient service. If the first blood test is positive for HIV. The second phase of blood testing will be further conducted. Once a test is confirmed positive, it will be directly linked into the medical system of HIV infection, with access to the person’s complete medical history.
At the 14th Session of the UN Human Rights Council, Anand Grover proposed to Promote and Protect All Human Rights — Civil, Political, Economic, Social and Cultural, Including the Right to Development, and that everyone should be entitled to the best physical and mental health. People with HIV/AIDS are citizens and should be protected by law and enjoy equal social status with those who do not have HIV/AIDS. But in fact, the current society is hostile to people with HIV/AIDS. AIDS patient Li Zhixing committed suicide by throwing himself into a well: “How dare you look down on me, how dare your children not talk to mine and even bully mine.”27 To some extent, this reflects the social pressure and psychological pressure borne by those with HIV/AIDS. Some people believe that social discrimination against AIDS patients is an important reason for the further spread of AIDS and the higher screening threshold. Discrimination has derogated the individual’s personal dignity, meaning those with HIV/AIDS not only endure physiological suffering, but also have to bear extraordinary psychological pressure. Social discrimination adds to the difficulties faced by those with HIV/AIDS as it further limits their living space. Proponents of HIV exceptionalism quote Rawls, “The basic principle of liberalism is that individual freedoms and rights must be given first priority.”28 Human dignity is the basic premise of human beings as the subject of social relations and should be protected equally by law.29 In a modern civil law system, the protection of human dignity is mainly reflected in equal and full protection.
It is the privacy of people living with HIV and AIDS that is closely related to their human dignity. Generally speaking, the right to privacy is a right of personality enjoyed by a natural person to control his personal information, private activities and private domain that have nothing to do with public interests. The HIV-infected people in incubation period behave as normal, who have the right to choose their own way of life and enjoy their own private space within the limits of the law according to their own wishes. In this way, the information on a person with HIV/AIDS is undoubtedly personal privacy.
IV. China Should Adhere to the Legal Regulation Path of HIV Exceptionalism
A. The privacy dilemma of the HIV-infected and AIDS patients in the internet era
“The law is such an important social phenomenon that one cannot analyze it in isolation from other aspects of society. If the law is studied in isolation, it is impossible to understand the characteristics of law, the relationship between the law and other social phenomena, and the complexity of the law. It is also impossible to understand the ‘factuality’ of the law as a part of social life and not just as a technology of professional business.”30 The enforcement of compulsory screening or the mode of “consent after notification” weakens the examinees’ right to know and may go against their genuine intention, making them express their intention out of “misunderstanding”. There may be two modes of thinking behind “compulsory screening” or “consent after notification”. The first is to treat the HIV-infected or AIDS patients as “administrator”, lest they “indulge” themselves uncontrollably, and make visible or invisible restrictions on their human dignity and privacy. The second is to play the “paternalistic” role “for your own good”, blindly insist of early detection, early treatment and early intervention, ignore the real intention of the HIV-infected or AIDS patients, and lower their level of knowledge when unable to resolve the difficulties related to their vital interests, so that they would participate in the screening without clear knowledge of the situation they may face, have negative psychological resistance, and even distort the attitude towards HIV/AIDS of the government and the society.
Along with the advancement of the internet era, cyberspace has become important sphere in people’s lives, which is characterized by anonymity, multi-directivity, openness, etc., with a wide audience and extremely fast dissemination. The rationality of netizens needs to be improved, as the behavior of infringing personal information is easy common. Personal privacy in the internet era is like “zero privacy right”, and the guarantee mechanism of personal information security is still under research. The protection of the right to personal information is not to protect the property value contained in the information, but to protect each individual’s right to his or her own information from being illegally used, processed or transferred by others. Anyone who collects, uses, stores or processes the information of others shall do in accordance with the law.31
As highly sensitive personal information, the infection, illness, personal information and such of those with HIV/AIDS , are also faced with being violated and abused, and even become weapons to attack the people living with HIV/AIDS. Although national legislation clearly protects the personal information of them and their families,32 but the specific protection system has yet to be improved. In normal society where the individuals’ personal privacy is still facing the crisis of disclosure, it is more difficult to effectively protect the privacy of people with HIV/AIDS. Therefore, China should be soberly aware of the “soil” to which the law is attached and carefully consider the objective situation faced by people with HIV/AIDS in the selection of legal guarantee paths for HIV screening and AIDS prevention and treatment, rather than talk about law alone.
B. The rank of rights from the perspective of human rights
The rank of rights is an objective phenomenon in the legal world, which reflects the relationship between the effectiveness of rights. Its essence is the power level or value level, the rights with high power or value are given priority to be protected or realized, which reflects the real inequality between rights.33 The right of those with HIV/AIDS to voluntary screening protects their personal privacy, which is also their personal rights and interests; While the practice of “compulsory screening or “consent after notification” is more often used to safeguard social order and protect the interests of the majority of the public. Many scholars believe that when there is a conflict between personal interests and social welfare, social welfare should have priority, and personal rights should be secondary to social welfare.34 The author believes that this view ignores the particularity of those with HIV/AIDS, and this vulnerable group will be faced with an extremely difficult situation under the premise of not being protected by the social system and inclusive of the big social environment. Putting the “personal interests” of this “minority” behind the “social welfare” and ignoring the particularity of this group will not only make them more ashamed and afraid to seek the help of public power, but also lead to more serious social fragmentation, and unpredictable risks for social management.
The UN High Commissioner for Human Rights and United Nations Programme on HIV/AIDS (UNAIDS) put forward in the International Rules on HIV/AIDS and Human Rights that the basic point of view and international standard to protect the international human rights and fundamental freedoms of vulnerable groups such as those with HIV/AIDS clarifying the international human rights standards followed by the public health law, including: determining the principle of voluntary screening for HIV. Although involuntary screening can be conducted under special circumstances, it should be limited by judicial authority. Such authorization should be granted only after careful consideration and proper evaluation of the privacy and freedom involved.35 Pre-test and post-test counseling should be provided in all cases to demonstrate the seriousness of HIV testing and to avoid abuse and infringement of people’s legitimate rights and interests.36 HIV screening shall not be required for employment, promotion, training or material benefits.37
Some people say, “The 21st century is the century of personality rights.” Civil law takes caring for and respecting people and protecting human rights as its basic pursuit. Article 109 of the General Provisions of the Civil Law of China stipulates the protection of human dignity is also the embodiment of the essential characteristics of socialism to promote the all-round development of individuals and guarantee a happy life. Article 110 stipulates that “natural persons enjoy the rights of life, body, health, name, portrait, reputation, honor, privacy and marriage by choice”. Professor Wang Liming has said: “To build a moderately prosperous society in all respects by 2020, make the people better off and their quality of life to improve significantly, and better the ecological environment, people must live with a sense of dignity, including full respect and protection of their personality.”38 People with HIV/AIDS should enjoy the same rights as other citizens in accordance with the law, and should receive equal treatment under the law and even the additional assistance from the law due to their vulnerability. Only in this way can they be truly protected on an equal footing.
The report said, “About a third of people living with HIV and AIDS in China are unaware they are infected. Some have no sense of screening, while others do not want to be tested for fear of privacy exposure and social discrimination.”39 China will strive to realize a diagnosis rate of more than 90 percent by 2020, according to China’s 13th Five-year Plan of Action on Curbing and Preventing AIDS.40 The one-sided implementation of the screening modes such as compulsory screening and “consent after notification” is not necessarily conducive to good results. AIDS prevention is to target the disease, not the people. HIV/AIDS concerns deep-level social relations, involving the difficult transformation of people’s concepts, behaviors, as well as policies and systems, which requires long-term and overall adjustment, and if the government and academia lack a clear understanding of this, it will lead to mistakes in decision-making.41 HIV exceptionalism should be adhered to at present and in the coming years for treatment of people with HIV/AIDS, the “voluntary screening” system should be implemented and the application of the “consent after notification” model and the “compulsory screening” model should be reasonably controlled. On this basis, AIDS self-screening programmes should be further promoted. According to a survey by the Red Ribbon Foundation in Taiwan, only 15.8 percent of the public are aware of HIV screening, and about 69.5% have no idea of Pre-Exposure Prophylaxis (PrEP); The “Plan of AIDS self-screening at home” carried out in Taiwan encourages people who have had sex at least accept a screening. They can pay fees and get reagents at the places and automatic service machines set up by the nearest county and city-level health bureau and civil organizations. Meanwhile, the convenience store delivery service is also added. After paying the reagent and logistics fees, people can get reagent from the nearest designated convenience stores.42 These experiences are worth learning from. China’s 13th Five-year Plan of Action on Curbing and Preventing AIDS has encouraged people to make self-screening, making screening devices more accessible, and “exploring ways of selling reagents in drug stores and online to carry out AIDS self-screening”. 43 To strengthen the treatment of HIV infectors and AIDS patients, for those who are detected with HIV and AIDS, we should provide psychological support, inform their legitimate rights and interests, responsibilities and obligations, and relevant policies and regulations, encourage them to promptly inform their sexual partners of infection, and mobilize the screening. The government should promote the correct concept in throughout society, change the public’s thinking about HIV/AIDS, change the previous way of describing the painful experiences of HIV-infected people and AIDS patients, call on the whole society to care for and accept them, and establish a trust relationship with high-risk groups. In the coming years, we should stick to HIV exceptionalism, which is the way to choose in line with China’s national conditions and the overall social development.
(Translated by XU Chao)
* WU Danying ( 吴丹盈 ), Judge of the Third People’s Court of Dongguan City, Guangdong Province.
** LI Guanxiang ( 李冠翔 ), Police Officer in Dongguan City, Guangdong Province.
1. Li Yunzhao and Huang Xiaoping, “Investigation on the Awareness Rate of AIDS-related Knowledge among College Students — a Case Study of Yunnan Police College”, Journal of Yunnan Police College 4 (2016): 22.
2. Shi Hongju, “Severe Punishment shall be made on Intentional Transmission of HIV”, People’s Public Security Daily, July 27, 2017.
3. UNAIDS DATA 2018.
4. Website of the corporate body Red Ribbon Foundation in Taiwan.
5. Meng Jinmei, “Analysis of Legal Policy Development of AIDS Prevention and Treatment in China”, Journal of Shantou University (the edition of Humanities and Social Sciences) 3 (2016): 58.
6. Chen Minli, “An Empirical Study on the Agenda Building of Media AIDS”, doctoral dissertation of Wuhan University, November 2011.
7. Jiang Ailin, “Problems and Countermeasures in AIDS Legislation”, Journal of Zhengzhou Institute of Aeronautical Industry Management 4 (2006): 120.
8. Meng Jinmei, “Analysis of Legal Policy Development of AIDS Prevention and Treatment in China”, 62.
9. The Notice of the General Office of the State Council on the Issuance of China’s 13th Five-year Plan of Action to Curb and Prevent AIDS, published on the government portal website of the Ministry of Education of the People’s Republic of China.
10. Chen Tan and Wu Lingting, “AIDS Politics, Social Restructuring and Public Governance”, Tribune of Study 7 (2008): 43.
11. Pan Suiming, Huang Yingying and Li Dun, “An Analysis of the AIDS problem in China”, Social Science of China 1 (2006).
12. Regulations on AIDS Prevention and Treatment stipulates in Article 23 that “the state implements a voluntary AIDS consultation and screening system”.
13. Regulations on AIDS Prevention and Treatment stipulate in Article 24: “The competent department of public health under the State Council, in conjunction with other relevant departments under the State Council, may, in light of the need to prevent and control AIDS, prescribe the circumstances under which AIDS screening should be conducted”.
14. Regulations on AIDS Prevention and Treatment in the Guangxi Zhuang Autonomous Region stipulates in Article 32: “AIDS screening shall be implemented in a real-name system. The examinees shall voluntarily provide true personal information to the screening institution, and the screening institution shall keep the information confidential.”
15. Regulations on AIDS Prevention and Treatment in the Guangxi Zhuang Autonomous Region stipulate in Article 33: “An HIV-infected person or AIDS patient shall inform his/her spouse or sexual partner of his/her infection status within one month after receiving a positive result, or entrust a disease prevention and treatment institution to inform his/her spouse or sexual partner on his/her behalf. If an HIV-infected person or an AIDS patient does not inform or entrust an institution for disease prevention and treatment to do so, the institution shall have the right to inform his or her spouse or sexual partner and provide medical guidance.”
16. Regulations on AIDS Prevention and Treatment in Zhejiang Province stipulates in Article 21: “According to the requirements of AIDS Prevention and Treatment, medical and health institutions that establish screening laboratories may, with their consent, conduct pre-natalor pre-operative AIDS screenings for pregnant and lying-in women and surgical patients, but shall not charge for such screenings. Article 35 stipulates that: “The treatment with invasive procedures such as antiviral treatment, inpatient treatment and ambulatory surgery, dialysis treatment, endoscopy and oral examination of HIV infectors and AIDS patients shall be corrected in designated medical institutions”.
17. Yuan Xin, “Research on Government Information Publicity in Population and Family Planning in Hubei Province”, Master’s thesis of Central China Normal University, May 2011.
18. Wang Liming, “Opinions on Patients’ Right to Informed Consent”, in Research on Civil and Commercial Law, no. 4 (Beijing: Law Press, 2014), 549.
19. Ibid., 548.
20. Article 53 of Measures for Prevention and Treatment of AIDS in Hubei Province stipulates that “special funds shall be set up for AIDS patients and HIV infectors infected by blood transfusion”.
21. Liu Binzhi, “Ethical Dilemma of AIDS Patients’ Information Publicity and their Way out for Social Work”, Academic Forum 11 (2011).
22. AIDS: Infinite Shadows, October 28, 2018.
23. Han Yuehong, “The Confidentiality and Notification of Personal AIDS Information — the Social Responsibility of Scientific and Technological Personnel”, Journal of Kunming University of Science and Technology (the edition of Social Science) 4 (2006): 1.
24. Ma Jingran, “On the Basic Principles of Legal Management of AIDS Information”, Journal of Yunnan University (the edition of Law) 6 (2013): 4.
25. Gan Kaipeng, “Brief Analysis of the Status Quo and Countermeasures of AIDS Legislation in China”, Exploration of Medical Education 3 (2007): 285.
26. Ming Hui and Li Xia,“Nietzsche’s Criticism of Western Human Rights and Natural Law”, Journal of Southwest University of Political Science and Law 4 (2018): 53.
27. Anonymous, “Investigation on Murders by AIDS Victims in Pingyu”, Advisor of Farmhouse 9 (2004): 34.
28. Liu Binzhi, “Ethical Dilemma of AIDS Patients’ Information Publicity and their Way out for Social Work”, Academic Forum 11 (2011).
29. Wang Liming, “Discussion on Protection of Human Dignity by General Provisions of Civil Law”, Journal of Renmin University of China 4 (2017): 2.
30. Ketwell, Introduction to Legal Sociology, trans. Pan Dasong (Beijing: Huaxia Press, 1989), 2.
31. Article 6 of EU-DSGVO.
32. Article 32 of Regulations on Prevention and Treatment of AIDS stipulates: “Without the consent of the person living with HIV/AIDS or his/her guardian, no unit or individual shall disclose the name, address, work unit, portrait, medical history data and other information that may be used to infer his/her specific identity.”
33. Zhang Pinghua, “On the Rank of Rights: a Preliminary Discussion on the Mechanism of Resolving the Conflict of Rights”, Tsinghua Law Journal 2 (2008): 49.
34. Miao Hui, “Public Interest Prioritizes Individual Rights – starting with Mandatory Management of People Living with HIV”, Theoretical Discussion 4 (2012). “The mandatory management of people living with HIV should adhere to the principle of giving priority to the public interest and giving consideration to the rights of individuals in the factual process,” and “if the realization of the interests of the individual harmed the social public interests, in order to protect the society as a whole part or the social public interest, restrictions must be taken on the realization of the interests of the individual”.
35. United Nations High Commissioner for Human Rights: International Guidelines on AIDS and Human Rights, Guideline 3, Paragraph 20.
36. Ibid.
37. Ibid., Guideline 3, Paragraph 22.
38. Wang Liming, “My Personality Right Complex and Reflection – Commemoration of the 30th Anniversary of the Promulgation and Implementation of General Principles of the Civil Law”, Rule of Law and Society 11 (2016): 65.
39. Anonymous, “China Reports 654,000 AIDS Cases”, Hubei Daily, December 1, 2016.
40. The Notice of the General Office of the State Council on the Issuance of China’s 13th Five-year Plan of Action to Curb and Prevent AIDS, published on the government portal website of the Ministry of Education of the People’s Republic of China.
41. Xia Guomei, “On the Perspective of “Problem Theory” on AIDS in China — Discussion with the Article entitled Analysis of “Problem” of AIDS”, Hunan Social Science 3 (2006): 71.
42. Program of Taiwan’s expanded implementation of AIDS self-screening (April 11, 2017); 30,000 new HIV infections found in Taiwan, with 2,127 new cases this year, December 2, 2015.
43. The Notice of the General Office of the State Council on the Issuance of China’s 13th Five-year Plan of Action to Curb and Prevent AIDS, published on the government portal website of the Ministry of Education of the People’s Republic of China.
