SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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procurement of miscarriage in women or prevention of conception in women. 696 These provisions are however, inapplicable to any advertisements published by the Government itself. 6.3 HIV services (including prevention, testing and treatment) Over the past decade, all the research countries have adopted policies related to the provision of HIV services. 697 Although these policies do not have the force of law in the research countries, they have dramatically changed access to sexual health services in these countries and are accordingly being discussed. These policies have also been put in place in pursuance of commitments adopted by the research countries under the United Nations General Assembly Special Session Declaration of Commitment on HIV/AIDS and the countries file annual reports with the UN of their progress in meeting these commitments. 698 For example, although Sri Lanka’s government does not have legal requirements, which mandate access to HIV services including those for prevention, testing and treatment, its National HIV/AIDS Policy 699 professes a strong rights-based perspective in this context. Clause 3.4, which deal with HIV testing states that the government “promotes voluntary confidential testing, recognizing that mandatory testing would drive those at high risk of HIV infection beyond reach and prevent their access to public health preventive activities and other health services. Testing will be carried out according to accepted international guidelines.” Complementing this clause 3.5 provides that “[c]ounseling is recognized as an integral part of programs related to HIV/AIDS prevention, care and treatment. It is important that these services are provided by persons who are adequately trained in HIV/AIDS counseling.” Clause 3.6 relates to care & treatment issues and states that the government “accepts the rights of those living with HIV/AIDS to have access to treatment without stigma and discrimination. Persons living with HIV/AIDS requiring antiretroviral treatment and management of opportunistic infections will be provided such services by the State sector in line with national guidelines and prevailing National health policy.” The clause on prevention of mother-to-child transmission 700 is worded thus: “It is possible for a HIV infected mother to transmit the infection to her new born child. As such the policy is directed at preventing the occurrence of infection 696 Section 3 of the Magical Remedies Act provides that, “ Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drugs in terms which suggest or are calculated to lead to the use of that drug for- (a) the procurement of miscarriage in women or prevention of conception in women; or (b) the maintenance or improvement of the capacity of human beings for sexual pleasure; or (c) the correction of menstrual disorder in women; or (d) the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or condition which may be specified in the rules made under this Act. 697 See National AIDS Policy, 1995, Nepal; National AIDS Control Programme, Phase III, National AIDS Control Organisation, Ministry of Health and Family Welfare, India; National Strategic Plan for HIV/AIDS 2004-2010, National AIDS/STD Programme (NASP), Directorate General Of Health Services, Ministry Of Health & Family Welfare, Bangladesh; 2007 – 2010 HIV and AIDS Response Strategies, National AIDS Commission, Indonesia; The National Plan for Strategic and Integrated HIV and AIDS Prevention and Alleviation 2007-2011, The National Committee for HIV and AIDS Prevention and Alleviation, Department, Department of Disease Control, Ministry of Public Health, November 2007. 698 See for example UNGASS Country Progress Report 2010, National AIDS Control Organisation, Ministry of Health and Family Welfare, Government of India, New Delhi. 699 National HIV/AIDS Policy (Sri Lanka) available at http://www.aidscontrol.gov.lk/me/PMIS/popups/Policy.jsp 700 Clause 3.7, National HIV/AIDS Policy (Sri Lanka) 146
among those in the reproductive age and promoting voluntary counseling & testing for HIV in women in this age group. In addition there is a need to prevent unplanned pregnancies among HIV infected women through sexual/reproductive health services and to provide antiretroviral therapy and other standard care practices for HIV infected pregnant women to prevent mother to child transmission.” Clause 3.11 of the policy refers to “Addressing human right issues”. It states that the government recognizes that “people living with HIV/AIDS are entitled to enjoyment of their fundamental human rights and freedom without any unjustified restrictions. These include the rights of everyone to life, liberty and security of person: freedom from inhuman or degrading treatment or punishment; equality before the law, absence of discrimination; freedom from arbitrary interference with privacy or family life, freedom of movement, the right to work (rights of people living with HIV in the workplace) and to a standard of living adequate for health and well-being including housing, food and clothing; the right to highest attainable standard of physical and mental health; the right to education, the right to information which includes the right to knowledge about HIV/AIDS/STIs related issues and safer sexual practices, the right to participate in the cultural life of the community and to share in scientific advancement and its benefits.” Access to HIV treatment and intellectual property law: Some countries have also used provisions of their intellectual property laws to increase access to treatment related to HIV. Among the research countries, Indonesia was the first to do this and in 2004, the Government of Indonesia issued a compulsory licence for the import of nevirapine and lamivudine used as part of first line treatment for HIV. The compulsory licence states that it was issued “in line with the urgent need in the effort to control HIV/AIDS epidemic in Indonesia…to provide access to Anti Retroviral Drugs that are still protected under Patent.” 701 In 2006 and 2007, Thailand’s Ministry of Public Health issued compulsory licences for the anti-retrovirals efavirenz 702 and lopinavir/ritonavir. 703 According to the compulsory licence for efavirnez,: “It is generally accepted that HIV (AIDS) epidemic is one of the most grievous public health problems. Approximately, more than one million Thai people have been afflicted with the HIV. More than five hundred thousand of this number are still alive and eventually need long term uses of HIV antiretroviral drug to maintain their productive lives. The budget allocated for health services of the people who have been infected with HIV as well as AIDS patients under the 701 Decree of the President Republic of Indonesia, Number 83 Year 2004 Regarding Exploitation of Patent by the Government on Anti Retroviral Drugs, unofficial translation available at http://lists.essential.org/pipermail/ip-health/2004-december/007233.html 702 Notification of the Department of Disease Control, Ministry of Public Health, Re: Exercising of Right under Drugs and Pharmaceuticals Products Patent, 29 November B.E. 2549 (2006) published in ‘Facts and Evidences on the 10 Burning Issues Related to the Government Use of Patents on Three Patented Essential Drugs in Thailand,’ Ministry of Public Health and National Health Security Office, Thailand, February 2007. 703 Notification of the Department of Disease Control, Ministry of Public Health, Re: Exercising of Right under Drugs and Pharmaceuticals Products Patent For Combined Formulation of Lopinavir and Ritonavir, 24 January B.E. 2550 (2007), Unofficial Translation, published in ‘Facts and Evidences on the 10 Burning Issues Related to the Government Use of Patents on Three Patented Essential Drugs in Thailand,’ Ministry of Public Health and National Health Security Office, Thailand, February 2007. 147
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THE INTERNATIONAL COUNCIL ON HUMAN
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6. ACCESS TO HEALTH SERVICES IN REL
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ABBREVIATIONS AIDS ART ARV CEDAW CE
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in the regional reviews. This is a
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provide for information and distrib
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B. METHODOLOGY In keeping with the
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elevant and key laws and judgments;
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The inability of many sexually stig
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Equality irrespective of a person
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The centrality of women’s rights
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social standing, religious belief,
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according to the physical condition
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Constitutional Court in The Nationa
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protections or statutory law. There
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However it also noted that every Ri
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concerned with declaring that the h
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without guaranteeing the personal p
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to enlarge the meaning and content
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a concept has wider dimensions than
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Such conduct mentioned in clauses (
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embraced the complainant and asked
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does not sever the ties between the
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The potential recognition of same-s
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Similarly, seeking out sex educatio
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condom). Across such laws, the defi
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jurisdictions. Nepal, a country wit
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the conviction of the accused for s
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with an unmarried woman is not puni
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physical characteristics (virginity
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interventions and safeguards such a
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The opinion of the National Commiss
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was married to she would acquire im
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to consider the case of a woman see
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oth parties and deems all marital p
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female who has not attained 12 year
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Article 16 of the Universal Declara
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In Bangladesh, polygamy is allowed
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immovable property. The above propo
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consummation of marriage. The incap
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Violence, especially sexual violenc
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gender norms which many remand home
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female or a female to a male. It in
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from other forms of inequality as w
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c. Whereas victims of violence in h
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courts. 350 According to the Commis
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The Act provides for the appointmen
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Rani 383 it was held that a shared
Page 95 and 96: The Act specifies imprisonment of 6
Page 97 and 98: property jointly or separately held
Page 99 and 100: upees or the amount of the dowry wh
Page 101 and 102: however, is that, of the 10,000 dea
Page 103 and 104: Addararachchi 439 the court conside
Page 105 and 106: harassment, the Indian Supreme Cour
Page 107 and 108: doer’s sexual desire by using doe
Page 109 and 110: In holding that there was no justif
Page 111 and 112: coerce or induce female inmates to
Page 113 and 114: material or detain any person for t
Page 115 and 116: consensual sexual activity with you
Page 117 and 118: The fined amount is to be given to
Page 119 and 120: the State and its citizens is one o
Page 121 and 122: every person “the right against e
Page 123 and 124: The law also includes the right of
Page 125 and 126: eing committed. 570 While prosecuti
Page 127 and 128: Broader provisions related to child
Page 129 and 130: in order to engage the child in suc
Page 131 and 132: her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
Page 135 and 136: Indonesia’s Constitution recognis
Page 137 and 138: In Thailand too, abortion is illega
Page 139 and 140: With regard to the first question,
Page 141 and 142: Further, any pregnant woman may vol
Page 143 and 144: childbearing age to establish a hea
Page 145: Government could not be held liable
Page 149 and 150: Members' right to protect public he
Page 151 and 152: 7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154: education as well as non-discrimina
Page 155 and 156: The exchange of information through
Page 157 and 158: community.” 727 In each case, the
Page 159 and 160: Nepal’s Interim Constitution limi
Page 161 and 162: Sections 292, 292A, 293 and 294 of
Page 163 and 164: “...any interpretation of 'obscen
Page 165 and 166: “1 (a) Condones or extenuates act
Page 167 and 168: In Thailand, places of entertainmen
Page 169 and 170: 8. SEX WORK This section examines h
Page 171 and 172: The use of raids, and exemptions fr
Page 173 and 174: clients or make an offer for a sex/
Page 175 and 176: and non-rehabilitative juvenile jus
Page 177 and 178: “In view of the aforesaid proposi
Page 179 and 180: person who commits the act are of t
Page 181 and 182: as parent or guardian has given his
Page 183 and 184: with one) on the charge that it was
Page 185 and 186: for sex workers while emphasizing t
Page 187 and 188: 19. Azimuddin v State of Uttar Prad
Page 189 and 190: 1. Acid Control Act, 2002 2. Acid-O
Page 191: 13. Intellectual Property Act, 2003
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