December 1, 2009
Observing World AIDS Day
Photo by Mitch Mauricio
 December 1 is World AIDS Day. Philippine Republic Act 8504 also known as the AIDS Prevention and Control Act of 1998 was one of the earliest laws in the world focusing primarily on HIV/AIDS.
International organizations cited R.A. 8504 as a “best practice” example because it has a public health statute to prevent the spread of HIV and a strong human rights component with provisions that ensure the promotion and protection of human rights of those suspected or known to be infected with HIV/AIDS.
Gilda Guillermo, executive director of Alternative Law Research and Development Center, Inc. (ALTERLAW), a non–government legal resource organization that works for the rights and the empowerment of marginalized groups including the migrant workers, urban poor, children, informal sectors explains the important provisions of the HIV/AIDS Law.
Carlo Martin Alcala, a lawyer in the Court of Appeals and ALTERLAW volunteer contributes to this article.
What are the important provisions of the HIV/AIDS Law that every citizen should understand?
Section 2 of R.A. 8504 states the Declaration of Policies and summarizes the salient points of the provisions and what the Philippines government hopes to do with the passage of the law, namely:
Provide information and education about HIV/AIDS to stop the spread of HIV;
Ensure the protection and promotion of human rights of those suspected or known to be infected with HIV/AIDS;
Promote utmost safety and universal precautions in practices and procedures that carry the risk of HIV transmission; and
Seek to eradicate conditions that aggravate the spread of HIV infection, including but not limited to, poverty, gender inequality, prostitution, marginalization, drug and ignorance.
Should one be diagnosed as, perceived or suspected to be HIV+, what rights are protected by R.A. 8504?
In these instances, the rights of a person cannot be curtailed:
1. Employment. Discrimination including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is prohibited. Termination from work on the sole basis of actual, perceived or suspected HIV status is deemed unlawful.
It should be noted that the Labor Code, an earlier law, provides as a ground for termination any illness that cannot be cured within six (6) months, which appears to contradict the provisions of the AIDS law. It is our view that if the person, even though he/she has been diagnosed as HIV positive, can still perform his/her usual functions then he/she should not be terminated from employment.
Compulsory testing is also against our law. However, in most instances, our OFWs are required to be tested by the receiving or host country, and if found to be HIV positive, are denied employment or terminated from employment. In these cases, our country cannot force the host countries to comply with our law against compulsory testing.
2. Schools. A student or prospective student cannot be refused admission or be expelled, disciplined, segregated, denied participation, benefits or services based on his/her actual, perceived or suspected HIV status.
3. Travel and habitation, including freedom to set up residence, lodging and travel. A person cannot be quarantined, placed in isolation, or refused lawful entry into or deported from the Philippine territory on account of his/her actual, perceived or suspected HIV status.
Some countries still refuse entry to persons based on their HIV status. Countries have the right to impose conditions on entries of persons. Receiving countries of migrant workers may have a stricter implementation of this policy, which restricts a person’s right to both travel and employment.
4. Election or appointment to public office.
5. Credit and insurance services. Getting these services, including their extension and continuation
6. Hospitals and health institutions. Including non-denial of health care services and charging of higher fees based on actual, perceived or suspected HIV status.
7. Burial services.
There are penalties for violations of these provisions on discriminatory acts and policies.
Do any of the provisions on discrimination differ when one's status changes from HIV+ to AIDS?
No, since the law states that the state shall extend to every person suspected or known to be infected with HIV/AIDS full protection of his/her human rights and civil liberties.
With regards to employment, if the employee can no longer perform his/her functions then he/she can be terminated from employment.
However, there are public health concerns to consider. With AIDS there may be present numerous opportunistic infections which by themselves are highly contagious, such as tuberculosis, lung and other organ infections. So the rights of the person vis-a-vis the community’s right to public health have to be balanced.
There are very explicit stipulations safeguarding privacy and confidentiality on testing and release of results as well as compulsory testing. With the many clinics and hospitals that offer HIV testing, how can an individual actually safeguard/insist on their privacy?
As with other sound legislative pieces, the question boils down to implementation. If the individual has made the rounds of several hospitals in the country his/her "confidential" information, is on a "paper trail". Even without R.A. 8504, data concerning diagnosis and treatment ought to be covered by the physician-patient privilege. R.A. 8504 puts in another layer of protection because of the stigma that is often attached [HIV/AIDS].
The individual by himself/herself cannot guarantee privacy, but the health institution should abide by protocol rules on testing and providing the results, meaning, the whole process uses coding and not actual names of patients, and those who only need to know should have access.
Section 14 says that there are some extraneous circumstances that qualify as exceptions to the provision the prohibits compulsory testing, can you please summarize these instances to make them more understandable?
Section 17 of the law provides for the Exceptions to the Prohibition on compulsory testing:
The crimes of rape, seduction, administration of injurious substances, and slight physical injuries may involve the transmission, wittingly or unwittingly, of HIV. If intentional, that may aggravate the crime. Unintentionally, compulsory testing may still be required to determine the extent of the injury to the person in order to address it.
It is important to know HIV status in the course of determining paternity and filiation, because most DNA testing procedures may employ blood samples from the putative relatives. HIV is also known to be transmitted from mother to child via breastfeeding or during non-caesarian childbirth.
With Organ donation, anybody would want to spurn organ or blood donations which do more harm than good.
Where can one go to report violations of any of the provisions of the HIV/AIDS law?
One can report to PNAC or the Philippine National AIDS Council, the body tasked to implement the law. One can also consult with lawyers to know one’s rights.
While the HIV/AIDS law says that insurance coverage should be made available to people living with HIV/AIDS (PLWHA), this has not yet been done.
Are there any efforts to this and once drafted, should anti-retroviral treatment (ARV) treatment be part of insurance coverage?
For insurance companies, the law provides that studies should be conducted to know the correct premiums. However, these studies have yet to be made.
Ana Santos is a freelance journalist and columnist. She is a staunch women's rights activist and writes about gender issues and relationships in her weekly newspaper column as well as other magazines. She has also written about women and children of armed conflict in Mindanao for the foreign news wires. Ana's work may be viewed on www.anasantoswrites.com.
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