PROSECUTING MOTHERHOOD? Canada and some Africa nations

Canada: Section 215 of the Canadian Criminal Code says that a parent, guardian or head of a family, who has a legal duty to provide the ‘necessaries of life for a child under the age of sixteen years’, and who fails to do so without a legitimate excuse, commits an offence.

This example shows how a non-HIV specific law has been used to criminally prosecute a mother for failing to seek prevention of mother-to-child transmission (PMTCT) services. Cases have also occurred in the USA. It underscores how the law can have unforeseen and unintended impacts on women. A woman in Canada was charged with criminal negligence causing bodily harm having chosen not to access PMTCT services. The case is unusual. The charge the woman was convicted of is typically reserved for cases of child neglect. The woman was also charged with criminal negligence causing bodily harm and aggravated assault. However, those charges were withdrawn.

The woman has two children – the first born in 2003, does not have HIV. When she became pregnant the second time, in 2004, she changed her health care provider and did not tell her new doctors that she was HIV-positive. Her second child did not receive essential medication after birth, and tested HIV-positive in 2005. Although the woman did not breastfeed her first baby (under her doctor’s advice) she did breastfeed the second, which may have also facilitated the transmission of HIV.

The woman was sentenced to a 6 month conditional sentence followed by 3 years of probation and also burdened with a criminal record, which can have serious implications in terms of future employment, travel, and access to social welfare.

African Nations 

The Canadian case and others like it have implications for other countries around the world where the law is so wide ranging that it could also be applied to the transmission of HIV from mother-to-child. This is especially true in African countries, where pregnancy and breastfeeding for women living with HIV are either directly or indirectly criminalized by the law, but where access to PMTCT is more difficult.

Women may be discouraged from accessing services if they think they may be HIV-positive, as antenatal clinics tend to insist on HIV testing as a prerequisite to ante-natal care, with little option for opting out or for confidentiality. Women who are already aware of their status may also not access PMTCT services for fear of becoming stigmatized or prosecuted.

This example also highlights significant inequalities in access to health services, treatment and care. Many health care providers around the world still fail to offer PMTCT, and so it becomes difficult (in fact almost impossible) for some mothers not to commit ‘criminal’ acts in some countries.

Find out more

Read: Canadian Criminal Code

Read: 'Mother convicted of hiding HIV status for son's birth'

Read: 'Criminalising HIV transmission: is this what women really need?'

Visit: Tshwaranang Legal Advocacy Centre to end Violence against Women

Watch Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa, discuss HIV criminalisation and gender below. 

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