Academic journal article Washington International Law Journal

A Condom versus the Philippine Aids Prevention and Control Act of 1998: Which Has Holes Leaving Filipinos Unprotected?

Academic journal article Washington International Law Journal

A Condom versus the Philippine Aids Prevention and Control Act of 1998: Which Has Holes Leaving Filipinos Unprotected?

Article excerpt

I. INTRODUCTION

The World Health Organization ("WHO") reported that 4.3 million people became infected with HIV and 2.9 million people died of AIDS-related illnesses in 2006 alone.1 In the Philippines, where the sex trade is thriving and much of the population is uneducated about sexually transmitted diseases, the risk of infection is extremely high. Ignorance about how HIV infection occurs and how to prevent it is rampant. As one nineteen year-old sex worker said, she had heard of HIV, but knew nothing about the disease or how to prevent it.2 She did not know what condoms were, never used them before, and heard they were something that could be eaten.3 Another sex worker heard that HIV comes only from fellatio or from having sex with handsome men.4 Consequently, this worker "protects" herself by limiting these activities.5

Sex workers are not the only Filipinos who lack proper education on HIV/AIDS or who have misconceptions about its modes of transmission and infection. Only 30% of men and 36% of women know that neither mosquito bites nor food sharing can transmit HIV.6 Many young adults even believe Filipinos their age are immune to the disease and take no precautions to prevent infection.7 The pervasiveness of these misconceptions is evidence that Filipinos are not receiving adequate, scientifically8 correct information.

Unfortunately, current HIV/AIDS legislation imposes a significant barrier to information distribution that perpetuates inaccurate ideas about the disease. The Philippine legislature passed the AIDS Prevention and Control Act ("APCA" or "Act")9 in 1998 with implementing regulations promulgated by the Philippine National AIDS Council ("PNAC") in 1999.10 APCA and its regulations contain several provisions that specifically address public awareness of the transmission and prevention of HIV/AIDS.11 However, they fail to adequately describe what preventive information Filipinos are entitled to as well as what legally acceptable information health care providers may disseminate. APCA and its regulations also prescribe criminal penalties for providing "misleading information," ranging from revocation of business licenses to up to two years in prison.12 Therefore, health care providers face a moral dilemma: should they inform their patients about preventive HIV/AIDS measures despite not knowing what constitutes "misleading" information and risk criminal sanctions? Consequently, patients may receive little or no information about how to prevent HIV/AIDS.

Additionally, APCA fails to fulfill the Filipino commitment under the International Covenant on Economic, Social, and Cultural Rights ("ICESCR"),13 to reduce the spread of disease and provide access to lifesaving technologies such as condoms.14 The Philippines ratified this treaty in 1974, framing the government's promise to arrest the spread of HIV/AIDS in the country.15 The government attempted to fulfill this pledge by passing APCA, but the law's vagueness frustrates this goal.

This comment identifies the inconsistencies between APCA and its regulatory scheme. section II elucidates why the extent of the HIV/AIDS epidemic is uncertain and why the rate of HIV/AIDS is likely to increase. section III outlines the goals of APCA and its accompanying regulatory scheme. This section also discusses the importance of ICESCR. Section IV argues that internal inconsistencies undermine the purported goals of APCA and that criminal sanctions inhibit information sharing. The final section recommends that APCA and its implementing regulations include specific criteria for determining what information is legally acceptable for health care providers to share. It also recommends the removal of criminal penalties from the statute and accompanying regulations. Finally, this last section explores the policy reasons compelling such changes.

II. MYRIAD FACTORS SUGGEST AN IMPENDING HIV/AIDS EPIDEMIC IN THE PHILIPPINES

The HIV/AIDS rates in the Philippines have perplexed public health officials for over a decade. …

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