Abstract
This paper considers whether s.20 Offences Against the Person Act 1861, which has been used to prosecute those who transmit the HIV virus in sexual relationships (eg R v Konzani), could be used to prosecute women (in England and Wales) who transmit the virus to their child during pregnancy, delivery or via breastfeeding. The discussion concludes that prosecution for transmission in pregnancy/delivery is unlikely. However, it is argued that there might be scope to prosecute the transmission of the virus via breastfeeding in the event that there was sufficient evidence. However, this would also be subject to the Crown Prosecution Service deeming such a prosecution to be in the public interest. The paper does not seek to examine the ethical issues involved. However, it acknowledges that this issue is part of a broader debate as to whether, and if so, when, it is appropriate to criminalise the transmission of disease.
Maternal transmission of HIV infection: A crime against my child?
A series of controversial judgments of the English courts starting with the judgment of the Court of Appeal in R v Dica[1] have established a crime of recklessly causing serious biological harm.
Thus the individual who fails to warn his or her partner that they are HIV positive and goes on to transmit the virus to them may, depending upon the circumstances, be convicted of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act (OAPA) 1861. The offence set out in section 20 is that a person:
....unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument...
In this context ‘maliciously’ simply means that the defendant must have intended to cause harm or been reckless in doing so. No ‘malice’ (in the lay sense of the word) is required.[2] Recklessness requires that an individual foresee a risk, but nevertheless go on to take it when, in the circumstances known to him, it was unreasonable to take the risk.[3] There has been uncertainty as to whether the defendant must have had actual knowledge of his/her HIV positive status for the offence to be made out. Whilst part of the judgment in Dica has been used to suggest that actual knowledge is required,[4] other commentary reflecting on this judgment and subsequent case law has argued that liability may be imposed where the defendant shows ‘wilful blindness’ ie where the defendant knows of the risk that they are infected, but chooses to turn a blind eye.[5] The Crown Prosecution Service Policy statement also suggests that actual knowledge is not necessarily required and that in ‘exceptional circumstances’ a ‘deliberate closing of the mind’ may be taken as a sufficient degree of knowledge.[6]
In effect, reckless horizontal transmission of disease has become a crime against a sexual partner. This paper will consider the question of legal responsibility for transmission of disease from parent to child. If an HIV positive woman refuses to take any measures that would serve to minimise the risk of transmission of HIV to her baby via breastfeeding or by her conduct in the course of pregnancy and delivery, might she be charged with recklessly causing serious biological harm to her child should he contract HIV from his mother’s milk or be born HIV positive? The paper will, due to issues of space, only consider the possibility of liability under s 20 OAPA. However, it is acknowledged that there might also be scope for prosecution for child neglect under s.1 Children and Young Persons Act 1933.
The paper will not address the ethical issues involved but will seek to examine whether s.20 OAPA could be used to prosecute women in England and Waleswho transmit the virus to their child. However, whilst ethical arguments will not be considered here, it is acknowledged that the issue discussed in this paper is part of a much broader debate as to whether, and if so, in what circumstances, the transmission of disease should be criminalised.[6]
The HIV positive motherand the risk of transmission
The notion of a woman who is unfortunate enough to contract HIV herself and suffer the further blow of passing the disease on to her child facing criminal charges may seem to some, intuitively shocking (though note that prosecutions of women for exposing or passing HIV to their baby whilst pregnant, giving birth or breastfeeding have taken place in Austria, Canadaand the United States).[7] However, it will be demonstrated that this scenario is not too far removed from the established precedents of criminal liability under s.20 OAPA 1861 for sexual transmission.
In 1993 in the UK, interventions for HIV positive pregnant women were largely non-existent and the rate of HIV mother-to-child transmission (MTCT) amongst diagnosed women was 19.6%.[8] A woman who was HIV positive but wished to avoid infecting any child she might bear had few options and might have to choose not to have a baby. However, an analysis of children born to women diagnosed with HIV in the UK and Ireland between 2000 and 2006 showed the overall rate of MTCT to be 1.2% and 0.8% for those women on antiretroviral treatment (ART) for at least the last 14 days of pregnancy, regardless of the mode of delivery. The study highlights that important factors in reducing the rate of MTCT have been the detection of HIV through antenatal testing, ART, managing deliveries appropriately and the avoidance of breastfeeding.[9]These last three factors will now be considered in more detail as they may impact on any potential criminal liability.
Firstly, in relation to ART: British HIV Association guidelines recommendthat all HIV positive pregnant women should have started ART by week 24 of their pregnancy.[10]In relation to delivery, these same guidelines recommend that women on highly active antiretroviral therapy (HAART) with lower viral loads have a vaginal delivery, whereas those with higher loads are recommended to have a planned caesarean section (CS).[11] A study by Townsend et al showed that women who were on HAART had a 0.7% risk of transmission whether they had a planned vaginal delivery or an elective CS. However, this study also showed that even where mothers were on HAART and had a planned delivery with an undetectable viral load, there was still a residual risk of transmission of 0.1%. The authors offer various reasons for the continuing risk of transmission despite the use of HAART and a planned delivery, namely: the use of HAART for only a short period of time, poor adherence to treatment or to in-utero transmission.[12]
However, the birth of the child does not mark the end of any risk to the newborn. There is a risk of transmission from the HIV positive mother to their child through breastfeeding. An analysis of data suggested that at 18 months, the cumulative probability of late postnatal transmission (defined as 4 weeks after the baby’s birth) was 9.3%.[13] Recent research carried out among women in Africa who were solely breastfeeding, has indicated that amongst those taking HAART there were low rates of transmission (0-3%).[14]However, advice issued by the British HIV Association (BHIVA) and Children’s HIV Association (CHIVA), recommends nevertheless, that in the UK (the focus of this paper) HIV positive women should refrain from breastfeeding.[15]
Transmission via breastfeeding
As we have seen above, there is a risk that an HIV positive mother will transmit the virus through breastfeeding. We will now consider whether she could be prosecuted under existing law if she does transmit the virus in this manner. Transmission in the course of pregnancy or delivery will be considered in a separate section below.
So, is an HIV positive, breastfeeding mother reckless akin to an individual who does not tell a sexual partner they are HIV positive? It can be argued they are comparable. In both situations the individual knows of the risk they may be exposing the other person to [16] and yet goes on to take it. In the case of the HIV positive lover, he/she can avoid liability by warning their partner. In the case of breastfeeding, although consent cannot negate liability, there is a risk-free alternative, namely formula-feeding. It could be argued that it would indeed be reckless for a mother who knows there is a risk that she will transmit the virus by breastfeeding not to exclude that risk by adopting formula-feeding (providing that she could afford this).[17] Yet, there are also potential benefits to breastfeeding, both to the health of the child and the future health of the mother.[18] To be judged as reckless, it would have to be judged objectively unreasonable for the mother to breastfeed given the risk of transmission of HIV, despite the possible health benefits. Although, as outlined earlier, the risk of transmission is low, it could be argued that since the avoidance of risk is straightforward, it would be reckless not to do so (subject to the proviso relating to cost outlined above). The health benefits of breastfeeding it could be argued, would be eclipsed by the real benefit of avoiding the risk of the transmission of the HIV virus.
Whilst no woman has ever been prosecuted in England for transmitting the HIV virus via breast milk, the courts have previously been called to consider the issue of breastfeeding and the transmission of the HIV virus. In Re C,[19] an application was made to the court by a health authority for an order that a baby should undergo an HIV test. The baby’s mother had known that she herself was HIV positive, prior to becoming pregnant. However, she and the child’s father did not agree with conventional medicine and did not want their baby to be tested. The mother was breastfeeding her baby, despite advice not to do so from health care workers. The judge in that case ordered that the HIV test should be carried out on the baby. However, in relation to breastfeeding, the judge said that:
My belief is that the law cannot come between the baby and the breast. Indeed, if she cannot be persuaded by rational argument that she must curb her instinct to feed, I doubt whether the mother would comply with a court order, which would be, in effect, impossible to enforce. (at 301)
In Re C, the option would have been an order banning breastfeeding, which as the judge commented, would not have been possible to enforce, except perhaps through contempt of court proceedings. In contrast, if transmission of HIV by breastfeeding were to be founda criminal offence following Dica and Konzani, the mother would not be banned from breastfeeding – however, an offence would be committed if breastfeeding led to the transmission of the HIV virus to her child.
However, the prosecution would need evidence to link the breastfeeding to the transmission of the virus. In other words, it would have to be possible to demonstrate that the child was infected with the HIV virus as a result of breastfeeding, rather than during the mother’s pregnancy or in the course of delivery or accidentally at some later point. It might be possible to obtain such evidence using molecular phylogenetics, but to do so would require extensive sampling and sequencing through time of the mother and baby’s viral populations and even then, may be inconclusive in a legal setting.[20] Note also that there might be the possibility of prosecution under ss 23-24 OAPA which are offences relating to the administering of ‘poison or other destructive or noxious thing’.[21] However, this also would be subject to the evidential requirements regarding transmission outlined above.
It must also be noted that before a criminal prosecution is brought, the Crown Prosecution Service must apply a 2-stage test. Prosecutors must be satisfied that there is enough evidence for there to be a ‘realistic prospect of conviction’. If a case passes this test, prosecutors must decide if prosecution would be in the public interest.[22] Here, it might be considered that even if a case passed the first test, prosecution would not be in the public interest as this might impact on the uptake of ante-natal and post-natal care, thus endangering the well-being of mothers and their children. As Csete et al argue:
It is hard to know the effect that prosecutions for vertical transmission would have on utilisation of services to prevent vertical transmission, but they are unlikely to be helpful and could give women one more reason to be wary of HIV testing and PMTCT (prevention of mother-to-child transmission) services. [23]
Furthermore, if the criminal law were to be used in this context, this would open up the possibility of women being prosecuted for other acts and omissions during pregnancy which caused her child health problems once born.[24]
Transmission in pregnancy (and delivery)
As we have seen above, a pregnant, HIV positive woman risks transmitting the virus to her child in utero. However, as noted earlier, there are various steps that can be taken to lessen the risk of transmission. These include undergoing antiretroviral treatment and an appropriate delivery. However, in order for appropriate treatment to be available, healthcare professionals need to know the HIV status of the mother. Hence, as outlined above, antenatal HIV testing has become a significant part in the process of reducing MTCT.
Following cases such as Dica and Konzani, is it possible that a pregnant woman who knows (whether through actual knowledge or through ‘wilful blindness’) she is HIV positive, could be found liable of an offence under s 20 if she transmits the infection to her child in utero or during delivery? Traditionally, English law has (in the main) sought to protect mothers from civil liability for any harm inflicted on the fetus by them in utero.[25] However, the law has recognised that there can be criminal liability for harm caused in utero to a baby who is subsequently born alive and, as we shall see, this may give scope for maternal criminal liability for harm caused to the fetus.
In Attorney General’s Reference (No 3 of 1994)[26] the House of Lords held that the criminal offence of manslaughter could be committed where the defendant carried out an intentional, unlawful act (in this case, the stabbing of a pregnant woman) which caused the death of a child who had been born alive, but subsequently died. In this instance, the stabbing had caused the baby to be born prematurely, which in turn caused the baby’s death. In his judgment, Lord Mustill referred to the ‘born alive’ rule,whereby an injury to a fetus resulting in its death after birth could give rise to criminal responsibility for homicide, though not if the fetus died in utero (since the fetus is not deemed to be a legal person until birth). However, Lord Mustill’s judgment suggests that criminal responsibility could stretch wider than just murder or manslaughter cases. As he stated:
Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility even if the harm would not have been criminal...if it had been suffered in utero. (at 942)
Whereascivil law has set out the limits of maternal liability, there is uncertainty as to the extent of any potential criminal liability, since this has not been explicitly addressed by the courts. As Brazier has commented, the decision in A-G’s Reference in the House of Lords, ‘seems still to leave the door ajar to maternal liability’.[27]
We return therefore to the issue of whether an HIV positive mother could be found guilty of an offence under s. 20 if she transmits the virus to her child during pregnancy or in the course of delivery. The court would have to determine whether the woman intended to or was reckless in inflicting harm. In the absence of intent, to establish recklessness it would have to be shown that the mother foresaw the risk of transmission and yet went on to take that risk when it was unreasonable to do so. As we have seen, with appropriate medication and delivery, it is possible to ensure a low risk of transmission. Yet, even if we take A-G’s Reference as authority that the criminal law has a role to play in relation to harm caused to the unborn, who is subsequently born alive, there is one important aspect in which the case of A-G’s Reference can be distinguished from the issue considered here. In A-G’s Reference, the issue was that the defendant should have avoided an action which caused harm to the child. In this instance, in order to avoid potentially committing an offence, the mother would be required to act in a certain way ie by taking antiretroviral treatments and following advice as to the most appropriate form of delivery to minimise risk. Her crime, if any, would be one of omission rather than of commission.
Yet placing significance on the distinction between act and omission is too simplistic. The law already explicitly criminalises certain omissions, such as in relation to child neglect, mentioned above.[28] In relation to other offences, such as murder and manslaughter, the courts have accepted that such crimes can be committed both by act and omission.[29] However, it is not certain whether the words of s.20 OAPA would be interpreted to include an omission. Could to ‘inflict’ the harm be viewed not just in terms of an ‘act’ but also in terms of an omission? Whilst it has been argued that such an interpretation is possible,[30] it has also been argued that the use of words in a statute which imply an act, should not be interpreted to include an omission.[31]