A girl light candles during an AIDS awareness campaign, November 2016. Credit: PTI.
Over the past few decades, there has been considerable progress in the science of HIV and the global HIV response. UNAIDS has reported a 12% decline in new HIV infections in Asia and the Pacific region and a 29% decline in AIDS-related deaths since 2010.
The new infection rates are falling – but not nearly fast enough. They are offset by sharp increases in a few countries such as Pakistan and the Philippines. The new 2020 Global HIV Policy Report suggests this is partly because of a significant gap between science and law/policy. The application of law in the service of public health is a frequently overlooked tool for addressing complex practical issues arising from the HIV pandemic. Scientific breakthroughs in themselves are not enough. An enabling legal and policy environment that adopts a rights-based and science-based approach, is community-centric and facilitates access to HIV prevention, treatment and care services is central to an effective HIV response.
While some countries have realised the importance of evidence-driven laws and policies, others have failed to effectively harness the power of law/policy, and thus face growing epidemics. The 2020 report shows that countries in Asia and the Pacific region have, on average, the second-lowest rate of policy adoption in the world. Specifically, no country in the South and South-East Asia region has even adopted at least 80% of international standards – categorised as “most” – in all four policy categories tracked by the HIV Policy Lab. Even in each of the four policy categories, there is significant variation in policy alignment across countries and in each category there are outliers.
(Editor’s note: The authors are affiliated with the O’Neill Institute at the Georgetown University Law Center, which operates the HIV Policy Lab as well as produced the 2020 Global HIV Policy Report.)
Analysing the legal and policy environment in the South and Southeast Asia (SSEA) regions, based on HIV Policy Lab data, shows that significant attention to law and policy reform is crucial for improving AIDS response in the region.
Law as facilitator, law as barrier
Well-designed laws and policies could support the prevention and treatment of HIV and help correct societal conditions that drive the pandemic. Laws and policies are interventions that can facilitate effective HIV prevention and care – but may also act as barriers. Law can empower, and provide innovative solutions to challenging health threats. They can ensure access to medicines, healthcare facilities, comprehensive sexuality education, prohibit compulsory testing, and create health-promoting environments.
Conversely, criminalising disease-transmission may drive an epidemic underground. For example, prohibiting the distribution of clean needles to intravenous drug users may foster the spread of disease. Deeming the possession of multiple condoms to be evidence of prostitution may inhibit prevention efforts.
Often, the best remedy is deregulation – of laws that are harmful to the people’s health and potentially stumbling blocks to effective action.
Many of the countries in the SSEA regions making the most progress against HIV – like Cambodia and Thailand – have adopted ‘many’ of the laws and policies recommended by evidence and international normative bodies. Those facing growing epidemics in the region, such as Pakistan and the Philippines, have ‘few’ or ‘some’ policies that align with current evidence. Every country in the region, however, has laws and policies that need to be updated to align with international recommendations.
Of particular concern are testing and prevention policies, on which count only Cambodia and Thailand have adopted ‘many’ of the recommended policies; more than half the countries in the region have either ‘very few’ or ‘few’ policies that align with international standards. Compliance with WHO recommended treatment guidelines are also alarmingly low: fewer than 50% of SSEA countries have updated their treatment guidelines to align with current recommendations on which medicines should be available to treat HIV for adults. Only 15% have done so for children.
According to UNAIDS, more than a quarter of new HIV infections in Asia and the Pacific are among young people. Only Brunei, Myanmar, Singapore, Sri Lanka and Thailand allow adolescents to access tests and/or treatment without parental consent. The remaining SSEA countries have age-restrictions on who can access tests and therapies.
Laws that make HIV-testing compulsory deviate from the ethical and human rights principles of self-determination and autonomy, and often drive people away from availing services. HIV-testing must respect personal choices and be based on an individual’s informed consent. There is a lack of uniformity in the laws and policies addressing compulsory HIV-testing in the SSEA region. While Afghanistan, Cambodia, India and Indonesia prohibit compulsory HIV-testing (except for blood/organ donation or with a court order), Bangladesh, Malaysia, Myanmar and Singapore do not.
Gay men and men who have sex with men account for 44% of new infections in Asia and the Pacific. This number is rising as well, and is of major concern. While criminalising same-sex sex acts may reflect social and cultural norms in many countries, doing so can potentially derail public-health interventions to reach individuals engaging in same-sex activities. Fear of prosecution, stigmatisation and discrimination keep individuals who engage in same-sex activities from accessing appropriate public health services.
The laws and policies addressing same-sex decriminalisation vary widely in the SSEA region, and often reflect different cultural norms. Nepal and Thailand avoid criminalising consensual same-sex acts. In Bhutan and Singapore, there have been reports of people being prosecuted in recent years, even though consensual same-sex sex acts haven’t been criminalised. National laws in Bangladesh and Pakistan criminalise consensual same-sex sex acts, and there have also been reports of people being prosecuted.
The data also shows that policy alignment within countries is uneven and contradictory. While one country may be ahead on a particular policy, it falls behind on another. India, for example, has adopted ‘many’ recommended clinical/treatment policies but only ‘some’ recommended testing/prevention and health-system policies – and lies below the global average in both categories.
Even within categories, countries often don’t align policies that are closely related. India has incorporated harm-reduction – including needle- and syringe-exchange programmes – into its national strategies but still criminalises syringe possession. Regulatory authorities in India have approved at least one pre-exposure prophylaxis (PrEP) – but the national policy on PrEP doesn’t align with international recommendations, in that it restricts access to only those at substantial risk of contracting HIV.
The way ahead
Although efforts to combat the HIV pandemic have been historic, insufficient alignment of policies and science remains a major obstacle to ending AIDS. Now more than ever, there is a need to adopt rights-based and science-based laws and policies. Work at the HIV Policy Lab indicates a dissonance between scientific recommendations and the policies in place. Indeed, no country in the world has aligned all 33 indicators as set out by HIV Policy Lab. And only 21% of the countries in the SSEA region have adopted ‘many’ of the 33 policies that the lab is tracking.
Put differently, 79% of countries – including India – have adopted fewer than 60% of the recommended policies. And many of the countries facing growing epidemics and rising death rates have the fewest policies aligned with current evidence. These indicators are not aspirational: they are baseline recommendations backed by evidence. Every country needs to systematically check and either strengthen or review some policy area or other, share their lessons with each other.
The legal and policy environment matters as much as the epidemiological environment in ending AIDS as a public health threat.
Kashish Aneja is a legal consultant at the O’Neill Institute for National and Global Health Law, Georgetown University, Washington, DC, and a practicing advocate in New Delhi.
Matthew M. Kavanagh is the director of Global Health Policy and Politics Initiative at the O’Neill Institute and an assistant professor of Global Health Programs, Georgetown University.