Cuban Medical Research

Legal and Ethical Aspects of HIV/AIDS in Cuba

 
See Also...
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The Cuban AIDS Vaccine Project: An Alternative from the South

The Cuban Program for Preventing Mother-to-Child Transmission of HIV/AIDS

Legal and Ethical Aspects of HIV/AIDS in Cuba

Characteristics of the HIV/AIDS Epidemic in a Prison Population Survey Group

Epidemiological Follow-up of Notified Partners of HIV-Infected Individuals: The 13-Year Cuban Experience

Abstracts

Evelio J. Alpízar Pérez.1
María E. Cobas Cobiella.2
Mercedes Rodríguez Acosta.2

Considered the most important pandemic of modern times, AIDS has acquired universal connotation.   It is therefore incumbent upon us to examine the rights and obligations of HIV-positive persons as well as the legal protection they should have as citizens in any country.  Jurisprudence has lagged behind technological and scientific advances and remained somewhat distant from the medical arena.  Consequently, it is necessary to establish boundaries between Medicine and Law, taking into consideration the principles of medical ethics in the legislative sphere.   

Legislative Background

When the first HIV/AIDS cases were detected in Cuba, the Cuban government, through the Ministry of Public Health, designed and implemented a National Program aimed at controlling the spread of the disease.  The Cuban AIDS prevention strategy was initially based on fundamental criteria that differed from those of conventional programs in other countries.

The initial measures taken in Cuba had their legal foundation in already existing regulations to protect human health, which is the complete physical, mental and social well-being of individuals, and not only the absence of illness or disease.  These regulations included:

Decree-Law 54 of April 12, 1982: Basic Sanitary Regulations, whose Article 9 states that for the exercise of prevention and control actions for communicable diseases, one or more of the following measures will be adopted, depending on the case: isolation of individuals suspected of  suffering from a communicable disease, and of possible carriers of the causal germ, if necessary, as well as the suspension or limitation of these individuals’ activities when their  realization poses a risk for the health of others.

This Article was fully enforced in Cuba upon the detection of the first HIV/AIDS cases, although it was applied with more flexibility as the domestic and international knowledge base expanded concerning prevention, transmission, consequences and treatment of the disease. 

Law 41, of July 13, 1983, on Public Health, whose Article 20 referred to diseases that might become epidemics:  the Ministry of Publish Health will determine which diseases pose a risk for the community,  will adopt diagnostic and preventive measures and will establish methods and procedures for mandatory treatment, either through ambulatory or hospitalized regimes; and such actions will be conducted by institutions of the National Health System.

These regulations led to the creation of the Santiago de Las Vegas AIDS Sanatorium in Havana, for attention to HIV-positive individuals, in accordance with Resolution 128 of August 4, 1989, of the Ministry of Public Health.  Similar sanatoriums were subsequently created in other provinces.  Each one of these sanatoriums is considered an independent institution within the National Health System, its regulations adapted to the conditions in each province.

Current Legislation on HIV/AIDS in Cuba

The Cuban National AIDS Program has been substantially modified since its inception, taking into account accumulated experience, a better understanding of the problem and the AIDS education campaigns carried out in the country in recent years, which have facilitated  improvement in the Program for AIDS Prevention and Control.  With this aim,  a number of resolutions were adopted by the Ministry of Public Health:

Resolution 101 (June 17, 1997, Minister of Public Health)

This resolution authorizes the creation of an Ambulatory Care Program for Persons with HIV/AIDS.  This was the first step in changing the existing Program, offering persons with HIV/AIDS an option to sanatorial care, permitting them to return to their communities and families, while making regular outpatient visits to their physician.  They could also return to their jobs, with full rights and obligations established under law for all workers in the country.     

The Resolution is applicable to all HIV-positive Cuban citizens whose diagnosis has been properly confirmed, and who have undergone a comprehensive process of characterization, treatment and training in a sanatorium.

The Resolution is aimed at establishing principles for further improving the National AIDS Program.  Its contents refer to the obligations of patients and institutions of the National Healthcare System.  The main points include:

Individuals will be eligible for the Ambulatory Care Program (ACP) for HIV/AIDS, as long as their conduct does not put others at risk of infection, and as long as they show a responsible attitude towards their own health.

A Provincial Technical Commission is charged with evaluating patients and deciding their eligibility for the ACP, taking into consideration recommendations from the Comprehensive Evaluation and Orientation Commissions at each sanatorium.

Individuals accepted for treatment through the ACP will be guaranteed comprehensive physician-oriented medical care and specific medications they require free of charge, as well as the special diet provided for HIV/AIDS patients.

Not all HIV-positive individuals are required to go to a sanatorium before being incorporated into the Ambulatory Care Program.     

Individuals  being treated through the ACP can be deprived of this possibility if their behavior renders them unfit for participation in the program and the responsibilities it entails.

HIV/AIDS individuals considered eligible for the ACP and who do not want to work will not receive financial support other than that normally offered to any other citizen by the country’s Social Security and Assistance System.

The Medical Boards of the sanatoriums have the authority to decide whether seropositive individuals eligible for the Ambulatory Care Program may be allowed to stay in the sanatorium, based on an analysis of their psychological, social and clinical conditions.

In summary, this Resolution refers to the relationship between patients and the national healthcare system, but also provides a legal basis for HIV-positive persons to return to work, and has prompted the elaboration of specific legislation in this regard by the Ministry of Labor and Social Security (MINTRAB).

LABOR LEGISLATION

Cuba’s labor and social security laws, while comprehensive, do not fully cover labor relations for HIV-positive citizens in the Ambulatory Care Program. Consequently, new dispositions were enacted for persons leaving the sanatorium.

Resolution 13 (July 24, 1997, Minister of Labor and Social Security)

This legal instrument is of vital importance, based on the premise that human beings are social beings whose activities benefit society and themselves.  It outlines regulations for seropositive individuals who return to work.  These include:

HIV/AIDS individuals have the right to return to their jobs and workplaces once they begin treatment through the Ambulatory Care Program (ACP).

When necessary or when, due to the characteristics of the specific work carried out by the employee, there are rational indications that his or her incorporation into this job could endanger the lives of others, the physician can remit this patient to the appropriate Medical Appraisal Commission, which will decide on the patient’s capacity to continue on the job and proceed in accordance with pertinent regulations in force.

In the cases of patients who were not employed and who express their desire to work, they will be remitted by their doctors to the appropriate Medical Appraisal Commission, which will indicate the risk factors to which these patients must not be subjected in their future jobs.

The Municipal Labor Divisions are in charge of job placement for these patients, among the jobs available in the municipality.

In the period during which HIV/AIDS workers are being evaluated for their possible incorporation into the Ambulatory Care Program, they will receive the sick-leave benefits established for hospitalized workers, that is, 50% of their monthly salary. 

Seropositive patients will receive full pay (as sick leave) for any days missed due to medical appointments (whether monthly or weekly, as established by the National AIDS Program).

HIV/AIDS persons who remain in an AIDS sanatorium continue receiving the same pay and social security benefits they were receiving when this new Resolution (July 24, 1997) was adopted.  This will also be applied to those who are admitted to a sanatorium after the date of this resolution’s implementation, to those in the Ambulatory Care Program who return to a sanatorium or are hospitalized in any other medical center treating HIV/AIDS, and to those who, under exceptional circumstances, are “hospitalized” at home.

In all cases not covered by this resolution, current labor and social security regulations for Cuban workers and the population-at-large will be applied.

CIVIL LEGISLATION

The civil rights of HIV/AIDS individuals are outlined generally in Article 1 of the Civil Code: The Civil Code establishes regulations regarding patrimonial relations and non-patrimonial relations linked with patrimonial relations, among people in a mutual position of equality, aimed at satisfying the material and spiritual needs of these persons.  In other words, the Code offers equal and generalized protection to all natural citizens, with no limitations of any kind imposed on HIV-positive or AIDS individuals in the exercise of their civil rights.

In conclusion, all Cuban citizens diagnosed with HIV/AIDS are entitled to the same enjoyment of their civil rights and freedoms, and have equal obligations as all other Cuban citizens under the law.

In civil and family matters, this legislation does not impede or prohibit persons with HIV/AIDS from freely exercising their various rights, filing legal claims of whatever nature or exempt them from complying with their responsibilities.

These individuals will be responsible for damages or injury caused to third persons as established in Article 81 and Article 89.1 of the Civil Code, which state: Illicit acts are those which cause damage or injury to others.

These individuals can also enter into contracts of any kind, be it purchase, sale or donation of properties, house swap, etc., provided they abide by the requirements established and regulated by the Law for each particular contract, either in the Civil Code or in any special legislation. 

These individuals shall also fulfill the obligations stated in the contracts they have signed, as well as the obligations that derive from breach of contract, in accordance with that established by law in each case.

In relation to inheritances, HIV/AIDS individuals can leave their properties to a an inheritor by means of any of the instruments established by law--notarized will, holographic will, or any special will as established by Articles 476 and 483 of the Civil Code, which state:  Through a will, a person disposes of all or part of his or her property, to take effect after his or her death, subject to the limitations established by this Code or other legal dispositions.  Wills can be common or special.  Notarized wills, holographic wills and wills drawn up by a consular official are common wills.  All other wills regulated by this section are special.

These individuals have the right to name executors, to name heirs and to assign legacies, as established by Article 478 of the Civil Code.

Testate or intestate heirs shall liquidate all outstanding debts of the inheritance, as established by Article 525.1 in relation to Article  468.1 of the Civil Code, which stipulates that the inheritor is an unconditional heir of all or part of the estate, thus inheriting the corresponding rights and obligations of the deceased.

These individuals can be disqualified for inheritance if they are found guilty of actions which might have influenced the will or caused injury or death to its author, as stated in Article  469.1 of the Civil Code.  

HIV/AIDS individuals may witness wills, as established by Article 30 of Law 50 on State Notaries, since they are not among those disqualified for this activity by this legislation.

As to Family Rights, there is no special or distinguishing treatment in the case of HIV/AIDS individuals.  The preamble of the Code establishes: Equality among citizens-- as a result of the abolition of private property over the means of production, the extinction of social classes and of all forms of exploitation of one person by another--is a basic principle of the socialist society being built in our country, and this principle shall be fully and expressly present in the precepts of our legislation.

This implies that HIV-positive individuals may marry, as established in Article 2 of the Family Code, which states:  Marriage is a voluntary union between a man and a woman, with legal capacity to do so, in order to join their lives together.  The obligations derived from this union are applied to all citizens, without exception.  HIV-positive persons shall also have the right, as  other citizens, to enter into common-law unions, which carry legal recognition in Cuba.

As to their children, HIV/AIDS individuals have the same rights and obligations as other citizens with respect to acknowledgment of paternity, and protection and care of their children, as established by current legislation (the Family Code and Law 51 of the Civil Status Registry) with no differentiating considerations.  Thus, they may inscribe their children after birth as stipulated in Article 40 of Law 51 of the Civil Status Registry, and may challenge paternity, as established in Article  48 of the aforementioned Law.

Parental authority and guardianship will be recognized with no limitations in the case of HIV-positive persons, according to Article 82 of the Family Code, which states:  Parents have guardianship of minors.  Furthermore, as established in this Article, and as a result of the exercise of parental guardianship, parents incur obligations to their children such as: guardianship and care, education and upbringing, care and management of their children’s belongings, and legal representation of their children, as established in Article 85 of the Family Code.

HIV-AIDS persons, as all other parents, are obligated to provide their children with support—including nutrition, housing, clothing, and all necessary conditions for study, recreation and development, as established in Article 121 of the Family Code.  However, such obligations will be considered null and void should the sero-positive parent be faced with diminished financial resources as a result of their illness, to the point of not being able to meet his or her children’s needs without neglecting his or her own needs.  (See Article 135, Item 3, and Article 127 of the Family Code, which regulates child support in relation to financial capability.)

Likewise, the amount of child support ordered by the courts in case of divorce varies in direct proportion to the income of the parent charged with this obligation, as established in Article 128 of the Family Code.

This Article is also applicable to cases in which the HIV/AIDS individual is the person in need of support as a result of his or her disease.

CRIMINAL CODE:  APPLICATION TO HIV-INFECTED PERSONS   

In Cuban legislation there is not--nor should  there be--any special legislation for HIV-positive individuals.  Cuba’s laws are applicable to all citizens alike.  Consequently, these individuals can act as plaintiffs, defendants, or witnesses in any criminal case.

In terms of criminal legislation, Chapter 5 of Law 62 of the Criminal Code establishes specific regulations for Crimes Against Public Health,  whose Section One includes the crime of Spreading of Epidemics.  Article 187 of this Law states that:

  1. Those who contravene the measures and dispositions dictated by competent health authorities for the prevention and control of communicable diseases, and fail to support the programs and/or campaigns designed for the control and eradication of serious or dangerous diseases or epidemics, will be subject to 3 months to 1 year in prison, or receive a fine of 100-300 pesos, or both.      
  2. This sentence also applies to those who refuse to collaborate with health authorities in  the national territory where any communicable disease becomes a serious epidemic or in adjacent territories to which the epidemic can spread.
  3. Those who maliciously spread or facilitate the spread of a disease can be sentenced to 3 to 8 years in prison.

Changes introduced in the Criminal Code, as established in Law 87 of February 16, 1999, intensify the severity of penalties for crimes included in Title 11, Chapter I, Crimes Against the Normal Development of Sexual Relations, whose Section One refers to rape.  Perpetrators can be sentenced to 15 to 30 years in prison (up from 8 to 20 years), or to the death penalty if serious harm or illness results from the act of rape. 

This paper was originally presented at the 4th International Conference on HIV/AIDS in Cuba, Central America and the Caribbean, Havana, Cuba, January, 2000.


[1] Legal Adviser.  Pedro Kourí Institute of Tropical Medicine.

[2] Legal Adviser.  Ministry of Public Health.