Sunday, July 18, 2010

Ethics of dealing with irresponsible HIV/AIDS denialist parents

A fellow Facebook addict from Toronto sent me a message asking me what I thought about the case involving Barbara Seebald and a commentary written by Matthew Weait, a law scholar with particular expertise on HIV/AIDS and human rights issues who is based in London. Weait wrote a monograph arguing that the criminalization of HIV transmission, and indeed the criminalization of infected people who knowingly subject others to the risk of infection, are bad news. He basically thinks that the criminal law ain't a good tool to achieve desirable public health objectives, at least not with regard to HIV/AIDS. This may or may not be true, but - as I have argued in a lengthy review of this book - there can be another good reason for keeping some HIV transmissions a criminal offense, namely the fact that they demonstrably harm other parties. The same case can probably be made for subjecting some third parties to the risk of HIV infection, too. Read my review of his book. I do, in fact, agree with Weait on many HIV policy and legal issues, but I do think there are circumstances were an HIV transmission could constitute reasonably a criminal offense.

Here's Weait's take on the Seebald case.

Seebald is the second case known to me involving an HIV denialist whose belief that HIV is not the cause of AIDS has translated into serious bodily harm for her offspring. Seebald has chosen not to take antiretrovirals during pregnancy, thereby increasing significantly the risk of her off-spring being HIV positive. One of her children has been hospitalised as a result of HIV-related pneumonia. She breastfed her newborn at the time, thereby further increasing the child's risk of HIV infection. She also misled the midwife assisting in her natural birth to avoid the cesarean section required to reduce the HIV risk. Seebald's children have since been removed from her (yes, they do live with foster parents to protect them against their mother's irresponsible conduct) in order to permit medical doctors to treat them to the best of their professional abilities, an option unavailable to them while the children were with their biological parents. Seebald's - also HIV infected denialist - husband died in May 2010.

As I mentioned, this is the second case that I am aware of that deals with the harmful conduct of HIV denialist parents toward their children. Christine Maggiore, she since died on AIDS, arguably indirectly killed one of her children by ensuring the child did not receive proper medical care.

Matthew Weait, in keeping with what seems his primary legal concern: namely to ensure that the transmission of HIV remains decriminalized (or becomes decriminalized), runs the following line of reasoning to make his case with regard to an Austrian court finding against Barbara Seebald. The court issued a 10-month suspended sentence against Seebald because of her refusal to protect her newborn reasonably against HIV infection. Weait doesn't like the verdict at all. Here are what I take to be the crucial bits from his analysis (please do read his complete analysis here):

He begins by pointing out that for retributive justice to work we need a moral blameworthiness (ie a bad intention - undoubtedly not the case in either Seebald's or Maggiore's case), or the people whose actions we are concerned about need to have been grossly negligent (it's a no-brainer that this applies to both the Seebald as well as the Maggiore cases). I do think Weait's analysis is as seriously flawed as quite some of that presented in his monograph. In this particular instance he rehearses reasons from his monograph that clearly do not apply to these cases. The argument that Seebald and Maggiore were arguably criminally negligent has nothing at all to do with public health concerns (the numbers are too small for this). They have to do with something I elaborated on at great length in my review of his book: gross negligence leading to serious bodily harm to third parties. In this case the third parties were not even volunteering sexual partners, in this case the third parties were these women's own children! As an HIV clinician pointed out in this context: '...infants whose HIV infected mothers listen to AIDS denialists never got the chance to make their own decisions. The Maggiore case received wide publicity. Christine Maggiore is a person who’s proselytized against the use of antiretrovirals to prevent HIV/AIDS. She’s a classic AIDS denialist, and she gave birth to a child who died at age three late last year of an AIDS-related infection. The coroner’s report clearly reports that the child died of AIDS. That was another unnecessary death.'

Weait's analysis, on the other hand is concerned not really about the kids that have been grossly negligently infected by their nuttish mothers, but about the genuinely held dissident views of their parents. How dare we to ignore 'It follows that someone who honestly (even if misguidedly) denies the relationship between HIV and AIDS cannot legitimately be punished for onward transmission of HIV, unless one takes the view that such honest belief is to be ignored' he writes. And further, to drive this important insight home, 'And if we ignore it, then we fail to take seriously the reasons - whatever those might be – for denialism. These might be grounded in a person’s particular life story; or they might result from misinformation or misunderstanding. Whatever its cause, and however difficult it might be to understand that denialism or to sympathise with it, our incomprehension cannot be a sufficient justification for criminalisation and punishment.'

This shows, to my mind, the trap the decriminalization crowd is finding themselves in, with their blanket refusal to acknowledge that there can be circumstances where HIV transmission deserves to be dealt with thru our criminal justice system. Why should it make any difference to our evaluation of the Seebald and Maggiore cases (where idiotic views demonstrably led to serious bodily harm inflicted by these pregnant women on their off-spring), that these people held such idiotic views genuinely, that they ignored overwhelming clinical evidence to the contrary and so on and so forth. Is the argument that their circumstances were such that they were unable to compute the evidence that would have been available to them, had they cared to clear their minds? If this is the argument, perhaps removing their kids from them would have been a sensible choice. It doesn't appear to be the case then that they were strictly speaking competent to bring up these kids to begin with. Surely it is unreasonable to risk one's child's life in order to test the hypothesis of a negligible number of dissident scientists. It's here where Weait moves too quickly to discard the grossly negligible rationale as the basis for a criminal prosecution. This all, of course, is in the service of the blanket decriminalization policy he propagates.

And, just to be on the safe side, Weait quickly throws some mud at those disagreeing with this take, 'doing otherwise effectively makes a failure to accept what most other people believe a sufficient justification for punishment, and that has a frighteningly totalitarian ring to it.' This is bollocks, of course. Failure to believe what other people believe would never lead to punishing anyone, unless that failure leads to the deaths of other parties, or serious bodily harm inflicted upon third parties. Harm to self is fair game, harm to others ain't. That's why even Jehova's Witnesses today in most jurisdictions won't get away with preventing their off-spring from receiving life-preserving blood transfusions when that is clinical indicated. They can harm themselves, but they must not harm others. Nothing totalitarian about this.

Of course, there's never a chance lost to lament 'the effects of HIV-related stigma and prejudice', and so Weait concludes his analysis with general stuff about stigma and prejudice. I pretty much lost it at that point: Here's pregnant women that deliberately decided to disregard mainstream medical advice, and who so chose to risk their children's well-being (with the terrible consequences of death in the Maggiore's child's case, and of life-long serious chronic illness in the Seebald's case). The thing is, virtually all pregnant HIV infected women do NOT act like Seebald and Maggiore, hence Weait's other claim, namely that of 'systemic failures in HIV/AIDS education' is obviously baseless. - None of this has anything at all to do with HIV-related stigma and prejudice.

It goes without saying that these cases are tragic, and thankfully they occur very infrequently. The broader policy point, however, is this: Parents do not own their children. Their kids' lives ain't a free for all. The state has an interest in protecting children against abusive behavior that parents engage in, regardless of whether parents feel strongly that their behavior is not abusive when it actually is. While it might be of interest to Matthew Weait and a lot of sociologists and psychologists to figure out what drives such parents (check out the Darwin Awards in case you've doubts that there's plenty of nutcases out there), at the end of the day society needs to step in and prevent such abuse in its tracks. That's the objective. If currently that can only be achieved thru the criminal justice system, then so be it.






7 comments:

  1. Hey Udo--interesting commentary and I can relate to it. Still, I'm a little nervous about giving any more judicial power even if to try to protect kids from idiot parents.

    As you note, "It goes without saying that these cases are tragic, and thankfully they occur very infrequently." Do we thus need laws for people who are delusional? I mean, from my perspective, people that believe in God are delusional. This can lead to all sorts of what could be deemed criminal behavior, from the Christian Scientists refusing treatment for kids to Mormons kicking out their queer children.

    Vicious, cruel, ignorant, ugly, stupid, horrendous, potentially fatal. But criminal? I don't think the justice system can be trusted to go down that road without it going in other directions that may be exceedingly dangerous for civil rights (or here, civil stupidity).

    People smoke tobacco--with their KIDS in the same room. Second hand smoke is giving their children and pets an increased risk of lung cancer, asthma, heart disease etc. Should that be a criminal offense? No more than I believe heroin or cocaine should be illegal. Criminalizing such behavior leads only to enormous cost, no genuine impact on the extant issue, false prosecutions, corruption, racism and the usual litany of failures that arise from a crippled "justice" system.

    Do you see what I mean?

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  2. Hey George, I do see what you mean. My problem is that you're invoking a rhetorical means - in this case a slippery slope - that's standard fare in political discourse, but it's by and large discredited in philosophical analysis because it usually doesn't do what it's supposed to do.

    My view on your last para is that harm to self should not be criminalized (eg using currently illegal drugs), but when it comes to harm to others I'm not that liberal. If there's alternative means to achieve the same objectives: punishment for wrong doing and deterrence, I'm curious to find out.

    My main thing in this debate is that it's all about those misguided women and no serious concern is given to the harm they inflicted on their unsuspecting kids. That's what bothers me. If the decriminalization crowd had more to offer than an interest in these people's motives and how they are victims of HIV stigma and whatnot, I'd be keen to find out what it is that they're proposing. At the moment my reading is that they've no alternative to an approach that in Austria - rightly to my mind - removed the kids from their biological mother.

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  3. Thanks for the reply. Could you explain a bit what you mean by a "rhetorical means"?

    I think either of our arguments rest firmly on slippery slopes sadly...sibilantly.

    Taking the kids away or prosecuting the mother - how does one craft a law around this and/or how are laws currently crafted around parental abuse of children? I really have no idea--but perhaps that's where the kernel of any public policy shift lies.

    And then who is the arbiter? A medical doctor in consultation with family services? Does it then mean that families who refuse to vaccinate children should be arrested or lose their kids? (Overall, I support many vaccinations but some may represent a legitimate controversy.)

    The more horrifying thing is then where do the kids go? Foster care? That can be a fate that may be worse than death.

    It's a tough one and thanks for considering my comments. I appreciate your insights.

    If there is any kind of persistence after we die of our awareness, maybe Maggie realizes what an incredibly horrible set of mistakes and errors she made that allowed her child to suffer and die needlessly.

    The one I'd LOVE to see prosecuted, among others, is a-holes like Peter Duesberg.

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  4. Hey George, thanks for yours. Ma bad English may be? Rhetorical means is a kind of rhetorical weapon/tool, like invoking slippery-slope arguments. Your slippery-slope argument is this: 'I don't think the justice system can be trusted to go down that road without it going in other directions that may be exceedingly dangerous for civil rights'. The thing is, in this particular case of criminalizing HIV transmission, we have precious little evidence to support this contention. The number of prosecutions is tiny indeed and usually involves cases where there's little reasonable doubt of egregious wrong-doing.

    You say that I used slippery slope arguments in my initial blog entry. If I did, that's bad news for my analysis/argument, obviously. Where do you think though I used slippery-slope type arguments? I can't identify any.

    I think you're rightly concerned about the reach of policies on child abuse (where does one draw a reasonable line - thinking of the vaccine denialists for instance). I have no answer to this. My view is that it's ok to apply relevant existing laws to the case under consideration unless someone comes up with a good reason for why Seebald should be treated differently to others who abuse their kids. In this particular case the kids are unlikely to be worse off by being not with their aggressively neglectful biological mother. I mean, preventing pro-actively her kids from accessing demonstrably life-preserving medical care, how much worse can it get? This seems a pretty good reason to step in and remove the kids from their biological mother.

    Guess if there is a reasonable argument in the medical profession, for instance, about what constitutes good care, you'd have the argument about where to draw the line that you mention in your comment, but that isn't the case under consideration...

    As to suing Duesberg. All for it, but on what grounds? I'm not a legal expert, so I do wonder how such a lawsuits would have to be structured. Surely it would be a civil case?

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  5. I think your slippery slope argument is that "this is a tragedy, something must be done to address it" in that this argument remains relatively vague. It ventures into an area with which I believe we are both unfamiliar, the laws around parental obligations under - what? Federal law? State law? I would think that failure to treat would constitute a form of abuse and thus would fall under such a category, without necessarily needing to craft legislation.

    But that's where I think your argument remains a bit unclear to me. Do you suggest that we need to craft new laws? Or are you just arguing that HIV transmission should fall under the category of being potentially a criminal offense?

    Also, how do you address the issue of intent, around which much criminal and civil law revolves? Indeed, the mothers argue, erroneously, that they are trying to protect their children from iatrogenic effects of therapy. But their intent is clearly NOT harmful, even if the results are.

    I believe THAT is a slippery slope.

    By contrast, someone who uses infected needles or fucks people unsafe with the intent of infecting others with HIV or other diseases is a different character--but also challenging to "prove."

    On topic of intent tho, I struggle with the definition of "genocide" which requires "intent." For me, though, I'd say that what pharma has done in its assiduous efforts to block access to generic (and thus low cost) ARV therapy in developing nations with the concomitant effect of murdering MILLIONS of men, women and children who were denied access to care capriciously and arbitrarily constitutes a form of economic genocide.

    And that is NOT a rare event. I know I'm straying somewhat from the topic but I think this goes toward how we need to address the laws, local and international, that affect men, women and children trying to survive in the face of HIV infection.

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  6. OK George, gotcha. My argument wasn't legal really. As you rightly point out, I'm not familiar with the myriads of legislations that are out there. My point was more fundamental: if you foreseeable harm someone and that was caused by gross neglect on your part, you ought to be punished for that conduct. At the moment, from what I gather, the criminal law is used in some jurisdictions to achieve that task. My main point really was that I have no qualms about the law being used for this purpose as I think the reasons for using it on such occasions is sound.

    Your other topic of genocide. I don't buy into the definition you mentioned. Genocide means killing a whole people or trying to do so. I don't see what intention has to do with this. Say, IF I dumped - by accident - a nuclear bomb over Singapore that killed all of its inhabitants, surely genocide would have been committed, regardless of my intentions.

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  7. II agree that to some extent those courts of law should mitigate the damages caused by irresponsible HIV positive individuals. Injury lawyers (Ottawa and other locations) have filed cases that would incriminate such acts. The state has the power to criminalize the person if he or she caused tangible harms to another person. In this case, the HIV positive mother, who knows her disease, refused treatment. Thus, making her child vulnerable to the infection. The problem goes beyond personal choices since it already involves the life of another person. Indeed, the state has the absolute right to serve justice in those instances.

    Very insightful post. Thanks!

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