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The Improvement of China’s AIDS Notification System from the Perspective of Human Rights
July 12,2019   By:
The Improvement of China’s AIDS Notification System from the Perspective of Human Rights
 
MAO Junxiang* & ZHOU Rong**
 
Abstract: China has established a two-level normative structure AIDS notification system with the AIDS Prevention and Control Regulations as the core and local regulations as the supplement. The problem is that the local legislations have different provisions with regard to the subject of notification and whether to adopt mandatory notification, which confronts the implementation of the AIDS notification system and the prevention of AIDS transmission with real difficulties. The different attitudes of local legislations to the mandatory notification system for AIDS essentially reflects the dilemma of legislators in balancing the right to privacy of HIV-infected patients and the right to health of their sexual partners. From the perspective of rights limitations, this paper aims to conducts interest balance analysis in the aspects of social urgency, public interest, substantive damage and the right to know of others and holds the view that when these two rights conflict with each other, priority should be given to the right to health of HIV-infected patients and their sexual partner as well as public health. In terms of specific systems, the AIDS Prevention and Control Regulations should establish a mandatory notification system and local legislation should take into consideration of local conditions to make specific provisions on issues of notification subject, notification procedures and confidentiality obligations after notification.
 
Keywords: AIDS; notification system; right to privacy; right to health
 
I. The Legislation Mode and Basic Characteristics of China’s AIDS Notification System
 
A. A two-level normative structure with administrative regulations as the core has been established
 
The AIDS notification system originated in the practice of European countries and the United States. In 1936, Sweden applied the sexual partner notification system to control the spread of syphilis for the first time. In 1986, the US Centers for Disease Control and Prevention (CDC) suggested to use the system in the prevention and control of AIDS. In January 1989, the World Health Organization (WHO) organized an international meeting during which the consensus on the role and methods of AIDS notification as a part of the comprehensive HIV prevention program was reached.
 
China has gradually developed the legislation mode into a two-level normative structure based on administrative regulations at the national and local levels since the 1980s. With the approval of the State Council, the Ministry of Public Health, the Ministry of Foreign Affairs, and the Ministry of Public Security of China jointly issued Provisions for The Monitoring and Control of Aids on January 14, 1988. In 2004, the 11th Meeting of the Standing Committee of the Tenth National People’s Congress revised the Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases. In article 3, AIDS is determined as a Class B infectious disease. In article 24, it is stipulated that people’s governments at all levels shall improve their work in preventing and treating the AIDS and take preventive and control measures to guard against the spread of the AIDS. On January 29, 2006, the State Council promulgated the Regulation on the Prevention and Treatment of HIV/AIDS. Article 38 clarifies the obligations of notification by people who are HIV positive or AIDS patients. It is stipulated that people with HIV/AIDS should inform the fact they are infected with the virus or suffering from the AIDS to their sexual partners and take necessary precaution measures to prevent others being infected. According to article 42, staff in medical care and health institutions shall inform the person who is diagnosed HIV positive or an AIDS patient; when the person has non-behavioral capacity or limited behavioral capacity, medical staff shall inform the fact to their guardian.
 
So far, many provinces, municipalities directly under the central government, autonomous regions, and comparatively large cities have promulgated local regulations or other normative documents to implement the Law on Prevention and Treatment of Infectious Diseases and Regulation on the Prevention and Treatment of HIV/AIDS. The local legislation adopts different approaches to mandatory notification system for AIDS in these provinces, municipalities directly under the central government, autonomous regions and comparatively large cities.
 
In the first category, it is stipulated in some local regulations or normative documents that people who are HIV positive or AIDS patients should fulfill the obligation to inform their sexual partners, which is basically the same as the provision in the Regulation on the Prevention and Treatment of HIV/AIDS. For example, it is stipulated in article 31 of the Regulation on the Prevention and Treatment of HIV/ AIDS of Jiangsu Province that people with HIV/AIDS should inform the fact of being infected or suffering the disease to their prospective marriage partner before registration of marriage. According to article 27 of Measures for the Prevention and Treatment of HIV/AIDS of Hubei Province, people with HIV/AIDS should inform their true situation to their prospective marriage partner before they apply for marriage. According to article 20 of Regulation on the Prevention and Treatment of HIV/AIDS and Venereal Diseases of Taiyuan City that people with HIV/AIDS should inform the fact of being infected or suffering the disease to their prospective marriage partner before registration of marriage.
 
In the second category, the subjects of notification obligation are expanded to medical institutions with the system of notification of both people with HIV positive and AIDS patient and the medical institutions in some local regulations or normative documents. Mandatory notification system is also adopted by some local legislation. According to the design, staff in medical care and health institutions shall inform the sexual partners of people with HIV/AIDS directly or inform the sexual partner of people with HIV/AIDS when a patient fails to fulfill their obligation to notify their partner. For example, it is stipulated in article 20 of Regulation on the Prevention and Treatment of HIV/AIDS of Yunnan Province that people with HIV/AIDS shall inform the fact to their spouse or sexual partner in time; if they fail to do so, the disease prevention and control agency at their place of residence has the right to do so. Meanwhile, according to the Notice on Issues of Notification about the AIDS Test Result of the Department of Public Health of Yunnan Province, if people who are HIV positive refuse to inform their spouse, the disease prevention and control agency should inform the result to the spouse in appropriate manner within a month and provide corresponding testing and counseling services. According to Standards for Notification of HIV Positive Result of Gansu Province (trial) , the targets of notification include people who are HIV positive, their spouse or sexual partner. People with HIV/AIDS should inform the situation to their spouse or sexual partner within a month after the notification of the responsible unit to them. Similar regulation could also be found in Regulation on the Prevention and Treatment of HIV/AIDS of Guangxi Zhuang Autonomous Region. According to article 36 of Regulation on the Prevention and Treatment of HIV/AIDS of Zhejiang Province implemented on March 1, 2007, for people with HIV/AIDS, qualified medical personnel trained by health administration of provincial people’s government should inform the result of diagnosis to relevant person, their spouse or guardian. Meanwhile, it is stipulated in article 42 that people with HIV/AIDS patient should inform the fact to their prospective marriage partner before registration of marriage. According to article 32 of Regulation on the Prevention and Treatment of HIV/AIDS of Shaanxi Province, medical personnel from local disease prevention and control agency shall inform the diagnosis result to the spouse or guardian.
 
B. Unbalanced development of institutional norms for AIDS notification
 
Considering the Regulation on the Prevention and Treatment of HIV/AIDS promulgated by the State Council and local regulations or normative documents of different places, the status quo of legislation for the AIDS notification system in China has the following characteristics.
 
First, from the perspective of legislation technique, part of the local regulations or normative documents directly copy the Regulation on the Prevention and Treatment of HIV/AIDS and some others impose more stringent regulations. Generally speaking, the local regulations or normative documents of different provinces, municipalities directly under the central government, and autonomous regions are either strict or lenient on the basic of the need for prevention and treatment of AIDS in the region. The first kind completely copies Regulation on the Prevention and Treatment of HIV/ AIDS. Declarative provisions to be put into specific and detailed articles by local legislative bodies are mechanically imitated without such elements as behavioral patterns and legal consequences. Such repetitive legislation cannot achieve the objective of the Regulation on the Prevention and Treatment of HIV/AIDS. The second kind considers the local situation. With the formulation of mandatory notification obligation, the obligation is extended to third-party organizations to improve the effect of the implementation of the notification system.
 
Second, from the perspective of institutional design, the local regulations or normative documents of different provinces, municipalities directly under the central government, and autonomous regions show great diversity in the provisions for the AIDS notification system. The required subjects, deadlines, and objects for notification are different and some even fail to make it mandatory. For example, Yunnan Province makes the notification mandatory while Hunan Province directly copies the Regulation on the Prevention and Treatment of HIV/AIDS with merely a declarative notification system. The subjects of notification in Yunnan include the patients and the disease prevention and control agency at their place of residence while the subjects of notification in Zhejiang include the patients and qualified medical personnel trained by health administration of provincial people’s government. Gansu Province makes it clear that the patients should inform their sexual partner within a month while many other provinces have no clear provisions on it. In addition, the subjects of notification vary from sexual partner, spouse, to guardian. In short, although the diversity of local regulations and normative documents of different provinces, municipalities directly under the central government, and autonomous regions is in line with the basic condition of adapting to the local conditions in legislation, it shows that the legislation of AIDS notification system in China is immature and inconsistent. The notification system stipulated in the Regulation on the Prevention and Treatment of HIV/AIDS plays limited guidance role in local legislation.
 
Therefore, although China has established its AIDS notification system in terms of national and local regulations, the provisions on the subjects, obligation, and objects of notification are different and the strengthen and measures of notification are unbalanced, which directly results in the predicament in promotion of AIDS notification system and preventing and controlling of the spread of AIDS.
 
II. Predicament of China’s AIDS Notification System and the Rea-sons
 
A. Practical predicament of China’s AIDS notification system
 
After the promulgation and implementation of the Regulation on the Prevention and Treatment of HIV/AIDS and local regulations or normative document of different provinces, municipalities directly under the central government, and autonomous regions, the regulations and understanding of different places to the notification system are different. According to article 68 of the Law of the People’s Republic of
 
China on Prevention and Treatment of Infectious Diseases, the disease prevention and control institutions have legal liability for purposely divulging information and materials relating to personal privacy of an infectious disease patient, a pathogen carrier, a suspected infectious disease patient, or persons in close contact with such patients. Articles 22 and 63 of the Law on Practicing Doctors of the People’s Republic of China also stipulate the obligation of the health department and medical personnel to protect the personal privacy of patients and the legal liability for breach of it. Therefore, the controversy surrounding the notification system includes: whether is it necessary to establish a mandatory notification system when people with HIV positive and AIDS patient are reluctant to fulfill the obligation of notification? Does the mandatory system infringe the right of privacy of people with HIV/AIDS?
 
These doubts or concerns have resulted in a series of problems in practice. First, due to the particularity and harmfulness of AIDS, the information of the patient would be leaked when medical staff informs the situation to the sexual partner of the patient. As a result, the health departments in China generally choose to let the infected people inform their sexual partners on their own and mobilize them to participate in testing and counseling relevant to AIDS.1 Second, the medical personnel in provinces without making the notification their obligation would generally not inform the situation of people with HIV/AIDS to their sexual partners in practice. Once the sexual partners of people with HIV/AIDS are infected with the virus, serious medical disputes will result when they learn that the medical personnel fail to inform the situation to them. In 2015, Mr. Xin from Henan Province was infected with HIV by his wife after marriage. When he learned that the municipal disease control center and the hospital for premarital health check-ups failed to inform the situation to him, he sued the hospital and the municipal disease control center for infringement of his right to know.2 Third, different regulations and measures for AIDS prevention and treatment in different provinces, municipalities directly under the central government, and autonomous regions would cause people with HIV/ AIDS in regions implementing mandate notification system to test in other places to avoid their sexual partner being informed, which would increase the difficulty in AIDS prevention and treatment. Finally, the rate of notification by people with HIV/ AIDS patient is low in places without mandatory notification system. However, people with HIV/AIDS in places with a mandatory notification system would develop a rebellious psychology and be reluctant to go to hospital for examination or further treatment, so it is against the initial objective of the notification system.
 
B. Conflict between the right to health and the right to privacy as the core of the problem
 
The mandatory AIDS notification system requires medical institutions inform the situation to the sexual partner of people with HIV/AIDS when they fail to fulfill the obligation to inform to ensure the right to be informed of their sexual partner. The mandatory notification system should be supplementary and supportive. In essence, it ensures that the sexual partner of AIDS patients or people infected with the virus are informed of the situation to protect their right to health and right to be informed and thus avoid regional public health problems. The controversy over the mandatory notification system for sexual partners of people with HIV/AIDS is actually the dispute over the priority over the protection of the right to privacy of people with HIV/ AIDS and the right to health of their sexual partners and even public health. AIDS is a socially mediated disease. The discrimination against sex workers, drug abusers, gay, lesbian, bisexuality, and transgender groups affects the public cognition and results in their condemnation and inaction.3 As a result, it is of vital importance to protect the right to privacy of people with HIV/AIDS. Due to the particularity of the AIDS epidemic, sexual relationships with people with HIV without being informed of the situation would greatly increase the chance of infection by their sexual partner. In this way, it is also of great significance for people with HIV/AIDS to fulfill their notification obligation in order to protect the right to health of their sexual partner.
 
The Regulation on the Prevention and Treatment of HIV/AIDS clarifies the obligations of notification by people with HIV positive and AIDS patient to their sexual partners. It is a declarative provision in nature, because it clarifies the notification obligations of people with HIV/AIDS but not provides specific measures or supporting policies for fulfilling the obligation. When people with HIV/AIDS actively fulfill their notification obligation, the protection of their right to privacy and the right to health of their sexual partner is in a balanced state. The right to health of the sexual partner can be guaranteed if appropriate measures are taken. Should people with HIV/AIDS fail to fulfill the notification obligation, the balance would be broken and even cause conflicts. Nevertheless, there are no clear provisions in terms of legislation to solve the conflicts between the two basic rights.
 
First of all, the principle of value rank cannot be used to solve the conflict because the rank of two rights is the same. Both the right to privacy and the right to health are basic human rights in the Constitution of China. There are provisions on protection of the right to privacy and the right to health in the General Principles of the Civil Law and Tort Liability Law respectively. The basic order of precedence for the rights protected by modern Tort law is from the rights of the person to the right to property and then the economic benefits.4 Both the right to privacy and the right to health belong to the rights of the person. As for the rank of rights, the two are the same. Besides, there are no specific provisions on the solution for the conflicts between the right to privacy and the right to health in the Constitution, the General Principles of the Civil Law or Tort Liability Law.
 
Second, the Regulation on the Prevention and Treatment of HIV/AIDS clarifies both the role to protect the right to privacy of people who are HIV positive or AIDS patients and the function to ensure the health of their sexual partner and public health, so there is no precedence of one over the other. According to article 39 of the Regulation on the Prevention and Treatment of HIV/AIDS, any units or individual shall not disclose the name, address, work unit, portrait, medical history, or other information to reveal the identity of people who are HIV positive or an AIDS patient without the consent of them or their guardians. The provision demonstrates the protection of the right to privacy of people with HIV/AIDS. However, it is stipulated in article 1 of the Regulation on the Prevention and Treatment of HIV/ AIDS that the present Regulation is formulated in accordance with the Law on the Prevention and Treatment of Epidemic Diseases for the purpose of preventing and controlling the occurrence and spread of HIV/AIDS, and ensuring physical health and public health. It can be concluded from the interpretation of the purpose that the Regulation is formulated to ensure public health. In addition, it is stipulated in article 38 of the Regulation that people with HIV/AIDS should fulfill their obligation to inform their sexual partner, which means that the protection of their right to privacy is not absolute.
 
III. Theoretical Reference for Getting out of the Predicament of AIDS Notification System: Limitation of Right
 
As one scholar once said, “the order and precedence of rights have no integrated certainty, so it could not form the pre-existent map like ‘table of chemical elements”.5 Both the right to privacy and the right to health are basic human rights in the Constitution of China, so they are equal in terms of the rank of rights. When there is a conflict between the values of law at the same rank, it is necessary to comprehensively consider the special circumstances as well as demand and interest to balance the interests of both parties for settlement of the problem. To this end, the theory on limitation of rights should be adopted to analyze how to solve the conflict between the right to privacy of people with HIV/AIDS and the right to health of their sexual partners and public health.
 
A. Weighting of the right to health, public health, and the right to privacy
 
Conflict of rights is not a false proposition and it is not rare in legal practice. Such factors as economic development, the development of the rule of law, and the awareness of rights result in the existence of conflicts of rights.6 Rights have four attributes, namely self-causing, other-involving, other-excluding, and boundary vague attributes. These four attributes of rights could trigger conflict.7 In fact, the social development, the limitations of the legislators, and even the ambiguity of language could result in the ambiguity of boundaries between different rights and thus cause conflicts of rights. There are different choices for the conflicts of rights, like assessment of an individual case. Because AIDS is relevant to the issue of public health, weighting of benefits should be adopted for coordinating the right to privacy of people with HIV/AIDS and the right to health of others and public health.
 
The first thing to be considered is the social urgency. Social urgency is the main factor in judging whether a certain right or interest is more important than another, so it could solve the problem of the necessity to limit one right for protecting another. In a modern society ruled by law, limitations on a certain right are often realized by legislation and most of them are reasonable. Nevertheless, the reason for frequent abuse of limitations on rights is the violation of the necessity standard. HIV will be carried for life once infected. Because the current technology couldn’t eradicate the virus completely, patients can only enhance their resistance to infection by taking medicine on a long-term timely basis. With the development of science and technology, social networks are accelerating the spread of HIV in marginalized communities,8 which poses a threat to the health of a larger population. As Boden Heimer said, there are “orders” and “sequences” between certain conflicting rights. The right to life is the reasonable prerequisite for protection of other interests (all individual rights in particular), so it should be superior to the right to property. The right to health is more important than the right to enjoyment or entertainment.9 The essence of the mandatory notification system is to ensure that the sexual partner of people who are HIV positive or AIDS patients is it aims to lessen their chance of infection and prevent the further spread of the virus. Therefore, considering that there is lack of the medical technology for curing AIDS and the HIV infection is irreversible, the social urgency for protection of the right to health of others and public health is higher than that for protection of the right to privacy of people who are HIV positive or AIDS patients. When people infected with the virus are reluctant to fulfill the obligation of notification for,10 the right to health of their sexual partner or even the public health will be at risk. As a result, it is necessary to enforce the mandatory notification system.
 
The second thing to be considered is public interest. It is the inevitable choice for the public to give priority to the protection of the right to health of the sexual partner of people with HIV/AIDS. Studies at home and abroad show that sexual partner notification is beneficial to people who are HIV positive, the informed, and the work of preventing and treating AIDS and relevant management.11 If the sexual partner notification system is not implemented, the chance for people with HIV positive or AIDS patient to transmit the virus to their sexual partner will increase. Such transmission could result in public health problems and greatly harm the interests of the country and society. In April 1993, a man imprisoned in Berkshire Prison in eastern Pennsylvania was diagnosed HIV positive. Based on the list of people with sexual relation or needle-sharing relation to him provided, 124 people were confirmed to be HIV positive by May 1994.12 The basic right oriented to public interest should be of higher priority to that for personal interest.13 Although the right to health and the right to privacy are basic rights of citizen, it is reasonable to limit the right to privacy of AIDS patients for better prevention and control the occurrence and prevalence of AIDS in the whole society.
 
The third thing to be considered is the substantial damage. The protection of one right or interest of higher importance in the context of the limitation of rights would often cause substantial or non-substantial damages or impediment to another’s rights or interests. Generally speaking, “a country should not use the limitation of right excessively in order to avoid substantial damage to right and freedom.”14 Assessment of the substantial damage could prevent the expansion of limitation to right. The target of mandatory notification system is the sexual partner of people with HIV/AIDS not the whole of society and the information is limited to notification of the disease but not other individual privacy rights. For implementation of the sexual partner notification system, the intervention of the right to privacy of people with HIV/AIDS is both relevant and limited, so it would not cause substantial damage to their right to privacy.
 
The last thing to consider is the issue of corresponding rights. The corresponding rights to the right to privacy of people who are HIV positive or AIDS patients is the right to be informed by their sexual partner. Generally speaking, individuals do not enjoy the right to be informed of the health condition of the sexual partner. It is not required to inform a partner of a non-communicable disease. However, the situation changes for people with HIV/AIDS. Because the social behavior based on sexual relationship between sexual partners could probably result in the other party being infected with the virus and endanger the society with external radiation effects. Therefore, law should impose a stricter obligation of self-restraint on people who are HIV positive or AIDS patient as well as the obligation to inform their sexual partners. As a result, the sexual partners of people with HIV/AIDS enjoy the corresponding right to be informed. This point has been confirmed in Regulation on the Prevention and Treatment of HIV/AIDS. According to paragraph 2 of article 38, people with HIV/AIDS should inform their status to their sexual partner. Therefore, it is believed that the sexual partners of people who are HIV positive or AIDS patients should enjoy the right to be informed of the health condition of people with HIV/AIDS based on the social behavior of sexual relationships, individual health, and public health. In order to protect the exercise of this right to be informed, notification obligations should be imposed on both people who are HIV positive or AIDS patient and specialized agencies.
 
B. Practice of limitation of rights out of China
 
The relationship between the right to health and the right to privacy and the solution for the conflict between them are reflected in International Human Rights Conventions, regional multilateral treaties, and domestic legislation of some countries. The right to health is a universally recognized basic right. The right to maximize the health level is solemnly included in the Charter of the World Health Organization (WHO), the Universal Declaration of Human Rights, and International Covenant on Economic, Social and Cultural Rights. It has become the liability of a country to protect the right to health which is a widely recognized law in the world.15 The right to health is a moral right. Since every individual should have equal opportunities to develop and pursue their own way of life, a certain level of health protection should be provided for them. From the perspective of the nature of the right to health, a country should respect, protect, and realize the right to health of individuals in legislative, administrative and judicial aspects. Otherwise, it would violate the legal obligation.16 Currently, over 130 countries have included provisions on protection of the right to health in their constitution, accounting two thirds of the total number of countries in the world.
 
Specific legislation for AIDS often requires consultation, informed consent, and strict confidentiality for ex ante and ex post testing.17 It turns out that what used to be considered as something relevant to the protection of individual right is actually careless behavior which could lead to loss of the best opportunities for prevention.18 AIDS is a disease of social medium. Failure to take timely and effective measures would easily result in public health problems. It is reasonable to limit the right to privacy for protection of public welfare. UNAIDS and the World Health Organization encourage countries to promote “ethical partner counseling”. Public health professionals could inform the sexual partner of AIDS patient without the patient’s consent.19
 
In order the keep the balance between individual rights and public interest or the rights of other individuals, the limitation clauses of international human rights conventions allow the State party to limit individual rights under a certain condition. When there is conflict between a right to privacy and the right to health, it is necessary to limit one of them in an appropriate way. The fundamental starting point of the limitation of rights is the social responsibility of rights. The fact that the exercise of rights must take into account some public interests or the rights and freedom of others should be emphasized. The practice of international human rights laws demonstrates that it is reasonable to give priority to the protection of the right to health and public health based on the protection of the public interest. The Universal Declaration of Human Rights allows the limitation on “respect for human rights and the freedom of others” to meet “the just requirements of morality, public order and the general welfare in a democratic society.” Similar limitation clauses could be found in European Convention on Human Rights, the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, American Convention on Human Rights, and African Charter on Human and Peoples’ Rights.20 For example, articles 18 and 19 of the International Covenant on Civil and Political Rights take “public health” as the justification for limitation of the freedom of religious belief and freedom of expression. According to article 17 of the International Covenant on Civil and Political Rights, “No one shall be subjected to arbitrary interference with his privacy”. Generally speaking, the necessary limitation to the right of privacy based on public health under the legitimate conditions is not “arbitrary interference.” According to article 8 of European Convention on Human Rights, public authority could limit the right to privacy and family life for the protection of health or morals, or for the protection of the rights and freedom of others.
 
There are precedents abroad in legislation to limit the right to privacy of people who are HIV positive or are AIDS patients to protect the right to health of their sexual partner. In the United States, a doctor should require people with HIV/AIDS to inform the fact of the HIV infection to their sexual partner or those sharing needles with them, which is called partner notification. People who are HIV positive have three choices: let the consultants of PNAP of the Ministry of Health or CNAP of New York City to inform without revealing their identities; inform their partner with the help of doctor or consultant of PNAP or CNAP; or inform their partner in person. If they choose to inform their partner in person, one consultant of PNAP or CNAP will confirm that their partner is informed together with the doctor. If the situation cannot be confirmed, they would continue to follow up the people with HIV positive or their partner. In Indiana, people who are HIV positive who fail to inform their existing and past partners could be sentenced to imprisonment of 180 days or fined $1,000. In Michigan, when the medical institutions in charge of HIV testing consider the people with HIV positive need assistance for partner notification, they will provide people with a representative of the local health department. In Texas, medical institutions should inform all partners of the people who are HIV positive, regardless of whether the people with HIV positive inform their partner or not.21 In addition, in Iceland and Finland, the law also require medical personnel to truthfully inform people who are HIV positive and their sexual partner.22
 
IV. Preliminary Suggestions for the Improvement of China’s AIDS Notification System
 
A. Basic principles for the improvement of legislation
 
According to such international documents on human rights such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights: in exceptional circumstances, individual rights may be limited for protection of the rights of others or public interest, yet the limitation should not be arbitrary and should meet the principles of legitimacy, necessity, and non-discrimination. Many countries provide the basic principles for limiting the fundamental rights of citizens in their constitution, like the prohibition of arbitrary use of limitation to rights. According to the Basic Law for the Federal Republic of Germany, limitations could be made on the basis of public interest and the interest of others, yet it is stipulated in paragraph 2 of article 19 that “it should not endanger the essence of the fundamental rights in any circumstances.” Similar regulations could be found in constitution or constitutional laws of South Korea, Canada, Japan, Namibia, Malawi, and other countries.23
 
The improvement of China’s AIDS notification system should be under the principles of legitimacy, necessity, and non-discrimination. The first is legitimacy. Mandatory notification should be based on the law, which means that China should make legal provisions to clarify the mandatory notification and make it operational. The second is necessity. On one hand, the notification of medical and health institutions is a supplement to the notification by people who are HIV positive or an AIDS patient on their own but not the pre-measure, so it means that medical and health institutions should inform the spouse or sexual partner of people with HIV positive or AIDS patient under certain condition. On the other hand, the necessity of the notification of medical and health institutions should be highlighted when people with HIV/AIDS fail to fulfill their obligation to inform, which is determined by the corresponding social urgency. The third is non-discrimination. It refers to the fact that medical and health institutions should not adopt unreasonable measures when they fulfill the notification obligation.
 
B. Establishing the mandatory AIDS notification system in the Regulation on the Prevention and Treatment of HIV/AIDS
 
Establishment of the mandatory AIDS notification system reflects the guidelines of “laying emphasis on prevention, and combining prevention with treatment” in article 2 of Regulation on the Prevention and Treatment of HIV/AIDS. With consideration on both the national and regional levels, clauses of mandatory AIDS notification should be added in the Regulation on the Prevention and Treatment of HIV/AIDS. On this basis, local authorities should take detailed measures for the implementation of the mandatory AIDS notification in local regulations.
 
As an administrative regulation, Regulation on the Prevention and Treatment of HIV/AIDS is of higher rank than local regulations on the prevention and treatment of HIV/AIDS, so it should be of wider scope in application, more generalized requirements, and more comprehensive content. Meanwhile, it should reflect the value orientation to protect the right to health of sexual partners and public health first with consideration of the right to privacy of people with HIV/AIDS. Only in this way can it provide a guiding framework for local legislation to avoid the predicament of local legislation in judging the dimension of legitimacy and the strength of innovation. And only in this way can the mandatory AIDS notification system be further implemented. Therefore, the Regulation on the Prevention and Treatment of HIV/AIDS should be revised.
 
First of all, provisions on mandatory AIDS notification should be added in article 42. Medical institutions should perform the notification obligation when people who are HIV positive or have AIDS fail to fulfill the obligation to inform. It could become the bottom line to be activated when people who are HIV positive or an AIDS patient fail to fulfill their obligation. As a result, the following paragraph should be added to article 42, “medical and health institutions should fulfill the notification obligation when people who are HIV positive or an AIDS patient fail to fulfill the obligation to inform their sexual partner within the specified time. The methods, contents and procedures adopted by medical and health institutions in the process should be in line with relevant laws and regulations and shall not infringe the right to privacy of patients.” Similar mandatory notification provisions increased could enhance the protection of the right to health of sexual partners of people with HIV positive and AIDS patient. Inclusion of specialized agencies into the subject of the notification obligation could ensure the actual implementation of the notification. In the second half of the paragraph, the methods, contents, and procedures of the notification by specialized agencies aim at prohibiting the abuse of notification measures for protecting the right to privacy of people with HIV positive or AIDS patient.
 
Second, article 39 of the Regulation on the Prevention and Treatment of HIV/ AIDS should be amended According to article 39, any units or individual shall not disclose the name, address, work unit, portrait, medical history, or other information to reveal the identity of people with HIV//AIDS without the consent of them or their guardians. It is suggested to add an exception clause “except for fulfilling the notification obligation according to law.”
 
Finally, the legal liability of medical and health institutions failing to fulfill the obligation of notification should be added in chapter six of Regulation on the Prevention and Treatment of HIV/AIDS . For example, the sentence that medical and health institutions failing to fulfill the notification obligation shall bear the corresponding legal responsibility could be added in article 55.
 
C. Perfecting the design of mandatory notification system in local legislation
 
Comparing to national legislation, local legislation should be more targeted and operational. Under the framework of the mandatory notification system in Regulation on the Prevention and Treatment of HIV/AIDS, different provinces, municipalities directly under the central government, and autonomous regions should formulate specific provisions based on the local conditions.
 
1. Subject of obligation and targets of mandatory notification
 
Generally speaking, public hospitals and disease prevention and control institutions at all levels can conduct HIV testing and inform the patient whether they are HIV positive or not. Considering the particularity of the mandatory notification of sexual partner, hospitals should report the list of people with HIV positive detected to local disease prevention and control agency which should fulfill the mandatory notification obligation. The reasons are as follows: Firstly, it is stipulated in article 7 of the Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases that disease prevention and control institutions at all levels should do the work of monitoring and forecasting infectious diseases, and of making epidemiological investigation and reporting on the epidemic situation as well as the work of preventing and controlling other diseases, which provides the legal basis for the liability of disease prevention and control institutions at all levels to take the notification responsibility. Second, it is a complicated and sensitive task to notify the sexual partner of people with HIV positive or AIDS patients and requires considerable amount of human and material resources. Generally speaking, hospitals will not actively undertake the work. Third, local disease prevention and control institutions should be more professional in notification and confidentiality management, so the right to privacy of people with HIV/AIDS and their sexual partner can be protected to the maximum level. Fourth, considering the particularity of AIDS, most people who are HIV positive or AIDS patients and their sexual partners will be terrified after being informed of the situation, so it is necessary to provide specialized psychological counseling for them by professionals which can hardly be completed by ordinary hospitals.
 
Based on the principle of necessity, the targets of mandatory notification include people with HIV/AIDS and their sexual partners, which covers their spouse or someone else having a sexual relationship to them. Therefore, it should be clarified in relevant legislation that people with HIV/AIDS should truthfully inform the information of their sexual partner to medical institutions and deliberately concealing and providing of false information should bear legal liability.
 
2. Procedure and deadline for mandatory notification
 
Mandatory notification is not the objective but a supplementary method, so it should follow the principle of legitimacy, necessity, and non-discrimination. The prerequisite for initiating a mandatory notification procedure is that people with HIV/ AIDS refuse to inform their sexual partner. The judgment on whether people who are HIV positive or an AIDS patient have informed their sexual partner should be made in accordance with the result of verification by the disease prevention and control institutions via face-to-face, telephone, or Internet contact with their sexual partner after the deadline. After informing a patient he or she is HIV positive or has AIDS, the disease prevention and control institution should provide psychological counseling to people with HIV/AIDS and remind them to fulfill their obligation to inform their sexual partner. In addition, a deadline for notification should be determined.24 Should the deadline be missed, the disease prevention and control institution should implement mandatory notification. One month is suggested for the deadline.
 
The reasons are as follows: First, when people with HIV/AIDS learn of their situation, they need a period to accept it and convince themselves to inform their sexual partners. Second, the window phase of AIDS is about the biomarkers produced after infection, so it is different for different testing methods. According to the latest technology, the World Health Organization has clearly stated that the window phase is 14 to 21 days.
 
3. Confidentiality obligations under mandatory notification
 
In order to maximize the protection of the right to privacy of people with HIV/ AIDS, confidentiality obligations should be stipulated for the mandatory notification system. It should cover two aspects: First, the sexual partner of people with HIV/ AIDS should have a confidentiality obligation after learning of the fact. Once they leak the information of people with HIV positive or AIDS patient, they should be legally responsible for it. Therefore, it should be stressed in the following two aspects in legislation: First, the spouse or sexual partner of people with HIV/AIDS should not disclose relevant information after being informed. The disease prevention and control institution should require the sexual partner of people with HIV/AIDS to sign a confidentiality agreement and inform them of their legal liability when they implement the mandatory notification. Secondly, the specialized agencies for mandatory notification should implement it in strict accordance with the procedures and pay high attention to the confidentiality of information of both the people who are HIV positive or AIDS patients and their sexual partner. Any violation of the obligation shall be hold responsible according to article 56 of the Regulation on the Prevention and Treatment of HIV/AIDS.
 
(Translated by HU Liang)

* MAO Junxiang ( 毛俊响 ), professor, School of Law of Central South University.
 
** ZHOU Rong ( 周蓉 ), postgraduate Student of School of Law of Central South University. The paper is a periodical achievement of Research on Legalization of Basic Medical Care Service (project approval No. 14JZD025) as a key project of research on philosophy and social sciences of the Ministry of Education in 2014.
 
1. Zhang Yong, “progress in Research on Notification of people with HIV positive to their Sexual partners,” Health Education and Health Promotion 2 (2016).
 
2. Report of Hangzhou Daily on Urban News of Henan TV, Fiancé Collapses for the Secret of His Girl-friend with HIV Positive Kept by the Hospital, accessed October 20, 2018. http://news.ifeng.com/ a/20161202/50352192_0.shtm1.
 
3. Lawrence O. Gostin, Global Health Law (Beijing: China University of political Science and Law press, 2016), 269.
 
4. Boden Heimer, Jurisprudence the Philosophy and Method of Law, trans. Deng Zhenglai (Beijing: China University of political Science and Law press, 1999), 400.
 
5. Lin Laifan and Zhang Zhuoming, “Revised Rank of Right in Conflicts,” Journal of Zhejiang University 6 (2005): 9.
 
6. Liu Zuoxiang, “Several Theoretical Issues on Conflicts of Rights,” China Legal Science 2 (2002): 61-62.
 
7. wang Kejin, “Theory on Conflicts of Rights — An Analysis of Legal positivism,” Law and Social Development 2 (2004): 50-56.
 
8. Samuel R. Friedman et al., “Sociometric Risk Networks and Risk for HIV Infection”, American Journal of Public Health 8 (1997): 1289 - 1296.
 
9. Boden Heimer, Jurisprudence the Philosophy and Method of Law, 415.
 
10. Zhang Yong, “progress in Research on Notification of people with HIV positive to their Sexual partners,” Health Education and Health Promotion 2 (2016).
 
11. Ibid.
 
12. US Department of Health and Human Services, public Health Service, CDC, 1994, “HIV Counseling, Testing and Referral: Standards and Guidelines, Atlanta”, accessed October 20, 2018. https://www.cdc.gov/mmwr/ preview/mmwrhtml/000365 79.Htm.
 
13. Chen Yikai, “Conflict of Fundamental Rights — Focusing on German Law,” (Master Thesis, Law Research Institute of National Taiwan University, 1995), 142.
 
14. Mao Junxiang, “Basic principles of the Limitation of Rights in International Human Rights Conventions and the Implications for China,” Political Science and Law 9 (2010): 140.
 
15. Mao Junxiang, “Study on Right to Health of International Covenant on Economic, Social, and Cultural Rights,” Western Law Review 2 (2008): 118-122.
 
16. Ibid., 15.
 
17. Mao Junxiang, Study on Limitation Clauses of International Human Rights Conventions (Beijing: Law press China, 2011), 20-23.
 
18. Kevin M. De Cock and Anne M. Johnson, “From Exceptionalism to Normalization: A Reappraisal of Atti-tudes and practice around HIV Testing,” ed. Clinical research, British Medical Journal 316 (1998), 290-293.
 
19. UNAIDS and wHO, Opening Up HIV/AIDS Epidemic: Guidance on Encouraging Beneficial Disclosure, Ethical partner Counselling and Appropriate User of HIV Case-Reporting (Geneva: UN AIDS, 2000), 1920, Quoted from Lawrence O. Gostin, Global Health Law (Beijing: CUpL press, 2016), 293 endnote.
 
20. Ronald Bayer and Claire Edington, “HIV Testing, Human Rights, and Global AIDS policy: Exceptionalism and Its Discontent,” Journal of Health Politics, Policy and Law 3 (2009): 301-323.
 
21. American Civil Liberties Union, HIV partner Notification, why Coercion won’t work, New York, March 1, 1998.
 
22. Zhang Yong, “progress in Research on Notification of people with HIV positive to their Sexual partners,”Health Education and Health Promotion 2 (2016).
 
23. Mao Junxiang, Study on Limitation Clauses of International Human Rights Conventions, 17 and 209-219.
 
24. Gao Li, “The Status and Influential Factors of partner Notification among people Living with HIV/AIDS in Lancang County,”paper for Master of public Health, Chinese Center for Disease Control and prevention, 2010, 37.

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