Benin: Law No on the Prevention, Care and Control of HIV/AIDS in the Republic of Benin (2005)

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1 Benin: Law No on the Prevention, Care and Control of HIV/AIDS in the Republic of Benin (2005) The law was enacted by the Benin National Assembly in The law guarantees civil, political and social rights without discrimination against people suffering from a Sexually Transmitted Infection (STI) or living with HIV. Excerpts PRELIMINARY TITLE General provisions Article 1: Definitions of terms and concepts HIV: Human Immunodeficiency Virus responsible for the infection. There exist two types of serological status [positive and negative] and several sub-types. AIDS: Acquired Immunodeficiency Syndrome. This is the final stage of the disease characterised by the appearance of opportunistic infections and the increase of the viral mass. PLWH: Person Living With HIV; Person affected by HIV: Any person who has a close relative (father, mother, child, partner) who died because of HIV or who has HIV; STIs: Sexually Transmissible Infections which represent the main entranceway of HIV in the [human] organism; ARVs: Antiretrovirals which act upon the various stages of viral replication; Socio-sanitary structures: Health centres, counselling and outreach centres, public, private, associative, religious or for-profit psycho-social care centres; Care of PLWHs: Provision of medical (consultations, medicine, ARV treatment, minimum set of medical exams), psycho-social and nutritional services; Particular assistance: medical, psycho-social and nutritional services graciously offered to very poor PLWH; Incapables: Persons suffering from mental failure (because of senility or for pathological reasons ) or afflicted with physical incapacity (sick who absolutely need assistance to meet their basic needs); Socio-sanitary service provider: person, grouping, or public, semi-public or private structure which delivers socio-sanitary services; Persons at high-risk: any person who is at high risk of transmission of HIV (professional sex workers, men who have sex with men and injecting drug users) ; Vulnerable Persons: children, women, and all other persons who qualify as incapables; Designated Persons: physical or moral persons legally authorised to deliver medical certificates and any other administrative documents certifying the health status of a PLWH; Employer: Any person or organisation employing workers under written or oral contracts that establish the rights and duties of the Parties, in accordance with legislation and national practice. The Government, the civil service, public and private corporations and particulars can be considered employers. Special arrangement: A modification of working conditions or of the workplace that is reasonably achievable and that enables a PLWH to have access to a job, to work and to obtain promotions. HIV/AIDS counselling: Communication technique which consists in informing the patient on HIV/AIDS, the origin of the contamination, the means for testing, treatment, prevention and the consequences on partners before and after the test. Gender: This is the recognition of the difference between men and women without implying a difference in treatment. TITLE II The Right to information and treatment Article 2 Any person who is afflicted by a Sexually Transmissible Infection (STI) or living with HIV shall enjoy without any discrimination his civil, political and social (housing, education, employment, health, social protection, et cetera.) rights.

2 Any such person has the right to benefit from particular assistance, basic health, treatment and a warrant of confidentiality in his relationships with socio-sanitary personnel. Those persons infected by HIV or suffering from AIDS, and who declare it, benefit from a particular assistance in terms of counselling, psycho-social support, in nutritional, medical and material terms, and receive medical care, in conformity with existing norms and procedures. This particular assistance in terms of counselling, psychosocial support and in nutritional, medical and material terms must be given by the person s family, the State and its deconcentrated and decentralised structures, civil society, communities and any person in a position to provide such assistance. Article 3 Any HIV test shall be conducted with the free and informed consent of the person to be tested and accompanied by pre and post-test HIV/AIDS counselling. For a minor or a person afflicted with incapacity, the consent of the legal guardian may be required. Article 4 A doctor who finds out that a person is infected with HIV or suffers from AIDS has the obligation to inform the patient but shall not under any circumstance divulge this information [to other people]. Notwithstanding, the statistics must be transmitted to the Ministry in charge of health. The doctor s language shall respect the human dignity of the patient and shall not display any rejection of the patient. He shall be sensitive to questions of gender, be precise and understandable. Any person who tested positive to HIV has the obligation to inform his partner, with the support of a counsellor if necessary. The partner(s), on the basis of their free and informed consent, shall be subjected to an HIV test and if found positive, shall receive the necessary information, prevention counselling and appropriate care. The medical staff shall ensure that the elements of information and exchange were properly understood. Article 5 Any person infected or affected by HIV has the right to confidentiality and to respect of his privacy. These rights can only be restricted under exceptional circumstances. Article 6 The doctor or any other person who because of his professional status possesses information on the serological status of a patient, shall not divulge such information to other persons without the consent of the patient, except in the following cases: - case of extreme necessity; - patient not being able to give his consent; - HIV positive person whose behaviour may endanger the health of others; - minors and incapables Article 7 The doctor shall in the case of criminal proceedings and by court order share the results of the HIV test of a patient with the court. TITLE III The impact of AIDS on individuals, society and the world Article 8 Any person suffering from AIDS or infected with HIV shall be given the possibility to disclose his status to the socio-sanitary services. In the event of explicit disclosure of their own HIV positive status to the above-mentioned structures, persons suffering from AIDS or infected with HIV shall benefit from a particular assistance. Such disclosure shall be thoroughly ascertained by a doctor.

3 Children whose parents or legal guardians have passed away because of AIDS shall benefit from a medical assistance and psycho-social help from the community, the State and its deconcentrated and decentralised structures. To this end, a special Fund is created for the fight against AIDS and assistance to people affected by AIDS. A decree taken by the Council of Ministers shall specify how this Fund will be created and how it will operate. Article 9 Persons suffering from AIDS or infected by HIV shall receive all appropriate medical care as specified in article 18 of Law of 3 March 2003 on sexual and reproductive health. Article 10 Any person having reached the specific legal age required, shall enter into marriage with his free and full consent. During the prenuptial medical examination, HIV testing shall be offered to the to-be-betrothed. TITLE IV Medical ethics Article 11 The health agent who has accepted to provide care to a person living with HIV shall: - personally, or with the help of qualified third-persons, deliver all medical care in his power and all medical care that is necessary in the particular circumstance; - always act with rigour, empathy and consideration for the patient Article 12 The health agent who is called upon in an emergency situation to assist a minor or an incapable adult living with HIV has the obligation to provide the required care to the patient even if he was unable to get the consent of the legal guardian in due time. Article 13 The State shall take all the necessary steps to make the medical monitoring of persons at high risk for HIV sex workers, homosexuals, injecting drug users compulsory and encourage voluntary HIV testing. TITLE V - AIDS in the workplace Article 14 An employer, whether in the public, the semi-public or the private sector, may not ask a candidate for a job to undergo an HIV test or include HIV tests in entrance tests/exams Article 15 The refusal to accept a candidate at an entrance test/exam or for a job because of his HIV positive status is a violation of the law. Article 16 Dismissing a worker because of his HIV positive status is unlawful. Article 17 The State and its deconcentrated structures as well as private or semi-public structures shall encourage via measures, donations and subsidies, families and welcoming structures to receive orphans and children rendered vulnerable by AIDS. Article 18 All workplace attitudes or regulations which discriminate or stigmatise a worker because of his HIV status, such as the refusal to grant promotions, the refusal to provide opportunities for internships or other ways of acquiring experience, the denial of social protection, are forbidden.

4 Article 19 When an employee infected with HIV may not continue his usual occupations in the workplace for health reasons, the employer is required to establish a special arrangement enabling the worker to continue his work as long as possible, in accordance with existing regulations. Article 20 All employers in the public, semi-private and private sectors are requested to define and implement a workplace policy for the prevention of STIs/HIV/AIDS and care of PLWH. Article 21 Any socio-sanitary agent infected with HIV in the course of his employment shall benefit from medical and social care. TITLE VI - AIDS and medical insurance Article 22 Insurance providers shall not subject access to insurance schemes to an HIV test. TITLE VII Provisions relating to criminal law Article 23 The violation by any health agent of the ethical rules set out in Title IV of the present law shall be punished according to criminal law provisions. In the event of a repetition of the offence, the offender shall be suspended from exercising his profession for at least five years. Whoever contravenes the afro provision shall be punished to one to three years of imprisonment and a fine of two hundred thouand to one million CFA Francs, or one of these two punishments. Article 24 Any person who through his profession possesses confidential information related to the HIV/AIDS status of a patient and who finds himself guilty of divulging this information will be dealt with according to criminal law provisions relating to the illegal sharing of confidential information. This sentence can be aggravated if this illegal sharing of confidential information caused: - divorce; - loss of employment and/or material goods; - suicide. Article 25 Any health agent who contravenes the provisions of article 12 of the present law shall be punished to three months to one to three years imprisonment and a fine of two hundred thousand to five hundred thousand CFA francs, or of one these two sentences only. The offender may be suspended for a period which cannot exceed six to twelve months. In the event of a violation committed in a private socio-sanitary structure or medical analysis structure, the structure may be denied the right to operate for a period not exceeding twelve months. Article 26 The violation of the provisions in articles 14, 15 and 16 of the present Law shall be punished by a fine of two hundred thousand to one million CFA Francs, notwithstanding any civil actions. In the event of repetition of the offence, the sentences shall be doubled. Article 27 Any person who is aware of his own HIV positive status and who knowingly engages in unprotected sex with a partner without informing the latter of his HIV status, even if the latter is also HIV-positive, shall be punished to five to ten years of imprisonment and a fine of one million to five million CFA Francs.

5 Article 28 Laboratories or similar institutions shall not accept or keep blood, tissue or organs if the sample of blood, tissue or organ has not been ascertained HIV-negative. Article 29 Whoever voluntarily gives, via any possible way, HIV-positive blood to a person shall be punished to lifetime imprisonment. If the act was committed because of neglect, imprudence, carelessness or non-respect of the rules, the offender shall be punished to one to five years of imprisonment. Article 30 Any person who is aware of his HIV positive status and who, by violence, constraint or surprise, engage in unprotected sex of any nature with any person shall be punished to five to twenty years of imprisonment and a fine of three million to ten million CFA Francs. If the act was committed under threat by one or several persons, by a (legitimate, natural or adoptive) relative, or by a person who abused the authority of his functions on a vulnerable person, on an incapable or a minor, the punishment shall be lifetime imprisonment. Article 31 Undertaking biomedical research on a person infected with HIV without having obtained the informed and explicit consent of that person or his legal guardian shall be punished by two to five years of imprisonment and a fine of five million to twenty million CFA Francs. The same punishments are applicable if the biomedical research was practised under circumstances in which the consent was withdrawn. Article 32 Any person who exposes or abandons, or makes someone expose or abandon in a solitary place a child or an incapable adult suffering from AIDS shall, for this act alone, be punished to one to three years imprisonment and a fine of fifty thousand to two hundred thousand CFA Francs, or one of these two punishments only. Article 33 The following persons shall be punished to six months to two years of imprisonment and a fine of one hundred thousand to one million CFA Frances, or to one of these two punishments only: - A father or mother who abandons the family home for more than two months on account of HIV-positive status, thus not fulfilling his moral and material obligations; - A husband or wife who abandons his partner on account of HIV-positive status; - A father, mother or legal guardian who voluntarily abandons his child whom he knows is HIV-positive. Article 34 Whoever counterfeits, falsifies or tampers with medical certificates or other documents relating to HIV/AIDS delivered by the relevant personnel shall be punished to five to twenty years of imprisonment and a fine of three million to ten million CFA Francs. The same punishments shall be applied to persons who knowingly used such counterfeit or falsified documents. Any such attempt shall be prosecuted the same way as the actual act. Article 35 Any violation to the provisions of articles 24 and 25 exposes the offender to a fine of five hundred thousand CFA Francs to a million CFA Francs. In the event of repetition of the offence, the fine shall be doubled.

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