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Originally written in French. Translated into English by Sharon Grevet.

 BURKINA FASO
Unity-Progress-Justice
4th Republic-Fourth Legislature

LAW No. 030-2008/AN

GOVERNING HIV/AIDS AND PROTECTION OF THE RIGHTS OF PERSONS LIVING WITH HIV/AIDS

In view of the Constitution;

In view of Resolution No. 001-2007/AN of June 4, 2007 validating the term of office of members of parliament;

In view of Law No. 23/94/ADP of May 19, 1994 implementing the Public Health Code;

In view of Law No. 034/98/AN of May 18, 1998 implementing the Hospital Act;

In view of Law No. 033-2004/AN of September 14, 2004 implementing the Labor Code;

In view of Law No. 049-2005/AN of December 21, 2005 governing reproductive health;

deliberated in its session of May 20, 2008 and adopted the act whose contents follow:

CHAPTER 1:      GENERAL PROVISIONS

Article 1:

The purpose of this act is to strengthen the fight against HIV/AIDS and to promote protective measures with respect to HIV/AIDS, particularly for persons living with HIV/AIDS, health service providers, persons affected by HIV/AIDS, persons vulnerable to HIV/AIDS and, in general, families and communities.

Article 2:

Under this act, the terms below are defined as follows:

• AIDS: Acquired immunodeficiency syndrome. This is the final stage of the HIV infection and is characterized by opportunistic diseases and increased viral load.
• HIV: Human immunodeficiency virus. This is the virus that causes AIDS.
• ARV: Antiretroviral(s), medications used in the treatment of AIDS, whose purpose is to prevent replication of the virus in the body.
• STI: Sexually transmitted infections.
• Opportunistic disease: Any disease whose onset or worsening is directly or indirectly related to HIV infection.
• Infected person: Any person living with HIV/AIDS, regardless of whether or not he/she develops the disease.
• Sex worker: Any person who practices prostitution.
• Vulnerable person: Any person living in a situation where HIV/AIDS is a threat to his/her health, development, or physical or mental integrity is considered a person vulnerable to HIV/AIDS.
• Stigmatization: Castigating, blaming, demeaning, or punishing a person living with HIV/AIDS.
• Pre-test psychosocial assistance: Information given to a person on the biomedical aspects of HIV/AIDS and the implications of the test results in order to prepare him/her to accept the screening test and its results.
• Post-test psychosocial assistance: Information and aid given to a person who has undergone the HIV/AIDS screening test, intended to help him/her accept the results of the test.
• Risk behavior: Frequent participation in activities that increase the probability of a person transmitting or contracting HIV.
• Confidentiality: Relationship of trust that exists or should prevail between a patient in general or a PLWH in particular and his/her physician or any healthcare personnel, any paramedical personnel, any healthcare, laboratory, or pharmacy worker or any similar worker, as well as any person whose parental, professional, or official prerogatives give him/her access to the individual's health information and [require him/her] to keep it secret.
• Free informed consent: Voluntary agreement, whether verbal, written, or tacit, by a person who consents to undergo a procedure, based on receiving complete information.
• Counseling: Assistance relationship that, through interpersonal communication, enables a person to resolve a problem. In the case of HIV, the person is informed about HIV/AIDS, how it is transmitted, the methods of screening, prevention, and management, as well as the consequences to the person, his/her partners, family, and friends.
• Screening: Identifying an infected individual by direct procedure (HIV test), indirect procedure (assessment of risk behaviors), or a questionnaire on tests previously done or medical treatments taken.
• Mandatory screening: HIV screening test imposed on a person or characterized by lack of consent or by a flawed consent (physical or emotional violence).
• Discrimination: Any distinction, exclusion, preference, or restriction based on a person's actual or assumed serologic status, whose effect is to destroy or impair equal opportunity or treatment.
• Incapacitated person: Protected minor or adult.
• Protected adult: Person over the age of 20 who is subject to guardianship due to impaired physical and/or mental capacity.
• Minor: Person under the age of eighteen years.
• Person affected by HIV/AIDS: Person who has a relative, next of kin, or friend affected by HIV, whose serologic status weighs heavily on that person.
• Person living with HIV (PLWH): Person whose screening test directly or indirectly reveals that he/she is infected with HIV.
• HIV/AIDS prevention: Measures intended to protect those not infected with HIV and minimize the impact of the disease on PLWH.
• Health and social welfare personnel: All social welfare and health personnel who work in the care of persons living with HIV.
• Seronegative: Person with no HIV or anti-HIV antibodies in his/her body at the time of the screening test.
• Seropositive: Person with HIV or anti-HIV antibodies in his/her body at the time of the screening test.
• HIV screening test: Laboratory test done on an individual to determine the presence or absence of HIV infection.
• Anonymous screening test: Procedure where the name of the person being tested is replaced with a code or a symbol enabling the laboratory and the person being tested to learn the results without revealing his/her identity.
• Voluntary HIV screening test: Test performed on a person who has voluntarily agreed to undergo testing.
• HIV transmission: Contamination of a healthy person by another person who is already infected with HIV, most often during sexual intercourse, a blood transfusion, use of contaminated syringes or other objects, or from mother to child.
• Intentional HIV transmission: Deliberate inoculation of another person with substances infected by HIV, regardless of how those substances are used or administered.

CHAPTER 2:      RIGHT TO HIV/AIDS EDUCATION AND INFORMATION

Article 3:

Institutions and organizations that provide HIV/AIDS services are required to keep themselves informed of the state of scientific and technical knowledge relative to HIV/AIDS on a regular basis.

HIV/AIDS service providers shall receive the training, continuing education, and appropriate protective measures against any infection.

Article 4:

The central government, through the ministerial departments, local governments, public and private agencies, civil society groups, and public-service announcement organizations, in cooperation with the National HIV/AIDS and STI Coordinating Organization and the Ministry of Health, shall inform the population about HIV/AIDS and its means of transmission and prevention, as well as its diagnostic and management procedures in case of infection.

Article 5:

The teaching programs of the ministerial departments in charge of education and various training courses shall incorporate modules on the means of transmission and methods of preventing HIV/AIDS and sexually transmitted infections, as well as the overall management of HIV/AIDS.

Article 6:

Employees of the central and local governments, workers in the private sector and the unofficial sector, members of the armed forces and security forces, prisoners, and sex workers shall receive standardized basic training in HIV/AIDS prevention and control in order to correct erroneous ideas about HIV/AIDS.

Article 7:

Any person living with HIV is required to immediately disclose his/her serologic status to his/her spouse or sexual partner.

Article 8:

Support services must provide all psychosocial support necessary for a person to disclose to his/her spouse or sexual partner the fact that he/she is seropositive.

If the person whose serologic status has just been learned is unwilling to comply with the disclosure obligation specified in Article 7, the physician or any other qualified person from the hospital institution or health organizations in question shall see to it that the disclosure is made and that the procedures used are suited to the potential communication and comprehension problems of the patient and his/her spouse or sexual partner(s).

If the person so wishes and with his/her consent, the physician or any other qualified personnel from the hospital institution will be allowed to make the disclosure to his/her spouse or sexual partner or to any other specifically designated person, without violating any medical confidentiality provisions.

With their free consent, the spouse and sexual partner(s) shall have an HIV screening test and, if the results are positive, shall receive the necessary information, prevention counseling, and appropriate care.

CHAPTER 3:  PREVENTION, SCREENING, DIAGNOSIS, SAFE PRACTICES, AND PROCEDURES

Article 9:

All screening shall be done with the free informed consent of the person in question and shall be accompanied by pre- and post-test counseling.

For minors and incapacitated persons, the consent of parents or guardians is required.

The central government shall make all provisions to encourage voluntary screening testing.

However, in cases of organ, tissue, or blood donation, consent for the test is implied when a person voluntarily or freely agrees to make a donation of his/her blood, tissue, or organ for purposes of transfusion, transplantation, or research.

Article 10:

Any person who knows that he/she is infected with HIV shall abstain from having unprotected sexual intercourse with another person.

Article 11:

Any health professional who ascertains that a patient has HIV or AIDS shall take all precautions to so inform him/her, but shall in no event disclose such information except where provided by law.

Article 12:

The Minister of Health, in cooperation with the other affected state agencies, non-governmental organizations, the private sector, and community-based organizations, shall make all provisions necessary to reinforce the measures for prevention, management, and control of sexually transmitted infections in order to prevent propagation of the HIV infection.

Article 13:

It is forbidden for laboratories and similar institutions to accept or preserve a donation of blood, tissue, or organs without a blood, tissue, or organ sample having tested negative for HIV.

However, with the authorization of the Ministry of Health, laboratories and similar institutions may preserve blood, tissue, and organ samples for research purposes.

The recipient of the donated blood, tissue, or organs may demand a second test before the blood is transfused or the tissue or organs are transplanted. In that case, his/her request shall be honored.

CHAPTER 4:  CONFIDENTIALITY AND PROTECTION OF PLWHA

Article 14:

The private or public healthcare institution shall guarantee the confidentiality of the medical, financial, and administrative information on hospitalized PLWH in its possession.

Article 15:

Hospital personnel, non-medical personnel of healthcare institutions, recruitment agencies, insurance companies, banks, data processors, and others who possess or have access to the medical record, test or screening results, or medical information, particularly relative to the identity and serologic status of any person, shall be required to keep confidential such information that they learn on the job or through the performance thereof.

Article 16:

Any person who has a sexually transmitted infection (STI) or is living with HIV shall enjoy civil, political, and social rights (housing, education, employment, health, social protection, etc.) without discrimination.

He/she is entitled to specific assistance, basic care, treatment, and a guarantee of confidentiality in his/her relations with health and social welfare professionals.

Persons who have HIV or AIDS and who disclose the fact shall receive specific assistance including counseling, and psychosocial, nutritional, medical, and financial support; they shall receive medical care meeting current standards and procedures.

The specific assistance including counseling, and psychosocial, nutritional, medical, and financial support shall be provided by the family, the central government and its decentralized agencies, civil society groups, and communities.

Article 17:

There is no basis for concluding that there has been a violation of confidentiality under Article 14 in the following cases:

• when the directors of a healthcare institution comply with the epidemiological requirements specified in the Public Health Code;
• when the healthcare personnel directly or indirectly involved in treating or caring for a PLWH is informed of his/her status;
• when healthcare personnel are called upon to testify in legal proceedings or when determining serologic status is an essential issue of the suit. In that case, the testimony shall be given in writing, in a sealed envelope, which only the proper judicial authority may open;
• when healthcare personnel inform the parents, custodians, or guardians of a minor of his/her serologic status. 

Article 18:

All HIV/AIDS screening test results are confidential and may be released only to the following persons:

• the tested person;
• either parent of a tested minor child;
• the guardian of a tested incapacitated person or orphan;
• the judicial authority that legally ordered the test.

Article 19:

HIV testing is prohibited as a prerequisite for hiring, for admission to academic institutions or universities, for exercising the right to housing, the right to enter and stay in the country, and as a prior condition for exercising the right to travel, obtain medical care, take out insurance or a bank loan, or any other service, or as a prior condition to the inalienable right to enjoy such services.

However, this prohibition shall be waived in the following cases:

• when a person is charged with intentionally contaminating or attempting to infect another person by any means whatsoever;
• when a person is charged with rape;
• when it is necessary to determine HIV serology status to resolve a marital dispute.

CHAPTER 5:  CRIMINAL PROVISIONS

Article 20:

Any person who knows him/herself to be infected with HIV and who knowingly engages in unprotected sexual intercourse with a partner who has not been informed of his/her serologic status, even if seropositive him/herself, is guilty of the crime of intentional HIV transmission and shall be punished as provided by the Criminal Code.

Article 21:

Any individual or entity guilty of discriminatory acts against PLWH shall be punished by one to five years of  imprisonment and/or a three hundred thousand (300,000) to one million five hundred thousand (1,500,000) CFA franc fine.

Article 22:

Anyone who intentionally transmits substances infected with HIV by any process whatsoever is guilty of intentional HIV transmission.

Any person who grants or procures the means of committing the offense specified in the paragraph above shall be considered a party to the intentional transmission.

Those who are guilty of or a party to intentional HIV transmission shall be punished as provided by the Criminal Code.

Article 23:

Anyone who, because of their profession or a duty or assignment, holds confidential information about the health status of an individual living with HIV/AIDS and knowingly reveals it to someone not qualified to share the secret shall be punished by three months to one year of  imprisonment and/or a four hundred thousand (400,000) to one million (1,000,000) CFA franc fine.

The maximum fine is raised to ten million (10,000,000) CFA francs when the offense is committed by the media or multimedia or other mass communication method.

Article 24:

Any individual or entity guilty of any of the following shall be punished by three months to three years of  imprisonment and/or a four hundred thousand (400,000) to one million (1,000,000) CFA franc fine:

• dissemination of information relative to the control and prevention of HIV/AIDS through misleading or false advertising;
• commercial promotion of medications, aids, agents, or procedures without the prior authorization of the Minister of Health and the National HIV/AIDS and STI Coordinating Organization and with no medical and scientific basis;
• printing and indicating that medications, aids, or agents are intended to treat HIV/AIDS or provide protection from the disease with no medical and scientific basis. 

Article 25:

Fraudulently exploiting the ignorance or weakness of a person infected with HIV or affected by HIV/AIDS, either to suggest a false treatment with extortion of funds, or to get that person to consent to a procedure that is clearly harmful, shall be punished by the penalties applicable to fraud.

Article 26:

Any individual who has knowledge of his/her HIV infection status and who does not take the necessary and sufficient precautions to protect his/her partner(s) shall incur criminal sanctions.

Whosoever, knowing that he/she has HIV, does not take the necessary and sufficient precautions to protect his/her partner(s), shall be punished by a hundred thousand (100,000) to one million (1,000,000) CFA franc fine.

If contamination results therefrom, he/she shall incur the penalty for intentional attempted murder under the provisions of the Criminal Code.

CHAPTER 6:  FINAL PROVISIONS

Article 27:

Decrees issued by the Cabinet Ministers shall specify the methods for enforcing this act.

Article 28:

This act shall be executed as a law of the land.

Deliberated and decided at a public session in Ouagadougou on May 20, 2008. For

The President of the National Assembly, the Fourth Vice President
Toussaint Abel COULIBALY

The Secretary for the session
Bénilde Laounikoun SOMDA

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