The Treatment of Asymptomatic HIV Infection

By Douglas T. Manning, J.D., D.D.S., LL.M. candidate

Since the discovery of tests to detect HIV infection, the medical and legal communities have each been developing new policies in their treatment of individuals with asymptomatic Human Immunodeficiency Virus (HIV) infection. Universally, authorities regard AIDS as a life threatening, disabling disease, but no such consensus exists regarding asymptomatic HIV infection. Testing HIV positive indicates that an individual has been infected by HIV, but does not necessarily mean that the individual will develop AIDS and its related diseases in his or her lifetime. Authorities have estimated that the average onset of AIDS after HIV infection is approximately 9.5 years. Within the medical community, the standard of care for asymptomatic HIV infection has been continuously evolving. Experimentation with drugs and drug combinations, dosages, and timing of therapy has been ongoing. This uncertainty about asymptomatic HIV infection carries over into the legal community, which must determine what legal rights to afford individuals who test HIV positive, but are asymptomatic of AIDS and its related diseases. Thus, how and when to treat individuals with asymptomatic HIV infection is an issue for both the medical and legal communities.

In Emerson v. Department of Health and Human Services, a Maine district court recently considered whether a mother of a four-year-old child with asymptomatic HIV infection could refuse the recommended medical treatment for HIV infection. The mother, who previously lost a three-year-old, HIV-infected daughter who was taking AZT, an anti-HIV drug, argued that the recommended anti-HIV medication (a triple drug therapy with the acronym HAART) had serious side effects which could kill her son. She argued that the current drug regimen was experimental and would be replaced in future years by more reliable therapies. She stated that the drugs made her son fussy, caused him to whimper in his sleep, and gave him stomach aches, while off the drugs he was a happy and healthy four-year-old boy.

Deciding that the mother could refuse treatment for her son, the court appeared to regard asymptomatic HIV infection as a condition that is not immediately life-threatening. Consequently, it refused to order treatment over the mother's objection. The court declared that the state could only intervene in situations rising to serious abuse or neglect. This conclusion follows the Supreme Courtís position that state intervention to overcome parental rights regarding the medical treatment of their children may only occur in life threatening situations or when treatment is medically necessary. (See Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Wisconsin v. Yoder, 406 U.S. 205 (1972)). Consequently, the Maine court treated asymptomatic HIV infection as a non-life threatening disease and therefore differently from AIDS. (However, the Supreme Courtís recent ruling in Bragdon v. Abbott, held that individuals with asymptomatic HIV infection are covered under the Americans with Disabilities Act in certain situations. SeeBragdon v. Abbott -- Supreme Court Decision Addresses Application of Americans with Disabilities Act to Individuals with HIV).

The Maine courtís apparent view that asymptomatic HIV infection is non-life threatening in its current stage may be short-sighted. The AZT triple cocktail is currently the medical communityís standard of care for the treatment of individuals with AIDS. Since 1996, with treatment, the death rate for individuals with AIDS has dropped 75%, and the onset of infectious diseases related to AIDS in these individuals has dropped 73%. However, this treatment regimen is experimental and can produce serious side effects in some individuals. Additionally, most of the studies and data involve adults, not children, and AIDS, not asymptomatic HIV infection. Therefore, the following questions concerning the treatment of children with asymptomatic HIV infection arise:

As HIV law develops, other courts will have to address these issues.

10/28/98