Fetus exposure to HIV infection by mother during pregnancy – legal aspects

Abstract

From the medical and legal points of view, mother to child way of pathogens’ transmission is specific. In case of human immunodeficiency virus (HIV), the highest risk of infection occurs during labor; hence, implementation of pharmacological prophylaxis for the mother and child is of high importance. Criminal law protection of a pregnant woman is of special nature, as it concerns two dependent entities, yet unequal before the law: the mother and the child. Legislators clearly give priority to the mother's life and health over the life and health of nasciturus . The beginning of labor or the moment when objective indications for early delivery occur, are considered to be the beginning of legal protection of life and health of a child, provided that the fetus has reached fetal viability. Only then, it is entitled to full legal protection. A HIV-infected woman who refuses therapy and, therefore, puts her child at risk of becoming infected, may be liable to prosecution. Liability under Article 161 § 1 of the Penal Code arises only when the child acquires the rights of a born person (human rights). Should the infection be transmitted in the perinatal period or after the birth, a mother may be held liable for moderate or even serious damage to the child's health. A physician is required by law to provide his patient with detailed information regarding the ways of HIV transmission, the options to protect the child against infection, and the risks associated with refusal to undergo therapy.