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Golden Gate University Law Review

Abstract

This article will explore why pregnant women with HIV disease have become the focus of some of the most deeply-rooted value judgments about women and HIV, and how certain governmental policies, including state statutes, and local medical practices by hospitals, doctors and health clinics, raise reproductive freedom issues for pregnant women and women of childbearing age in the context of AIDS and HIV infection. Part I discusses the overall demographic picture of women with HIV disease, particularly as it relates to the interconnection between substance abuse and the transmission of HIV disease to women, and its affect on the numbers of children born infected with HIV. Part II addresses the current "attack" by the media and the criminal justice system on pregnant women who use illegal drugs; with this backdrop, the analysis compares certain criminal statutes which affect pregnant women, and argues that the focus on the "tragedy" of fetuses being exposed to drugs has led to a fear of possible fetal exposure to the HIV disease virus, which, in turn, has led many states to adopt statutes which would criminalize certain HIV transmission related practices during pregnancy. Part III focuses on the reproductive rights issues affecting pregnant women with HIV disease, specifically, policies ranging from: HIV screening and counseling; general refusal to treat HIV patients; and denial of access to abortions; to suggestions of sterilization to reduce the number of children with HIV disease. Given society's attitudes and the government's policies of punishment for people with HIV disease generally, combined with the increased powerlessness and dire health needs of HIV positive women, one must ask, what is to become of the institution of motherhood for women with HIV disease? Are we on the path, as one author posed, of "outlaw[ing] motherhood for HIV-infected women"?

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