Jake Earl, MA, a Ph.D. Candidate in the Department of Philosophy at Georgetown University, discusses the changing nature of the duty to disclose.

ABSTRACT: People living with HIV receive conflicting messages about whether and when they have a moral duty to disclose their condition to their sex partners. While clinicians and public health officials generally emphasize the privacy rights of HIV-positive persons, prevailing social attitudes and criminal statutes in many states suggest that HIV-positive persons are morally required to disclose their condition to their sex partners. The clinical ethics literature on the duty to disclose is not only similarly conflicted, but it also fails to account for recent empirical data on the risk of HIV transmission given appropriate antiretroviral therapy. In this paper, I argue that HIV-positive persons have a moral obligation to disclose their serostatus prior to sex only if the sex partner cannot give valid consent to the sex act, either because (a) the sex partner is ignorant of the fact that the sex act imposes a significant risk of serious harm, or (b) the sex act does not impose a significant risk of serious harm, but the sex partner is ignorant of the ordinary risks of sex. An important practical upshot of this ethical argument is that advances in HIV treatment are rapidly reducing the number of instances in which these conditions are met, such that many HIV-positive persons in health care contexts like the United States do not plausibly have a duty to disclose their condition to their sex partners.

The O’Neill Institute for National and Global Health Law at Georgetown University Law Center is the premier center for health law, scholarship, and policy. Its mission is to contribute to a more powerful and deeper understanding of the multiple ways in which law can be used to improve the public’s health, using objective evidence as a measure. The O’Neill Institute seeks to advance scholarship, science, research, and teaching that will encourage key decision-makers in the public, private, and civil society to employ the law as a positive tool for enabling more people in the United States and throughout the world to lead healthier lives.

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HIV/AIDS Sexual and Reproductive Health

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