The human right of HIV positive persons to non-discrimination in getting life insurance in South Africa

Abstract

"The insurance industry was among the first to understand clearly the serious nature of the epidemic, as the HIV/AIDS epidemic disintegrates and destabilizes slowly the traditional extended African family system. The extended family, which traditionally constitutes a social safety net in African communities, is not able to cope with the sudden burden of HIV/AIDS orphans, since the age group 20-44 is the most hit by the epidemic. A study commissioned by the Henry Kaiser Family Foundation showed that, by the year 2005, HIV/AIDS is expected to make around one million children under the age of 15 orphans in South Africa. Besides, stigma and secrecy around the disease expose HIV/AIDS orphans to discrimination in their community and even in their extended family. As a result, a large number of HIV/AIDS orphans are abandoned and forced to seek help in the streets, begging for money, a situation that exposes them to abuse and criminality. Since 1988, most insurance companies in South Africa have had a policy of compulsory HIV testing which excludes HIV positive candidates from their scheme. The reason put forward is that they represent an 'unacceptable risk'. According to the National Association of People Living with HIV/AIDS (NAPWA), this is a widespread problem in South Africa. The impact of discrimination in getting life insurance is catastrophic on the lives of people living with HIV/AIDS and their families. As was noted by the Supreme Court of Canada in the case of Zurich Insurance Company v Ontario, there is a fundamental tension between human rights law and insurance practice. Insurance practices, particularly, impedes on equality and privacy rights of HIV positive persons. ... Therefore, at the root of the debate on HIV/AIDS and insurance is the question on how to strike a balance between the need to ensure that insurance companies extend their coverage without being financially endangered and the human and constitutional rights of HIV positive persons. ... The study is divided into five chapters. Chapter one is the introductory chapter. Chapter two examines the principles of insurance as well as the characteristics of HIV/AIDS. It aims at understanding the arguments in favour of HIV testing and exclusion of persons living with HIV/AIDS from life insurance schemes. Chapter three analyses the problem from the perspective of persons infected with HIV. It investigates the impact of the refusal to grant them life insurance because of their HIV status. This chapter shows how the insurance business infringes the rights of HIV positive persons ot non0discriminatory treatment. Chapter four looks at the position of foreign jurisdictions in the conflict of interests and analyses how they have dealt with the human rights implications of insurance companies policy towards the HIV/AIDS epidemic. Chapter five is the concluding chapter, which puts forward redommendations." -- Introduction.