As the New York Times reported this week, in an article entitled “Another Use for Rapid Home H.I.V. Test: Screening Sexual Partners,” some in the public health community are exploring the ramifications for a use of the new OraQuick home HIV test that the company has been somewhat coy about: using it to test a new partner before sex, which may be particularly likely in the gay community. On November 5, 2012, the Petrie-Flom Center (in collaboration with Fenway Institute and Center for Health Law and Policy Innovation) will be hosting a great live panel (open to the public) “Advances in HIV Prevention: Legal, Clinical, and Public Health Issues,” focused in part on the OraQuick test and also on Pre-Exposure Prophylaxis (Truvada). The event will also be webcast after the fact.
Unfortunately, I’ll be in Malaysia touring hospitals as part of the research on my new book on medical tourism during the event, but I thought I’d use this forum to share some of my thoughts/questions about the use of these tests for partner screening. Here they are in a few different boxes:
The Medicalization of Intimacy: Is there something problematic about intimate sexual conduct becoming a medicalized affair to some extent? We are not all the way to the scene in Gattaca where Uma Thurman plucks a hair from Ethan Hawke to genetically profile him before deciding whether to pursue him romantically, but this use of OraQuick does interpose a medical technology into a sexual relationship. Now there may (more on that below) be public health benefits such that the development is all-things-considered for the best, but is something lost when this happens? Perhaps a separate spheres concern when technology is used to replace trust/intimacy? Or is this overblown? How will this affect the personal lives of individuals with HIV, and is that relevant?
Overreliance and the Effect on other STIs: The Times Article suggests that the designers of the test have made a specific choice as to Type 1 v. Type 2 errors: “It is nearly 100 percent accurate when it indicates that someone is not infected and, in fact, is not. But it is only about 93 percent accurate when it says that someone is not infected and the person actually does have the virus, though the body is not yet producing the antibodies that the test detects.” Will individuals who do partner screening internalize these numbers or will they go right from a negative test to no condom use, not processing the 7% risk the test is incorrect? Moreover, even if correct, will the test lead to (a) internalization of poor sexual health practices (no condoms) that users will carry over to encounters where they do not use the test, and/or (b) the spreading of non-HIV STIs like gonorrhea (the New Yorker recently gave a terrifying account of the rise of antibiotic-resistant gonorrhea)? What is the tort liability for the company in one of these situations, if any? If we think some individuals will be bad decision-makers and put themselves at greater risk for non-HIV STIs (not saying the data is there, just asking “what if” or the sake of argument) should that be relevant as to whether such tests should be available/approved? Do the numbers matter? Or is it the case that if even one person might avoid an HIV infection that would outweigh, from a policy perspective, an increase in other STIs of a large size? Those who have followed my writing and blogging on health care rationing can probably guess where I stand on the issue…
State Subsidies: As the Times article hints, at $40 a test, many of the people most at risk for transmission will not be the ones able to buy these tests. Should Medicaid be covering it or should the state otherwise subsidize the tests? Probably a non-starter politically, although the HPV-vaccine made for some strange bedfellows in some states.
Responsibility for Health and Solidarity: If the test is widely available, will we at some level blame people who don’t use it and get HIV? This is intimately related to the question of responsibility for health and luck egalitarianism more generally (For good recent treatments of the subject see Shlomi Segall, Health, Luck, and Justice (2010); Daniel Wikler, Personal and Social Responsibility for Health, 16 Ethics & Int’l Aff. 47 (2002); Elizabeth Anderson, What is the Point of Equality?, 109 Ethics 287 (1999)). As I put a parallel issue in a recent paper:
This point is nicely captured in an exchange between Michael Sandel and Frances Kamm on the morality of human enhancement. Sandel expresses the worry that if enhancement is permitted, individuals who fail to enhance themselves, and therefore have larger needs for public assistance, will not receive that help because social solidarity will be eroded. Michael Sandel, The Case Against Perfection, THE ATLANTIC MONTHLY, Apr. 2004, available at https://www.theatlantic.com/past/docs/issues/2004/04/sandel.htm. Kamm responds that it does not follow that our entitlement to social support will be diminished in the case of our (or our parent’s) choice not to enhance, because our entitlement to support may be independent of choices we make. As she writes, “These are conceptually two separate issues. For example, suppose someone is at fault for acting carelessly in using his hairdryer. If he suffers severe damage and will die without medical treatment, his being at fault in a minor way does not mean that he forfeits a claim on others he otherwise had to free medical care.” Frances M. Kamm, Is There a Problem with Enhancement?, 5 AM. J. BIOETHICS 5, 12 (2005).
But there is a big gap between the philosophical “right answer” on the issue and what we predict to happen as to social support.
Criminal Law: As Scott has recently blogged about, some states impose criminal liability for knowingly or recklessly infecting someone with HIV. In such states, should the fact that the victim could now use an OraQuick test and have avoided this outcome, be relevant under the logic of these statutes, perhaps constituting a kind of defense?
As usual more questions than answers, but I think this development is fascinating from both a social and legal perspective and cannot wait to watch the webcast of the Harvard panel on these issues.