Author:Neishlos, Aaron

Introduction 726 I. Background: HIV/AIDS, Treatment, and Prevention 728 A. What Is HIV? 728 B. The Demographics of HIV 730 C. HIV Treatment 731 D. PrEP 734 II. Assessing the Current Legal Landscape 740 A. Informed Consent 740 B. Minors' Rights to Consent and the Confidentiality of Medical Treatment in New York 742 1. Minors' Capacity to Consent to Medical Treatment 742 2. Confidentiality of HIV Testing and Treatment 746 a. Testing and Confidentiality: Article 27-f 747 b. Treating HIV As an STI So Minors May Consent Without Parental Involvement 750 c. Governor Andrew Cuomo's 2016 Proposal 751 III. Birth Control 752 A. Background: Minors' Reproductive Rights 754 B. Outcomes of Permitting Teen Access to Birth Control 757 IV. Creating a PrEP Exception in New York State Law 759 A. PrEP Functionally Resemble Birth Control 760 B. Minors Have a Right to Privacy That Covers Access to PrEP 761 C. Why the Arguments Against Expanding Access to PrEP Are Wrong 763 Conclusion 766 INTRODUCTION

Reproductive rights should inform the next phase in HIV prevention. Since the 1980s, medicine has made enormous strides in preventing and treating HIV infections. Today, the Food and Drug Administration ("FDA") has approved forty different drugs to treat HIV. (1) In the last decade, AIDS-related deaths have fallen by more than thirty percent. (2) Still, new HIV infections predominately impact young people. (3) In particular, thirteen to twenty-four year olds accounted for twenty-two percent of all new HIV-infections in 2014 -- a number that has not significantly declined in the last decade. (4) To address these disparities among young people, the law should afford minors the right to access HIV-prophylactic medication.

In 2012, the FDA approved Truvada--otherwise known as Pre-Exposure Prophylaxis ("PrEP")--to prevent HIV infections. (5) PrEP is a once daily pill composed of two antiretroviral drugs that reduce one's risk of HIV infection by ninety-two to ninety-nine percent. (6) The World Health Organization ("WHO"), Centers for Disease Control and Prevention ("CDC"), and United States Public Health Service have all endorsed PrEP as an effective means to reduce the risk of HIV infection. (7) Expanding access to PrEP among thirteen to twenty-four year olds could significantly reduce the persistent infection rate in this demographic--the demographic most at risk of HIV infection. (8)

In New York State, however, a minor (a person under eighteen years old) may consent to medical treatment only in unique circumstances or for specified conditions, such as mental healthcare, substance abuse treatment, or reproductive healthcare. (9) Minors generally do not have the capacity to consent to HIV treatment. (10) PrEP, however, is a prophylactic medication. It functionally resembles birth control in its daily regimen and ability to prevent the long-term health effects of sexual activity: pregnancy for birth control and HIV for PrEP. (11)

Under New York law, a minor may pursue reproductive healthcare without parental consent. (12) Reproductive healthcare includes accessing prophylactic medication, such as the birth control pill. (13) New York should treat PrEP as another prophylactic medication vital to reproductive health. As such, New York should recognize that, under the U.S. Constitution and New York's Public Health Law, minors have a right to privacy that covers their right to access PrEP without parental consent. New York can imbed PrEP within the scope of reproductive healthcare through an Executive Order or Department of Health ("DOH") regulation. If the Executive Branch refuses to act, this policy change should be pursued through litigation. Through a reproductive rights analysis to a minor's right to access PrEP, New York can take important steps toward reducing the threat of HIV infections, ending the AIDS epidemic, (14) and preserving individual autonomy in medical care.

This Article analyzes a minor's capacity to consent to an HIV prophylactic medication, PrEP, through a reproductive rights framework. Part I discusses the history of HIV/AIDS as well as the medical interventions available to treat the infection. It also describes the emergence of prophylactic medication as the next stage in curbing and, potentially, ending the HIV/AIDS epidemic. Part II outlines the law governing a minor's capacity to consent to medical treatment, with a focus on HIV testing and treatment in New York State. Part III discusses the reproductive rights of minors. In particular, Part III recognizes that minors in New York have a right to access contraceptive services without parental consent. Finally, Part IV concludes that a minor's capacity to consent to contraceptive services is similar to the capacity to consent to HIV prophylactic medication. Minors, therefore, should have a reproductive right to consent to PrEP--an HIV prophylactic medication.


    While PrEP is a relatively new medical intervention, treatment and prevention for HIV/AIDS has been available for several decades. (15) This Section examines what HIV is, who it affects, and what prevention and treatment options exist, as well as important and necessary conditions to assess how PrEP can intervene in meaningful and proactive ways.

    1. What Is HIV?

      HIV is the human immunodeficiency virus; infection with HIV leads to a breakdown of the immune system, making the infected person vulnerable to opportunistic infections, often resulting in acquired immune deficiency syndrome ("AIDS"). (16) HIV is transmitted from an infected person to an uninfected person by exposure to blood, semen, vaginal secretions, or breast milk. (17) For transmission to occur, fluid must come in contact with a mucous membrane or damaged tissue or be directly injected into the bloodstream. (18) In the United States, HIV is most commonly transmitted by anal or vaginal sex or by sharing needles with an infected person. (19) The risk of transmission varies, depending on the type of exposure; however, adherence to post-infection medication and treatment can reduce the risk of further transmission by as much as ninety-six percent. (20)

      HIV causes damage by destroying blood cells that help the body fight diseases, known as CD4+ or T cells. (21) Some people develop short-term symptoms within weeks of being infected with HIV, but more often people do not experience significant symptoms for several years. (22) As the HIV virus spreads throughout the body, it destroys CD4+ cells, which weakens the body's immune system. (23) Failure to obtain early treatment for HIV may exacerbate underlying health conditions, such as cardiovascular disease, kidney disease, liver disease, and cancer. (24) AIDS typically occurs in the late-stage of an HIV infection (25) when an infected individual's immune system is severely damaged and unable to fight certain diseases and cancers. (26) Individuals with HIV/AIDS also face increased vulnerability to certain categories of illnesses that attack weakened immune systems. (27) These illnesses, together known as "opportunistic infections," include tuberculosis, bacterial pneumonia, septicemia, and lymphoma among others. (28)

    2. The Demographics of HIV

      There are more than 1.2 million people in the United States living with HIV. (29) As of 2013, approximately 129,000 people in New York State were living with HIV or AIDS, (30) nearly eighty percent of whom live in New York City. (31) In 2013, 3800 new individuals were diagnosed with HIV in New York State, (32) 2832 of whom lived in New York City. (33) In 2014, the number of newly diagnosed individuals in New York City dropped slightly to 2718. (34) The New York City Department of Health and Mental Hygiene ("DOHMH") estimates that one in five HIV-positive people do not know their status. (35)

      Historically, gay, bisexual, and other men who have sex with men ("MSM") have been the individuals predominantly affected by HIV/AIDS. (36) This trend continues in New York State, with MSM comprising approximately seventy-one percent of new HIV infections in 2013. (37) The plurality of these new MSM infections occurred in people aged twenty-five to thirty-four (thirty-three percent or an estimated 966 infections), while thirteen to twenty-four year olds accounted for twenty-three percent of new infections. (38) Thus, fifty-six percent of new infections occur in those thirteen to thirty-four years old. Although most age groups have seen a decline in new HIV infections since 2006, the infection rate for thirteen to twenty-four year olds has persisted, with the number of new infections in 2013 only slightly less than in 2006. (39)

      It should be noted that HIV infection disproportionately affects racial minorities. (40) In 2013, African Americans and Latinos made up only thirty-two percent of New York State's population, but almost seventy percent of estimated new HIV infections. (41) At the end of 2012, there were approximately 496, 500 African Americans living with HIV in the U.S., forty-one percent of all Americans living with the virus. (42) In 2013, African Americans constituted fifty-four percent of total deaths attributed to HIV/AIDS. (43) The estimated HIV infection rate for African Americans was six times higher than that of whites, and the rate for Latinos was five times higher. (44) Nationally, the racial infection rate disparity is even greater. African American and Latino MSM account for eighty percent of new infections of MSM under the age of twenty-five, even though they typically engage in less risky behavior than white MSM. (45)

    3. HIV Treatment

      In contrast to the first fifteen years of the HIV/AIDS epidemic, there are now numerous treatment options available that suppress the virus, allowing individuals to live symptom-free for longer periods. (46) Combining these medications, referred to as HAART (Highly Active Antiretroviral Therapy), (47) limits or slows down the destruction of the immune system and the...

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