The Global Gag Rule and HIV/AIDS Assistance

U.S. HIV/AIDS assistance is exempt from the gag rule.

None of the funds flowing from PEPFAR – or from any other U.S. government source of HIV/AIDS assistance, including USAID bilateral programs in non-PEPFAR countries – for HIV/AIDS-related services are subject to the gag rule restrictions.The gag rule restrictions only apply to family planning assistance provided by USAID and by the State Department.

USAID’s Guidance on the Definition and Use of the Child Survival and Health Programs Fund issued in July 2004 suggests that family planning counseling and referral services may be supported with HIV/AIDS funds as part of a comprehensive approach to preventing mother-to-child-transmission (MTCT) of HIV where a direct contribution to increased access to MTCT services can be demonstrated. In this situation, the gag rule would not apply since the activity would not be construed as a “family planning assistance” intervention.

However, activities that are jointly supported with family planning and HIV/AIDS funds are subject to the gag rule. For example, if a youth-focused HIV/AIDS assistance project is supported with funds from both family planning and HIV/AIDS accounts, the entire project is subject to the gag rule restrictions. In any project that is co-funded with family planning assistance and other health funding, regardless of the amount of family planning dollars involved, the gag rule restrictions apply.

Foreign NGOs that refused the gag rule restrictions on U.S. family planning assistance are eligible to receive HIV/AIDS assistance.

Family planning NGOs providing relevant HIV/AIDS services as part of a package of sexual and reproductive health care can receive U.S. HIV/AIDS assistance.

A foreign NGO’s eligibility to receive U.S. family planning assistance is irrelevant to its eligibility for HIV/AIDS assistance. No legal or policy restriction prohibits providing HIV/AIDS assistance to such a foreign NGO. 

The U.S. Global AIDS Coordinator, USAID country missions,U.S. Cooperating Agencies, or foreign NGOs may provide HIV/AIDS assistance to foreign NGOs otherwise ineligible for U.S. family planning assistance. Programmatic discretion is provided to U.S. officials, and decisions can be based on whether the nature and quality of an organization’s HIV/AIDS services and its history of involvement make it a logical partner for U.S. government-supported efforts in a given country.

In many developing countries, family planning and reproductive health NGOs are experienced providers of HIV prevention and screening services to two critical populations – women and youth.These NGOs have extensive, well-developed networks of community-based volunteers to provide HIV education, referrals and condoms. Many possess the clinical capacity and infrastructure to provide basic HIV counseling and testing, while others are participating in national programs to prevent mother-to-child-transmission through existing obstetric care services, or providing home based care to clients. Involving these providers in U.S.- supported HIV/AIDS programs will augment and strengthen the overall effort to prevent and treat HIV/AIDS.

The gag rule does not apply to U.S.-donated condoms and other commodities purchased with HIV/AIDS funds.

Foreign NGOs, even those no longer receiving U.S. family planning assistance because they refused the terms of the gag rule, are eligible to receive male and female condoms purchased through USAID’s Commodity Fund or with PEPFAR funds for purposes of HIV/AIDS prevention. In addition, other commodities, equipment, and technical assistance may be provided to these NGOs using HIV/AIDS assistance.

U.S. and foreign NGOs receiving HIV/AIDS assistance may engage in lawful abortion-related activities with their private, non-U.S. funds.

NGOs do not jeopardize their U.S. HIV/AIDS funding if they provide legal abortion services, counsel and refer women about abortion, or engage in lobbying or advocacy campaigns to legalize or to “continue the legality” of abortion in accordance with host-country laws and policies.These activities must be paid for with private, non-U.S. funds.

U.S. and foreign NGOs receiving HIV/AIDS assistance may engage in post-abortion care and certain types of research on abortion supported by U.S. funds.

In reinstating the gag rule, President Bush clearly stated that post-abortion care (PAC) for “treating injuries or illnesses caused by legal or illegal abortions” is permitted. Therefore, PAC activities are considered a key component of USAID’s safe motherhood and family planning programs, although USAID does not finance the purchase or distribution of manual vacuum aspiration (MVA) equipment for any purpose. USAID assistance may also be used to conduct demographic and epidemiological research on the incidence and health consequences of abortion.

Under long standing U.S. law, all U.S. foreign aid recipients – multilateral, governmental and nongovernmental – are prohibited from directly using foreign assistance funds for abortion.

The 1973 Helms Amendment – a prohibition on the direct use of any U.S. foreign assistance funds for abortion – remains in law and applies to HIV/AIDS assistance. In order to comply with the Helms Amendment, NGOs, both foreign and domestic, must have accounting systems in place in order to ensure that no U.S. foreign assistance funds, regardless of the funding account or for what purpose designated, are spent on abortion services, biomedical research on abortion, or lobbying on abortion.