By Adele Campbell

Sapa 19 Nov. '00

The controversy about whether the human immunodeficiency virus causes AIDS has opened up a potential legal loophole, according to the authors of an article in the current edition of the South African law journal, De Rebus.

The dispute between mainstream and dissident scientists means a shift in the burden of legal proof, and may allow AIDS victims to overturn insurance clauses that exclude claims for illness caused by HIV.

The De Rebus article points out that, ever since President Thabo Mbeki instituted a rethink of the AIDS pandemic in Africa through a presidential advisory panel, courts may now decide to require proof that HIV causes AIDS.

The authors, Kevin Hopkins and Kim Wyness, warn that, in the case of insurers with policy clauses excluding claims for illness due to HIV, the burden of proof lies with them rather than the claimant to show the disease has been caused by HIV.

Quoting the dissident school of thought, the authors say that it is impossible to prove that HIV causes AIDS because it has, in fact, never been proved that a human immunodeficiency virus exists at all.

"HIV has been classified as a retrovirus, and the only scientifically acceptable method of isolating and identifying retroviruses has never been successfully used in the study of HIV."

That means litigation is now much more likely, because the claimants' case is far easier to establish.

Depending on the specific wording of the HIV and AIDS exclusion clauses, many people diagnosed with AIDS could now have a valid claim against their insurers.

Any policy that excludes "HIV-related" illness must prove that relatedness.

The arguments in the De Rebus article could have international implications.

Insurers vulnerable to massive claims could potentially drag pharmaceutical corporations and other parties into any litigation.

Governments, too, may now be forced to re-evaluate health policy based on legal determinations about the causes of AIDS - rather than on scientific and medical consensus.