"I live in the hope of a world that will be, if not free of disease, free of fear and discrimination."

Dominic D'Souza
Late HIV/AIDS Activist

http://www.lawyerscollective.org/lc-hiv-aids/Abstracts/abstracts.htm

Four petitioners directly affected by the HIV/AIDS, epidemic from the city of Mumbai, two of whom are HIV positive, have filed a petition in the Bombay High Court seeking declarations from the court on the issues of the right to marry of PWAs and confidentiality in the medical setting. The petition arises in response to critical queries raised by a judgment passed last year by the Supreme Court of India reported as Mr. X v. Hospital Z, (1998) 8 SCC 296. Copies of the aforementioned judgment, petition and other related materials are available at the Lawyers Collective website under the HIV/AIDS Unit section at www.hri.ca/partners/lc or via e-mail at aidslaw@vsnl.com.

The petition is premised upon the affirmation that an HIV-positive person should inform their partner of their HIV status. On the issue of right to marriage, the petition argues that the right to marry is a constitutionally protected right. The right to marry can be and has been read into the right to life and liberty guaranteed under Article 21 of the Constitution of India. Moreover, the right to life and liberty has to be read in the context of the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, to both of which India is a signatory. These recognize the right to marry and found a family as a fundamental human right. Many other countries like the United States have not only recognized the right to marry as a constitutionally protected right, but have also struck down statutes and/or regulations which sought to abridge that right. The petition further argues that since the right to marry is a constitutionally protected fundamental right, only a valid statutory law passed by a competent legislature can abridge it. Courts have no jurisdiction to abridge or suspend the fundamental right to life and liberty. Furthermore, restricting or suspending the right to marry for HIV-positive persons is arbitrary, unjust and discriminatory in nature, and violative of Articles 14 & 16 of the Constitution of India.

The petition relies on studies that clearly show that PWAs can lead normal, healthy lives for many years without any kind of disability. In those cases where a HIV-positive person wishes to get married with the informed consent of his/her prospective spouse, no restriction should be placed on them, especially considering the fact that transmission of HIV can be prevented by following safe sex practices like the proper and consistent use of condoms during sexual intercourse. Significantly, many studies of discordant couples viz. where one partner is HIV-positive and one is negative have shown that by practicing safe sex methods consistently none of the negative partners have become positive and live a normal healthy life. Furthermore in terms of having children, peri-natal transmission can be practically reduced to a negligible amount through appropriate medical interventions. The implications and impact of a person being HIV positive go far beyond physical and mental health. An HIV-positive diagnosis is accompanied with stigmatization, discrimination, often leading to loss of employment, support from family and friends, medical and social benefits. It is thus crucial for such a person to have the support of a spouse. Relationships, physical or sexual relations and procreation are natural forms of human expression and are the natural rights of all human beings. In the context of HIV/AIDS, marriage becomes even more immanent for leading a healthy, stress free life.

The petition further argues that legislative policy relating to marriages does not make a marriage void in case of one of the concerned parties has a communicable venereal disease. Though having a communicable venereal disease is a ground for divorce in many of the marriage laws, in none of the statutes governing divorce, is this ground available for having the marriage declared void, i.e. whereby the law does not recognize the marriage in the first place or can be considered to be annulled at the instance of a party to the marriage. Therefore having a communicable venereal disease cannot be used as a ground for preventing a person from getting married.

Furthermore depriving HIV-positive people of the fundamental right to marry is likely to make them distrustful of and antagonistic towards government health care programs that propagate voluntarism and positive behavioural change essential to HIV prevention strategies. More plainly put, denying HIV-positive persons the right to marriage and found a family is likely to have negative public health implications in the HIV/AIDS scenario. All international data to date conclusively demonstrates that coercive strategies such as this only serve to drive the epidemic underground thereby increasing the rate of new HIV infection. It has been seen that when governments fail to protect the human rights or worse where they deprive individuals of rights, government policies are more likely to drive people away form public health programs than to ensure their participation.

The petition also calls attention to the fact that there are many other communicable diseases that are in fact easier to acquire than HIV like TB, Hepatitis B; yet no restrictions have been placed on persons suffering from these illnesses. Then is it not inherently discriminatory and arbitrary in nature to place restrictions on people who are HIV-positive? The Commission on Human Rights (United Nations, 1989) concludes that "all human rights must apply to all patients without exception and that non-discrimination in the field of health must apply to all people and in all circumstances".

In terms of confidentiality, the petition raises the question whether the doctor is required to keep the medical status, including the HIV status of his/her patient confidential? The petition argues that even in certain exceptional cases it is the doctor's ethical and moral duty to inform the patient first of his condition, and then give him/her adequate counselling to practice the least restrictive alternative. Only then should the doctor if necessary reveal his/her medical status to an identifiable third party if and only if imminent danger is perceived to that person.

Based on sound testing policy, the petition goes on to argue that a blood bank is required to keep the identity and HIV-status of the donor confidential. Furthermore there is no duty cast upon the blood bank to disclose such information to third parties. The petition relies upon studies and international experience clearly indicates that in the HIV scenario, strategies aimed at prevention of HIV transmission are best advanced by protecting the rights of the HIV positive individual, including his/her right to confidentiality of his/her medical status.

As a result of the severe social stigma still associated with HIV/AIDS, the rights of PWAs are often violated and they must go to court to defend their rights. However, PWAs are often prevented from litigating in court for fear that their HIV status will become public knowledge, thus disabling them from protecting their rights. To date, the Lawyers Collective HIV/AIDS Unit has been involved in several HIV/AIDS related cases in the areas of employment, divorce and medical negligence where suppression of identity was used as a beneficent litigation strategy. Simply put, suppression of identity allows the litigant to pursue legal remedy under a pseudonym, thereby protecting the litigant's right to privacy and promoting the litigant's right to equal protection and due process. In this case, the court has already granted orders for suppression of identity. In all official documents, the case now bears the title of AC and Others v. Union of India.

The matter is up before the division bench of Justice Pandya and Justice Parkar on April 28th, 1999 in the Bombay High Court.

IN CONVERSATION ………

C, a petitioner in this case, has been living with HIV since the past 8 years. He came to know of his HIV-positive status in 1993. The news was broken to him by his two brothers who had collected his test reports. His first reaction was fear and worry as to how long he would live as he did not have much knowledge/information on HIV/AIDS. At this time itself a marriage proposal was made to him that he declined. His brothers gave him the much- needed support to cope with this illness.

It was not until 1995 that C received counselling from G.T. Hospital and was referred to an organization that provided anonymous testing and counselling services for PWAs. It is here that C got a great deal of emotional support and courage being with other people facing the same problems. His interactions and relationships with other PWAs and sharing information with them has helped him tremendously. Today he is well informed about the disease, its modes of transmission, ways of staying healthy by having a nutritious diet and methods of prevention of the virus. His positive attitude has helped him maintain a healthy lifestyle. He hopes to see the next millenium and also hopes that a cure is found for HIV/AIDS soon.

He does regret not getting married at an earlier age as he misses having a companion and someone to look after him and share his life. Today, he would like to get married if he finds a girl who is compatible with him, and who is willing to marry him knowing his HIV- positive status and its implications.

Q: What was your initial reaction to the judgement?

Initially, I didn't take the judgement too seriously since I felt that actual reality was quite removed from laws and legislation and that to enforce such a law was going to be difficult.

However, on further reflection I found the judgement to be singling out and targeting people with HIV. This is discrimination as there are other illnesses that are more dangerous and easier to transmit than HIV. For example, illnesses like Hepatitis B, TB, Malaria are much easier to transmit. In the case of TB, merely living together with a person who is infected can pass on the infection to other members of the family. Whereas in the case of HIV there are only four known ways of transmitting the virus i.e. through sexual intercourse with an infected partner, through infected blood transfusions, sharing of infected needles and mother to child transmission.

I feel that HIV/AIDS is not as dreadful an illness as it is made out to be because people living with the virus have been known to live a healthy life for many years even without the combination drug therapy. In the case of TB and Hepatitis B if no medication is taken for a period of time it could be fatal.

Q: What advice would you give to persons living with HIV with regard to marriage?
According to me this would vary with each case. It would depend on how old they are. If they were young, I would recommend that they get married. Of course, the infected partner should inform the prospective spouse of the HIV-positive status. I would also advise them to practice safe sex.

Q: Why did you think of filing the petition challenging the judgement?
I strongly believe that PWAs are being discriminated against by this judgement - there is no valid basis for targeting only them, all persons should be treated equally in a democratic society. It is primarily a question of depriving someone of his/her human rights.

Laws should be just and fair for all people alike. Why are such laws not passed for persons suffering from other illnesses like Hepatitis B, TB, syphilis etc.? Persons with HIV are human beings just like anybody else and should be treated thus.

Another reason for filing the petition was what happens in the situation if I or any other HIV-positive person does get married with the consent of the partner, and if the marriage does not work out and the matter appears before the courts? Will legal action be taken against me or the HIV-positive person concerned? Can we/he/she be arrested for committing an offence by marrying someone since that right has been suspended by the Supreme Court?

I also feel that passing this judgement is not the solution to stop the virus from being transmitted in society.

Q: What do you hope for from the Court by filing this petition?
I hope that the decision of the Supreme Court suspending the right of an HIV positive person to get married will be reversed. I know of many discordant couples who are living happily together. There are also cases where though the partner knows the HIV-positive status of the other, he/she still desires to marry - can such people be barred from being wedded?

…M is living with HIV and a member of Maharashtra Network of Positive People (MNP+). MNP+ is a support group for PWAs based in the state of Maharashtra. The main objective of MNP+ is to provide care and support to persons living with HIV. Their work includes providing a referral service, dissemination of information, counseling, and developing the capacity of PWAs in the areas of counseling and communication.

Q: What was your understanding of the judgement?
I think the judgement is totally wrong. Even the media has understood and focussed only on one aspect of the judgement. The judgement is prejudiced against PWAs in presupposing that all PWAs are dishonest and will knowingly choose to infect other people with the virus.

Q:What is your opinion about the suspended right to marry of persons living with HIV?
I think it is wrong to take away this right from PWAs. It will have harmful consequences in the sense that it will drive the epidemic underground. It will only serve to widen the gap between PWAs and society. It is in no way going to be able to prevent the spread of the virus as has been supposed by the Court.

Q: The Supreme Court has passed the judgement in view of protecting women who are vulnerable to being infected by their husbands - what do you think about this?
I still feel such a judgement is not the solution. Instead steps should be taken to create awareness and provide counseling services to PWAS - information and knowledge about safe sexual practices should be imparted.

Q: What is your opinion on partner notification?
It is the doctor's/counselor's duty to make the PWA aware of the consequences and implications of transmitting the virus not only to a married spouse but also to other partners with whom they have sexual relations. The doctor/counselor should try and address the problems of the PWA and together find solutions. Once the client understands the consequences of transmitting the virus to another, he/she is sure to act in a responsible manner and disclose his/her HIV positive status to his/her partner of his/her own accord. In fact I know of many couples who have gotten married where one partner is positive and the other is negative.

Q: Have you discussed the petition with other members of MNP+, and what is the general opinion?
We definitely support the petition. The right to marry of positive persons should not be suspended. There has been a significant change in the thought patterns of positive persons. Initially they were hesitant about getting married but today most of them know that use of preventive methods reduces the risk of transmission to a minimum and they would like to get married. It is important to them to have the companionship and support of a spouse. With regard to bearing children, they are aware of the fact that risk of transmission can be significantly minimized.

Q: How do you think MNP+ can help in advocacy work related to the petition?
I feel that there should be workshops conducted for those in the legal community who are involved in deciding such issues/judgements. They should be sensitized about HIV/AIDS and the issues that confront PWAs. There should also be workshops for PWAs to educate them about the legal and ethical issues related to HIV/AIDS.