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"Rather than requiring that people
seeking marriage licenses be tested for HIV, states should
focus on education, e.g., providing marriage applicants with
AIDS education materials. Education should emphasise the
importance of prevention and voluntary testing."
http://www.lawyerscollective.org/lc-hiv-aids/Abstracts/abstracts.htm
From ‘Mandatory Pre-marital HIV Testing: A
Record of Failure’
An American Civil Liberties Union Report, March 1998
MANDATORY PRE-MARITAL TESTING
The National AIDS Prevention & Control Policy of the
Indian government clearly mandates voluntary testing as the
appropriate public health strategy in dealing with HIV/AIDS
and the Union Health Minister has been quoted recently
reaffirming this stand. On the other hand there have been
opposing views expressed at the governmental level in other
parts of the country particularly favouring mandatory
pre-marital testing for HIV. These have been voiced recently
in the Goa legislature and by the Andhra Pradesh legislature
and reported in the press. Lawyers Collective HIV/AIDS Unit
believes that such a proposal will have a deleterious impact
on India’s efforts to contain HIV/AIDS and that such a
strategy is based neither on sound public health nor human
rights visions. In light of this, the Unit wrote to the
executive and legislative representatives in Goa and the Chief
Minister of Andhra Pradesh explaining its reasons for opposing
such a proposal and requested a rethink on this issue.
Reproduced in this edition of Positive Dialogue is Lawyers
Collective HIV/AIDS Unit’s letter to the Chief Minister of
Andhra Pradesh that awaits a response:
Date: September 18, 2002
The Hon’ble The Chief Minister,
Shri Chandrababu Naidu,
Andhra Pradesh
Dear Sir,
This is with reference to make HIV testing compulsory for
couples before marriage, as was reported in Aaj Tak on
September 18, 2002.
1.
We appreciate that a policy to mandatorily test couples
before marriage could be motivated out of the concern to
protect the prospective spouses of persons living with HIV
from acquiring the disease, thereby, as a public health
initiative trying to reduce and prevent the spread of the
disease. However, we would like to bring to your notice a few
issues and concerns for individuals and the public that arise
in mandatorily screening couples before marriage for HIV which
would be counterproductive at an individual level as well as a
public health level.
2.
Testing persons for HIV mandatorily in the pre-marital
situation does not fulfil the objectives sought to be achieved
at an individual level. Also at a public health level,
mandatory testing for HIV has negative public health
consequences. This is mainly because of the following
reasons:-
(a) The
most common way of testing for HIV is through an antibody
test. However, the peculiarity of an HIV antibody test is
the "window period". The "window period"
is one in which even though a person is infected with HIV,
s/he would be tested negative as her/his antibodies are not
developed. Therefore, even though a person is infected with
HIV, s/he will test HIV negative. Therefore, a single
antibody test for HIV does not serve the purpose of
preventing the prospective spouse from getting infected.
Therefore, mandatory testing would not result in achieving
the objective sought to be achieved.
(b)
It may also be noted that there is also a high rate
of false positive results in the country and persons may not
actually be infected. Thus, in view of the stigma
surrounding HIV, a person who is actually not HIV positive
could be marred for life on account of a false positive
result and may not be able to marry at all. This would have
a traumatic effect on her/ his life and on her/his family.
(c)
Mandatory testing for HIV prior to marriage would
only give the state a false sense of security and a false
belief that the infection is being effectively prevented
from spreading.
(d)
A pre-marital HIV mandatory test does not prevent
persons from getting infected after marriage, and thereby
putting the spouse at the risk of getting infected.
(e)
A pre-marital HIV test would not really prevent the
spread of infection to the unmarried sexual partners or the
needle-sharing partners of the person affected by HIV.
(f)
For reasons stated above, mandatory testing for HIV
before marriage does not really serve the purpose of
preventing the spread of the disease, as such a policy does
not consider sexual relations prior to marriage and extra
marital relations.
3. This
apart, a pre-marital mandatory HIV testing policy would tend
to have negative public health consequences, in the following
manner:-
(a)
Mandatory testing would only drive the disease
underground. Not many persons are aware of HIV, the nature
of the disease, the testing methods, the methods of
transmission of HIV, etc. Due to the ignorance, there is
fear even to get an HIV test done. There is a lot of stigma
attached to the disease, which ostracises persons living
with HIV from their community and prevents them from getting
any support. Mandatory testing would only dissuade people
from getting their tests done. This is against the National
AIDS Control Organisation (NACO) policy on testing, which
encourages voluntary testing after pre-test counselling.
Mandatory testing would actually only drive the disease
underground and would be very costly for the state in the
long run.
(b)
Further, this would only have the consequence of
people going outside the State to marry, where such tests
are not required.
(c)
Pre-marital mandatory testing for HIV would be a
myopic policy, as it does not take into consideration
infection after marriage, infection to sexual partners and
needle sharing partners. Therefore, from a public health
perspective it does not really prevent the spread of the
disease.
(d)
Mandatory testing often ignores issues of consent and
confidentiality of a person’s HIV status. This again would
have a negative public health impact as people would lose
their faith in the health system of the state.
(e)
Mandatory testing could also open a racket of
issuance of false certificates prior to marriage, thereby
having a negative impact on the entire public health system.
(f)
Mandatory pre-marital testing for HIV could prove to
be a very costly public health strategy for the state, as
repeated tests require to be undertaken for confirming the
positive status of a person. This could drain out the funds
substantially.
(g)
In most personal laws marriages are not required to
be registered. Thus, for example, a Hindu marriage can be
solemnised only by performing ceremonies. No registration is
required. Therefore, a policy for mandatory testing would be
impossible to implement.
4.
Successful public health strategies are those that have
optimally utilised the scarce resources, both infrastructural
and financial resources, in empowering and encouraging women
to prevent themselves from getting infected. It is not our
intention to suggest that a woman (or any prospective spouse)
does not have the right to ask for an HIV test. The question
is that should it be done by making it mandatory or by
empowering women so that they can themselves decide.
(a) Women
are vulnerable to HIV infection within and outside the
marital setting. It is easy to pronounce a policy of
pre-marital testing for the ostensible reason that it will
prevent women from getting infected. Pre-marital testing is
an easy way out. However, such a policy will only give a
false sense of security. It will not empower women to
negotiate sexual relations, which is what is really required
i.e. the empowerment of women to prevent infection. But
mandatory pre-marital testing does not really prevent women
from getting infected, it does not give information to women
about HIV, about safe sexual practices, it does not empower
them, it does not emancipate women. A policy that would
actually empower women so as to prevent themselves from
getting infected is difficult to implement and sustain.
(b) The
policy required today is to impart information, educate
people and to counsel women about HIV, at the adolescent
stage, thereby helping them to prevent themselves from
getting the infection. This is the real challenge. It is
difficult but possible. A determined legislative action can
really emancipate women, thereby helping them to prevent
themselves from getting the infection.
(c) Therefore,
if the same funds are allocated in spreading information
about prevention, safe sex, and emancipating women,
educating women and the girl child, and in removing the
ignorance and bias attached to HIV, it would in the long run
prove to be a more cost-effective public health strategy. It
would then encourage people to voluntarily test themselves
prior to marriage and help people from protecting themselves
from getting infected. This could prove to be an effective
policy in reducing and preventing the spread of the
infection in the long run.
5.
The American Civil Liberties Union Report of March 1998
reported that mandatory pre-marital HIV testing was a record
of failure. It stated that more than 30 states in the USA
considered pre-marital HIV testing. However, all the states
except for Illinois and Louisiana rejected the idea. Illinois
and Louisiana enacted and enforced mandatory pre-marital
testing, but subsequently repealed them. In Utah too, a state
in the United States of America, there was a legislation
making a marriage to an HIV positive person void. However, the
legislation in Utah was reversed as it was against public
policy and they amended the same making such marriages valid.
Please find enclosed the relevant documents for your kind
perusal.
6.
Thailand has been able to control the spread of HIV
infection through intensive dissemination of information,
education and communication. Condom usage was encouraged in
all awareness campaigns, thereby increasing the rate of condom
usage and drastically bringing down the rates of HIV and STD
infections.
7.
We therefore request you not to pass any legislation to
make pre-marital HIV testing mandatory which could have a
negative impact on public health and on the individual, but to
re-think of the strategies that would empower women so that
they can effectively prevent the spread of HIV infection in
the population.
Thanking you,
Yours truly,
Anand Grover
Project Director
cc: Andhra Pradesh State AIDS Control Society
Enclosed:
1. A letter written by UNAIDS, by Susan
Timberlake, Human Rights Adviser, Policy, Strategy and
Research, to Ms. Marina Mahathir, Malaysia.
2. Mandatory Pre-Marital HIV Testing - An American
Civil Liberties Union Report, March 1998.
3. Utah Code.
Supreme Court of India restores HIV+
person’s Right to Marry
On 10 December 2002 the Supreme Court of India passed an
order in a case related to the issue of an HIV+ person’s
right to marry. This case was filed by Lawyers Collective
HIV/AIDS Unit on behalf of its client Mr. X, seeking
clarifications and challenging the judgment of the Supreme
Court in the case of Mr. X v Hospital Z in 1998 wherein the
court had suspended the right of PWA to marry, although this
was never an issue before it.
In this order the Supreme Court held that all observations
relating to marriage in Mr. X v Hospital Z in 1998 were not
warranted as they were not issues before the Court. The
Supreme Court did, however, state that it’s pronouncements
regarding the role of hospitals to make disclosure of HIV+
status in Mr. X’s judgment remain as they were made
regarding an issue before it in the case (Mr. X’s case
concerned the issue of breach of confidentiality of the
petitioner’s HIV+ status by a hospital blood bank to the
petitioner’s relatives). In effect, therefore, the Supreme
Court’s judgment in Mr. X v Hospital Z to the extent that it
suspends the right of PWA to marry is no longer good law. The
right of an HIV + person to marry is restored. However, this
does not take away from the duty of those who know their HIV+
status to obtain informed consent from their prospective
spouse prior to marriage.
We are happy to convey this positive order of the Supreme
Court and extremely pleased that the rights-based approach to
HIV/AIDS has received further support and PWA rights have been
strengthened. This is the only effective way in dealing with
HIV/AIDS – taking away rights only strengthens stigma and
fear, protecting and providing them strengthens understanding
and empowerment.
Violence against sex workers continues
After the incident in Nippani, Karnataka earlier this year
(reported in Positive Dialogue #13), where sex workers
belonging to Veshya AIDS Mukabla Parishad (VAMP) were harassed
and abused by police while carrying out HIV/AIDS prevention
work, yet another horrific incident of violence against women
in sex work has come to light. This time the targets were sex
workers from the Durbar Mahila Samanvay Committee (DMSC), the
largest organisation of sex workers in the region with over
60,000 members.
In August 2002, Rekha, a sex worker, was
severely beaten up by local hoodlums in the Tollygunj red
light area in Kolkata for having a public altercation with her
husband. When Swapna, the President of DMSC protested and
lodged a complaint with the police, the same gang publicly
attacked her for "daring to involve outsiders in an
internal matter". Policemen on duty were silent
spectators to the incident and refused to file a FIR.
The DMSC organised a rally of more than
3000 sex workers from all over the state to protest against
the violence and inaction of the police. They also registered
complaints with State agencies, including the Government of
West Bengal, the State Human Rights Commission and the State
Women’s Commission. Since then two of the three assailants
have been arrested while one is still absconding. The local
goons persist in threatening Swapna, who has been rendered
shelterless, and other members of DMSC. Following threats and
coercion, the STD clinic run by DMSC has been shut down and
has ceased to function. Needless to say, the HIV/AIDS
prevention intervention programme has been adversely affected.
This is not just a stray incident of
violence against individual sex workers but a deliberate
attempt to undermine the collective leadership of sex workers
represented by DMSC. The organisation’s role in implementing
effective HIV/AIDS interventions in Sonagachi, Kolkata have
been acknowledged at national and international levels. The
self-regulation mechanisms introduced by DMSC to address
exploitation including entry of children and other unwilling
persons within the sex industry have been an unparalleled
initiative. Above all, DMSC’s untiring efforts in organising
sex workers for their rights and building a movement against
exploitation has continued to enthuse and inspire human rights
activists, organisations working on HIV/AIDS and other
marginalised communities all over the world.
The incident once again points to the
failure of state agencies, particularly the police, in
safeguarding fundamental rights of women in sex work including
the right to life and protection of law. Besides disrupting
health and HIV/AIDS interventions such incidents result in
destabilising movements for human rights by marginalised and
minority communities. The time is overdue for the state to
take responsibility in protecting the lives of women in sex
work and ensuring that their disempowerment and abuse ceases.
Treatment Access – positive developments
Thailand, October 1, 2002 – People living
with HIV/AIDS in Thailand won a precedent-setting court case
in Thailand’s Central Intellectual Property and
International Trade Court (CIPITC) against the pharmaceutical
company, Bristol – Myers Squibb (BMS). The court ruled that
the pharmaceutical company had illegally amended its
application three years after its original submission, in
order to claim a wider monopoly on ddl (a nucleoside reverse
transcriptase inhibitor, a critical first regimen AIDS drug)
than the patent description justified and has ordered BMS to
revert to its original claim. BMS in its original patent
application filed in July 1992, asked that its patent be
extended to cover only a "range of 5 mg to 100 mg per
unit of use." In 1997, BMS amended its patent and omitted
the dosage restriction.
The decision rejected BMS’ exclusive
right to market ddl in Thailand and paved the way for its
generic production (patented ddl tablets cost twice as much as
generic ones). The drug company can now exclusively produce
ddl only in doses from 5 milligrams to 100 milligrams, while
other drug companies can produce the drug in larger doses.
There are over one million people living
with HIV/AIDS in Thailand. Only a few thousand have access to
treatment. The Thailand Network of People Living with HIV/AIDS
(TNP+) and other treatment access groups have campaigned for
expanded and improved access to treatment. In 1998, treatment
activists demanded that the Thai government exercise its
rights to use a compulsory license to produce generic ddl
tablets in order to address its AIDS treatment crisis. The
government refused, citing fear of trade sanctions. Instead
the Thai Government Pharmaceutical Organisation (GPO) produced
ddl in powder form which causes increased side affects in
comparison to tablets and was also not easy to administer.
In May 2000, the plaintiffs, two persons
living with HIV/AIDS and the AIDS Access Foundation initiated
legal action on behalf of all people living with HIV/AIDS in
Thailand, against BMS and the Thai Department of Intellectual
Property (DIP).
Some significant points from the judgement
include:
a) For the first time the Doha Declaration
on Patents and Public Health was cited by a court to ensure
access to treatment. The court stated that the Doha
Declaration insisted that TRIPS be interpreted and implemented
so as to protect the country’s public health, especially the
promotion and support of access to medicine for all people.
b) People living with HIV/AIDS and an NGO
working on AIDS, and not commercial enterprises contested a
patent in court on the grounds that health interests supersede
patent protection.
In another interesting development, Thai
activists have also decided to challenge BMS’ Thai patent
(number 7600) that it applied for and received in 1998 for a
formulation of ddl despite the fact that it does not involve
any significant inventive step or novelty, a necessary
criteria for granting a patent. Activists point out that the
patent is invalid, as BMS had simply combined the drug with a
buffer, an antacid that helps ddl to be better absorbed from
the stomach, (a common practice among pharmacists) and that
this is not an inventive step. As a result, BMS managed to
maintain its monopoly on this important AIDS drug. Thai
activists filed a case with CIPITC on October 9, 2002.
Monthly Drop-in meeting
Lawyers Collective HIV/AIDS Unit holds monthly drop in
meetings on the first Thursday of each month. The meetings
start at 4.30 pm at the Delhi Office and at 5.00 pm at the
Mumbai Office. The objective of the meeting is to share
experiences, information and discuss issues of concern. We
invite your active participation in these meetings.
Lawyers Collective HIV/AIDS Unit provides legal aid and
allied services for people affected by HIV/AIDS. The main
objective of the Unit is to protect and promote the
fundamental rights of persons living with HIV/AIDS, who have
been denied their rights in areas such as:
· Health care
·Employment
·Terminal dues like gratuity,
pension
·Marital rights relating to
maintenance, custody etc
·Housing
The Unit is involved in initiating public
interest litigation on issues like the right to marry,
confidentiality, access to health care, safe blood supply,
quacks, etc. Lawyers Collective HIV/AIDS Unit also conducts
workshops on legal and ethical issues relating to HIV/AIDS for
people living with HIV/AIDS, lawyers, judges, health care
providers, NGOs etc.
Please send your comments and queries to
the addresses given below. Those affected by HIV/AIDS seeking
legal aid, advice and support are welcome to contact us at:
Lawyers Collective HIV/AIDS Unit
Programme Management Unit
7/10, BOTAWALLA BUILDING, 2ND
FLOOR
HORNIMAN CIRLCE, FORT
MUMBAI - 400 023
TEL: 022 267 6213/9 FAX: 022 270 2563
E-MAIL: aidslaw@vsnl.com
Website: http://www.lawyerscollective.org/
New Delhi Project Office
63/2 MASJID ROAD, 1st FLOOR,
JANGPURA
NEW DELHI – 110014
TEL/FAX: 011 4321101/2 or 011 4316925
E-MAIL: aidslaw1@ndb.vsnl.net.in
Hours: Monday – Friday: 10:00 a.m. – 7:00 p.m.
Saturday: 10:00 a.m. – 4:00 p.m.
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