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Frerichs, R.R. Rights and harm in India

SEA-AIDS Network, January 18, 1999.

Posted in response to:

SEA-AIDS, January 17, 1999

From Udo Schuklenk, Australia

In a highly controversial judgement the Indian Supreme Court recently suspended an HIV positive individuals right to marry. By breaking the medical confidentiality of the individual concerned the court has enraged legal activists and human-rights groups.

In June 1995 an individual donated blood and was found to be HIV positive. As a result his proposed marriage was cancelled and he suffered embarrassment and was ostracised by the community. He then sued the hospital for damages for disclosing the information and violating his confidentiality.

The judges involved rejected his claim on the grounds that the women he was about to marry was saved "in time by such disclosure". They added that "so long as a person is not cured of the communicable venereal disease....the right to marry cannot be enforced through a court of law and shall be treated as a "suspended right". Under the Indian Penal Code, if a person with AIDS knowing marries and transmits infection to their spouse they are guilty of an offence.

This judgement has serious implications since it violates a person's right to privacy and confidentiality totally without setting down any proper guidelines. This could have serious implications for AIDS patients in the future.

To make matters worse the judge deemed "AIDS a product of indisciplined sexual impulse" suggesting that AIDS awareness campaigns on the sub-continent have bypassed the courts.

One wonders how many high court judges the world over may not feel the same way.

Udo Schuklenk, PhD

Monash University

Centre for Human Bioethics

VIC 3168, Australia

R.R. Frerichs Posting

Human rights. It has become a curious notion, that some take for granted as if bestowed on humanity from mountain tops. Others, however, recognize that human rights are principles or ideals that come with great struggle and are intended to address injustice, not create further harm. The issue of rights was addressed on January 17 by Dr. Udo Schuklenk in his posting "Patient confidentiality in India."

He writes that the Supreme Court of India in a recent judgement "suspended an HIV positive individuals right to marry." Dr. Schuklenk goes on to state that the person in question "suffered embarrassment and was ostracized by the community." I know nothing more about the details of this case, and so am commenting about the issues Dr. Schuklenk's raised, and not the veracity of the posting.

Studies of HIV discordant couples have repeatedly demonstrated the high risk that the susceptible partners experience when married to HIV infected persons. This risk becomes even greater if the susceptible partner is unaware of the virus, and knows not to regularly use condoms, avoid intercourse, or withdraw during intercourse. So who protects the right of the person who the infected individual plans to marry?

This seems to be the issue that the Supreme Court of India was reported to have addressed. Should HIV infection be left to fate, or should governments intrude, striving to prevent transmission and avoid further harm? It seems clear that HIV positive people suffer from being infected. The solution to this suffering, however, is not to hide the disease from view so that future spouses becomes infected, but rather to address the problem in a forthright manner.

For example, I would support Dr. Schuklenk if his comments focused on preventing ostracism of people with HIV/AIDS, or encouraged courts to strengthen legislation that prevents termination from jobs or refusal by medical personnel to provide support and care. These are important rights that HIV infected people should be allowed to share with others in the society. 

The right to marry, however, is a more difficult issue, especially troublesome if there is no disclosure and education on ways to avoid infecting present or future spouses who are susceptible to the virus. Infection and death are high prices to pay for the rights that were mentioned in Dr. Schuklenk's posting. We can do better.