LAW REVIEWS AIDS AND LAW GURMEET HANS This paper was presented by the...
AIDS AND LAW
This paper was presented by the author at the 'Seminar on AIDS and Laws',
organised by the Young Lawyers Forum on November 23, 1996, at Pune. It
discusses the ethical and legal aspects of HIV/AIDS and cautions against short-
sighted legal solutions to the complex issue. Legislation must play a positive role
of integrating affected persons in society by protecting them from discrimination.
Besides the protective role, the proactive and instrumental role of law is seen to
be important in containing the HIV/AIDS pandemic.
Ms. Gurmeet Hans is Head of the National Service Scheme Unit, Tata Institute of
Social Sciences, Mumbai.
Five years after Columbus returned from his encounter with the New
World in 1497, there was an outbreak of disease, supposed to be
venereal, in the city of Edinburgh, Scotland. It spread quickly through
Europe. The King of Scotland and his council, terribly alarmed at this
contagious 'distemper', issued a proclamation of the Sovereign Lord's
will and command. The sickness was named Grandgor. Those who
suffered from it were commanded to pass far out of the town to the
Island of Frith. If their bodies survived, they were obliged to take an
unspecified cure. Anyone who did not comply with this command, was
ordered to be :
Burnt on the cheek with the marking of iron that they may
be known in the times to come and thereafter if any of them
remain they shall be banished.
The question for us in the context of HIV/AIDS is whether we will
subscribe to panic, alarm, banishment, cruelty and public stigmatisa-
tion 500 years after King James IV issued his proclamation against
Grandgor. Hopefully not, as during these long years we have advanced
100 Gurmeet Hans
in our appreciation of the limits and opportunities of law in the face of
a public health crisis.
Legal Responses to AIDS in the World
Protection against epidemics is one of the main tasks of the public
health authorities emanating from the human right to health. Addition-
ally, in the international law, public health has been accepted as a
legitimate ground for limiting human rights. Public health developed
through centuries by coercion, compulsion and restriction, does not
readily adjust to the requirements of human rights. The ways in which
many countries have responded to the AIDS epidemic have created a
wide range of human rights problems by imposing coercive or restric-
tive AIDS control measures.
In the first decade of HIV/AIDS (1981-90), 104 countries adopted
some or the other AIDS related legislation. The period 1985-87
represented the peak of the global epidemic of AIDS legislation.
During this period, the cumulative number of countries with AIDS
legislation quadrupled, from 18 in the beginning of 1985 to 78 by the
end of 1987 (Mann, David, Tarantola and Netter, 1994:543-44). Thus
where technology was unable to provide a solution to the spread of
disease, people looked to the law. It is not confirmed that countries
which had high prevalence enacted laws as even those without any
single reported case of AIDS or HIV infection (for example Vietnam
and Mongolia) too adopted AIDS related laws. Excessive AIDS con-
trol measures have been adopted in some countries not as a HIV/AIDS
response inside their own borders, but ostensibly to prevent its impor-
The first legislation, requiring the reporting of suspected and con-
firmed cases of AIDS was enacted in Sweden in March 1983, and was
followed by similar laws in many European countries. Most often this
early legislation established safeguards to promote blood safety
(through donor referral) and introduced compulsory notification of
AIDS cases. Until 1985 no country adopted a comprehensive law on
AIDS, in part because a test for HIV infection had not yet been
Analysis of subsequent laws reveal that the availability of a test to
detect HIV antibodies was the driving force behind the legislation.
Most of the laws dealt directly with testing, and many authorised public
health authorities to carry out compulsory tests. The legal authorisation
to isolate people, detain them or force them into hospitals often
AIDS and Law
appeared alongside provisions of compulsory testing. Only Cuba has
officially adopted mandatory and automatic hospitalisation of all HIV
infected people (it has not been actually implemented fully). Those
found to be infected went underground out of fear of isolation.
Many other countries have passed laws empowering public health
authorities to resort to restrictive measures. These include placing HIV
infected people under surveillance, isolation or segregation, manda-
tory hospitalisation, or imposing specific restrictions on their behav-
iour. Information on the actual application of restrictions is not
available for many countries.
The early phase of HIV/AIDS in India was dominated by responses
that aimed to isolate those infected. Foreigners were blamed for the
spread of HIV and opinion was in favour of their strict regulated entry
into the country. In 1988, the Ministry of External Affairs, Govern-
ment of India introduced compulsory medical examination for foreign
visitors to contain the AIDS problem. All foreign visitors above 18
years, foreign students, and journalists seeking accreditation intending
to stay for a year or more were expected to go through compulsory
medical examination. Despite this provision, it is known that some
universities have stopped taking African students out of fear that most
of them are carriers of the virus.
The only state in India to have a specific law on HIV is Goa. The
Goa Public Health Amendment Act, 1988, provides for mandatory
testing of persons suspected of being HIV positive. Those infected can
be mandatorily isolated, thus, resulting in breach of confidentiality.
Mandatory isolation was later made discretionary. To date, one case
in 1988 was held under the Act.
On the same lines as the Goa Public Health Amendment Act 1988,
the Government of India sought to introduce the AIDS Bill in 1989.
However, on account of pressure from the World Health Organisation
and the campaigns by voluntary groups, the AIDS Bill could not be
enacted into law. There is a great need to protect and promote the
confidentiality with respect to persons with AIDS. This confidentiality
is also important with respect to implications on any legislation regard-
ing AIDS and HIV. The AIDS Bill failed the test on this account and
also as it was not helpful in the prevention of HIV/AIDS.
Most of these legal measures were characterised by mandatory
testing, isolation of infected persons, breach of confidentiality and
discrimination against positive person. Such coercive and punitive
measures, are counter-productive and impede efforts to prevent
102 Gurmeet Hans
infection and provide care. They also tend to target at groups, while it
is certain behaviors and practices that are responsible for transmission.
In other words these legal measures, so far, had a semblance to the
command of the King of Scotland in response to Grandgor. After a
decade of experience with HIV/AIDS, there is enough indication to
show that none of the above measures are at all useful to contain the
spread of infection — which is our prime concern. On the other hand,
these measures tend to induce fear of isolation, deprivation, stigmati-
sation, thus pushing people into hiding their infection status even
where it should be revealed say to the spouse, surgeon, and so on.
It is pertinent to recall that the Leprosy Act of 1912 permitted
discrimination against those affected by leprosy. The Act was formu-
lated before the cure for leprosy was found. It thoughtlessly continues
to be there even after a cure for leprosy has been found. Maharashtra
repealed the act some time ago. The stigma associated with leprosy is
intense, even today, because of discrimination authorised by the Act.
Today, even though leprosy is curable and it is well known that not all
forms of leprosy are contagious, discrimination continues. There is no
law to protect afflicted persons from this discrimination. It is necessary
to refrain from enacting laws that justify violation of human rights.
In the case of HIV we need to remember that HIV is not contagious.
It is communicable by very specific modes, which can be prevented
by known, simple, specific measures. Further, infected persons are fit
enough to perform their day to day duties without any adverse effects
on their health until the first six to about 10-15 years of infection. If
at all there is need to interpret any laws in the context of HIV/AIDS,
a difference should be made between those who are carriers of infec-
tion and those who have developed AIDS.
Need to Avoid Scapegoating
Homosexuals and sex workers have been easy targets of discrimina-
tion. In some countries gays have reported more violent attacks on
them since the onset of this pandemic. In India, sodomy/homosexuality
has been a crime for 200 years that is, well before the advent of
HIV/AIDS. But it continues to exist. Legislation has limited role to
play in matters as private and personal as these. Neither is it fair to
blame homosexuals for the pandemic. Besides, unprotected anal sex
which puts homosexuals to risk of infection, is also practiced by
heterosexual couples. Thus, heterosexual couples practicing unpro-
tected anal sex are as much at risk as homosexuals are.
AIDS and Law
There is also a tendency to proscribe prostitution or to penalise those
involved. Past experience suggests that repressive measures do not
eradicate prostitution. They simply make it even more stigmatised and
covert. Prostitutes are not problems; they are people. Prostitution is an
ancient and well-established occupation. It is fostered by a huge
demand and by a multiplicity of social, psychological and economic
factors. If prostitution spreads AIDS, then this is because of something
very basic in sexuality, especially that of the human male. Little will
be gained by making scapegoats of a particular section of society. What
we need to achieve is a condition away from multiple sexual partners.
Legislation may have very limited role in that.
Licensing commercial sex (male or female prostitution), with a
view to stop them from practicing if they are infected, is not a solution.
A commercial sex worker is herself exposed to the risk of infection
from her male clients several times each day. How often will this
testing be done ? What will be the dependability of a test that has the
possibility of a false positive or a false negative result ? What will it
cost ? Even if it was possible to test, and cancel or renew the license
on the basis of its results, how would it be ensured that those without
license do not practice ? Besides, the view in favour of testing com-
mercial sex workers is based on prejudice towards them. One could
well visualise a scenario, where the client should produce a HIV free
result before utilising the services of a sex worker. The point is, if
commercial sex workers are seen as sources of transmission so are their
clients. Therefore, making the prostitutes scapegoats will not help.
They need to have better health services and access to health educa-
tion, including HIV/AIDS education. They need to understand the
need for protected sex and opportunities for rehabilitation to take to
other occupations, if they are HIV infected. Poverty and illiteracy, the
two driving forces behind the increasing numbers of prostitutes, are
wider social phenomenon which should be addressed.
That assumptions like prostitutes are a cause of HIV/AIDS are
baseless is well evidenced by the report that follows in this para-
graph.In a study of 4,500 persons referred by physicians to AIDS
Research Control Organisation, Mumbai on suspicion of HIV infec-
tion, 52 per cent were found to test positive. This was between
1994-96. Most of them had not had contact with commercial sex
workers. They were exposed to the infection through pre-marital sex
and extra marital encounters, with sexual partners of their own com-
munity (Chinai, 1996). This finding reveals that the feeling of security
104 Gurmeet Hans
afforded by marital status is false. It also shows the false sense of
security given by scapegoating prostitutes. It is equally unsafe to have
direct or indirect multiple sexual contact with just anyone, including
one's own spouse.
Need to Integrate Persons with HIV/AIDS in Society
A strategy that helps the infected persons to be integrated with the
mainstream of society, will be a healthy compliment to education for
responsible behaviour change programmes. No legislation can effec-
tively control the behaviour of an individual. The controls for this lie
within each individual. The challenge in the strategy for prevention
and control is to create a motivational intrinsic and extrinsic environ-
ment for responsible behaviour.
This is not to say that legislation has no place. In fact the ongoing
reports of serious and unjustified encroachments on the civil liberties
of people with HIV have established beyond doubt that the law has a
central role to play in the HIV/AIDS policy. What should these legal
responses be? Can legislation assist in strategies for the care and
treatment of people with HIV/AIDS?
Experience has shown that respect for human rights is necessary to
protect public health and implement AIDS control programmes. Pro-
tective legislation that protects the basic human rights of persons with
HIV/AIDS are necessary.
The Global Programme on AIDS (GPA), WHO, has identified the
following key elements essential to protect human rights ethics vis-a-vis
HIV/AIDS and law (GPA, 1995:1-3).
Access to Information, Education and Health Services
All people should have equal access to available information, health
services and prevention methods that will enable them to reduce
transmission of infection and receive counselling and care, if infected.
Powerless sections must have equal access to these.
Testing for HIV should be carried out on a voluntary basis after the
individual has been informed of the nature and implications of the test
and has consented to being tested during pretest counselling. Special
protection regarding voluntariness should be afforded to those legally
not competent to give consent, for example minors and the mentally
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disabled. Informed consent should also be obtained for participation
in HIV-related treatment and research.
It is known that patients who have to undergo surgery, in many
hospitals are being tested for HIV without consent, and are being sent
away if found positive.
Confidentiality of HIV status should be ensured at all times, including
during testing, treatment, notification and in the employment and
health care settings. Any disclosure should be strictly justified on the
basis of law and professional ethics.
There should be no discrimination or restriction of rights based on HIV
status or suspicion of HIV status. People living with HIV/AIDS
should have equal access to education, travel, employment, housing,
health care and a non-discriminatory cremation or burial. Mandatory
testing or disclosure of status should not be required to gain access to
these. We may recall that Dominic D'Souza (who was held under the
Goa Act) lost his job with the World Wildlife Fund after he was
diagnosed as HIV positive. Children with HIV infected parents have
been discharged from schools, even when they are themselves nega-
tive. Instances like these, reveal the ignorance and deep-rooted fears
of people, including the educated community. In fact HIV poses no
risk to colleagues or classmates as it does not spread through casual
contacts. There is no ground for discrimination.
There is a very peculiar kind of social discrimination in the case of
HIV infection, not found in any other illness. People infected through
the blood route are seen as being innocent victims and deserving care,
while those infected by the sexual route are seen as immoral or guilty
and, therefore, unworthy of care. A person injured by an accident is
given the necessary medical care and family attention, without a
thought regarding whether he/she was on the right or the wrong side
of the road; a patient who suffers a heart attack is given due medical
and family attention irrespective of the factors that may have triggered
the attack, whether these are stress at work due to a nagging boss, or
a raid in the house for suspected evasion of income tax or may be
anything else. Persons infected by the HIV virus are also worthy of
medical care and family love and attention, irrespective of how they
106 Gurmeet Hans
got infected. Infected persons must be protected legally from any
discrimination arising from the source of infection.
Liberty and Freedom of Movement
People living with HIV/AIDS should not be denied liberty or freedom
of movement by arrest, detention, isolation, quarantine, compulsory
hospitalisation, segregation or exile, except as justly imposed by law;
or be denied the right to seek and enjoy asylum from persecution.
Travel restrictions which discriminate solely on the basis of HIV status
have no public health justification and violate human rights.
The Goa Public Health Amendment Act must be repealed. Simi-
larly, restrictions on entry of foreign visitors on this ground cannot be
justified. Local infection has very much begun in India, and we can no
longer live in the illusion that foreigners are responsible for this
infection and restrictions on their entry is one of the solution.
In Manipur, patients infected with HIV have been known to be tied
to chains, and kept in isolated villages or concentration camps. The
law must protect persons with HIV/AIDS from this indignity.
Right to Marry and Found a Family
Counselling infected persons must be an important part of the
HIV/AIDS control programme. Infected persons must be helped to see
the consequences of their decisions in life matters, upon themselves,
upon those who care for them and upon society. Given proper coun-
selling, they may be trusted to generally take responsible decisions
regarding marriage, having children, and so on. Even if they do not do
so, it will not be possible to impose preferred choices on them by law.
This will only lead to a situation where people will conceal their
infection status. This will have several other unhealthy repercussions
for society. Even if the infection status is known after marriage,
couples must be encouraged to live together by adopting safety meas-
ures even if either partner is infected. It should not be a cause of
divorce. The remedy of divorce in such cases at the societal level will
be far worse than the disease itself. Divorce could probably be sought
on grounds of cruelty if the infected member deliberately insists on
unsafe behaviour that puts the spouse to risk of infection. Under the
Indian law, divorce could be granted if the partner is suffering from an
incurable disease. As AIDS is incurable so far, it would legally qualify
as a reason for granting divorce. As it is possible to prevent the spread
of infection by specific measures, there is no reason why a couple could
AIDS and Law
not continue to live together. To my view, existing laws like the one
on divorce must be reviewed, to prevent people from seeking easy
solutions to the problem of HIV/AIDS.
Premarital and prenatal HIV testing should be voluntary and based
on informed consent. Women should be advised of the risk of perinatal
transmission and means to avoid such transmission. If pregnant,
women living with HIV/AIDS, should have equal access to assistance
during pregnancy and after delivery. There should be no coerced
abortions or involuntary sterilisation due to HIV status.
Premarital testing may provide a false sense of security. Infection
status of an uninfected person need not be static. The risk of exposure
to infection by the blood or sexual route can change one's infection
status. Therefore, there is no point in making premarital testing man-
datory. However if one wants to voluntarily opt for it one may have a
choice to do so.
Freedom from Forced Servitude/Inhuman Treatment
People over whom power is exercised through tradition, custom,
poverty or criminal organisations should be empowered so as to be
able to protect themselves from infection. Such groups include women
in economic and sexual subordination; men, women and children in
the sex trade; illegal migrants; and disenfranchised groups.
Some Areas of Legal Action
The foregoing discussion points to some areas where legal provisions
may be helpful. These are stated below:
1. Protective legislation seems to be necessary to protect those who
are infected, to prevent discrimination against them where their
infection status or their disease does not pose a threat to those
whom they deal with at their work place, in public places, or
Grover (1996) points out that there are certain articles like
Articles 14, 15 and 16 in the Constitution of India that provide for
anti-discriminatory provisions. However within the meaning of
Article 12, these apply only to the 'State'. They do not apply to
the private sector (Grover, 1996). This is a major loophole that
needs to be plugged if discrimination is to be contained. A positive
law that will protect the common citizen from forced testing,
breach of confidentiality and discrimination and that which will
108 Gurmeet Hans
honour his/her right to treatment, education,employment, public
accommodation, is the need of the hour.
An exercise to review existing laws seems to be necessary, to
see if special provisions are required to prevent the discrimination
of persons with HIV/AIDS.
2. Proactive legislation to control of infection spread through health-
care professionals seems to be necessary. The workshop on 'Ethi-
cal Concerns in the AIDS Problem', organised by the F.I.A.M.C.
Bio-medical Ethics Centre, in 1991 addressed itself to the obliga-
tions of health care professionals, patients and society in the face
of HIV/AIDS challenge (Vas and D'Souza, 1991). The conclu-
sions of the workshop are based on ethical considerations revolv-
ing around human rights. If one studies the conclusions of this
workshop, it is clear that the medical ethics cover a range of issues
that arise in the treatment of persons with HIV/AIDS. What is
required is probably a stricter enforcement of medical ethics by
the professional bodies. This has been a weak area in our health
care system. There are hardly any reported cases of breach of
ethics or where any substantial action had been taken where breach
has been confirmed.
Besides medical ethics, the quality of medical care also cause
concern in the case of the HIV/AIDS pandemic. Though it appears
that the government hospitals are relatively better monitored on these
accounts, the mushrooming private nursing homes are infamously
trespassing the dignity of patients even otherwise. The HIV/AIDS
persons are likely to be even further affected in this scenario. There
is a strong case for legal provisions to enforce stricter licensing of
private nursing homes, polyclinics, blood banks and adherence to
ethics of medical practice. Currently there is a multi-agency moni-
toring of private nursing homes/polyclinics. Apathy of monitoring
agencies, combined with the apathy of the users of these services has
played havoc in a climate where demand exceeds supply. Though
medical services are now covered under the Consumer Protection
Act, in the absence of standardisation of norms of expected service,
clients are not quite sure of what was due to them and what they get.
There is need to debate whether the law could play a more instru-
mental role in this matter, if norms of expected services are specified,
standardised and made public.
3. Whether legal provisions could make HIV/AIDS education a
responsibility of the government, whereby it is bound to create
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mechanisms of reaching remote corners of the country through
networking of various government and non-government bodies
equipped/or may be equipped to undertake the task in a given time
frame, with a follow up on a sustained basis. It is popularly known
that the money spent on HIV/AIDS runs into very high figures,
yet the coverage of these programmes has been limited. If we go
on tinkering at this pace, it may be a bit too late for us to contain
4. Finally legislation has an instrumental role to play in the improve-
ment of women's status as women are likely to be the worst
sufferers of HIV/AIDS, due to their subordinate status in society.
Their suffering could be reduced, if they have equal opportunities
for employment and inheritance of property. The Civil Law has
made some favourable amendments in this regard, but in India
many communities are governed by their Personal Laws, which
Poverty leaves people with options which are hardly safe from the
risk of infection. After five decades of the country's independence, the
problems of poverty and unemployment have multiplied. Simultane-
ously, the provision of social security seems to be unthinkable. Legis-
lation that calls for compulsory public audit of government policy and
programmes, needs to be considered. Winning an election by majority
votes cannot be considered to be a substitute for public audit, particu-
larly where poverty and illiteracy are rampant. A lot more creative
thinking needs to go into areas of this kind.
There is much that could be achieved if lawyers could be trained to
acquire skills in the positive interpretation of existing laws in the
context of HIV/AIDS. They must be trained to see it as a disease rather
than a crime. Education and awareness of all sections of people —
public, educationists, doctors, nurses, lawyers, and so on holds the key
to managing the AIDS crisis with dignity.
AIDS Virus Spreading Fast in Suburban Areas, The Times
26, November 3.
HIV/AIDS: Human Rights Ethics and Law,
World Health Organisation.
110 Gurmeet Hans
The Crying Need for an HIV Statute, Bulletin: From the
Mann, J., David, J.M.,
AIDS in the World: A Global Report
Tarantola, T. and
Bombay: Tata Institute of Social Sciences.
Netter, W. (Eds.)
Vas, C.J. and
Ethical Cancers in the AIDS Problems, Mumbai: FIAMC
Bio-medical Ethics Centre.