Andhra Pradesh AIDS Bill

[Guest guest]

Dear Forum Members,

This is with reference to the announcement of the Andhra Pradesh AIDS Bill which

proposes mandatory premarital HIV testing for couples. Lawyers Collective

HIV/AIDS Unit had written a letter to the Chief Minister of Andhra Pradesh, Mr.

Chandrababu Naidu and the APSACS on 18 September 2002 explaining why mandatory

HIV testing is a strategy fraught with problems. Below is a copy of the letter

we had written to the Chief Minister to which we have not received any response.

(A similar proposal was made by the Goa Government around January 2002 to which

we had also written a letter. The Goa Government responded by stating that they

would decide on the matter only after extensive consultations were carried out

and that the decision making process would be a transparent one). Our letter is

also available on our web site www.lawyerscollective.org and the Lawyers

Collective HIV/AIDS Unit Newsletter 'Positive Dialogue' No. 15.

We feel that this is a good opportunity for many of the views that are being

shared on this list against mandatory premarital testing be conveyed

articulately to the Andhra Pradesh Government.

With regards,

Lawyers Collective HIV/AIDS Unit

E-mail: <aidslaw@...>

______________________

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 mandatory 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 mandatory 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:-

1.. 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.

2.. 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.

3.. 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.

4.. 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.

5.. 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.

6.. 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 martial

relations.

1.. This apart, a pre-marital mandatory HIV testing policy would tend to have

negative public health consequences, in the following manner:-

1.. 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.

2.. Further, this would only have the consequence of people going outside the

State to marry, where such tests are not required.

3.. 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.

4.. Mandatory testing often ignores issues of consent and confidentiality of a

persons HIV status. This again would have a negative public health impact as

people would lose their faith in the health system of the state.

5.. 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.

6.. Mandatory pre-marital testing for HIV could prove to be 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.

7.. In most personal laws marriages are not required to be registered. Thus, for

example, a Hindu marriage can be solemnized only by performing ceremonies. No

registration is required. Therefore, a policy for mandatory testing would be

impossible to implement.

1.. 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 women (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.

1.. 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.

2.. 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.

3.. 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.

1.. 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 US of A 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.

2.. 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.

3.. 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

c.c: Andhra Pradesh State AIDS Control Society

Enclosed:

1.. A letter written by UNAIDS, by Timberlake, Human Rights adviser,

Policy, Strategy and Research, to Ms. na Mahathir, Malaysia.

2.. Mandatory Pre-Marital HIV Testing - An American Civil Liberties Union

Report, March 1998.

3.. Utah Code.