By the end of this century, it is estimated that around 7 million HIV positive cases will be present in India alone
DR CHETAN LAVU KAREKAR
HIV or AIDS positive is the most stigmatic and discriminated illness all over the world. Reasons for this being varied, right from the non-availability of cure and consequent mortality in a full-blown case; its mode of transmission and spread -- homosexual and heterosexual activities; widespread occurrence amongst ‘main liners’; and patients receiving infected blood and blood products or from an HIV-infected needle etc. These aspects have created a dreaded halo around AIDS. Even among medical and paramedical community HIV infection is very common. Unfortunately, legislatures around the world, more so in India, have lagged behind in clarifying many legal issues involved by not enacting specific laws pertaining to AIDS. Consequently, many legal and ethical doubts arise in the minds of doctors and paramedics when confronted with a case of AIDS either in a live patient or in a dead body. In addition, the disease being incurable and 100 per cent morbid due to secondary infections cause being reduced immune response, makes it essential to adopt effective preventive measures which in turn need thorough knowledge of social aspects of the epidemic.
The continuously rising incidence of AIDS, especially in developing countries, has necessitated studying all the aspects of the disease to develop and adopt effective preventive measures. To emphasise the urgency of adopting effective prevention, it is a wise method to re-capitulate some statistical facts. Since the start of the pandemic, close to 30 million people are thought to have been infected with HIV, 26.8 million adults and 2.6 million children. Of this, an estimated 5 million adults and 1.4 million children have died. 42 per cent of existing HIV positive/AIDS adults are women. Another disturbing trend is that the majority of newly infected adults are under 25 years of age.
The Indian scenario is more disturbing than that of the world. HIV is spreading rapidly, in some parts of India. By the end of this century, it is estimated that around 7 million HIV positive cases will be present in India alone that is 1/6th of all HIV positive cases the world over.
The basic intention is to draw the attention of the medical and other communities to the rights of AIDS/HIV positive person, especially various aspects of right to confidentiality; doctor-patient relationship-ethical aspects- and the existing as well as suggested legal status of AIDS/HIV positivity in our country.
Right to confidentiality
This right to confidentiality in case of AIDS victim extends even after death and not only as long as he is alive. During life, notification to the public health authorities is mandatory in many Indian states. Considering the danger of spread to the sexual partner, partner notification is also allowed. After death, autopsy report is submitted to the public health and registration authorities, the funeral personnel are informed of the disease in the body. Organ transplantation teams are informed, if such a procedure is being contemplated and in case of third party insurance, the insurance company is entitled to the information.
In developing countries like India no matter how much we educate the public regarding true nature and consequences of the disease, AIDS/ HIV infection is an illness that arouses stigmatization and discriminations.
Another aspect of the right to confidentiality is that the woman has the right to confidentiality and freedom from discrimination when her child is found infected. Likewise one cannot deny employment to an AIDS victim as per our constitution. Any AIDS or HIV infected patient has the right to be able to avoid infection, the right to health care and the right to be treated with dignity and without discrimination when sick and to die with dignity.
(Laws Helpful to Prevent spread of AIDS)
(i) Section 51 of Goa Public Health Act is specific for notification of AIDS. In addition to the notification, the act has provision for obligatory medical examination of any suspect of AIDS. Nobody including foreigners can refuse to undergo blood examination for AIDS.
(ii) As regards to Bombay, the BMN act, Bombay Communicable Diseases Act, Section 421, provides for notification; section 424 provides for forcible removal of a person infected with communicable & dangerous disease and section 5480 restricts the entry of such person into public conveyance.
(iii) Blood Transfusion Services & AIDS: Every individual has the right to receive safe blood and blood products. Considering the high risk of transmission of AIDS through blood and blood products, the 11 July 1989 Govt of India circular makes it mandatory for all blood banks to adopt the WHO Biosafety Guidelines. According to these guide-lines, it is mandatory that each bottle of blood being issued from any blood bank should be tested and declared free of HIV contamination.
(iv) Miscellaneous Laws: (a) In many countries it is mandatory for immigrants and overseas students to produce HIV-free certificate to obtain a visa. (b) If any person leads to unlawful spread of any dangerous infection including AIDS he can be punished under Section 270 of IPC with two years of imprisonment. (c) Under sections 269 & 271 of IPC any person causing spread of dangerous infection unlawfully or negligently, knowing that the act can be dangerous to life, can be punished with six months imprisonment. (d) In case the foetus is found HIV positive: Medical Termination of Pregnancy can be undertaken. Similarly AIDS in either spouse can be used as a ground for divorce, like any other STD but its subject to court decision after going through all the aspects.
(2) Laws Detrimental to the Prevention of Spread of AIDS: Certain existing laws act as hindrance, albeit indirectly, to AIDS prevention programme.
(i) When HIV first surfaced in 1980s, it was known as Gay Plague. Even now homosexuals form an important reservoir and risk group. In India, Section 377 of IPC considers homosexuality a crime. However, in recent past, consensual anal coitus is decriminalised in recent past in 2019.
