Campaign Against Pre-Marital Mandatory HIV Testing

Public health should not be sacrificed for protecting civil liberties of a person. But gross invasion into personal liberties cannot be justified when the result of a strategy is uncertain or can be even detrimental.

There is an intense debate in India on mandatory pre- marital HIV testing. State Governments of Goa, Karnataka and Andhra Pradesh are considering to make HIV testing mandatory for every couple before marriage. Such decisions stem from an apprehension that many number of married women are being infected by their husband who are HIV +ve but do not disclose their status to their prospective wife prior to the marriage.
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 principles.
This campaign first began in 2002 when the Goa State Assembly and State Government of Andhra Pradesh announced to make changes in its public health law and to make HIV testing compulsory for couples before registration of marriage. The campaign against mandatory premarital HIV testing has been launched with the spirit to protect the privacy and liberty of an individual. Further it also emphasizes on creating awareness, education and empowerment of women and encourages voluntary counseling and testing. LCHAU wrote to the Chief Ministers of Goa [Click to download attachment] and Andhra Pradesh [Click to download attachment]expounding how the idea of premarital testing is fraught with problems.


Our Concerns ...

• The most common test for HIV is test for antibody (ELISA) which develops only after 3 to 6 months after HIV enters the body. Even if the person is infected with HIV, the antibody test result will still show a negative result if the antibodies are not developed. This time period is known as the "window period". Hence, a single test will not show the correct results.
• The repeated tests are required to be undertaken for confirming the positive status of a person. This could be a costly public strategy as it requires huge financial resources and can also drain the funds available substantially for improving public health.
• The high rate of false positive results in the country will have a traumatic impact on many families.
• Testing an individual's sero-status involves an intrusion into his/her bodily integrity and interferes with his/her liberty. An HIV test unlike other diagnostic tests can result in untold trauma to the person tested. The requirement of taking an individual's informed consent is essential for HIV testing.
• A pre-marital test doesn't prevent the person from getting the infection after marriage. It will also give the state a false sense of security as the infection can spread even with mandatory testing. It will not empower women to negotiate safe sexual relations, which is what is really required i.e. the empowerment of women to prevent infection.
• Many married women in India are in unequal relation with their husbands, the latter completely dominates them even to the extent that their consent is immaterial for sex. Further marital rape is not a criminal offence in India. Due to this married women undergo untold trauma during their sexual life. Premarital HIV testing does not address transmission of HIV infection to women after their marriage through marital rape or other sexual violence.
• It can open a racket in issuing false certificates.
• It will not prevent the spread to unmarried sexual partners and needle-sharing partners.
• It will drive the disease underground and will dissuade people from coming forward for voluntary testing. The evidence from different countries like USA ( State of Illinois, State of Louisiana [Click to download attachment] and State of Utah)[Click to download attachment] Malaysia, Sweden have proved that mandatory testing before marriage is counterproductive and will in fact result in further spread of the infection.
• This is against the National AIDS Control Organisation (NACO) policy on testing, which encourages voluntary testing after pre-test counseling.

In 2005, the State Governments of Goa, Karnataka and Andhra Pradesh proposed to table a Bill [Click to download attachment] which introduced mandatory pre-marital HIV testing. The Bill proposed by the Government of Karnataka also curtailed the right of procreation for PLHAs and had provisions for health care workers to compulsorily inform the results of HIV tests of a person to his/her spouse or sexual partner.
LCHAU also wrote to the Chief Ministers of Goa, [Click to download attachment] Karnataka [Click to download attachment] and also the Union Minister of Health explaining its reasons for opposing such a proposal and requested a rethink on this issue.
This is an urgent and pressing issue and we need to create awareness and collectively stand against
passing any law compulsorily testing couples before marriage.
Do mail us your views on this issue at aidslaw@lawyerscollective.org