The Maharashtra government’s proposal is aimed at shielding women but it could end up adding to their vulnerability
Anand Grover & Mihir Samson Director & Advocacy Officer, Lawyers Collective
THE MAHARASHTRA government is considering a proposal to make HIV test mandatory before marriage. The proposal is seemingly an attempt to protect women from contracting HIV from their husbands. However, evidence shows that such testing is ineffective in preventing transmission.
The proposal is not new. It has been considered in Kerala (2011), Jharkhand (2010), Goa (2006), Andhra Pradesh (2002) and in Maharashtra itself in 2008. Each time, the proposal was abandoned or rejected for manifold reasons.
First and foremost, the National HIV/AIDS Control Programme, implemented by the health ministry’s National AIDS Control Organisation (NACO), is founded on a rights-based approach. It is based on the understanding that the epidemic can be addressed only by respecting the rights of people living with HIV and those vulnerable. Three fundamental aspects of this approach are informed consent, confidentiality and non-discrimination. When rights are violated, people lose confidence in the public health system, causing the epidemic to go underground.
Mandatory testing is antithetical to the rights-based approach. It overrides an individual’s right to make decisions about their body and thereby violates their right to informed consent. There is also a serious risk of the HIV status of a person becoming public, violating their right to confidentiality. A large number of marriages in India are arranged with the participation of the prospective spouses’ families. If a person tests positive, the results would be shared with everyone involved, thus making it public, with grave repercussions. There is also a risk of false positive results. Persons who may not have contracted HIV may test positive, which could have a serious negative impact on their future.
Mandatory testing is also ineffective in preventing HIV transmission. It is based on a fundamentally flawed assumption that an HIV test prior to marriage guarantees protection from HIV subsequently as well. It does not address the fact that HIV can be contracted during marriage, by either spouse, through extra-marital sex, blood transfusion or sharing needles. In fact, the test would lure spouses into a false sense of security of being protected from HIV. This could increase complacency regarding health risks associated with sex and increase risky sexual activity. It would also reduce the ability of women to negotiate safe sex.
The public health system currently uses the antibody test to detect HIV. However, the limitation of the test is that there is a window period, of up to three months, during which antibodies remain below detection levels. During this period, an HIV positive person would test negative for HIV. As a result, HIV transmission would not be prevented when a person is tested during the window period.
Experience shows that mandatory pre-marital testing is easily subverted. When it was implemented in Illinois, US, people travelled to other states to get married. The law was later repealed. In Louisiana and Utah, similar laws were found to be wasteful and ineffective and eventually removed. In India, it is also possible that instituting such a policy could open a racket of obtaining false certificates.
It’s possible that instituting such a policy could open a racket of obtaining false certificates
That women are more vulnerable to HIV than men is well-established. Part of this is biological, but a large part of this vulnerability can be traced to the socio-economic and cultural disadvantages that women face. Most women have little or no control over decisions about sex, including condom use.
It would be far better if NACO introduced the HIV/AIDS Bill in Parliament immediately. The Bill espouses the rights-based approach in general. It contains a number of specific provisions, seeking to ensure that women have access to information regarding, and able to take decisions relating to sex. These include the provision of sexuality education to adolescents and couple counselling before marriage. NACO must champion the cause of the Bill and put to bed all debate about policies such as mandatory pre-marital testing, which are contrary to the rights-based approach and deleterious to public health.
(The views expressed in this column are the writers’ own)