By Shyam Pandharipande, IANS
Nagpur : Desirable but difficult to enforce – that is how experts and activists in the field of AIDS control describe a recent recommendation of a legislators’ committee to make pre-marital HIV test mandatory in Maharashtra.
While state Health Minister Vimal Mundada told reporters last week that the decision whether to enact such a law will only be taken after due deliberations with different sections of society, she was emphatic that the MLAs in the panel, most of whom were medical graduates, were unanimous in their recommendation.
“Initially there were certain misgivings among the panellists about the proposed measure but after considering the alarming rate at which HIV is spreading and the vulnerability of the newlywed girls getting infected from spouses, they concluded that such legislation was necessary,” the minister said.
The state government had set up the committee in response to a 2004 high court directive to find a remedy to the problem of AIDS while disposing of public interest litigation calling for legislation to make pre-marital HIV tests mandatory.
Though many in principle support the need for such legislation, there are also people who are apprehensive about the move. Eminent surgeon and AIDS counsellor Milind Brushundi says such a measure should not be enforced but could be done indirectly in a phased manner.
“The government can make producing a marriage certificate compulsory for parents at the time of admission of their children to schools or before procurement of ration cards and below poverty line (BPL) cards and make HIV test certificate a pre-condition for getting a marriage certificate,” Bhrushundi told IANS.
“I know such a law doesn’t exist anywhere in the world and also that the National AIDS Control Organisation (NACO) has opposed the idea of such a measure but a reappraisal of the guidelines is always possible in view of the rampant spread of the virus,” he said.
Bhrushundi cites as an example a Supreme Court ruling holding the “right to live” more important than the “right to marry” in disposing of litigation between a doctor and a private hospital.
“A doctor accompanying a minister to a hospital for medical treatment tested positive for HIV and the minister, to whom the hospital revealed it, passed on the information to others leading to the doctor’s fiancée saying “no” to marriage.
“The doctor petitioned the high court against the hospital for breach of confidentiality leading to denial of his right to marry and the court ruled in his favour. But the apex court reversed the ruling saying the girl’s right to live must get precedence over the man’s right to marry,” Bhrushundi pointed out.
Lawyer Ashutosh Dharmadhikari, on the other hand, strongly opposed the very idea of such a law.
“How can you make HIV test mandatory when it is not foolproof in the first place?” he asked, citing an opinion in the medical fraternity that the test is not definitive.
“Moreover, there are instances of persons suffering from other infections being diagnosed as HIV positive,” he said.
“In any case, no one stops a girl or her parents from insisting on an HIV test before fixing the marriage in the absence of law. Do people not insist on matching the horoscope though it is not legally binding?” the lawyer asked.
West Nagpur MLA Devendra Fadnavis feels such a law would be premature though he agrees in principle with the need for it.
“We don’t have enough HIV testing equipment and infrastructure even in cities and towns not to speak of villages; how can we make the tests mandatory?” he asks.
Fadnavis also doubts whether girls or her parents in our as-yet-male-dominated society would dare to ask for a groom’s HIV test and calls for raising awareness and a change of mindset to tackle the menace.
Medical practitioner and municipal councillor Milind Mane, who is active in the field of AIDS control, however insists that the law is overdue.
“Thousands of lives could have been saved if such a law was enacted 10 years ago,” he says.
“People pay and ask for dowry even though law prohibits it; they give and take bribe in spite of a forbidding law; does it mean we should throw out the laws for that reason?” he counters.
Mane says awareness raising and legislation would be complementary, but not mutually exclusive.
Shashi and Shobha, two HIV positive girls, are of the opinion that raising awareness in society leading to voluntary testing by people before marriage would be more desirable than making it compulsory.
“A legal obligation could lead to a tendency to produce bogus certificates among many and a few honest people really going for the test and testing positive will be stigmatised,” they said, appreciating the government’s concern for the potential victims of the disease.