Three states are considering legislation on compulsory HIV testing before registration of marriage. Public health activists point out that premarital counselling and life skills education, not compulsory testing, are more likely to ensure behavioural change. Such a law might end up increasing the social ostracisation of the HIV-positive, adversely affecting women, the very group the law sets out to protect, says. Manjima Bhattacharjya

If you’re getting married in Andhra Pradesh, Goa or Karnataka some time soon, don’t be surprised if you’re asked for your HIV test results at the registrar’s office. These three states have proposed that HIV tests be made mandatory for couples before registration of marriage, opening up a Pandora’s box of controversies around the limits of individual privacy, women’s rights and how far the State can go in dictating or monitoring personal choices such as marriage. 

Andhra Pradesh Chief Minister YS Rajasekhara Reddy defended the logic of initiating this legislation by stating at a public function: “It may be infringing (the) human rights of victims to go for compulsory testing. But the rights of the partner and rights of future generations must be defended. The human rights of innocent young women married off to HIV-positive men who hide their status should be given higher priority.”

Such “compulsory testing” is contrary to National AIDS Control Organisation (NACO) policy which encourages voluntary testing as the most suitable public health policy for HIV.

A matter of public health

Public health expert Dr Ritu Priya from the Centre of Social Medicine and Community Health, Jawaharlal Nehru University, New Delhi, says: “There are two aspects to this debate from the public health perspective. One, is it feasible? Are our public health systems up to it? Is it implementable at all? And second, does it have real value in terms of prevention? This is the real question mark, because such measures have not worked in the past.” 

Dr Jasmine Gogia, Director, HIV programme, of the international non-governmental organisation Project Concern International that runs programmes in communities in five states with the goal of improving the quality of life of people living with HIV/AIDS, asks: “Where are the infrastructure and resources for this? Test kits are not enough, there are not enough counsellors, a whole chain of service delivery systems needs to be put in place to implement such a law. We are not ready to cater to those who voluntarily want to test – in fact, tests are not easily accessible in many places; imagine what will happen if we have to cater to compulsory testing for the million or billion marriages that happen in one state.”

Dr Gogia feels that the proposed legislation itself is based on a flawed understanding of the behavioural aspects of HIV/AIDS. She says: “If legislation was an answer and could prevent the spread of the disease, we could have controlled it early on in the epidemic. Legislation has not brought about behavioural change in anything, let alone HIV/AIDS.”

Ground realities

Meena Seshu, Director of SANGRAM, an HIV/AIDS prevention, treatment, and support organisation working with socially marginalised populations in Maharashtra, says: “Forget the human rights aspect of it. At a practical level, it doesn’t work. This is what we keep arguing with women on the ground. Premarital testing is okay, but what happens post-marriage? The assumption is that after marriage people have only one sexual partner, which is not the truth. On the ground it sounds like a good idea. Young women first believe this is the best thing to do. Slowly, when you start bringing out these points, they realise that this is not so. That you can’t control people by this method and you can’t predict their behaviour. What is important is to educate people about safe sex, and empower women and encourage them to prevent themselves from getting infected.”

Asha Ramaiah, National Women’s Coordinator of the 15,000 member-strong Indian Network of Positive People (INP+), seconds this: “What we need is counselling and information centres. Counselling can be made compulsory and information given to the couple. If they opt for testing, then it is fine. But instead of increasing awareness, the government is scrapping most sexual health and HIV programmes in schools, saying that it is vulgarity and will lead to young people indulging in these immoral activities.” 

P Kousalya, Director of the Chennai-based Positive Women’s Network, admits that “women are hearing and saying ‘good’, but actually it is not good”. Coming from Kousalya, this is worth listening to. Kousalya was 19 when she was infected by her newly-wed husband, who knew he was HIV-positive when he married her. Despite having been cheated by him and his family – her husband’s father was also aware of this – Kousalya feels that even if such a law had already been in place, it would not have helped the situation. “I didn’t have the capacity to ask,” she says. “I did not even know anything about it.”

Inherent flaws

The Lawyers Collective HIV/AIDS Unit, which drafted the HIV/AIDS Bill 2006 to be tabled in parliament this year, sent letters to the chief ministers of the three states that have proposed mandatory premarital testing. The organisation opposes such legislation and has initiated a series of public debates on the proposal. It has also pointed out that technically such a proposal is based on a misunderstanding of HIV and AIDS. The ‘window period’ between the time HIV is contracted and the time it begins to show up in a test is around three months, and any test conducted within this period will show negative results even if the person tested is HIV-positive.

Other flaws are that such laws can easily be bypassed – whether by marrying in other states which do not have such legislation, or by generating false certificates in the black market or by simply not registering marriage with the State at all, which is a common practice across the country. There is also the possibility of results known as ‘false positives’ and ‘false negatives’ which run the risk of stigmatising for life persons with invalid results.
 
It is this aspect of HIV, however – the stigma and social ostracisa tion – that makes flirting with this law akin to playing with fire, and magnifies the possible negative impact on women, the very group the law sets out to protect. Like various other legislations that aim to ‘protect’ women (such as the law that proposed women should not be working night shift, ostensibly for their own safety), this too is a double-edged sword. 

“Here, more people obey culture than law,” says Asha Ramaiah. “If a girl is found positive through compulsory testing, the stigma is very high, much higher than if a man is found positive. We don’t know how her family will react, or the community. If she has sisters, they will not get married, the whole family is stigmatised. There is not enough education or awareness about HIV for people to support anyone testing positive.”

Activists are also not confident that the call for legislation will be sympathetic to individuals who test positive, providing them confidentiality and encouraging them to begin treatment immediately. The legislation appears to be more focused on the uninfected potential spouse who has to be ‘saved’. The outcome of this would be the identification and isolation of persons testing positive, adding to the AIDS stigma and paranoia.

Also of concern and reminiscent of debates around eugenics is what the government will do with the information of those tested. In the wrong hands, this information could be grossly misused. States trying to engineer their populations and cleanse HIV through coercive measures are latent possibilities. Where does this sort of testing end? Kousalya asks: “Then why only HIV? Tests should be there for everything, all diseases, the ability to reproduce and so on. So many women are targeted as being infertile if they cannot bear children, when it is the man who is in fact to blame.” 

Seshu’s biggest concern, however, is that “a law like this lulls women into a false sense of security, which actually harms them in the long run. People stop practising safe behaviour.”  

A real dilemma

While most AIDS health workers are toeing the NACO line, women’s groups admit that there is a dilemma. It is a gendered phenomenon, and there are certainly examples of men hiding their HIV status and marrying women so that there will be someone to cook, clean and care for them -- work that is considered ‘women’s work’.

A report from the Planning Commission in preparation for the Eleventh Plan notes that there is a growing feminisation of the HIV/AIDS epidemic. NACO estimates that one in three persons living with HIV in India is a woman, and that nearly 60% of HIV-positive widows are less than 30 years of age and live with their natal families as 91% of them receive no financial support from their marital homes. 

Moreover, both AIDS activists and women’s groups accede that young women in the arranged marriage set-up, especially in rural areas, are hardly empowered or informed enough to ensure the use of condoms in their newly-married lives. So wouldn’t the law help women make this demand of their prospective spouses?

But Kousalya points out the impracticality of such a clause in the law: “Even though it may be the law, how many can actually demand this from their would-be husbands? We have lots of laws – against dowry, child marriage, under-18 marriage – but how many people are using the law? In an arranged marriage the family decides everything, not young people, and definitely not the young woman.” Instead, Kousalya suggests that the pattern be changed. “First, make marriage registration compulsory. Then counselling must be undertaken, after which testing should be done if both parties agree.”  

Seeking alternatives

Dr Ritu Priya feels there are other ways to address the central problem. She says: “From the woman’s angle one can’t say no to (the law) so easily because there is a problem. But to address that, one can take up an individual case and interpret it as a criminal act. It is possible under present criminal law to prosecute men who marry and infect their partners knowingly without informing them. If a few cases like that are dealt with by law, it may be a deterrent.”
 
This does not take away from the fact that a woman, or any prospective spouse, has the right to ask her partner for an HIV test. Sandhya Gokhale of the Forum Against Oppression of Women (FAOW), a feminist group in Mumbai, feels that although a law is unwarranted and gives too many powers to the State, some measures should be taken to enable women to exercise their right to know the HIV status of a prospective spouse. She says: “It is true that women are particularly vulnerable and there are cases of such cheating. The question is, how do women take control of the situation.”

FAOW’s alternative suggestion is that a disclosure agreement be part of the marriage registration form and rules itself. A question along the lines of: ‘Have you revealed your HIV status to your prospective spouse?’ must be compulsorily answered in the form. “The marriage registrar does not need to know, but the person should have communicated his/her HIV status to the to-be spouse. Nobody needs to lose their privacy vis-à-vis other members of society or the State, but husband and wife must tell each other.” Elaborates Gokhale: “We all know that none of this is foolproof, and rules can be circumvented in various ways. But the idea is to make women aware through this question that it is something they should think about and demand from their spouse.”   

Women’s vulnerabilities

Clearly, one cannot discount the issues that the proposed legislation brings up. Women’s vulnerabilities must be kept in mind when reviewing alternatives for such legislation, and long-term measures sought rather than knee-jerk, quick-fix solutions which only provide a false sense of security to both individuals and the State.

Many will remember the 1985 Oscar-winning film Out Of Africa in which actor Meryl Streep plays out the true story of Danish baroness Karen Blixen who contracts syphilis from her philandering husband at the end of her first year of marriage. Even though, after World War II, a syphilis outbreak led to compulsory premarital blood testing in many countries and safeguards existed on paper, as women like Karen Blixen realised, there were no guarantees in real life.

(Manjima Bhattacharjya is a sociologist and activist based in Mumbai. She did her PhD from the Centre for the Study of Social Systems, Jawaharlal Nehru University, on globalisation, women and work and currently writes for various publications on socio-political issues. She has been active in the Indian women’s movement for the last 10 year)

InfoChange News & Features, January 2008