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Kathmandu Friday November 30, 2001 Marga 15, 2058.
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HIV/AIDS : Laws and ethical
issues
By Sapana Pradhan Malla
Human Rights are universal, inalienable and
indivisible rights of every human being. However, their widespread abuses and violations
in association with HIV/AIDS have emerged as a major challenge all over the world. In
South Asia, this is not only due to individual, social and cultural behaviour, but also
because of the state made laws and policies. The state cannot escape from its obligation
to promote and protect the right of People Living with HIV/AIDS (PLWHA) by making
individual behaviour alone responsible. Discrimination and stigmatization on the basis of
HIV infection is a violation of right to live with human dignity.
Bringing social and cultural change is a
challenging issue. But law also plays a definite and purposeful role in bringing about
desired social change if it is sensitive to social, economic and cultural complexities.
Moreover, the process of law making generates social capital, which is necessary for the
effective implementation of law.
Unfortunately, the law-making process
reflects a ‘top-down’ approach, insensitive to the social, economic and cultural
complexities, which have always been challenging at the enforcement stage. In this
context, it is important to facilitate structuring of a comprehensive human rights and
gender sensitive HIV/AIDS policy and legal framework in the country.
The ‘threat perception’ among
medical professionals discriminate PLWHA as a means of protecting themselves. Furthermore,
it is difficult for most health institutes to apply and observe universal precautions due
to the lack of resources and infrastructure. Even the process of decontamination of wastes
is not being practised at many health institutions in Nepal. The media has, by
highlighting only the sexual mode of transmission of HIV, further stigmatizes its victims.
Due to the social misunderstanding of the problem, PLWHA cannot disclose their sero-status
to avoid becoming alienated in their own family and to prevent unemployment at work place
– so there exists a great potential for infection by denying its existence for fear
of being chastised.
Even though various fundamental rights are
guaranteed by the constitutions of South Asian countries, when it comes to people living
with HIV/AIDS, applications of rights are unequal. For example, the Indian Supreme Court
suspended the right to marriage for PLWHA, whereas in Bangladesh, the High Court
established the right of sex workers to work going beyond constitutional provisions that
discouraged prostitution and gambling. Such conflicting rights have created confusions
among lawmakers and interpreters.
The judiciary can play an important role
through the judicial intervention in protecting the rights of PLHWA. In a country like
Nepal, where the Government does not seem to be committed to solving the problem, access
to justice through the implementation of the Covenant on Economic, Social and Cultural
Rights could be one strategy to define the link with human rights instruments. Lack of
infrastructure and resources cannot be an excuse for not accepting it as a right of every
individual.
Various laws such as the Infectious Disease
Act, 1963; the Prisons Act, 1963; and the Hotel Management and Sales and Distribution of
Liquor (Control) Act, 1966 discriminates against PLWHA segregating them on the basis of
their sero-status. Health insurance policy excludes HIV infected persons and denies
treatment to those who are in urgent need of health care. Drug policy does not recognize
medicine as a basic need of people. Policies such as safe syringe distribution for
intravenous drug users, and lack of law for mandatory screening of blood and blood
products
for transfusion have also created complications in addressing the problem. The taboo
related to sexuality in general public and non-acceptance of homosexuality are some of the
factors that increase the vulnerability of homosexuals.
Laws have made women more vulnerable to HIV
infection. Marital rape is not recognized as an offence. The law is still based on
traditional concept that sees women as an object made for the comfort of men, and once a
woman is married, she cannot say no to sex, as it is considered her duty to serve her
husband. The law itself has indirectly permitted rape of prostitutes, since raping
prostitutes only warrants a tokenistic punishment of a fine of Rs 500 or an imprisonment
of up to one year. State made laws themselves facilitate the rape of certain categories of
women. Around 200,000 Nepalese women are in Indian brothels. Adultery by a woman provides
a legal ground for divorce, whereas the same is not applicable for men.
Abortion is not allowed even in the case of
HIV positive mother. Though the Country Code (Eleventh Amendment) Bill, 1999 does contain
a provision for the right to abortion, due to lack of political commitment towards
women’s issues, the Bill is still pending in parliament even after having been
registered six years ago. Discriminating laws such as property rights and lack of control
of resources is another problem facing the women of Nepal, India and Bangladesh. Therefore
these women are more vulnerable to harassment as they are dependent on their male family
members.
Human-trafficking is a serious crime and is
very rampant in South Asia. It has been documented that there is a lack of extra
territorial jurisdiction; lack of application of extra territorial jurisdiction; and
extradition treaty among India, Bangladesh and Nepal. The Extradition Treaty between India
and Nepal does not include trafficking. This and uncontrolled migration have made women
more vulnerable to HIV/AIDS.
In Nepal, a protectionist approach has been
introduced under the Foreign Employment Act, (1985) which states that an employment agency
needs the approval from the guardians and the government to send women for foreign
employment. Instead of creating conducive environment, laws restrict human rights that
include rights to mobility and income generation, making the situation graver.
An initiative has been taken to enact a new
trafficking law which has proposed to criminalize prostitution and the state has taken a
neutral stand with regard to voluntary prostitution. Under Section 54 of the Criminal
Penal Code (CRPC) of Bangladesh, if a woman is found with a condom, police may arrest and
put her in jail. This makes Commercial Sex Worker (CSW) vulnerable to HIV/AIDS as it
discourages the use of condom.
Such legal provisions are prevalent in other
South Asian countries as well. Therefore, it is also important to have a regional study to
identify "commonalities in terms of social, economic, political and cultural factors
and particularly cross border activities institutionalized in several respect, to enable
appreciation and comprehension of the problem at a broader level possibly leading to
nation specific and region focused approaches to address the problem".
Empirical data collected by Forum for Women,
Law and Development (FWLD) has identified cultural and social factors that have
contributed to women’s vulnerability to HIV. It has been identified that respondents
are reluctant to discuss sex; right to sexuality is controlled by men; and refusal to have
sex with one's husband can lead to severe consequences such as rape, bigamy, extramarital
relation, physical and mental abuse. It has also been found that because only
male-friendly condoms are available in the country, women sex workers lack negotiating
power to use condoms, and denial to sex without condoms can lead to torture and abuse.
This is due to economic dependence and customary practice towards marriage.
Condoms are perceived as a tool for birth
control only and not for the protection of sexually transmitted disease It was concluded
from the empirical data collected that women have been discriminated in power relation due
to social and culture context which makes them more vulnerable to sexual exploitation, and
hence, to HIV/AIDS infection.
It is indeed challenging to formulate gender
sensitive laws and policies that take into account social and cultural factors as well.
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