The recent announcement by the Chief Minister of Himachal Pradesh that the State government was considering making pre-marital HIV/AIDS testing mandatory has brought to the fore the complex issue of devising an effective strategy to reduce HIV incidence while being sensitive to an individual’s rights. Other States such as Goa, Andhra Pradesh, and Karnataka that had once contemplated such a law have dropped the idea. It is scientifically proven that women are biologically vulnerable to heterosexual HIV transmission about four times more than men. This fact highlights the need for effective measures to protect the health of women. A Supreme Court judgment of 1998, while upholding the action of a hospital in revealing to his fiancé the HIV status of an individual about to be married, noted that “the proposed marriage carried with it the health risk to an identifiable person who had to be protected from being infected.” In effect, the judgment laid down that the right to medical confidentiality was not absolute and exceptions needed to be made in such cases.
While pre-marital testing is undoubtedly one of the ways of protecting women, making it mandatory by law on pain of penalties would be a gross violation of an individual’s rights, including the right to privacy, besides being impracticable. Facilities for large scale testing of people outside the high-risk categories are inadequate in most of the States. Even in Tamil Nadu, where the number of voluntary testing centres is one of the largest in the country, every centre caters to a vast segment of adult population. Were testing to be made mandatory, there is also a greater possibility of people faking results, defeating the public policy goal of prevention. India, which according to the National AIDS Control Organisation’s (NACO) 2007 sentinel surveillance survey data, has an overall prevalence of 0.34 per cent comes under the low HIV prevalence category. In Tamil Nadu, a higher prevalence of eight per cent is seen in those with sexually transmitted diseases and more than five per cent in the high-risk group. Yet, rather than take on the burden of universal testing, the State has opted for the targeted-testing of people in the high-risk category as an effective means of preventing the spread of HIV. As for protecting persons, particularly women, entering into a marriage, pre-marital testing is a good practice that should be encouraged on a voluntary basis by mutual agreement between the parties. Governments will do well to increase the awareness so that voluntary pre-marital testing becomes widespread.