Rights of children with HIV v safety of children
Human Immunodeficiency Virus, better known as HIV is a virus that attacks the body’s immune system. If HIV is not treated, it can lead to AIDS (Acquired Immunodeficiency Syndrome). There is currently no effective cure for HIV, but with proper medical care HIV can be controlled. Most people get HIV through anal or vaginal sex, or sharing needles, syringes or other drug injection equipment. HIV can be transmitted from a mother to her baby during pregnancy, birth or breastfeeding. However, it is less common because of advances in HIV prevention and treatment. Mother to child transmission is the most common way that children get HIV. Only certain body fluids 9blood, semen, pre-seminal fluid, rectal fluids, vaginal fluids and breast milk) can transmit HIV. HIV cannot be transmitted through; • Mosquitoes, ticks or other insects • Saliva, tears or sweat • Hugging, shaking hands, sharing toilets, sharing dishes or closed mouth or social kissing with someone who has HIV • Other sexual activities that don’t involve the exchange of body fluids • Air
People living with HIV/AIDS face discrimination due to ignorance surrounding the disease. This discrimination affects children also – whether they have HIV/AIDS or not. Children to have rights related to HIV. Violation of these rights lead to deprivation of opportunities of education and development, they are not able to avail proper services, remedies and assistance, they are made to sit separately in schools and sometimes even denied admissions in schools. According to UNICEF India, there are 2,20,000 children infected by HIV/AIDS in India. It is approximated that every year, 55,000 to 60,000 children are born to mothers who are HIV positive. Thirty percent of these children are likely to be infected themselves.
The Indian government has developed policies that work as solutions for children affected by HIV/AIDS. National Aids Control Organization (NACO) is working towards prevention and cure of HIV/AIDS. While a specific law to protect the rights of HIV positive people is in the process of being formulated, there are certain basic rights that the constitution of India guarantees to all citizens and stan applicable even if a person is HIV positive like, right to informed consent, right to confidentiality, right against discrimination etc. A huge debate when it comes to HIV is whether the right to privacy of the individual affected with HIV or the public safety. Most countries have no specific law protecting individual rights. The provisions in the Constitution of India protect the rights of children affected with HIV/AIDS. Articles 15 and 16 prohibit discrimination in public facilities and public employment respectively. Article 21 protects the right to life, personal liberty and ensures the right to privacy. However these general provisions of the constitution are insufficient in dealing with the specific problems.
The first HIV/AIDS Bill was drafted in 1989. It was withdrawn as it had several discriminatory provisions such as mandatory testing and confinement of infected persons. The Indian Parliament has passed the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017 which recognizes the rights of HIV/AIDS person. The provisions of this Act is also applicable to children. Section 8 of the Act states that no person shall be compelled to disclose his HIV except by an order of the court that the disclosure of such information is necessary in the interest of justice for the determination of issues in the matter before it.
Naz India Foundation highlighted the following problems related to children affected with HIV; • Denial of admission, suspended and even expelled from schools if they or their parents or guardians are HIV positive. • They are segregated from other children in schools and have been made to clean toilets and classrooms • The confidentiality of the HIV-positive status of the children has been routinely breached, a violation of their right to privacy and the rampant acts of stigmatization that have followed have undermined their human dignity.
Naz India filed a Public Interest Litigation regarding the right to education of children affected by HIV. On 5th May 2017, Supreme Court held that children living with or affected by HIV (children who are HIV positive and children who are HIV negative but whose parent[s] is HIV positive) should be afforded protected status and included as a child belonging to a disadvantaged group under India’s Right of Children to Free and Compulsory Education (RTE) Act (2009). The children under the RTE Act have special protection like; • Measures to prohibit and eradicate discrimination, harassment, and victimization of children from disadvantaged groups • Eliminating discrimination in relation to the admission process including denying or limiting access to any benefits of enrolment or through segregation in separate study, sports, playground, canteen areas or any other amenities provided by the school • Protection from financial extortion or forced expenditure • The guarantee that private schools will allocate a minimum of 25% of places in each class to children from disadvantaged groups • Special mechanisms are available for complaints of discrimination
A bench of Chief Justice J S Khehar and Justice D Y Chandrachud cautioned the NGOs that “You must keep in mind that on one hand is the right to education. But you must also appreciate various segments of society. Some society may be very traditionalist. We have to do a balancing act. When we lay down parameters, we shall keep in mind we shall not harm other children just because they are not aware.”
The right of privacy and the right to opportunities available to adults with HIV are also applicable to children. But this is not enough. India needs to bring legislation specifically of children not only covering their right to education but also protection orphans, children with HIV positive parent[s], child trafficking and sexual exploitation. Regarding the safety of other children schools should be penalized when they discriminate against children affected with HIV. Schools should not be allowed to request, acquire or purchase the HIV status of children or their parents and admission, suspension or dismissal should not be made on the basis of their HIV status. Children must be educated about HIV as a part of their sex education so that discrimination and segregation on the side of other students can be avoided.