Women, who have little ability to negotiate a safe and healthy life for themselves are more disadvantaged than men when it comes to HIV infection, and the law does little to protect them. Atiya Bose and Kajal Bhardwaj of the Lawyers Collective explain

Gender inequalities are at the heart of women’s vulnerability to HIV/AIDS – women exercise almost no control over their lives including their sexuality and reproductive choices, have fewer options, and little or no decision-making power in private and public spheres. Sadly, gender inequality is a fact in much of the world, and not surprisingly, the feminisation of the HIV epidemic is a worldwide phenomenon.

Epidemiological data in India shows that one in every four cases of HIV that is reported is a woman, with heterosexual sex being the single most common mode of transmission. Biologically, there is evidence that it is more likely for HIV infection to pass from a man to a woman during unprotected sexual intercourse than from a woman to a man.

In India, numerous other factors also operate to increase women’s vulnerability. The health care of women in general is virtually neglected except, marginally, in the reproductive context. Economically, women have less access to jobs due to limited access to education. They usually do more menial work, and are paid significantly less than men. Child marriages and bigamy continue to occur. Indian criminal law does not recognise marital rape leaving women unable to negotiate safer sex within marriage. In every conceivable way, from the moment of her birth, a woman is stripped off the ability to negotiate a safe and healthy life for herself.

HIV stigmatises women and men in gender-specific ways. Women tend to be blamed as vectors of the epidemic – to their partners and children – and HIV infection in women also serves to reinforce unequal sexual stereotypes whereby women are labelled as ‘promiscuous’ and morally unworthy. In the majority of cases, women often with their children are thrown out of their homes once the family learns of their HIV-positive status or after their husbands die. The recently notified Protection of Women from Domestic Violence Act 2005 offers some protection in these cases as it recognises sexual abuse within marriages, the right of residence of women and also addresses economic abuse.

Pre-marital mandatory testing

It is important that any policy or legislation with regard to HIV does not violate women’s rights or place them in more disempowering situations. A case in point is the present debate in the country about instituting a mandatory pre-marital HIV test requirement with Goa, Karnataka and Andhra Pradesh having proposed the introduction of this policy at various times over the past few years.

Ostensibly this is to protect innocent young women from being married off to men who have been infected with HIV. However, this approach is unlikely to achieve the purpose of protecting women, and will likely lead to the emergence of a profitable black market in fake health certificates. It will also not protect women from being infected later on, and will create a false sense of security. This policy is not without precedent – an attempt to enforce this in different states in the US resulted in people wanting to get married migrating to nearby states.

A more far-reaching impact could be achieved instead by requiring all marriages to be registered, and on mandating a pre-marriage counselling session where information about sexuality, rights, contraception, sexually transmitted infections and their prevention, HIV/AIDS, and other life skills is imparted to both men and women.

Women frequently do not have access to appropriate information about basic health issues, and providing knowledge will be an important tool in their empowerment. A change in the law to recognise for instance, that forced intercourse within a marriage is rape will also go some way to protect women who may be vulnerable to infection, and who are exposed to sexual assault by their spouse.

Atiya Bose is media and communications officer and Kajal Bhardwaj is head of the technical and policy unit at the Lawyers Collective HIV/AIDS Unit. The Lawyers Collective HIV/AIDS Unit was set up in 1998 based on a realization that law, policy and judicial action that upheld the human rights framework had a central role to play in effectively containing the HIV epidemic. The Unit comprises lawyers, law students and activists working in offices in Mumbai, Delhi and Bangalore, and offers free legal services to persons living with, affected by or vulnerable to HIV and undertakes advocacy and research initiatives related to law, rights and HIV.

© Lawyers Collective HIV/AIDS Unit www.lawyerscollective.org

Infochange News & Features, February 2008