Global AIDS - India

Indian Children with HIV - July 7, 2003

The impact of the HIV epidemic on children has been complex and diverse. The stigma and discrimination faced by persons living with HIV/AIDS (PLHAs) is compounded in the case of children. Children and youth are physiologically more vulnerable to contracting HIV than adults, particularly when they are subject to sexual abuse, and a child's chances of losing both parents relatively quickly are far higher where the parents are PLHAs.

Recognising that the effect of HIV/AIDS is not limited to children who have lost their parents to the epidemic, 'children affected by HIV/AIDS' are recognised as those having a parent or guardian living with HIV/AIDS, those having lost a parent or guardian to AIDS, those living in households fostering children orphaned by AIDS, or those who are themselves living with HIV/AIDS.

Further the notion of 'AIDS orphans' has been expanded to include children below the age of 18 who have lost one or both their parents to AIDS.

Laws relating to children in India remain paternalistic, based on the view that persons below a certain age do not possess the ability to make certain decisions. This view is reinforced by providing an age bar for marriage, contracts etc. In most Indian laws persons below the age of 18 are referred to as minors. However, this does not account for age-specific needs of children and adolescents in the context of HIV/AIDS.

The law must recognise that the participation of young persons, especially adolescents, in decisions and interventions that affect them, is integral to the success of any HIV/AIDS intervention and to provide sensitive and appropriate support and treatment to young persons affected by HIV/AIDS.

Consent for testing & Confidentiality

Issues of primary concern for children affected by HIV/AIDS relate to mandatory testing policies and the preservation of confidentiality.

For children and adolescents, this is problematic as they are not recognised as persons who can or should have access to sexual or general health services without a guardian. Not only does this restrict the rights of children in general, the system also does not account for a large percentage of children who live and work outside family structures.

Legal strategies in other countries have been reformed accordingly to empower children (by specifying requirements in terms of age and the ability of the child to understand the nature of the diagnosis or treatment) to consent to testing and provide them the same rights as adults vis-à-vis confidentiality.

The issue of confidentiality for minors also arises in educational/institutional settings. Generally, information regarding the HIV status of a minor or her/his parents cannot be shared and should be disclosed based only on pre-determined protocols.

Children in institutional care are frequently subjected to mandatory testing, breach of their HIV status and discrimination. Legislation should outline the circumstances in which minors in institutional care who are incapable of understanding the nature of the diagnosis or treatment can be tested and also protect their right to confidentiality.

Discrimination

The impact of HIV/AIDS related discrimination is significantly felt by children in educational and institutional settings such as orphanages, juvenile homes etc. This issue has been highlighted by the recent expulsion of two HIV positive children from a school in Kerala.

Traditional discriminatory practices in India such as the refusal to treat adolescents, the denial of sexual health information, the promotion of abstinence only approaches, perpetuation of gender and sexual stereotypes have put minors, especially youth, at an increased risk to HIV.

International law, judgements and research have recognised the need for adolescents to access sexual health information and have affirmed their right to receive age appropriate sexual and health information, including condoms.

Children in Different Settings

Indian law does not, as such, deal with child specific issues in civil or criminal laws and children's issues have been discussed mostly in the context of child labour and child marriages. Unlike other jurisdictions Indian law does not recognise the child as separate from her/his guardians or parents. This limited understanding prevents children from accessing sexual health information and services. The Indian legal paradigm should enable children and adolescents to exercise their rights in different situations

The paper highlights some of the issues particular to the settings in which children find themselves. Thus children in families may face issues relating to inheritance, property rights, guardianship and adoption. Children living with or affected by HIV/AIDS in India are commonly discriminated against in schools and in many cases, schools refuse to accept children as students because they are HIV-positive or their parents are HIV positive.

Similarly, children living and working on the streets or within informal structures face discrimination at different levels that not only affect their ability to protect themselves from HIV, but in fact increase their vulnerability significantly.

One of the key factors responsible for transmission of the HIV virus to a child is child sexual abuse. In India, 47% to 76% of children, especially girls, have reported sexual abuse. However, the law in India still provides no deterrent to child sexual abusers in the form of punishment and does not in fact specifically recognise the crime of child sexual abuse.

State Protection, Institutionalisation and minors

The Indian State has interpreted its protective role for children and minors living outside family structures or in violent situations as limited to providing for their institutionalisation.

This policy has contributed significantly to discrimination as it places minors in extreme positions of powerlessness. For instance, where children come in conflict with the law, the provisions of the Juvenile Justice Act 2000 are applicable. Under this law, the juvenile justice system has the power to test a child for HIV without her/his consent. Further there are no safeguards to protect medical records and the child can be isolated on the basis of her/his HIV-positive status. Such policies fail to recognise that encouraging (and recognising) the collectivisation of children/youth, providing relevant education and skills, creating accessible sexual health information and health services etc. may in fact be more effective in empowering children/youth than displacing them from their environment.

It is only after this re-conceptualisation that effective strategies can be put in place to change the circumstances which make children and young people vulnerable to exploitation, violence and HIV.

The rights of children have been the subject matter of several international conventions and guidelines. The Convention on the Rights of the Child is the most widely acceded international convention which recognises the rights of the child and the obligations of the State towards children.

These obligations have expanded in the HIV/AIDS context. This paper argues that the recognition of these rights demands both legislative and policy initiatives for children living with HIV/AIDS and AIDS orphans.

Such initiatives include community based integrationist programs, incorporation of standards of care in institutions, providing access to the legal system, and changes in laws, particularly criminal laws (to address child sexual abuse and violence).