Choice and conscience

Of the bizarre things that happen daily in society, one surely is a man's suing of his hospital for disclosing to his prospective in-laws th...

Of the bizarre things that happen daily in society, one surely is a man8217;s suing of his hospital for disclosing to his prospective in-laws that he was HIV-positive. The wedding, unsurprisingly, was called off. Now the Supreme Court has ruled, in the first case of its kind, that so long as a man is not cured of HIV his right to marry cannot be enforced by a court. It would have been a travesty of justice if the man had indeed won damages for trying to dupe a girl into marrying him who did not know he was HIV-positive.

But it is hardly so simple. Indeed this is an extremely deep matter, involving profound values such as individual freedom versus the state8217;s need to protect people. Would it be desirable for the Court8217;s ruling to form the basis of some sort of future legislation or are these matters best left to the individual conscience? What if there are lapses of conscience, as there will be, among the HIV-infected and AIDS patients and by some families which may be driven by considerations other than theirgirls8217; welfare? This newspaper does not claim to have neat answers, but it is worth talking about what is at issue.

For the state there is a need to make sure that in a society where gender inequalities are worse than in several parts of the world, women are not forced or tricked into marrying men with a communicable disease. But that goes not just for AIDS: tuberculosis and venereal disease qualify similarly and there seems little reason for the law to treat AIDS differently from them with regard to marriage. True, of these AIDS alone is inevitably fatal, but a young woman is hardly likely to choose to marry a man with TB or VD either.

Exceptionally, of course, a healthy person may choose to marry an AIDS patient or someone with other communicable and fatal disease: for love, on agreement that the marriage would not involve physical relations, and so on. Such cases may be rare, but the state must show respect for individual choice and not get in the way of those who would make such a marriage knowingabout the condition.

Tentatively, it seems a good idea for there to be a law but not a law that would get in the way of AIDS patients or sufferers of other diseases from marrying. A much better law would be one that made it incumbent on the patient or infected person to disclose his condition in full to the person he or she proposed to marry. Information is of the essence. Even in a situation of grinding poverty and a brutalised existence, few families would favour such marriages for their offspring 8212; providing that they know.

For the handful that would not be deterred by the knowledge, coercion should be the yardstick of whether or not the law gets activated. Disclosure must be legally required, but if in spite of it someone chooses to marry the law should keep out of it. Unless, of course, it can be established that a marriage was forced in which case the penalty should be really harsh. Of course this is not a perfect solution. There will still be those who will be tricked into marrying sick peoplewithout being told about their condition.

But this is better than blanket outlawing. Brutal as this may sound, freedom comes for a price and a balance must be struck between freedom and protection of the vulnerable.