Is It the Obligation of People with Hiv/Aids to Inform Spouses and Sexual Partners

Jia-Yang Zhao,Zhi-Zhuang Duan＊

1Zhejiang Normal University Xingzhi College,Zhejiang,China.

The Minhang District Court of Shanghai announced the first case of revocation of marital relationship by applying the new provisions of the Civil Code at the beginning of 2021.The defendant was used for failure to disclose to the plaintiff the fact that he was diagnosed with HIV before marriage.In addition,the Minhang Court decided to revoke the marriage relationship of the defendant according to Article 1053 of the Civil Code.As a result,the case aroused widespread concern and discussion at the societal level.The obligation of people with HIV/AIDS to inform their spouses and sexual partners thus entered the level of legal consequences.However,the new provisions of the Civil Code do not simply refer to the problem of HIV/AIDS and do not involve individuals with marital relationships.However,scholars found that many people with HIV/AIDS are unwilling to fulfill the obligation to disclose in practice [1].This scenario motivates the current study to examine the obligation of patients with HIV/AIDS to inform their spouses.

Notably,the Civil Code lacks a clear definition of the concept of major diseases.In this regard,the study refers to Article 8 of the law of Mother and Infant Health,to wit:“premarital medical examination includes the examination of the following diseases:(2)designated infectious diseases.” Furthermore,Article 38 stipulates that,“designated infectious diseases refer to AIDS,gonorrhea,syphilis,leprosy and other infectious diseases that are medically considered to affect marriage and childbirth as stipulated in the law of Infectious Diseases Control.” In fact,the so-called“major disease” in the abovementioned case also follows this rationale.However,the judgment of its scope may have exceeded the law in the absence of an accurate definition of major diseases.

The research on “AIDS stigma” has made substantial achievements in academe.It has gradually evolved into an epidemic symbol full of social significance beyond the medical category in view of the particularity of AIDS as a disease.This symbol has not only influenced the social view of AIDS but also inflicted people living with HIV/AIDS with worry and fear.People with HIV/AIDS frequently become resistant to the duty to disclose for fear of breaking up their relationships and for fear of the “AIDS stigma”(90% of partners with infections who fail to inform their spouse report that they are worried about the breakdown of their relationships).The practical dilemma of the obligation to disclose has not only failed to achieve the original legislative guidance based on the prevention and treatment of infectious diseases but has also alienated legal provisions as an objective factor that hinders the prevention and treatment of AIDS.Through in-depth interviews with 40 people living with HIV/AIDS,we found that the“AIDS stigma”is the biggest obstacle to the obligation to inform.Individuals with HIV/AIDS have generally cited increased psychological burden,and it may led to uncertain factors if they informe their spouses sexual partners,such as emotional breakdown and social moral criticism.As a consequence,many individuals with HIV/AIDS have opted to hide or even cheat.

AIDS prevention and control work requires not only reliance on the development of medicine but also on the participation of infected people with HIV/AIDS as a crucial component.Improving the living environment of people with HIV/AIDS is of paramount importance,especially in reversing the negative social evaluation of people with HIV/AIDS due to the AIDS stigma.As a specific group of society,people living with HIV/AIDS are more sensitive to privacy-related issues.As such,the legal requirements for their privacy protection should be more stringent.However,achieving voluntary implementation of the obligation to disclose from this group is difficult without effective privacy protection policies.In addition,this aspect is key to the formation of a virtuous or a vicious circle.

Without a doubt,overcoming the “AIDS stigma”requires the strengthening of publicity and education by public health participants to improve social inclusion and reduce social exclusion.However,the process takes a long time.Consequently,realizing the coordination between legal norms and social advocacy through effective protection of rights at the legal level is particularly important.For example,the widely accepted“U=U” (Undetectable equals Untransmittable means that a person living with HIV who follows their treatment plan and maintains an undetectable viral load cannot transmit HIV to their sexual partners)standard in the medical field should be incorporated into the field of legal norms to enhance the public's scientific awareness of HIV/AIDS.Toward this end,(a)persons with HIV/AIDS should be encouraged to take the initiative to inform through notification;(b) the intervention of disease prevention and control departments should be requested only under special circumstances;and (c) the negative impact of intervention should be reduced to a minimum.In addition,increased attention should be given to the mental health problems of people with HIV/AIDS by integrating mental health support into their diagnosis and treatment.

Notably,the failure of persons with HIV/AIDS to fulfill the obligation to disclose is not equivalent to malicious transmission because such an act does not necessarily constitute the deliberate intent to spread the virus to spouses or sexual partners.Many persons living with HIV/AIDS are also victims.After learning of their health status,the majority of them are extremely fearful that their careless actions will spread the virus to close contacts.Therefore,simply associating “subjective malice” with a person with HIV/AIDS who fails to fulfill the obligation to disclose is improper.Malicious transmission occurs in a very small number of persons with HIV/AIDS who are diagnosed with mental health issues as a motivation to instigate deliberate infection of others.However,such behavior not only infringes the right to life and health but also brings potential dangers and safety hazards to society.Therefore,the laws and regulations on malicious transmission should draw a clear “red line.” In summary,the positive demand to take the initiative to inform,on the one hand,and the negative warning against subjective malice in deliberately spreading the virus,on the other hand,among persons with HIV/AIDS should be subject to legal action.