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1. Constitutional and Civil
Rights
A constitutional right is a right granted by a country's
constitution, and cannot be legally denied by the government.
Civil rights are the protections and privileges of personal
liberty given to all citizens by law. Examples of civil rights and
liberties include the right to get redress if injured by another,
the right to privacy, the right of peaceful protest, the right to
a fair investigation and trial if suspected of a crime, and more
generally-based constitutional rights such as the right to vote,
the right to personal liberty, the right to life, the right to
freedom of movement, the right to business and profession, the
right to freedom of speech and expression. As civilizations
emerged and formalized through written constitutions, some of the
more important civil rights were granted to citizens. When those
grants were later found inadequate, civil rights movements emerged
as the vehicle for claiming more equal protection of law and
equality before law for all citizens and advocating new laws to
restrict the effect of discriminations. Some civil rights are
granted in written constitution and some are implied by customs
and courts decisions.
2. Right to Privacy
In most of the common law constitutions, right to privacy is not
given expressly to their citizens, but derived from judicial
review and court decisions. The term "privacy" has been described
as "the rightful claim of the individual to
determine the extent to which he wishes to share of himself with
others and his control over the time, place and circumstances to
communicate with others. It means his right to withdraw or to
participate as he sees fit. It also means the individual's right
to control dissemination of information about himself; it is his
own personal possession" Privacy has also been defined as a
Zero-relationship between two
or more persons in the sense that there is no interaction or
communication between them, if they so choose . Numerous legal and
moral philosophers have suggested that privacy is valued because
it satisfies a number of primary human needs .
The Right to Privacy in the
USA
In the U.S.A., the common law did not recognize any right to
privacy. So, courts in the United States did not consider privacy
as a right to be protected until the eve of the twentieth century.
The need for a law to protect privacy was articulated as early as
1890 when an article titled The Right to Privacy was published
by Warren and Brandies in Harvard Law Review . This article laid
the foundation of privacy right in the USA. Though there were
hundreds of cases related to right to privacy came to the courts,
the first higher American court to deal with the right to privacy
was a New York appellate court in 1902 in Roberson v. Rochester
Folding Box Co . Chief Justice Parker in that case said:
in that defendants had invaded what is called a 'right of
privacy'--in other words, the right to be let alone. Mention of
such a right is not to be found in Blackstone, Kent or any other
of the great commentators upon the law, nor so far as the learning
of counsel or the courts in this case have been able to discover,
does its existence seem to have been asserted prior to about the
year 1890, when it was presented with attractiveness and no
inconsiderable ability in the Harvard Law Review (Vol. IV, page
193) in an article entitled, 'The Right of Privacy.'
The so-called right of privacy
is, as the phrase suggests, founded upon the claim that a man has
the right to pass through this world, if he wills, without having
his picture published, his business enterprises discussed, his
successful experiments written up for the benefit of others, or
his eccentricities commented upon either in handbills, circulars,
catalogues, periodicals or newspapers, and, necessarily, that the
things which may not be written and published of him must not be
spoken of him by his neighbors, whether the comment be favorable
or otherwise.
The most well-known American
cases on privacy are Griswold v. Connecticut
and Roe v. Wade . In
Griswold the constitutionality of a law which prohibited the use
of contraceptives was challenged. Upholding the notion of privacy,
Justice Douglas held:
"... 'governmental purpose to control
or prevent activities constitutionally subject to State regulation
may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms'. (NAACP
v. Alabama ) Would we allow the
police to search the sacred precincts of marital bedrooms for
telltale signs of the use of contraceptives? The very idea is
repulsive to the notions of privacy surrounding the marriage
relationship."
Striking down the legislation
as an unconstitutional invasion of the right to marital privacy,
it was held that the right of freedom of speech and the press
includes not only the right to utter or to print but also to
distribute, receive and read and that without those peripheral
rights, the specific right would be endangered.
Roe v. Wade
dealt with the
right of an unmarried pregnant woman to an abortion. Upholding the
woman's right to make that choice which affected her private life,
the Supreme Court held that although the American Constitution did
not explicitly mention any right of privacy, the Supreme Court
itself recognized such a right as a guarantee of certain "zones or
areas of privacy" and "that the roots of that right may be found
in the First Amendment, in the Fourth and Fifth Amendments, in the
penumbras of the Bill of Rights and in the concept of liberty
guaranteed by the Fourteenth Amendment ".
Also Restatement (Second) of
Torts § 652A (1977) laid down general principal of and definition
of Invasion of Privacy.
(1) One who invades the right of privacy of another is subject to
liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
a) Unreasonable intrusion upon the seclusion of another, as stated
in § 652B; or,
b) Appropriation of the other's name or likeness, as stated in §
652C; or
c) Unreasonable publicity given to the other's private life, as
stated in § 652D; or
d) Publicity that unreasonably places the other in a false light
before the public, as stated in § 652E
The Right to Privacy in India
The right to privacy in India has derived itself from essentially
two sources: the common law of torts and the constitutional law In
common law, a private action for damages for unlawful invasion of
privacy is maintainable. The printer and publisher of a journal,
magazine or book are liable in damages if they publish any matter
concerning the private life of the individual without such
person's consent. There are two exceptions to this rule: first,
that the right to privacy does not survive once the publication is
a matter of public record and, second, when the publication
relates to the discharge of the official duties of a public
servant, an action is not maintainable unless the publication is
proved to be false, malicious or is in reckless disregard for
truth.
In India, the Constitution
does not expressly recognize the right to privacy. The concept of
privacy as a fundamental right first evolved in 1964 in the case
of Kharak Singh v State of Uttar Pradesh. The Supreme Court, for
the first time, recognized that there is a right of privacy
implicit in the Indian Constitution under Article 21 . The Court
held that the Right to Privacy is an integral part of the Right to
Life, but with out any clear cut laws, it still remains in the
grey area.
In Kharak Singh v State of
Uttar Pradesh, Supreme Court of India struck down Regulation which
authorized domiciliary visits as being unconstitutional but upheld
the other provisions of surveillance under that Regulation. Their
view was based on the conclusion that the infringement of a
fundamental right must be both direct as well as tangible and that
the freedom guaranteed under Article 19(1)(a) - a right to freedom
of speech and expression - was not infringed by a watch being kept
over the movements of a suspect. At that time court did not
recognize the right of privacy. But in Gobind v. State of M.P ,
also a case of surveillance, the Supreme Court, while upholding
the regulation in question which authorized domiciliary visits by
security personal, also held ... Depending on the character and
antecedents of the person subjected to surveillance as also the
objects and the limitation under which surveillance is made, it
cannot be said surveillance by domiciliary visits would always be
unreasonable restriction upon the right of privacy. Assuming that
the fundamental rights explicitly guaranteed to a citizen have
penumbral zones and that the right to privacy is itself a
fundamental right, that fundamental right must be subject to
restriction on the basis of compelling public interest.....
An encroachment upon one's
privacy is only shielded if the offender is the state and not a
private entity. If the offender is a private individual then there
is no effective remedy except in tort where one can claim damages
for intruding in his privacy and no more. In R.Rajagopal v State
of TN (1994) the Supreme Court held that the right to
privacy is a right to be let alone. None can publish anything concerning the
above matters without his consent, whether truthful or otherwise
and whether laudatory or critical. If he does so, he would be
violating the right to privacy of the person concerned and would
be liable in an action for damages.
3. Privacy and Sexually
Transmitted Diseases: Fight between Civil Rights Right of privacy
is the right to be let alone but no right is absolute. Every
personal right has its own limitation for public safety and
national security. There must be some checks and balance.
At least since their
appearance in Western Europe in the late fifteenth century ,
sexually transmitted diseases (STDs), or venereal diseases
as they were once called , have been characterized by a remarkable
paradox. Despite their endemic nature in Europe and North America,
STDs were and still are a Secret Malady. Persons have
endeavored to keep their sexually transmitted infections hidden
from the social world ? from their sexual partners, families, and
communities. At the same time, prevailing social mores have kept
STDs from the public consciousness and consequently have prevented
STDs from receiving public action and effective intervention. The
most venerable position in STDs is of life partner of infected
person. From its origins in the practice to control the disease,
partner notification has been motivated by the moral imperative to
notify and to protect persons who are unaware of their risk of STD
exposure. Infected persons (and, to a certain extent, public
health authorities) questioned the theories of disclosure and
protection that justified partner notification because it cost to
individuals in loss of privacy and discrimination. Disclosure of
such record can result in discrimination of their family and
friends too.
Infected persons has right of
privacy, but partners of infected persons too is at health risk.
The partners of infected persons have an equally powerful claim of
right to know or right to information. The right to know developed
from the social movement of the early 1900s. It developed under
tort law that held that a person has a duty of care toward his
sexual partner. Under the tort concept duty
is a legal
obligation to conform to a certain standard of conduct towards
another person. This duty makes an obligation to disclose an STD
to a sexual partner or to protect the partner from avoidable
health risks.
In the United States, many
laws passed and enforced to protect infected persons and also to
protect other people from infected persons. Federal legislation
such as the Privacy Act of 1974, 5 U.S.C. § 552(b)(1)-(3), (6)
(1994), which requires federal agencies to utilize fair
information practices with regard to the collection, use, or
dissemination of systematized records, and the Freedom of
Information Act of 1966 ("FOIA"), 5 U.S.C. § 552 (1994), which
exempts from governmental disclosure several categories of
records, which include health information.
In Doe v. Borough of
Barrington, 729 F.Supp. 376 (D.N.J.,1990) the court held that a
police office violated constitutional right of privacy by
disclosing that a person was infected with HIV. The facts of this
case is as follows
Jane Doe, her husband and
friend, were traveling in the plaintiff's truck when police
officer of Borough of Barrington (Barrington)
stopped the truck and questioned the occupants. Police officer
arrested them and than release Jane Doe and her friend from
custody but detained Jane Doe's husband on charges of unlawful
possession of hypodermic needle . When he was initially arrested,
Jane Doe's husband (the
plaintiff) told the police officer that he had tested HIV
positive and therefore officers should be careful in searching
him.
Later on the same day Jane Doe
and her friend drove her friend's car to the Doe residence. The
car engine was left running, and the car apparently slipped into
gear, rolling down the driveway into a neighbor's fence. Two
police officers from Runnemede, the area where later incident
happen (Runnemede), Steven Van Camp and one of the defendant
Russell Smith, responded to the radio call about the incident.
While they were at the scene, Detective Preen of the Barrington
police arrived and, in a private conversation with Van Camp,
revealed that Jane Doe's husband had been arrested earlier in the
day and had told Barrington police officers that he had AIDS. Van
Camp then told defendant Smith.
After Jane Doe and her friend
left the immediate vicinity, defendant Smith told the defendant
neighbor that Jane Doe's husband had AIDS and that, to protect
herself, she should wash with disinfectant. Defendant became upset
upon hearing this information. Neighbor's wife, one of the
defendants (defendant neighbor), was employee in the school
where children of plaintiff were studying. Knowing that the four
Doe children attending the Downing School in Runnemede, the same
school that her own daughter attending, defendant neighbor
contacted other parents with children in the school. She also
contacted the media. The next day, eleven parents removed nineteen
children from the Downing School due to a panic over the Doe
children's attending the school. The media was present, and the
story was covered in the local newspapers and on television. At
least one of the reports mentioned the name of the Doe family.
Plaintiffs allege that as a result of the disclosure, they have
suffered harassment, discrimination, and humiliation. They allege
they have been shunned by the community.
Plaintiffs brought this civil
rights action against the police officer Smith and the
municipalities of Barrington and Runnemede for violations of their
federal constitutional rights pursuant to 42 U.S.C. § 1983 (1982)
(Civil action for deprivation of rights). The federal
constitutional right is their right to privacy under the
fourteenth amendment. The suit contains pendent state claims
against defendant neighbor for invasion of privacy and intentional
infliction of emotional distress.
The court upholding privacy
right finds that the constitution protects plaintiffs from
government disclosure of their husband's infection with the AIDS
virus. The court cited United States Supreme Court decision in
Whalen v. Roe, 429 U.S. 589, 599-600 (1977) stating the Court has
recognized that the fourteenth amendment protects two types of
privacy interest ? ?One is the individual interest in avoiding
disclosure of personal matters, and another is the interest in
independence in making certain kinds of important decisions? The
court said that disclosure of a family member's medical condition,
especially exposure to or infection with the AIDS virus, is a
disclosure of a personal matter.
The court finds that
defendants police officer Smith and district administration of
Runnemede violated plaintiff's constitutional right to privacy and
administration's failure to train their official about AIDS and
that defendants are liable under 42 U.S.C. § 1983 (1982) (Civil
action for deprivation of rights).
In Chizmar v. Mackie, 896 P.2d
196 (Alaska 1995) the Supreme Court of Alaska refused to hold a
physician liable for breach of confidentiality after informing a
patient's spouse of her condition without her authorization. The
facts of this case as follows:
Savitri Chizmar, a native of
Trinidad and Tobago, has lived in the
United States since 1980. She was married to Matthew Chizmar.
There were two children of this marriage, aged five and seven at
the time of the events in question. In February 1989 Savitri was
admitted to Providence Hospital, suffering from pneumonia and
gastritis. Dr. Scott Mackie was the admitting physician. Upon her
admission, Matthew signed the hospital's standard admission
consent form on his wife's behalf, because she was "too sick" for
the paperwork. This form states that the patient consents to
procedures that may be performed during hospitalization, including
laboratory procedures.
While at Providence, Dr.
Mackie ordered that a battery of laboratory tests be run on
Savitri's blood. As part of this testing, Savitri was tested for
HIV/AIDS, using the HIV ELISA screen. Dr. Mackie did not discuss
with Savitri the specific tests that were being run and did not
inform Savitri that he was testing her for AIDS.
Savitri's initial HIV ELISA
screen was found to be "repeatedly reactive." The report stated
that confirmatory tests were being performed and that "[n]o
interpretation of the patient's HIV antibody status is possible
until the confirmatory assay has been completed." Dr. Mackie
believed that this result meant that Savitri had tested positive
for the HIV virus. Dr. Mackie felt that it was necessary to advise
Savitri of the result quickly.
Initially, however, he did not
inform Savitri of his conclusion. Instead, he decided to ask her
husband to help break the news to her.
Several days after Matthew and
Dr. Mackie informed Savitri of the test result, Dr. Janis, an HIV
specialist, examined and interviewed Savitri. Dr. Janis concluded
that the test result was most likely a "false positive" and
testified that he was confident that he had so informed Savitri.
Dr. Mackie testified that, prior to Savitri's discharge, he
informed her that the test was probably a "false positive" and
that she would need to be retested to make sure.
Savitri left the hospital on
the day she was informed of the test result. From that point
forward, she and her husband experienced a severe escalation of
what had been periodic domestic problems and violence. They fought
regularly and, on at least one occasion, Matthew allegedly beat
Savitri. The fighting further escalated after Matthew tested
negative for HIV.
Three weeks after her
discharge, Savitri and her husband reviewed her medical records.
Included within these records was the discharge summary, which
expressly stated "False positive HIV test." The records also
included a notation from Dr. Janis concluding that it was likely
that the HIV test was a false positive test. Subsequently, in
April, a retest established that Savitri did not have AIDS.
Matthew left the marital home
in May 1989 and two months after Savitri received the final test
result establishing that she did not have AIDS, he filed for
divorce in June. The divorce became final in March 1990. After the
divorce, Matthew moved to California.
Savitri, individually and on
behalf of her children , filed suit against Dr. Mackie. In her
personal action, she alleged that Dr. Mackie did not have
Savitri's informed consent to conduct the initial HIV/AIDS test.
She also alleged that Dr. Mackie breached his duty of
confidentiality owed to Savitri by informing her husband of the
test results. The complaint asserted that, as a result of Dr.
Mackie's negligence and breach of duty, she suffered damages,
including severe emotional distress. Savitri later amended her
complaint to encompass Dr. Mackie's allegedly negligent
misdiagnosis of AIDS.
In his answer, Dr. Mackie
admitted that the initial HIV test was performed without specific
consent and that he informed Matthew of the test results. In
September 1991, the superior court, Judge Hunt, entered partial
summary judgment in favor of Savitri on the issue of Dr. Mackie's
breach of the duty of confidentiality. However, the court
concluded that questions of fact remained as to whether Dr.
Mackie's breach was justified.
The case went to the Supreme
Court of Alaska. On the issue of right to privacy the court held
that the constitutional right to privacy is a right against
government action, not against the actions of private parties .
Thus, to the extent her argument is based on the Alaska
Constitution, her claim must fail. The court also reasoned that
Savitri also fails to present a persuasive argument under common
law invasion of privacy principles. There are four branches of the
common law right to privacy, as recognized in the Restatement
(Second) of Torts §§ 652A-E, at 376 (1977). None of these sections
can be read to support Savitri's claim in the present case.
Further the court justified
its stand by citing a case MacDonald v. Clinger, 446 N.Y.S.2d 801,
state that ?Disclosure of confidential information ... to a spouse
will be justified whenever there is a danger to the patient, the
spouse, or another person; otherwise information should not be
disclosed without authorization. Justification or excuse will
depend upon a showing of circumstances and competing interests
which support the need to disclose. The court also relied on a
case holding that a doctor, having diagnosed an illness, may be
liable for failure to warn patient's family members . Also
Wojcik
v. Aluminum Co. of America, holding that a physician had a duty to
warn the spouse of a patient diagnosed with tuberculosis where
there was a foreseeable risk that the spouse would be exposed to
the disease.
In India, the Supreme Court
got a chance for first time to decide privacy issue in connection
with STD in 1998. Like USA, India too has laws that protect
patient for disclosure of his/her medical information. Indian
Medical Council Act controls the medical education and regulates
the professional conduct. The council created under the act has
power to make regulation and code of ethics regarding it. One of
the ethics is not to disclose the secrets of a patient to anybody
without orders of courts.
In Mr.X v. Hospital Z, (1998)
8 SCC 296 the Supreme Court of India concluded that right of
privacy is not absolute. The Court also said that a person
infected of STD have no right to marry. The Facts of the case as
follows:
Mr. X, the appellant, after
obtained the Degree of MBBS in 1987 from Jawaharlal Institute of
Post Graduate Medical Education and Research Chandigarh completed
his internship and junior residence at the same college. In June,
1990 he joined the Nagaland State Medical and Health Service as
Assistant Surgeon Grade "I. Thereafter, the appellant joined the
MD Pharmacology Course though he continued in the Nagaland State
Service on the condition that he would resume his duties after
completing the MD Course. In September, 1991 the appellant jointed
the further course of Diploma in Opthamalogy which he completed in
April, 1993. In August, 1993 he resumed his duties in the Nagaland
State Health service as Assistant Surgeon Grade" I.
One who was ailing from a
disease which was provisionally diagnosed as Aortic Anuerism was
advised to go to the ?Z? Hospital at Madras and the appellant was
directed by the Government of Nagaland to accompany the said
patient to Madras for treatment. For the treatment of the above
disease, he was posted for surgery on May 31, 1995 which, however,
was cancelled due to shortage of blood. On June 1, 1995 the
appellant and the driver were asked to donate blood for the
latter. Their blood samples were taken and the result showed that
the appellant's blood group was A(+ve). On the next date, namely,
on June 2, 1995, he was operated for Aortic Anuerism and remained
in the Hospital till 10th June 1995 when he was discharged.
In August 1995 the appellant
proposed marriage to one Ms. ?Y? which was accepted and the
marriage were proposed to be held on December 12, 1995. But the
marriage was called off on the ground of blood test conducted at
the respondents? hospital in which the appellant was found to be
HIV(+). The appellant went against to the respondents? hospital at
Madras where several tests were conducted and he was found to be
HIV(+). Since the marriage had been settled but was subsequently
called off, several people including the members of the
appellant's family and persons belonging to his community became
aware of the appellant's HIV(+) status. This resulted in severe
criticism of the appellant and he was ostracized by the community.
The appellant left Kohima (Nagaland) around November 26, 1995 and
started working and residing at Madras.
The appellant then approached
the National Consumer Disputes Redressal Commission for damages
against the respondents, on the ground that the information which
was required to be kept secret under Medical ethics was disclosed
illegally and, therefore, the respondents were liable to pay
damages. The Commission dismissed the Petition as also the
application for interim relief summarily by order dated 3rd July
1998 on the ground that the appellant may seek his remedy in the
civil court.
Learned counsel for the
appellant has vehemently contended that the principle of "duty of
care", as applicable to persons in medical profession, includes
the duty to maintain confidentiality and since this duty was
violated by the respondents, they are liable in damages to the
appellant.
Duty to maintain
confidentiality has its origin in the Hippocratic Oath, which is
an ethical code attributed to the ancient Greek physician
Hippocrates, adopted as a guide to conduct by the medical
profession throughout the ages and still used in the graduation
ceremonies of many medical schools and colleges in India. The
Hippocratic Oath consists of two parts. The first, or covenant, is
the solemn agreement concerning the relationship of apprentice to
teacher and the obligations enjoined on the pupil. The second part
constitutes the ethical code.
It is on the basis of the
above that International Code of Medical Ethics has been laid down
as: "A Physician shall preserve absolute confidentiality on all he
knows about his patient even after his patient has died."
Learned counsel for the
appellant also directed courts direction to the code of medical
ethics made by Medical Council of India. It states that
Do not
disclose the secrets of a patient that have been learnt in the
exercise of your profession. Those may be disclosed only in a
Court of Law under orders of the presiding judge.
The Court delivering its
opinion said that It is the basic principle
of Jurisprudence that every Right has a co-relative Duty and every
Duty has a co-relative Right. But the rule is not absolute. It is
subject to certain exceptions in the sense that a person may have
a Right but there may not be co-relative duty. The instant case,
as we shall presently see, falls within the exceptions. The
Court further stated that Circumstances in which the public interest would
override the duty of confidentiality could, for example, be the
investigation and prosecution of serious crime or where there is
an immediate or future (but not a past and remote) health risk to
others
Learned Counsel for the
appellant then contended that the appellant's right of privacy has
been infringed by the respondents by disclosing that the appellant
was HIV(+) and, therefore, they are liable in damages.
The Court after referring US
case, Roe vs. Wade, 410 US 113, and Article of the European
Convention on Human Rights said that "As one of the basic Human
Rights, the right of privacy is not treated as absolute and is
subject to such action as may be lawfully taken for the prevention
of crime or disorder or protection of health or morals or
protections of rights and freedoms of others"
The Court having regard to the
fact that the appellant was found to be HIV(+), its disclosure
would not be violate of either the rule of confidentiality of the
appellant's Right of Privacy as Ms. Y with whom the appellant
was likely to be married was saved in time by such disclosure, or
else, she too would have been infected with the dreadful disease
if marriage had taken place and consummated.
The Court went further and
examined the right based on confidentiality in the context of
marriage. The Court after examine different divorce law and Indian
Penal Code ruled that right to marry of STD infected person is
suspended during the time of infection or disease. Most of the
divorce laws in India recognize STD as reason for divorce. Indian
Penal Code Section 269 and 270 provides punishment for spreading
infection of disease dangerous to life, intentionally or
negligently. Though in 2002 on public interest litigation the
Court restore the right to marry of a person with STD infection.
But the Court imposes the duty on those who know their HIV or STD
status to obtain informed consent from their spouse, before
marriage remains.
4 Conclusion
The branch of this law is not much developed in India as much as
in the United States of America, but the Supreme Court of India
had looked for how different country's court decided the issue.
Also we have to keep in mind the social aspect of Indian culture
that discourages people to come forward for their rights in such
circumstance. Social culture of India will not allow right to
privacy as broad as in the USA.
In context of STD law of both
the country upheld right to information of spouse against right of
privacy of STD infected person. In both the jurisdiction duty is
imposed on infected person to inform and protect other people from
his disease. Right to Privacy emerged from common law and tort law
in both the country; therefore there are substantive similarities
in cases decided on the issue.
In both the country right to
privacy is a right against government action, not against the
actions of private parties. If the offender is a private
individual then there is no effective remedy except in tort where
one can claim damages for intruding in his privacy and no more.
And tort law establishes duty on STD infected person to disclose
the disease to those persons who are at risk. In both countries
(also in Britain) the right to privacy is not an absolute right.
Privacy right weighted less in comparison to health risk and
national security.
While maintaining right to
know of their life partner and future spouse, Supreme Court of
India, implemented right of privacy of infected persons against
public at large, by not disclosing, identity and even name of the
parties involved. Infect Supreme Court of India derived this
system, of not disclosing name in case laws, from Britain.
Supreme Court of India, until
now, did not consider right to information of family members of
infected person about his or her disease, but in my view Supreme
Court of India, whenever case comes before the Court, will upheld
right to information of family members of infected person. In
recent years some Indian states have make it mandatory for both
future spouse to have their HIV test before their marriage.
There are laws in the United
States of America that put obligation on infected persons to
inform their spouse and family about disease. But I could not
found any case law from US Courts which upheld right to know of
STD infection of future spouse. In my opinion it is matter of time
when such case will knock the door of the court and the courts of
US will uphold their right to know too.
5 Developments in right to
privacy and abortion. In one interesting development in connection
with Gender Equality and the Privacy issue related to Abortion,
men's rights activists in the US is going to court for and on a
behalf of a man, named Matt Dubay from Detroit, who says his
ex-girlfriend had his child after telling him she could not get
pregnant. They are to argue in court that fathers do not have an
obligation to pay money towards raising a child they did not want.
The landmark case of
Roe v.
Wade dealt with the right of an unmarried pregnant woman to an
abortion. Upholding the woman's right to make that choice which
affected her private life, the Supreme Court held that although
the American Constitution did not explicitly mention any right of
privacy, the Supreme Court itself recognized such a right as a
guarantee of certain "zones or areas of privacy" and "that the
roots of that right may be found in the First Amendment, in the
Fourth and Fifth Amendments, in the penumbras of the Bill of
Rights and in the concept of liberty guaranteed by the Fourteenth
Amendment ".
Activists say men should have
the same rights as women in dealing with the consequences of
unintended pregnancy.
Women's and children's groups
have criticized the planned legal challenge. Leslie Sorkhe, of the
Association for Children for Enforcement of Support, said a child
"needs the emotional and financial support of both parents".
"The child is entitled to his
or her equal protection under the law," the website of The Detroit
News quotes her as saying.
Mr Dubay says that his former
girlfriend became pregnant with his child after assuring him she
had a physical condition that prevented her from conceiving. He
says she went on have the baby, despite knowing that he did not
want to have a child with her.
He now wants the court to free him from his obligation to pay $500
(£287) in child support every month. The National Center for Men
is filing a case on behalf of Mr Dubay at a court in the US city
of Detroit.
The center's director, Mel Feit,
told the Associated Press news agency: "There's such a spectrum of choice that women have - it's her
body, her
pregnancy and she has the ultimate right to make decisions. I'm
trying
to find a way for a man also to have some say over decisions that
affect
his life profoundly"
In political spectrum things has changed a lot in past decade.
Many
states, like Tennessee and South Dakota, have introduced a bill
and many
are considering introducing the bill to restrict abortion.
In the recent past, the politics of abortion have essentially been
turned upside down: Republicans are shying away from the issue and
Democrats are eager to take it on. Republicans have been on the
offense
when it comes to the issue of abortion. Pressing a series of
popular
restrictions, Republicans have painted Democrats as extreme
protectors
of abortion at any point in pregnancy. But with a dozen states now
considering bills to ban abortion outright, this year it's
Democrats who
are taking the offensive, saying Republicans are the ones whose
views on abortion are extreme.
Bibliography
Books Sources
1. Adam Carlyle Breckenridge: The Right to Privacy
2. Richard A. Glenn: The Right to Privacy ? Rights and Liberties
under
the Law
3. All India Reporter
Computer Sources
4. Westlaw legal database
5. LexisNexis legal database
6. Supreme Court Cases Online (Indian Source)
7. Google, the search engine
8. Wikipedia, the free encyclopedia
9. Oxford Talking Dictionary
10.
http://www.ebc-india.com/lawyer/articles/2002v4a3.htm ?The
Right to
Privacy in the Age of Information and Communications by by Madhavi
Divan
11.
http://www.aidslaw.ca/Maincontent/otherdocs/Newsletter/vol10no32005/intlcourts.htm
HIV/AIDS in the courts - International
12.
http://www.privacyinternational.org/survey/phr2003/countries/india.htm
13.
http://www.legalserviceindia.com/
14.
http://www.lawyerscollective.org/
15. National Public Radio online edition at
http://www.npr.org/
16. British Broadcasting Corporation online edition at:
http://www.bbc.co.uk/
|
Fight
between Right to Privacy and Right to Know:
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author can be reached at: vkvora@legalserviceindia.com /
