The Constitutional Court declares that denying adoption rights to an HIV positive woman is illegal
The Constitutional Court has declared that a person with HIV should not be treated as a health risk to the rest of the population. For this reason, HIV positive people should not be denied the right to adopt.
Details of this resolution can be found on the Constitutional Court website.
The resolution is based on the case of one woman with HIV and Hepatitis C. As soon as she received her diagnosis she began treatment and followed all the medical instructions she was given. As she was unable to have a child of her own she and her partner attempted to conceive using artificial insemination. The baby’s biological mother renounced her rights to her son immediately after he was born and the baby was raised by the woman with HIV and hepatitis and her partner.
Initially the court denied the women the right to take on the baby. However, it later announced that in the previous ruling the authorities had not taken into account all the relevant circumstances, specifically the fact that the baby had been living with the family since birth and had already established a bond with them.
In the past women have been refused the right to foster or adopt children because of their health status. Rights campaigners have argued that this ruling is discriminatory and that the resolution banning the adoption of children by people with HIV should have been revised long ago.
Irina Yevdokimova, Director of the non-profit organisation EVA, said: “Back in 2013, after our appeal, the Ministry of Health issued a paper that people with HIV who take the required anti-retroviral drugs and manage to lower the level of virus in their blood to a certain level can be considered suitable for adoption. However, afterwards our petition and the request by the Ministry of Health for the government to consider this issue have been kicked into the long grass.”
Psychologist and Head of the Foundation to Support People with HIV, Svetlana Izambaeva, claims that it took her 18 months to win the legal right to be the guardian of her brother. Now she assists other parents in similar situations. She said, “I know people who have their own homes and business. They would like to take on a child but they cannot because they have HIV. They are afraid to challenge this in court because revealing an HIV diagnosis is not easy in this country.”
The Constitutional Court resolution also makes reference to the UN Convention on the Rights of a Child, and specifically the child’s right to be raised within a harmonious family environment, in an atmosphere of happiness, love and understanding as well as the obligation on the government to provide children with protection and care for their wellbeing. The Constitutional Court also refers to the UN’s Statement on an Integrated Programme to tackle HIV and AIDS and the ruling by the International Organisation on Migration on the rights of movement in relation to HIV and AIDS which states that the world community recognises that a person who has HIV should not be regarded as a threat to the health of the population. Although the virus compromises the immune system, it is not capable of being transmitted through air, food or water, only through intimate contact.