When It Comes to HIV Infection, Some Are More Equal Than Others

As other states do, Illinois gives physicians the privilege—but not the duty—to disclose an HIV infection to a patient's spouse, even if they must override the patient's wishes that they not do so. The law permits a physician to take this extraordinary step only after other efforts fail. First, the physician must attempt to persuade the patient to disclose this information him or herself. If the patient is unwilling or agrees but fails to follow through, the physician may then notify the spouse of the infection.

However, she is under no obligation to do this. If a physician thinks the disclosure might wreck her relationship with the patient, she is free to remain silent. Illinois statute indemnifies physicians against criminal charges (such as violations of confidentiality laws) or civil charges (failure to warn) whether they disclose or not.

Illinois lawmakers know full well that a patient's infection will endanger people who are not legal spouses: men and women live in coupled relationships outside marriage, as do men and men, and women and women. Not long ago, physicians at my university's hospital were upset that a patient refused a recommendation to disclose her HIV infection to her long-time boyfriend, even though he visited her regularly at the hospital. When the woman became unable to make decisions for herself, her surrogate also kept the HIV diagnosis from the boyfriend. Surrogate decision-makers are entitled to diagnostic information to help guide medical decisions for the patient, but the law makes no provision for the at-risk boyfriend.

The Illinois legislature could have extended the privilege of disclosure to any sexual or needle-sharing partner the physician believes is at risk of a patient's unknown HIV infection, but it did not. It chose instead to refract all relationships through the prism of marriage. But why are married spouses alone entitled to this kind of protection? Why not also sexual partners and needle-sharing partners? I don't assume that disclosures like this will stop all HIV infections: some partners will already have HIV unaware, and some partners may continue to expose themselves in sexual relationships and needle sharing no matter what the risk. But disclosure can help prevent some infections, and getting early treatment will benefit those who are already infected. Surely these effects count for something.

With its exclusive focus on spouses, the disclosure statute functions less as a bulwark against new HIV infection than as a symbolic defense of marriage: it offers protection to people in marriage that it does not offer to others, regardless of the depth of commitment two unmarried people have to one another or the benefits that could be conferred by the disclosure. In a way, the statute suggests that the risks of HIV infection belong to the nonmarital state, and that the law has no proper role to play in containing risks outside marriage. Want the right to be advised about a partner's HIV infection? Then join the ranks of the married. Yet even this approach is exclusionary: Illinois formally prohibits same-sex marriages, as do most jurisdictions in the United States. People who have no legal access to marriage can never benefit from HIV disclosure laws that focus on spouses alone.

The choice to extend the benefits of disclosure to spouses alone also sits uneasily alongside Illinois criminal law: by statute, it is a felony to expose someone to HIV infection by intimate contact or other means. Physicians may advise spouses that they may be victims of a crime, but why are non-married victims any less deserving of this information when they have just as much to gain from learning about exposure?

In the name of protecting the health of all men and women, states should extend the privilege of HIV disclosure to any and all endangered third parties, not just spouses. As it stands, Illinois law uses marriage as a test of moral entitlement to public health protection in a way that works against the full value of disclosure privileges and that is ultimately inconsistent with a principled respect...