HIV, Judicial Logic and Medical Science: Toward a Presumption of Noninfection in Child-Custody and Visitation Cases
Pierce J. Reed & Laura Davis Smith*
Introduction
The United States is well into the second decade of its Human Immunodeficiency Virus (HIV) epidemic, but the country still struggles to cope with the disease. Much like previous eras of lethal communicable diseases, fear, hysteria, and discrimination permeate this epidemic. While medical institutions continue their search for effective treatments, society increasingly relies on legal institutions to fashion a rational response to the epidemic, and to protect the rights and liberties of the ill.
Courts already grapple with complex issues raised by HIV in the arenas of property rights, insurance, torts, constitutional litigation, administrative law, and criminal justice. It is likely, however, that the family courts will see the most significant rise in HIV-related cases in the coming years.(1) Some estimates indicate that between 72,000 and 125,000 American children will be orphaned due to HIV by the year 2000.(2) By the turn of the century in New York City alone, there will be 30,000 children who are parentless because of HIV.(3) By the year 2000, more than five million children under the age of ten are likely to be orphaned as a result of their parents dying of HIV infection and AIDS.(4)
Regardless of the legal forum in which the disease is presented, the judiciary must protect the law's most venerable tenet of reasonableness in the face of the irrational beliefs likely to accompany parties affected by HIV to the courtroom.(5) The bench is left the unenviable task of sorting myth from reality in an adversarial context, a process that may increase the risk of error.(6) Although custody and visitation decisions are always emotional, the potential for visceral judicial response is heightened by the uncertainty inherent in a disease like HIV. A healthy parent's use of blame as a weapon against the parent infected with the virus portends volatile and emotional arguments, rather than logic and law-based analyses of the child's interests.(7) Painful reminders of the tragic treatment of people with HIV abound.
Take, for example, the Ray boys of Florida, outcast from their family's church and school district because of their infection. They successfully sued to attend their local school, only to flee the state after their home was firebombed by those who feared three ill teenagers.(8) Recall the fresh-faced innocence of Ryan White, another child forced to sue his Indiana school district in order to obtain a public education.(9) Although his death was addressed by platitudes from varied celebrities and politicians, he could not stop the rage of a fearful nation. It takes no strain of the imagination to realize that those believed less "innocent" still suffer the anxiety and anger of this society.(10)
Despite such tragedies, the law can and must prove to be a powerful tool in guarding individual rights in this time of crisis. In order to extend that protection to child custody matters, the family courts must make informed choices on the myriad of issues raised by an HIV-infected parent. This task is not an easy one because it requires the courts to understand both the medical and social aspects of the disease, as well as the more esoteric links between the two.(11) Equally difficult, the courts must apply this knowledge within the context of an evolving jurisprudence that struggles to assimilate HIV-related scientific developments.
In an attempt to aid the family courts with the critical charge of protecting the rights of families living with HIV, this Article provides a general overview of custody determinations involving parents infected with HIV. Part II describes the biological basis of HIV, including its primary routes of transmission.(12) Part III briefly describes the social context of the disease, and the mistrust with which many people with HIV view the courts.(13) Part IV provides an overview of family court decisions in cases when HIV was raised as an issue and reviews the established legal rules that are likely pertinent in decision making about families living with the disease.(14) Using cases from other contexts, Part IV also illustrates the divergent results reached by courts when presented with claims requiring them to assess the risk of HIV transmission.(15) Part V then posits the need for one guiding principle in resolving HIV-related custody and visitation issues: a presumption of noninfection.(16) Part VI concludes that the judicial response to HIV should be tempered with logic and fairness.(17) For ease in explanation, this Article specifically relies upon Massachusetts law, which is generally consistent with that of most states.
A Primer on HIV and its Transmission
A. Biological Functions of HIV
HIV affects the human body through a complicated series of genetic manipulations whereby a particular immune system cell is infected with the virus.(18) HIV may remain active within that cell or become latent. If HIV is dormant, the host cell remains infected, but generally functions normally until the virus activates. Once active, HIV forces the host cell to reproduce HIV; the newly formed HIV enters other cells and infects them while the previous host cell dies.
After several generations of this process, the immune system becomes debilitated because it cannot function without the cells destroyed by HIV. While the immune system is severely depressed, the body becomes vulnerable to a variety of "opportunistic infections." These infections are commonly found in most humans, but do not generally cause life-threatening illness because a well-functioning immune system can stave off infection. In an immune system compromised by HIV, these infections are often debilitating, causing somatic disturbances and death. The person(19) infected with HIV does not die of HIV per se, but rather, from one of the panoply of opportunistic infections diagnosed as Acquired Immune Deficiency Syndrome (AIDS).(20)
Medical research attempts to respond to HIV through two initiatives: treatments directed at the virus itself and treatments directed at opportunistic infections. Although HIV is now a more manageable disease because of these efforts,(21) the treatments now available can cause enervating effects themselves.(22) Moreover, the HIV-infected person is susceptible to the uncertainty of the disease itself, which may cause clinical depression and other emotional difficulties. Immune-compromised individuals are also susceptible to other stresses, including strained financial resources, inadequate housing, lack of medical benefits, loss or death of a partner or loved one, and poor nutrition.(23) Each of these factors adversely affect the patient's prognosis. Thus, progression of HIV varies in each person.
B. Transmission of HIV
Because HIV remains incurable, great attention is focused on how to prevent further transmission. HIV transmission occurs when the body fluids (such as blood, semen, vaginal secretions) of an infected person come into contact with the blood or mucous membranes (such as the mouth, eyes, urethra, vagina or rectum) of another person.(24) Isolated amounts of HIV are found in other fluids, including saliva, sweat, and tears, but the concentration of HIV in each is medically insignificant.(25) No case of transmission through these fluids has been documented.(26) Despite the hysteria around casual transmission that permeated the early years of the epidemic,(27) it is firmly established that HIV is only transmitted through intimate contact.(28)
Although there are a number of possible methods by which such intimate contact may occur, within the normal parameters of family living there are few opportunities for infection to occur.(29) The three most likely sources of transmission for a party before a family court are briefly described below.(30)
1. Sexual Transmission
It is believed that there is an increased risk of transmission for the receptive partner in both gay male and heterosexual sex because the receiving partner's mucous membranes may tear or sustain abrasions while exposed to the penetrating partner's bodily fluid during intercourse.(31) Transmission risk may be increased by exposure to a partner during certain times of infection or menstruation, the duration of sexual activity, and the number of sexual partners, but research on each of these aspects is equivocal.(32) Oral sex may pose a risk of transmission, but the greater risk is associated with intercourse.(33)
2. Needle Exposure
Accidental exposure to needles may occur during medical procedures, but more often, transmission is the result of needle use with illicit drugs.(34) Specific risk is hard to assess due to the difficulty in obtaining reliable reports of injection drug use, but it is believed that transmission occurs during the "shooting up" process.(35) Related factors affecting transmission include whether use occurs in a "shooting gallery" (where needles and syringes are re-used), whether the drug used increases the likelihood of sexual activity, what type of drug used, and the number of injections, and injection partners.(36)
3. Pregnancy
The risk of mother-to-infant transmission is a volatile and controversial topic.(37) Such transmission may occur from in-vitro exposure through the fetal circulation system, when the fetus is exposed to all substances in the mother's bloodstream, or through exposure to maternal blood and secretions during delivery.(38) Breastfeeding is not considered a primary route of HIV transmission, but may occur.(39)
Despite the clear risk in the aforementioned, it is important for family courts to recognize that HIV is unlikely to be transmitted in the normal course of family living--close but nonsexual contact.(40) Empirical studies consistently demonstrate that HIV is not transmitted through sharing toothbrushes, toilets, towels, beds and linens, or unwashed drinking and eating utensils.(41) Similarly, there is no documented report of HIV transmission from kissing, biting or spitting.(42)
Although gay men remain disproportionately represented in HIV epidemiologic studies,(43) throughout the past decade, heterosexual women show the greatest increases in infection rates.(44) HIV is now the fourth leading cause of death among all American women of childbearing ages.(45) Women of color are particularly at risk for HIV infection in both urban and rural areas.(46) "Seventy-two percent of adolescent girls with AIDS are African-American or Latina."(47) These statistics will continue increasing given that women of childbearing age are at great risk for infection.(48) Even if the current campaign of education and prevention programs targeting women are successful in reducing new rates of infection, it is unlikely that these interventions will curb the tide of new "AIDS orphans" until well into the next century.(49)
The number of families in which a parent is HIV-infected portend not only for the human tragedy in this disease, but for the burden placed on family courts as they resolve related custody and visitation issues as well. Family courts will be forced to continue making critical decisions about the children of these women, often against a backdrop of social intolerance and human tragedy. Thus, an educated and informed judiciary is the first stalwart in ensuring equitable, informed and sensitive treatment to the most vulnerable of children and their parents.
The Social Context from Which Parents with HIV Often View the Courts
Unfortunately, the onset of HIV was met with hostility, violence and discrimination.(50) In no small part, this response occurred not simply because the disease was lethal,(51) but also because it was socially constructed around the first groups of people determined to be "at risk" for infection--gay men, people of color, immigrants, and injection drug users--groups of people already subject to societal mistrust, suspicion, and marginalization. These attitudes do not easily change, and despite the broad education and prevention campaigns undertaken in response to the epidemic, they persevere today. Well into the first decade of the epidemic, the American Medical Association observed that an AIDS diagnosis was still accompanied by ostracism and stigma.(52) Even physicians and health-care providers fear and discriminate against people with HIV, regardless of professional morals requiring them to treat the ill, while others provide care only because of legal mandates to do so.(53)
The racial, gender, and sexual demography of the HIV epidemic in America indicates a need for careful reliance on nondiscrimination principles by the courts.
As an institution which is and should be a bulwark against discrimination of all kinds, the court system must be especially wary [of] attacks on individual and social rights made in the guise of health-related AIDS claims. . . . [T]he potential for misuse . . . cannot be overlooked, particularly when coupled with possible racism or homophobia, given the composition of the major groups "`at risk'" for AIDS.(54)
Courts must also be aware of gender inequities and misogyny in the courts,(55) given that women are now recognized as significantly "at risk" for HIV infection. Moreover, women are still more reluctant than their male counterparts to seek legal services,(56) and are afraid of court involvement because they fear mistreatment and loss of custody of their children as a result of their HIV status.(57)
Many parents with HIV, despite facing incredible financial and logistical battles, fear seeking relief or assistance from the court because they are afraid to disclose their HIV status.(58) These families often continue to struggle against discrimination, intense social isolation, and poverty, without assistance from others.(59) Extended families face financial disincentives and physical and emotional burdens in caring for a person with HIV and/or their children.(60) Even those families able to secure assistance are not statically cared for: the death of a parent from HIV may lead to a critical loss of entitlements, including housing and homemaking benefits.(61)
Judicial and Legal Responses to HIV in Massachusetts Child Custody Determinations
A. Guidance for Family Courts Through Well-Established Legal Principles
In the complicated decision-making process that must occur in the increasing number of custody matters involving an HIV-infected parent, the courts can rely on, and apply, established legal rules. These principles are invaluable to the judiciary, attorneys, advocates, and to the parties themselves.
1. Sexual Orientation of the Parent
Massachusetts courts recognize that sexual orientation per se is not grounds for denying a parent(62) custody(63) or adoption,(64) but the judiciary must remain vigilant to personal or moral beliefs that impact legal decisions.(65) This is particularly true when a nonheterosexual parent is alleged to be unfit for reasons other than his or her sexuality.(66) Unfortunately, the use of HIV infection may effectively serve as a pretext for discriminatory views about homosexuality in families in which the infected parent is gay or lesbian.(67) Nevertheless, it is clear that the current trend among the nation's family courts is to hold that sexual orientation alone is not a valid reason for finding a parent unfit.(68)
2. Physical Handicap of a Parent
It is also well established in Massachusetts and other jurisdictions that the presence of a physical handicap in a parent is not alone sufficient to deny custody to an otherwise qualified parent.(69) Rather, the focus is on the effect of that handicap on the child.(70) Given that Massachusetts treats HIV as a disability in case law and statutory construction,(71) this premise must be applied here as it has been in other jurisdictions.(72) Such an approach is consistent with the American Bar Association's recommendations requiring that HIV status be treated in the same manner as any other medical condition during family law proceedings.(73)
3. Potential for a Shortened Life of a Parent
Further, many courts hold that the mere possibility of a shortened life span due to HIV infection is not justification for removing children from a parent's care,(74) a result particularly salient when there is no evidence of imminent death.(75) As one court noted, "speculation about . . . possible illness or death in the foreseeable future as a basis for . . . [determining] physical residence of the child is without any support in the law."(76) A more recent opinion in this vein eloquently and succinctly observed:
Life is indeed uncertain, and no child is guaranteed that he or she will proceed through childhood or adolescence with his or her parents healthy or even alive. There is no doubt that parental illness and death are very hard on children. . . . We know that parents suffer and die from illness, and their children observe this and suffer with their parents. However, the children hopefully learn that although painful, death is a natural part of the cycle of life. . . . [W]e do not believe it is the function of . . . the courts to save [the child] from one tragedy, the probable death of [a parent] . . . by visiting another tragedy upon him . . . .(77)
B. Application of the "Best Interests" Test in HIV-Related Custody Decisions
Given the paucity of Massachusetts case law in family court involving HIV matters, the family court judge's discretion remains quite broad.(78) It is critical that this discretion is wisely used, particularly given the timeliness of these cases and the confidentiality shields that must be put in place to protect families affected by the disease.(79)
Clearly, there is no formulaic equation through which these complicated cases may be resolved. Some guiding principles have emerged, however, which promote an objective analysis of what constitutes the best interests of the child. As an initial observation, it is important to note that most family courts have not found HIV itself to be a dispositive factor in deciding cases.(80) It is suggested by some courts and commentators that use of a parent's HIV status as per se evidence of unfitness in custody cases contravenes the best interest standard(81) and, presumably, would violate the venerable Massachusetts rule of protecting the child's best interests and welfare.(82)
In order to effectuate that rule, family court judges must be satisfied that the child's physical and emotional well-being are not placed at risk due to a parent's HIV infection. A rational review of scholarly medical and epidemiological literature points to the confident conclusion that infection does not occur in less than intimate circumstances. Thus, the simple fact that a parent is infected with HIV does not mean that parent cannot meet the best interests of the child. Certainly, the courts should not fear that the child will be infected by the parent, absent extraordinary circumstances.
The first major legal decisions addressing issues of HIV infection and transmission embraced that premise, albeit under other circumstances, adopting the relative certainty of modern medicine and science over fear and irrationality.(83) These early cases, although sometimes including children, often presented innocuous facts in which routes of transmission were either nonexistent or beyond the realm of "significant risk"(84) because of a void of intimate contact. For example, in Chalk v. United States District Court, Central District of California,(85) the Court of Appeals for the Ninth Circuit addressed an employment discrimination claim brought by an HIV-infected school teacher. In reversing the district court's refusal to grant the plaintiff relief under § 504 of the Rehabilitation Act of 1973,(86) the appellate court found that an "impossible burden of proof," that is, one requiring to show with complete certainty that he posed no risk to his students, had been placed on the plaintiff. The appellate court noted that the trial court had "rejected the overwhelming consensus of medical opinion and improperly relied on speculation for which there was no credible support in the record."(87)
Based on decisions like the Ninth Circuit's in Chalk, many believed the courts would effectively remedy irrational fears of transmission and protect the rights of the infected. However, courts soon faced more complicated questions about infection in cases when the risk of transmission was somewhat more plausible than in the earlier casual contact cases. An example of such cases are those when the perceived risk of infection is posed by a health-care worker, as was the situation presented to the United States Court of Appeals for the Fifth Circuit in Leckelt v. Board of Commissioners of Hospital District No. 1.(88)
In refusing to afford Leckelt protection under the statute, the Fifth Circuit found that he posed the potential for transmission to hospital patients through enemas, catheterizations, dressing changes, and injections.(89) The court then constructed the issue before it as one of the hospital enforcing infection-control measures, rather than the right of Leckelt to be free from pretextual discrimination.(90) In so doing, the Fifth Circuit painted Leckelt "as a deceitful and disease-ridden homosexual who refused to comply with a reasonable request for necessary information."(91) It concluded that the district court was reasonable in suspecting Leckelt of HIV infection because of his sexual orientation and his relationship with his former cohabitant who was infected with HIV--despite the fact that the courts never pointed to any evidence of an intimate link between Leckelt and his roommate.(92)
Further, the Fifth Circuit emphasized not the actual risk of infection posed by Leckelt, but rather, the potential for harm should transmission occur.(93) Despite the fact that there is little, if any, documented empirical risk of health-care workers transmitting HIV to patients in the course of medical care,(94) the court nevertheless found that Leckelt could pose such a risk, and refused him relief.
Similar forms of risk analysis are repeated in other cases(95)--including family law cases(96)--leading some commentators to argue that there has been a doctrinal shift in the assessment of HIV-transmission risks. Attorney Barry Sullivan argues that some members of the bench decide cases on the basis of whether the infected party poses any risk to others, rather than relying on whether the infected party poses a significant risk to others, as mandated by the United States Supreme Court in Arline.(97)
The trend to which Sullivan refers is an important one, particularly now that it is clear the judiciary is increasingly asked to evaluate scientific evidence,(98) even in areas where there is little absolute concreteness. That task may be neither comfortable nor compelling, particularly in those cases requiring scientific review in the most sensitive matters of law and policy, including family relations. In order to avoid the Leckelt paradigm of illogical and incongruent decisions in divorce and custody cases, the family courts should follow the rationales adopted by more reasoned courts, like the Ninth Circuit's analysis in Chalk. By so doing, the courts are more likely to employ an analysis that can be uniformly applied based on scientific evidence, rather than leaving individual courts to err in the process of deciding each individual case before them. One step in this process is the focus of the forthcoming section of this Article: judicial adoption of a presumption of noninfection by the parent in family law cases.
The Presumption of Noninfection from Parents Living With HIV
The family courts, of course, need to recognize the presence of parental HIV infection in fashioning custody or visitation orders. But the analysis should begin with a presumption of noncontagious contact.(99) Indeed, some courts take judicial notice that HIV cannot be spread through casual contact.(100) As Roberta Achtenberg notes:
The fear that a child will contract AIDS by living with an HIV-infected parent or by visiting regularly with an HIV-infected parent is an unreasonable fear, given the facts about transmissibility of the virus. The "theoretical" possibility of transmission through casual contact . . . which may concern some parents has been roundly rejected. The Association of Family and Conciliation Courts has adopted a policy specifically rejecting all theories of casual contagion or infection through household contact as criteria in child custody determinations when a parent has AIDS or HIV infection, and the American Bar Association has categorically rejected the theory of transmission through casual or household contact.(101)
Absent a showing that the child is at risk for transmission through sexual abuse or illicit needle contact, the family court should not be swayed by adversarial arguments that the child is at risk for transmission by casual contact.(102) When the court is concerned about the possibility of contagion from one of these factors, the primary focus should be on protecting the child from the abuse and neglect associated with those behaviors.(103) Appointing a guardian ad litem (G.A.L.) to investigate these concerns may further aid the court in forming the most appropriate plan.(104) The presumption of noninfection is also important in analyzing other arguments raised in HIV-related custody issues, including those discussed below.(105)
A. HIV Testing
The presumption of noncontagion is an important rationale in considering motions for mandated testing. The only reported decision regarding HIV by a Massachusetts family court, In Re: Guardianship of Anthony,(106) involved a probate judge's order requiring HIV testing of an adult, sexually active, mentally retarded male living in a state facility. The Supreme Judicial Court, however, did not reach the critical constitutional and statutory issues presented by the case, and its holding was based on jurisdictional considerations.(107)
Given the complicated analysis of conflicting interests raised by mandated testing,(108) family courts will find it more expeditious and equitable to presume nontransmission absent compelling circumstances. That presumption would render moot a motion for mandated HIV testing; if the court presumes that an HIV-infected parent(109) is not a risk to the child for transmission, there is no need to force a person to undertake the antibody test and interfere with their constitutional rights and liberties. This approach has been successfully adopted in other jurisdictions, and is within the rationales underlying the recommendations of the American Bar Association's AIDS Coordinating Committee.(110)
B. The Impact of Parent's Health on Child's Physical Well-Being
It is critical for the family court to understand that the variable progression of HIV and the infected parent's prognosis must be considered on a case-by-case basis. HIV-infected individuals may never develop opportunistic infections indicative of AIDS and remain healthy for long periods of time, or they may decline quickly.(111) Even with the assistance of medical testimony and evidence, it is highly unlikely that a court will be able to formulate an estimate of the long-term manifestations of the disease in a particular individual.(112)
The parent's present ability to provide care is the critical factor in making a custody determination, although a parent's previous history of caretaking for the child is one factor to consider.(113) An HIV-infected parent may have relinquished care for the child in the past, due to medical illness, fatigue, or during the emotional adjustment to the infection. In these circumstances, the parent should be considered to have relinquished custody "for appropriate purposes," and not considered presently unfit for custody.(114) HIV-related psychological and neurological impairments(115) alone are not considered to constitute a risk to the care of the child.(116) If the parent's physical health is currently poor, the court must consider the prognosis (health status) in evaluating the best interests of the child. The burden of proof, however, should remain with the party alleging physical incompetence.(117)
Courts addressing issues of impairment have based their decisions on actual parenting skills rather than hypothetical situations,(118) a sound solution. But in assessing the impact of the parent's health on his or her ability to provide physical care for the child, the court should consider any support systems the parent employs, or might be able to employ, to meet basic needs, including housekeeping, laundry, shopping and meal preparation. In many cases, "buddy" programs and social services include child-care provisions and supportive programming for children.(119) A guardian ad litem may be able to provide recommendations for the unique circumstances of a particular family, for the court to consider by in formulating alimony and child-support orders.(120)
C. The Impact of Parent's Health on a Child's Psychological Well-Being
Despite the trauma of a parent's potentially fatal illness, psychological studies show that continued contact with the parent is an important safeguard for the child's emotional health.(121) Although the G.A.L. will have to make determinations based upon the individual circumstances of the family, research indicates that attempting to shield the child from the parent's ill health is detrimental.(122) Moreover, if there is a change in custody and the parent does die, the child's ability to cope would be adversely affected.(123) Thus, one of the primary focuses of the G.A.L. should be to recommend a custody and visitation plan that best minimizes the child's burden when separated from the parent because of illness or judicial decision. The plan should allow the child to show her care and concern for the parent, to begin the grieving process if need be, and to encompass provisions for visitation in a hospice or hospital if the parent is able to see the child during those periods.(124)
The G.A.L. must be wary that feelings of anger, fear, and pain are often present in custody disputes, and perhaps particularly in reaction to HIV. Using blame in custody cases is not in the best interests of the child, who does not stop loving an ill parent regardless of their source or cause of infection. The G.A.L.'s prime purpose should be to make recommendations that allow the child an opportunity to maintain a loving relationship with an HIV-infected parent whenever possible.(125) In some cases, this may include a provision for mental health and related services for the child, which should be considered when making support orders consistent with other vital needs. In all cases, the G.A.L. must maintain objectivity, be educated about HIV, and undertake a thoughtful analysis of the family.
The role of the G.A.L. is certainly not limited to the issues presented above.(126) Both the child and the parent are likely to face stigmatization(127) from the disease, and may be subjected to discriminatory or malevolent attitudes. But the "slings and arrows of disapproving society," while painful, should not be a factor in custody or visitation orders.(128) Rather, the role of the court is to ensure that the child has the support she needs to address these events and the uncertainty of her future.
Conclusion
The tragedy of the HIV epidemic is far from over, and we may live with the physical and emotional impact of the disease for decades to come. When HIV enters a family court, it has the potential to infect the proceedings with an air of irrationality that is antithetical to law and justice. In order to ensure that these cases, with their timely and intensely personal stakes,(129) are treated fairly and equitably, the courts must become familiar with the disease and its effects on individuals. Certainly the "best interests of the child" warrant a thoughtful education and application in these cases. As Laurence O. Gostin, M.D., observes:
The overriding standard in family law is the best interests of the child. The child's welfare is promoted by having loving relationships with both parents. A parent with HIV disease has as much to give his or her child as any other parent. To divest a parent of the human right to care for his or her child not only devalues the parent, but deprives the child of the nurturing that the parent can give.(130)
The judicial response to HIV in a family court matter is critically important not only to the individuals whose lives present the facts for litigation, but also in the process of shaping the contours of a society that must determine how it will protect its most vulnerable members, including these parents and their children.
* For Tommy, whom any child would have been fortunate to have as a father. The authors gratefully acknowledge the counsel and generosity of Sugarman, Rogers, Barshak & Cohen, P.C., and White, Inker, Aronson, P.C., in preparing this Article, to Mark C. Smith and Robert J. Albano for their patience, support, and willingness to proofread an untold number of revisions, to the Honorable Eileen Shaevel, Professor Wendy E. Parmet, Monroe L. Inker, Professor Charles P. Kindregan and Patricia A. Kindregan for their excellence in teaching and advocacy, and especially to Shawna M. Iacoviello, Theresa M. Moulton, Gail A. Visco and Loraine M. Dunn for their expertise and professionalism in preparing this Article.
1. See Nancy B. Mahon, Public Hysteria, Private Conflict: Child Custody and Visitation Disputes Involving an HIV Infected Parent, 63 N.Y.U. L. Rev. 1092, 1094 (1988).
2. See Number of Children Losing Mothers to AIDS Reaching Epidemic Proportions, Study Finds, 9 AIDS Pol. & L. (BNA) 1 (Apr. 1, 1994); Felicia R. Lee, AIDS Toll on Elderly: Dying Grandchildren, N.Y. Times, Nov. 21, 1994, at A1; see also David Michaels & Carol Levine, Estimates of the Number of Motherless Youth Orphaned by AIDS in the United States, 268 JAMA 3456, 3456-60 (1992); Sue Landry, Society Feared Unready for the Next Phase of AIDS, St. Petersburg Times, Oct. 21, 1995, at 3B.
3. See Helen Peterson, Crisis of AIDS Orphans, Daily News (New York), Sept. 27, 1995, at A1.
4. See Lisa M. Kreiger, Disturbing Trends Among Young Men, S.F. Examiner, Feb. 14, 1996, at A2.
5. See, e.g., Stewart v. Stewart, 521 N.E.2d 956, 963-66 (Ind. App. Ct. 1988); see also Richard T. Andrias, Judicial Leadership and the HIV Epidemic, in AIDS and the Courts 4-5 (Clark C. Abt & Kathleen M. Hardy eds., 1990).
6. See Mahon, supra note 1, at 1096.
7. See Lawrence O. Gostin, The AIDS Litigation Project: A National Review of Courts and Human Rights Commission Decisions, Part I: The Social Impact of AIDS, 263 JAMA 1961, 1965 (1990).
8. See Ray v. School Dist. of DeSoto County, 666 F. Supp. 1524, 1538 (M.D. Fla. 1987); Gerald J. Stine, Acquired Immune Deficiency Syndrome: Biological, Medical, Social, and Legal Issues 210 (1993); Reagan Apologizes for Comments on AIDS Fear, Atlanta J. Const., Feb. 11, 1988, at 20.
9. See generally Frederic C. Kass, Schoolchildren With AIDS, in AIDS and the Law 66 (Harlon L. Dalton et al. eds., 1987).
10. As Harlon Dalton eloquently observed a decade ago, if a "sweet . . . Midwestern boy with a ready smile and a winning way" could not alleviate the fear and loathing of his neighbors, "[w]hat hope is there . . . that the fearful majority will empathize with [his] black and brown big-city counterparts, with adults who stick needles in their arms, or with men who engage in sodomy with other men?" Harlon L. Dalton, Preface, in AIDS and the Law, supra note 9, at xi, xv.
11. As one court has noted, "[t]here are few areas which more closely intimate facts of a personal nature than [a person's] HIV status." Doe v. Town of Plymouth, 825 F. Supp. 1102, 1107 (D. Mass. 1993); see also Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988), aff'd, 899 F.2d 17 (7th Cir. 1990).
12. See infra notes 18-49 and accompanying text.
13. See infra notes 50-61 and accompanying text.
14. See infra notes 62-98 and accompanying text.
15. See infra notes 85-98 and accompanying text.
16. See infra notes 99-128 and accompanying text. Because of the limited parameters of this Article, it is impossible to fully address issues of visitation, property distribution, alimony, and child support, although attempts have been made to identify each as they relate to custody.
17. See infra notes 129-30 and accompanying text.
18. See generally Stine, supra note 8, for a thorough but approachable review of HIV and its biological functions; see also Commonwealth v. Martin, 660 N.E.2d 670, 674 (Mass. App. Ct. 1996) (describing succinctly HIV and AIDS); Helena Brett-Smith & Gerald H. Friedland, Transmission and Treatment, in AIDS Law Today 18-45 (Scott Burris et al. eds., 1993).
19. Men and women share some symptomology, but also have different manifestations of the disease. Most of the scientific and treatment research on HIV focuses on men, leaving a vacuum of knowledge about how to treat and diagnose women, who are more likely to be misdiagnosed and who die sooner than men. Moreover, women do not readily fit into the diagnostic categories used with the disease because these classifications were based on men. Thus, women are often "ineligible" for AIDS diagnoses; without that diagnosis, they are often unable to obtain public and private assistance or access to clinical trials of experimental drugs. See generally Risa Denenberg, What the Numbers Mean in Women, AIDS, and Activism (Marion Banzhaf et al. eds., 1992).
20. At one time, it was common to differentiate between stages of HIV infection and AIDS. Currently, the preferred method is to use HIV or HIV-illness as the diagnosis and to indicate the spectrum of impairment that may occur. This Article uses HIV as a proxy for that spectrum. See Claudia G. Catalano, Annotation, Child Custody and Visitation Rights of Person Infected With AIDS, 86 A.L.R. 4th 211, 212 n.1 (1995 & Supp. 1996).
21. See Susan Brink, Beating the Odds, U.S. News & World Rep., Feb. 12, 1996, at 60; Christine Gorman, Battling the AIDS Virus, Time, Feb. 12, 1996, at 62.
22. Some ameliorative treatments cause additional stress to the body, including chemotherapy and antiviral medications that create muscular atrophy, severe nausea, fatigue, and debilitation. Even common antibiotics may pose life-threatening risks to people with HIV infection, who may suddenly develop violent intolerance to these medications.
23. See, e.g., Smith v. Dovenmuehle Mortgage, Inc., 859 F. Supp. 1138, 1143 (N.D. Ill. 1994) (noting that people with HIV/AIDS are "particularly susceptible to emotional distress, which is a natural consequence of the physiological trauma associated with this critical illness"); Richard Sadovsky, Psychosocial Issues in Symptomatic HIV Infection, 44 Amer. Fam. Physician 2065, 2066-70 (1991); Major Stress Can Speed Progression of AIDS, Newsweekly, June 4, 1995.
24. See Brett-Smith & Friedland, supra note 18, at 23.
25. See Stine, supra note 8, at 23; Brett-Smith & Friedland, supra note 18, at 165.
26. See Brett-Smith & Friedland, supra note 18, at 23.
27. HIV was believed to be spread through casual contact, including joint use of silverware, drinking fountains, communion cups, and an array of public and private facilities. See Janet L. Dolgin, AIDS: Social Meanings and Legal Ramifications, 14 Hofstra L. Rev. 193, 198-99 (1985); see also Richard Green, The Transmission of AIDS, in AIDS and the Law, supra note 9, at 28, 33-36; Stine, supra note 8, at 346-50.
28. See Stine, supra note 8, at 166; Brett-Smith & Friedland, supra note 18, at 24.
29. See Stine, supra note 8, at 162; Brett-Smith & Friedland, supra note 18, at 24.
30. See Stine, supra note 8, at 171-72, 180-83, 185-90; Brett-Smith & Friedland, supra note 18, at 24-28; see also infra notes 31-39 and accompanying text. The risk of HIV transmission through blood or blood product transfusions has decreased significantly since 1985 when the HIV-antibody test became available. See Brett-Smith & Friedland, supra note 18, at 28-29. This issue is not discussed in this Article.
31. See Stine, supra note 8, at 172; Brett-Smith & Friedland, supra note 18, at 25. Anal intercourse (among gay men or heterosexual partners) is presumed more risky than vaginal sex because of the likelihood of tears to the rectum. See Stine, supra note 8, at 172; Brett-Smith & Friedland, supra note 18, at 25. The presence of sexually transmitted diseases that cause ulcerations on the skin may also increase transmission risk. See Stine, supra note 8, at 172, 183-84; Brett-Smith & Friedland, supra note 18, at 25.
32. See Stine, supra note 8, at 172, 176-77; Brett-Smith & Friedland, supra note 18, at 24-25.
33. See Stine, supra note 8, at 167; Brett-Smith & Friedland, supra note 18, at 25.
34. See Stine, supra note 8, at 165, 180; Brett-Smith & Friedland, supra note 18, at 26.
35. See Stine, supra note 8, at 182; Brett-Smith, supra note 18, at 26. When using a drug by needle, the user withdraws some of his blood into the syringe containing the drug and then injects the mixture into his vein. See Stine, supra note 8, at 182; Brett-Smith & Friedland, supra note 18, at 26. The next person to use that needle and syringe may become infected when he repeats the process, with his blood-drug mixture becoming infected with residual HIV in the mixture left on the needle or syringe by the previous user. See Stine, supra note 8, at 182; Brett-Smith & Friedland, supra note 18, at 26.
36. See Stine, supra note 8, at 180-82; Brett-Smith & Friedland, supra note 18, at 26-27.
37. See Stine, supra note 8, at 137, 185-90; Brett-Smith & Friedland, supra note 18, at 27-28. Although highly relevant, it is impossible to give this complicated topic sufficient attention in this Article. It is important to note that as the transmission link between mother and fetus became well known, many women were increasingly subjected to putative and restrictive responses by social institutions and the court system. See generally Kathryn Anastos & Carola Marte, Women--The Missing Persons in the AIDS Epidemic, in The AIDS Reader: Social, Political, and Ethical Issues (Nancy F. McKenzie ed., 1991); Suzanne Sangree, Control of Childbearing by HIV-Positive Women: Some Responses to Emerging Legal Policies, 41 Buff. L. Rev. 309 (1993); Michael L. Closen & Scott H. Isaacman, Criminally Pregnant, A.B.A. J., Dec. 1990, at 76.
38. See Stine, supra note 8, at 185; Brett-Smith & Friedland, supra note 18, at 27-28.
39. See generally Stine, supra note 8, at 185; Brett-Smith & Friedland, supra note 18, at 28.
40. See, e.g., Margaret A. Fischl et al., Evaluation of Heterosexual Partners, Children, and Household Contacts of Adults with AIDS, 257 JAMA 640, 644 (1987) (observing that research data supports the concept that AIDS "is not spread through close contact other than intimate sexual or blood exposures"). Although this premise may seem rather remedial, fear of HIV transmission can confound intellectual understanding of the disease, particularly when children are involved. For example, medical personnel, law enforcement agents, and neighbors all feared that a Massachusetts woman posed a threat of infection to children in her care. See Doe v. Town of Plymouth, 825 F. Supp. 1102, 1104-05, 1108 (D. Mass. 1993).
41. See Stine, supra note 8, at 157; Brett-Smith & Friedland, supra note 18, at 29. Courts generally accept medical evidence on this point and do not limit custody or visitation merely because a child is living with an HIV-infected parent. See, e.g., Newton v. Riley, 899 S.W.2d 509, 510 (Ky. Ct. App. 1995) ("The widely accepted conclusion among medical researchers is that there exists `[n]o risk of HIV infection through close personal contact or sharing of household functions.' Our research of scientific and medical journals has found nothing which stands inapposite to this conclusion." (quoting Steven L. v. Dawn J., 561 N.Y.S.2d 322, 325 (Fam. Ct. 1990))).
42. See Brett-Smith & Friedland, supra note 18, at 29. Nevertheless, these latter behaviors continue to cause great fear of transmission, even among police officers whom routinely confront such acts. See Delores Kong, AIDS Threat Believed Low to Officers Bitten in Arrest, Boston Globe, June 2, 1995, at 26.
43. Within the past five years, HIV infection among those having male-to-male sexual relations rose 69% in rural areas and 19% in urban areas. See AIDS Cases Up in Black, Hispanic Gay Men, Boston Globe, June 2, 1995, at 8. Men of color continue to have the highest rates of infection within the gay community: Black/African American men suffer HIV infection three times the rate of their white counterparts, while HIV infections rose 61% among Latino/Hispanic men during the last five years. See id.
44. See Michele Zavos, Women in the Shadows of AIDS, 19 Hum. Rts. 18, 19 (1992). The rate of HIV infection in heterosexuals dramatically increased by 130% between 1992-1993. See Lee, supra note 2, at A1. Since 1993, one in five American AIDS cases was female--up from one in twelve in the early years of the epidemic. See Daniel Berger, No Immunity to AIDS in the Bible Belt, Tampa Trib., Dec. 1, 1995, at 21.
45. See U.S. Public Health Service Recommendations for Human Immunodeficiency Virus Counseling and Voluntary Testing for Pregnant Women, 44 Morbidity & Mortality Wkly. Rep. 1, 2 (1995); Update: Mortality Attributable to HIV Infection/AIDS Among Persons Aged 25-44 Years--United States 1990 and 1991, 42 Morbidity & Mortality Wkly Rep. 481, 482-83 (1993).
46. See Jennifer Burroughs, The Politics of Statistics, 9 Berkeley Women's L.J. 152, 152-53 (1994); Susan Y. Chu et al., Impact of the Human Immunodeficiency Virus Epidemic on Mortality in Women of Reproductive Age, United States, 264 JAMA 225, 226-27 (1990).
47. Sunny Rosenfeld, Developments in Custody Options for HIV-Positive Parents, 11 Berkeley Women's L.J. 194, 195 (1996).
48. For example, in Connecticut, 88% of women infected with the virus are of reproductive age. See Jackie Fitzpatrick, Who Will Care for the Orphans of AIDS?, N.Y. Times, Apr. 25, 1993, at 13.
49. Joe Nicholson, Rate of HIV Infection in Women Shows Drop in Statewide Testing, Daily News (New York), Nov. 12, 1995, at 24.
50. See generally B. Hanson, HIV Related Violence (2d ed. 1992); Epidemic of Fear: A Survey of AIDS Discrimination in the 1980s and Policy Recommendations for the 1990s (Nan Hunter ed., 1990); Laurence Zuckerman, Open Season on Gays, Time, Mar. 7, 1988, at 24.
51. HIV/AIDS is widely described as a fatal and lethal disease. It is important to remember, however, that the disease is increasingly seen as a chronic, manageable illness, particularly in cases in which there is early detection and intervention. Moreover, many people infected with the virus consider themselves to be "living with AIDS," a statement that accurately reflects their capacity and desire to combat the virus and live full, productive lives despite their infection. Courts should be keenly aware of the great strength, resource, and determination that many people with HIV possess, and their ability to lead long, fulfilling lives notwithstanding their infection.
52. See Board of Trustees, American Medical Association, Prevention and Control of Acquired Immunodeficiency Syndrome, 258 JAMA 2097, 2098 (1987).
53. See, e.g., Abbott v. Bragdon, 882 F. Supp. 181, 181-84 (D. Me. 1995).
54. Doe v. Roe, 526 N.Y.S.2d 718, 726 (Sup. Ct. 1988).
55. See generally Gender Bias Study of The Supreme Judicial Court, Commonwealth of Massachusetts 1 (1989) (detailing a report that determined the "extent, nature, and consequences of gender bias in the judiciary and to make remedial recommendations").
56. See Marina T. Sarmiento, The Legal Needs of Women with HIV, 9 Berkeley Women's L.J. 155, 156 (1994) (noting women's weaker sense of entitlement to legal services, lack of support services, child care, and medical benefits, and lack of diagnosis required to receive assistance).
57. See Roger Doughty, The Confidentiality of HIV-Related Information: Responding to the Resurgence of Aggressive Public Health Interventions in the AIDS Epidemic, 82 Cal. L. Rev. 111, 124 (1994). Other marginalized groups, including the poor, people of color, the gay and lesbian communities, the disabled, and those with language barriers, often feel similarly.
58. See Fitzpatrick, supra note 48, at 13.
59. See id.; see also Forgotten Children of the AIDS Epidemic (Shelley Geballe et al. eds., 1995); Joe Nicholson, AIDS Orphan Deluge to Hit N.Y., Daily News (New York), Nov. 12, 1995, at 24.
60. See generally Susan L. Waysdorf, Families in the AIDS Crisis: Access, Equality, Empowerment, and the Role of Kinship Caregivers, 3 Tex. J. Women & L. 145 (1994) (discussing extensively the impact on families and friends that care for HIV-infected people); see also Fitzpatrick, supra note 48, at 13; Lee, supra note 2, at A1.
61. See Marjorie Valburn, New Class of Victims: "AIDS Orphans," Houston Chron., Dec. 11, 1994, at A28.
62. There is increasing recognition of parents who are gay, lesbian or bisexual. Some studies indicate that as many as 25% of gay men will have children. See John Monroe Smith, Legal Issues Confronting Families Affected by HIV, 24 J. Marshall L. Rev. 543, 552 n.34 (1991). Other studies suggest that there are 14,000,000 children in America being raised by gay or lesbian parents. See Abby Rubenfeld & Dennis DeLeon, Letter to the Editor, Lesbian/Gay Law Notes (Lesbian & Gay Law Assn. of New York), Apr. 1995, at 64; see also Joseph G. Arsenault, Comment, "Family" but not "Parent": The Same-Sex Coupling Jurisprudence of the New York Court of Appeals, 59 Alb. L. Rev. 813, 817 n.22 (1995). Of course, many men engage in male-to-male sexual relations but are married and/or have children. These men generally identify themselves as heterosexual. See generally Laud Humphreys, Tearoom Trade (1970) (discussing casual sex among men and noting that men who engage in casual sex are married and predominantly heterosexual).
63. See Bezio v. Patenaude, 410 N.E.2d 1207, 1216 (Mass. 1980); Doe v. Doe, 452 N.E.2d 293, 296 (Mass. App. Ct. 1983).
64. See In re Adoption of Tammy, 619 N.E.2d 315, 318-21 (Mass. 1993).
65. See Fort v. Fort, 425 N.E.2d 754, 757-58 (Mass. App. Ct. 1981); see also Commonwealth v. Plunkett, 664 N.E.2d 833, 838 (Mass. 1996) (noting potential bias of jurors against gays and bisexuals); Linda Gibson, Mom's a Lesbian. Dad's a Killer. Judge: She's Unfit, Nat'l L.J., Feb. 12, 1996, at A9. Indeed, homophobia and discrimination based on HIV status and/or sexual orientation are well documented in the legal world. See Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1313-15 (E.D. Pa. 1994); Rhonda R. Rivera, Lawyers, Clients and AIDS: Some Notes from the Trenches, 49 Ohio St. L.J. 883, 889-90 (1989); Scott D. Wiener, Book Note, 30 Harv. C.R.-C.L. L. Rev. 267, 267 & n.3 (1995) (reviewing Michael Nava & Robert Dawidoff, Created Equal: Why Gay Rights Matter to America (1994)); Jeff Barge, Report Finds Gay Bias in Law Firms, A.B.A. J., June 1995, at 34, 35; Deborah L. Rhode, Anti-Gay Prejudice Persists in Legal Workplace, Nat'l L.J., Dec. 16, 1996, at A15; Smith, supra note 62, at 545 n.5, 552-55.
66. See, e.g., H.J.B. v. P.W., 628 So. 2d 753, 755-56 (Ala. Civ. App. 1993); Larson v. Larson, 902 S.W.2d 254, 256 (Ark. App. 1995); Bottoms v. Bottoms, 457 S.E.2d 102, 108-09 (Va. 1995).
67. This is particularly true when the heterosexual parent previously was unaware of his or her partner's nonheterosexual orientation. For the heterosexual parent in such marriages, there are often feelings of anger, betrayal, fear, and hatred directed at the nonheterosexual parent. See, e.g., North v. North, 648 A.2d 1025, 1027-30 (Md. Ct. Spec. App. 1994).
68. See generally In re Marriage of Cupples, 531 N.W.2d 656 (Iowa Ct. App. 1995); Arthur S. Leonard, Lesbian and Gay Families and the Law: A Progress Report, 21 Fordham Urb. L.J. 927 (1994); Cynthia L. Greene & Donald K. Butler, Gay Parents Ruled Fit, Nat'l L.J., May 1, 1995, at B9.
69. See 2A Charles P. Kindregan, Jr. & Monroe L. Inker, Massachusetts Practice § 47.12, at 370 (2d ed. 1996); see also In re Lang, 668 N.E.2d 285, 288-89 (Ind. Ct. App. 1996); Catalano, supra note 20, at 213.
70. See In re Marriage of Carney, 157 Cal. Rptr. 383, 391-92 (Cal. 1979) (noting that public policy weighed against denial of custody solely due to a parent's disability); In re Marriage of R.R., 575 S.W.2d 766, 768-69 (Mo. Ct. App. 1978) (granting custody to a disabled parent when there was no evidence concerning potential emotional damage to children living with a disabled parent).
71. Massachusetts antidiscrimination laws have been held to govern HIV as a disability. See, e.g., Von Dwornick v. Boston Flower Shoppe, Ltd., 15 Mass. Discrimination L. Rep. 1209, 1222-23 (1993); Cronan v. New Eng. Tel. & Tel. Co., 41 Fair Empl. Prac. Cas. (BNA) 1268, 1268 (Mass. Super. Ct. 1986); see also Civil Rights: AIDS-Infected Waiter--Disparate Treatment, Mass. Law. Wkly, Aug. 31, 1992, at 21 (discussing Estate of McKinley v. Boston Harbor Hotel); Claudia MacLachlan, Hotel Hit in AIDS Bias Claim, Nat'l L.J., Aug. 24, 1992, at 15; Doris Sue Wong, MCAD Breaks Ground on AIDS, Boston Globe, Aug. 11, 1992, at 25.
72. See, e.g., Doe v. Roe, 526 N.Y.S.2d 718, 726 (Sup. Ct. 1988); Anne D. v. Raymond D., 528 N.Y.S.2d 775, 776-78 (Sup. Ct. 1988).
73. See American Bar Association AIDS Coordinating Committee Report, Aug. 1989 (accompanying 61-part American Bar Association Policy on AIDS, Report 135, Summary of the House of Delegates, 1989 Annual Meeting, Aug. 9, 1989), at 98.
74. See Doe, 526 N.Y.S.2d at 726; see also 2A Kindregan & Inker, supra note 69, § 47.12, at 369-70.
75. See In re Adoption of Erica Nicholle Johnson, 612 N.E.2d 569, 579-80 (Ind. Ct. App. 1st Dist. 1993) (Sharpnack, C.J., dissenting).
76. Collins v. Collins, 497 N.Y.S.2d 544, 545-46 (App. Div. 1985).
77. In re John T., 538 N.W.2d 761, 772-73 (Neb. App. 1995).
78. See, e.g., Rolde v. Rolde, 425 N.E.2d 388, 391 (Mass. App. Ct. 1981).
79. Confidentiality is a critical concern in each aspect of the judicial process when children are concerned, a concern that is magnified by HIV. For a general approach of how courts have balanced these interests, see Doe v. Roe, 526 N.Y.S.2d 718, 722-25 (Sup. Ct. 1988); see also Doe v. Barrington, 729 F. Supp. 376, 384 (D.N.J. 1990); Woods v. White, 689 F. Supp. 874, 876 (W.D. Wis. 1988); Urbaniak v. Newton, 277 Cal. Rptr. 354, 357-61 (Cal. App. 1991).
Note that many states also have strict HIV confidentiality statutes that protect HIV-related information and other aspects of a person's privacy. See, e.g., Mass. Gen. Laws ch. 111, § 70F (1994 & Supp. 1996) (Massachusetts' HIV confidentiality statute); Mass. Gen. Laws ch. 214, § 1B (1994 & Supp. 1996) (Massachusetts' privacy statute); Doe v. Plymouth, 825 F. Supp. 1102, 1107 (D. Mass. 1993) (finding that "the plaintiff has a constitutional right to privacy that encompasses nondisclosure of her HIV status"); Tower v. Hirschhorn, 492 N.E.2d 728, 733 (Mass. 1986) (holding that a patient has the right to divulge confidential medical information to a physician); Alberts v. Devine, 479 N.E.2d 113, 118 (Mass. 1985) (recognizing that a patient has a valid interest "in preserving the confidentiality of medical facts" told to a doctor or discovered by a doctor).
80. See Gostin, supra note 7, at 1965; see also Andrew Schepard, AIDS and Divorce, 23 Fam. L.Q. 1, 17, 25-26 (1989).
81. See, e.g., People in the Interest of B.W., 626 P.2d 742, 743-44 (Colo. Ct. App. 1981); Mahon, supra note 1, at 1095 n.21.
82. See Hersey v. Hersey, 171 N.E. 815, 820 (Mass. 1930); Rolde, 425 N.E.2d at 391.
83. These cases and the principle argued are adeptly described by others. See generally Scott Burris, Rationality Review and the Politics of Public Health, 34 Vill. L. Rev. 933 (1989); Barry Sullivan, When the Environment is Other People: An Essay On Science, Culture, and the Authoritative Allocation of Values, 69 Notre Dame L. Rev. 597 (1994).
84. In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the United States Supreme Court addressed a claim by a school teacher infected with tuberculosis, who alleged employment discrimination. The Court found that the plaintiff had stated a claim based on a violation of the Rehabilitation Act of 1973, and held that people infected with contagious diseases were protected by the Act's prohibitions on discrimination against the disabled. See id. at 285-86. In order to effectively and intelligibly balance risks of infectious disease against irrational and reflexive fears of the ill, the Court announced a four-part model for risk assessment. Courts are now required to make factual findings of whether a person poses a "significant risk" to others based on: 1) the nature of the risk posed; 2) the duration of the risk; 3) the severity of the risk; and 4) the probability of the disease being transmitted to others and the resulting harm if transmission occurs. See id. at 284-88.
85. 840 F.2d 701 (9th Cir. 1988).
86. 29 U.S.C. § 794 (1994). The Rehabilitation Act prohibits federally funded state programs from discriminating on the basis of disability. See id. § 794(a). The Rehabilitation Act remains in full force, and served as a model for the more recent Americans with Disabilities Act of 1990, 42 U.S.C. § 1201 (1994), which provides similar but broader protections in both the public and private sectors. Consistency is required between the two statutes. See 42 U.S.C. § 12117(b) (1994).
87. Chalk, 840 F.2d at 708 (footnote omitted). The plaintiff produced more than 100 articles from respected medical journals, and declarations from five experts on HIV/AIDS indicating that he posed no risk of transmission to children in his classroom. See id. at 706-07.
88. 909 F.2d 820 (5th Cir. 1990). In Leckelt, the plaintiff, a licensed practical nurse and known to be gay by his employer hospital, refused to disclose his HIV status. See id. at 822, 826 & n.12. The hospital sought that information after learning that Leckelt's cohabitant had died of HIV-related illness. See id. at 822. When Leckelt refused to provide the hospital with a copy of his HIV-antibody test results, the hospital fired him. See Leckelt v. Board of Comm'rs, 714 F. Supp. 1377, 1384 (E.D. La. 1989). Leckelt then sued under § 504 of the Rehabilitation Act.
89. See Leckelt, 909 F.2d at 829.
91. Scott Burris, Public Health, "AIDS Exceptionalism" and the Law, 27 J. Marshall L. Rev. 251, 267 (1994) (footnote omitted).
92. See Leckelt, 909 F.2d at 826-27.
94. See Lisa M. Krieger, Health Worker Transmission Risk Nonexistent, S.F. Examiner, May 3, 1995, at A2 (reporting on a recent Center for Disease Control study of more than 22,000 patients, and finding no documentation of HIV transmission from infected health-care workers); CDC Study Shows Doctor-to-Patient HIV Transmission Risk is Extremely Small, Bay Windows (Boston), May 4, 1995, at 22.
95. See, e.g., Severino v. North Fort Myers Fire Control Dist., 935 F.2d 1179, 1181-83 (11th Cir. 1991); Estate of Behringer v. Medical Ctr. at Princeton, 592 A.2d 1251, 1267-68 (N.J. Super. Ct. Law Div. 1991).
96. See Rivera, supra note 65, at 924 n.224 (noting that a family court judge's justification for the decision to deny an HIV-infected parent visitation with a biological child was based on speculation that there might be a "one percent" chance of infection to the child).
97. See Sullivan, supra note 83, at 641; see also School Bd. of Nassau County v. Arline, 480 U.S. 273, 284-88 (1987).
98. See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-98 (1993). Daubert was adopted by the Supreme Judicial Court of Massachusetts in Commonwealth v. Lanigan, 641 N.E.2d 1342, 1348-50 (Mass. 1994).
99. This could be completed through a stipulation of the parties or in a motion in limine. See Steven L. v. Dawn J., 561 N.Y.S.2d 322, 324 (Fam. Ct. 1990).
100. See Maryland Court Says HIV No Reason to Bar Visitation in Custody Dispute, 9 AIDS Pol. & L. (BNA) 3 (Nov. 18, 1994); see also Faya v. Almaraz, 620 A.2d 327, 331-32 (1993).
101. Roberta Achtenberg, AIDS and Child Custody: Parents' Rights and AIDS Testing, in AIDS and the Courts, supra note 5, at 236, 237.
103. In a case when a parent may use injection drugs or commit sexual acts against the child, the parent's suitability for childbearing is clearly questionable and needs forthright attention. However, those issues remain separate from the parent's HIV status. Although an HIV-infected parent may pose a risk of transmission to the child in those circumstances, the overriding concern is the harm done to the child by those behaviors, regardless of HIV status.
104. See Mass. Gen. Laws ch. 276, § 85B (1994 & Supp. 1996); Duro v. Duro, 467 N.E.2d 165-168-70 (Mass. 1984).
105. See infra notes 106-28 and accompanying text.
106. 524 N.E.2d 1361 (Mass. 1988).
107. See id. at 1363-64. The Supreme Judicial Court transferred the appeal on its own initiative, holding that the family court judge did not have requisite authority to order testing pursuant to Mass. Gen. Laws ch. 201, § 6A (1994 & Supp. 1996) and Mass. Gen. Laws ch. 215, § 6 (1994 & Supp. 1996).
108. See, e.g., Doe v. Roe, 526 N.Y.S.2d 718, 723-25 (Sup. Ct. 1988) (noting Fourth Amendment issues, statutory considerations, and public policy in holding that a compelling need must be demonstrated in order to mandate testing through civil discovery).
109. We specifically mean parents who actually are infected with the virus, as well as parents perceived or accused of being HIV infected, regardless of their actual HIV status.
110. See Achtenberg, supra note 101, at 238; see also Doe, 526 N.Y.S.2d at 725-26; Steven L. v. Dawn J., 561 N.Y.S.2d 322, 324-26 (Fam. Ct. 1990); Buck v. Grein, Lesbian/Gay Law Notes (Lesbian and Gay Law Ass'n of New York) Sept. 1986, at 55; Gostin, supra note 7, at 1965; Mahon, supra note 1, at 1095 n.21.
111. See Steven L., 561 N.Y.S.2d at 325.
112. See id. Whatever benefits may be obtained from such testimony should be weighed against the potential for the proceedings to compromise the infected person's confidentiality.
113. See Bezio v. Patenaude, 410 N.E.2d 1207, 1215 (Mass. 1980).
115. HIV-infected people are also susceptible to neurological impairment, which is poorly understood. As with other infections, the impact of the disorder can be broad, ranging from slight impairment (such as decreased ability in abstract reasoning, reduced speed of information processing, and minor difficulties in learning or memory) to gross dementia (a more general mental deterioration). See Mahon, supra note 1, at 1105 nn.114-17.
116. If the court clinic has a psychologist or therapist qualified in these diagnoses, the court may consider their use. Again, confidentiality concerns should remain a pivotal factor.
117. See Felton v. Felton, 418 N.E.2d 606, 610-11 (Mass. 1981); Rolde v. Rolde, 425 N.E.2d 388, 391-92 (Mass. App. Ct. 1981); see also Stanley B. Miller, Judging the Best Interests of the Child in AIDS-Impacted Divorce, in AIDS and the Courts, supra note 5, at 231, 234.
118. See Jane W. v. John W., 519 N.Y.S.2d 603, 604 (Sup. Ct. 1987).
119. One of the silver linings in the AIDS epidemic may be the phenomenal expansion of multiservice organizations like the Multicultural AIDS Coalition and the AIDS Action Committee of Massachusetts, which provide an array of services, including medical and dental care, legal assistance, public policy and individual advocacy, social services and support groups, "buddies" who serve as friends and advocates for the ill, and other programs. See, e.g., David A. Hansell, The TB and HIV Epidemics: History Learned and Unlearned, 21 J.L. Med. & Ethics 376, 378 (1993); Paula C. Johnson, Silence Equals Death: The Responses to AIDS Within Communities of Color, 1992 U. Ill. L. Rev. 1075, 1078 & n.12.
120. These issues are further described in Kristen Booth Glen, Is AIDS Grounds for Divorce or Loss of Child Custody?, in AIDS and the Courts, supra note 5, at 223-31.
121. See Mahon, supra note 1, at 1106.
123. See Steven L. v. Dawn J., 561 N.Y.S.2d 322, 324 (Fam. Ct. 1990).
124. One critical area for both the bench and the G.A.L. to consider is the need for confidentiality in cases involving a party's HIV status, which is "information that is uniquely private and should be protected as such . . . [and which] may expose a person to significant risk or ridicule . . . [and which if disclosed] is potentially deeply invasive, in that they reveal information that might otherwise be effectively, even profoundly, concealed from the public world." Doe v. Registrar of Motor Vehicles, 1 Mass. L. Rptr. 156, 160 (1993); see also Doe v. Town of Plymouth, 825 F. Supp. 1102, 1107-08 (D. Mass. 1993).
125. See, e.g., Doe v. Roe, 526 N.Y.S.2d 718, 721 (Sup. Ct. 1988).
126. See Palmore v. Sidoti, 466 U.S. 429, 430-34 (1984); Conkel v. Conkel, 509 N.E.2d 983, 987 (Ohio Ct. App. 1987).
127. As Judge Richard T. Andrias of the New York state bench observed:
[J]udges should get involved in AIDS policy issues . . . [because] where an HIV/AIDS litigant is improperly denied a right or remedy, the denial or loss is usually irreparable. If there is an improper disclosure of an infected person's HIV status, confidentiality is lost forever. Because of bias and hostility, no money judgment or injunctive relief will restore . . . prior . . . status.Andrias, supra note 5, at 3.
128. Conkel, 509 N.E.2d at 987; see also Palmore, 466 U.S. at 434.