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HIV Stigmatisation: Bane of Marriages and Child Custody



AIDS is the greatest public health challenge of the late twentieth and twenty first century that’s inevitably fatal to its victims. Symptoms of the disease may not become visible for years after infection, to know that the number of people potentially affected is staggering, ISABEST OMOREGBEJI writes.

As AIDS continue to be one of the most feared terminal diseases, hope for a cure, miracle vaccine seems distant. Recently, this scourge has destroyed very happily married families. Marriage they say is for better or for worst but for fear of transmission of HIV most couples has either willingly or grudgingly settled for divorce or separation as a strategy to avoid transmission of the virus when it has already affected one partner.

Although it is easy to suggest that one stays with an HIV positive spouse at least on religious and compassionate grounds but in reality living with a spouse that is HIV positive is a challenge on its own. No wonder the love in most marriages fades out soon as the status of one of the spouse changes and the other spouse’s status remain the same.

The risk of mother to child transmission of HIV virus has proved to be increasingly one of the reasons for divorce and subsequent denial of custody of the children for the HIV positive mothers in Nigeria. If one must thinker with the provision of the HIV and AIDS Anti-discrimination Act 2014 and the equality espoused in the Nigerian body of laws addressing the issue of child custody, which prohibits all forms of stigma and discrimination against persons living with HIV and AIDS, it will leave us with a conclusion that most divorces, separation and perhaps denial of custody of children today in Nigeria are strongly based on either stigmatization or discrimination.

Leadership took the lamentations of Mrs. O, an HIV positive mother now divorced due to her status. I was married in 2005 and around 2013 eight years later, I tested positive to HIV while my husband remained negative. After my status changed I was advised to disclose it to my husband, for a while I stopped going to bed with my husband. When he could no longer endure my refusal I gathered the courage to tell him. After that, he was so upset and went to reconfirm his own status.

“I’ll say, I was so relieved to know that he was still negative. But my regrets started soon after, he began to call me names and started maltreating me, we were later divorced when my husband (Mr. O), filed a divorce suit against me at the High Court of Justice, Ibadan, Oyo State, Nigeria, praying the court to dissolve our marriage and grant custody of our 5-year old daughter to himself. While the matter was yet ongoing, the Judge, in a most unprofessional manner and contrary to his role as an impartial umpire, became biased by appealing to the audience to imagine how the child in contention would feel when she grew up to learn of her mother’s HIV status, and so gave custody to my husband over me.

“The most annoying part of it was that it was clearly stated that the grounds for granting custody to my husband was on account of my HIV status. I expected that at least they should understand that not all infections are through living a wayward lifestyle or through adultery”. She lamented.

Speaking to the fear and risk of infection or transmission, Dr. Anthony Fauci, an international expert with the National institute of Allergy and infectious Diseases (NIAID) offering support and antiretroviral drugs to people infected with HIV virus had said, “The rule remain the same, if an HIV positive mother do not share body piercing instruments with the rest of the family, have protected sex and also if an HIV positive mother takes the appropriate anti-viral drugs during pregnancy and labour and does not breast feed, the risk of transmitting the virus to her child is around 1 percent. Many cases of discrimination against women for fear of their status have often gone unnoticed”.

In most of this divorce cases where joint custody is not given, the children are usually the ultimate sufferers of the decision. No wonder the adage, “where two elephants fight, the grass suffers,” most times this appears to be the fallout of HIV related divorces in families. There is no gain saying that where there is a dispute between parents, children are frequently on the receiving end. This has become sadly evident in the HIV sector. It is now a tragic fact and common practice for family members and our courts of law to deny HIV positive mothers custody of their children in the event of divorce or separation, primarily because of their (mothers’) status.

This line of argument was also corroborated by Lawyers Alert, a Human Rights NGO located in Abuja, who claimed to have observed an alarming rise in the number of divorce cases from 2016, where mothers are denied access to, and or custody of their children because the women are HIV positive. The NGO which has provided legal representation in some of these cases is well placed to observe this issue and raise the alarm. One of such cases is that of Mrs. O. Mentioned above.

Reacting to this scandalous conduct, Lawyers Alert filed a petition to the High Court in Ibadan requesting that the Chief Judge recuse himself from the case. The organization equally filed a motion praying the Judge to disqualify himself from delivering Judgment on the grounds that by his remark, he was biased and had breached the principle of fair hearing. The Judge chose to ignore the motion and proceeded to grant the decree of dissolution and the custody of the child to the petitioner (father of the child).

Considering the tender age of the child, the financial standing of her mother and her high moral standard, the child’s interests would have been better served had custody been granted to the mother, but the Judge, who by his utterances could evidently be seen to be biased in favour of the appellant, granted custody to the father instead. It was stated that the grounds for granting custody to the petitioner was on account of the wife’s HIV status. The judgment is currently being appealed in hopes of a reversal.

Another similar case is that of Mrs. X. in this case, there was mediation by the Anambra State branch of the National Human Rights Commission of Nigeria. Again, the lady’s HIV status became a bone of contention wherein it was used as a reason to deny her custody of her children and custody was instead, granted to the husband.

In yet another case, Mrs. N’s husband filed a petition for divorce against her at the High Court of Justice, Gboko, Benue State praying the court to grant custody of the three children of the marriage (two females and one male) to himself. The petitioner made reference to the HIV status of Mrs. N and said it would be in the best interest of the children that he be granted custody. Judgment, is at yet pending.

It would seem, from the general slant such cases tend to take, that the tendency of denying HIV positive mothers custody of their children in the event of a divorce or separation, is a reflection of gender biases which could pass for gender-based violence and also a violation of the rights of HIV mothers.

It is evident from the foregoing that despite all efforts to sensitise the public about HIV by government agencies and some NGOs, a large number of people, including the elites, are largely ignorant of how HIV is actually transmitted. A case in point, in the early days of HIV, when ignorance was truly pervasive, a Judge who was adjudicating on a matter involving a woman living with HIV said he needed a certified doctor to convince him that he would not have contracted HIV by the time he delivered judgment in the case! Although, that was many years ago, it appears that the veil of ignorance is yet to be completely lifted off the faces of many.

The fact remains that, from what is known about how the virus passes from one person to another, granting custody of children to HIV positive mothers will not cause the children to become infected and no sane HIV mother would deliberately infect her children. Denying HIVmothers custody of their children is therefore, not only a violation of those women’s rights, but also a violation of the children’s rights to enjoying the tender and loving care of their mothers.

There is a need therefore, for constant enlightenment and sensitisation. People need to be reminded as frequently as possible, by all means necessary and available, that they will not contract HIV simply because they live, make physical contact, eat and or drink with a person living with HIV. They also need to know that children will not contract HIV just because their Mother is HIV positive. Though the possibility is high at pregnancy and childbirth, the availability of Prevention of Mother to Child Transmission (PMTCT) drugs and strategies equally reduce those chances. HIV is contracted mostly by blood to blood contact and through unprotected sexual intercourse.

Efforts should also be made to inform the general public about the HIV and AIDS (Anti-discrimination) Act 2014, which prohibits all forms of stigma and discrimination against persons living with HIV and AIDS. Our justice system which is saddled with the responsibility of interpreting these laws should as such not be found in breach of it. Judges particularly need to be sensitised to the fact that denying HIV mothers of custody of their children on grounds of their HIV status is not the best way to protect the interests of such children. In addition to physical welfare, children also need the emotional satisfaction of enjoying their biological mothers love where possible, especially where such children are still very young.

To this end, there is a need to nip in the bud, this unfortunate trend of denying mothers and children the warmth of each other’s companionship. No purpose is served by such a draconian stance.