RESPONSIBILITY OF AN AIDS CARRIER
Question: An individual has been diagnosed as having AIDS. The testing has been positive, and there is little room for doubt, as he has developed some initial symptoms. Years may pass before other symptoms appear. It is currently estimated that at least 30 percent of carriers of the AIDS virus will be affected by the syndrome. As a carrier he is also a transmitter of the syndrome; he is aware of the fact that the active stage of AIDS is fatal. The young man in question insists on continuing to be sex- ually active and is careless about using preventive measures such as condoms. Would Judaism consider him a danger to society or, if married, to his wife? Would Judaism label his transmission of AIDS as murder? What are his responsibilities to society?
Answer: We sympathize with anyone stricken by this illness and must help him/her in every way possible. AIDS victims must be protected from needless discrimination, yet society must also protect itself from obvious dangers.
Let us view this question from two different perspectives. First, let us look at the matter of his sexual activity and Judaism’s attitude toward this.
The question does not indicate whether the individual is homosexual or heterosexual, single or married. Let us initially assume that he is heterosexual, not married, and that his sexual activities are conducted with a number of different partners. Traditional and liberal Judaism have, of course, rejected promis- cuous sexual activity, and we would reject his behavior on these grounds. In fact, the Talmud assumed that if a man had inter- course with a woman, it was intended to be serious and aimed at marriage (“Ein adam oseh be’ilato be’Hat zenut,” Yev. 107a; Ket. 83a; Git. 81b). There are many statements that prohibit sexual relations outside marriage (Prov. 6:29, 32; Lev. 19:29; 20:10; Tos. 1:4, etc.). This applies to both men and women. All unmar- ried individuals are to refrain from sexual intercourse (Pes. 113a ff; Shab. 152a; San. 107a; Ket. 10a, etc.) Any male who violated this prohibition could be flogged (Ket. 10a); more severe penalties were applied to females.
We should also view this situation from the point of view of transmitting a fatal disease. Traditional literature, from the biblical period onward, has dealt with dangerous contagious diseases through quarantine (see “Jewish Reaction to Epidemics — AIDS,” Contemporary American Reform Responsa, #82). In biblical times every effort was made to isolate the individual and to protect the general society from the dangerous but not fatal tzar a’at. In this instance we are dealing with a fatal disease the effects of which are felt over many years. This means that a false sense of security may be given to both and carrier and the recipient. It also remains possible for the carrier to hide his condition from the recipient in the early stages of the symptoms.
We are aware of the tragic consequences for the individual who has AIDS and must sympathize with his/her plight. Every possible support and help must be extended to such an individual. His/her right to work and to function in a normal manner in our society must be protected. Yet such a respect for individual rights cannot be permitted to endanger others through reckless behavior.
Our present knowledge of AIDS and the lack of any cure or immunization lead us to view as a murderer a known carrier who is aware of his/her condition and engages in sexual relations with- out the regular use of condoms. (For a discussion of condoms and other birth-control devices, see the lengthy responsum by J.Z. Lauterbach in W. Jacob, American Reform Responsa, pp. 485ff). This must be made absolutely clear to such individuals; society can demand that they refrain from all sexual activity or protect their partners with great care. Such partners must be adequately warned.
If such demands cannot be met, then society must protect itself by isolating such individuals and utilizing every means at its disposal to protect the remainder of society as no individual has the right to endanger the life of another. It is incumbent on all members of society to protect themselves against such reckless and dangerous behavior.
Jacob, Chair CCAR Responsa Committee