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In response to cries from both the public and the medical community for increased research and improved treatments with respect to pediatric AIDS, some state legislatures have attempted to enact legislation that would require routine mandatory testing of newborns for HIV on a non-anonymous basis.

Those who favor mandatory testing of newborns contend that such testing is necessary in order to protect the health of newborns and to ensure that the newborns' doctors provide them with adequate care. Moreover, testing advocates argue that because most hospitals already screen anonymously, failing to inform parents of the test results is inappropriate and perhaps immoral. Opponents of mandatory testing argue that the possible negative consequences of AIDS testing to the child, mother and public far outweigh its few conceivable benefits. Given current testing inaccuracies for newborns, and the fact that there is at present no cure for AIDS, mandatory testing arguably provides little or no medical help to the child. Instead, opponents argue that testing could harm both parent and child by labeling them HIV-positive and, thus, endangering their access to a variety of life's necessities.

This article argues mandatory, non-anonymous testing of newborns is not justifiable from either a policy or constitutional standpoint. Such mandatory testing cannot be justified given the medical technology and social factors which exist today. Nor can it be justified under any other imaginable set of facts. Rather, the analytic model of hypothetical worlds discussed in this Article demonstrates that our societal interests would be best served by creating a set of societal conditions so that a mother will voluntarily consent to have her newborn tested for HIV. Instead of viewing non-consenting mothers as bad people who are against their children's best interest, we should recognize that mothers can instead be counted on to do that which is best for their children, all else being equal. Our job then is to provide accurate tests, effective and available treatment, confidentiality, and anti-discrimination protection so that mandatory testing will be rendered unnecessary by voluntary consent to testing.

Publication Citation

27 J. Marshall L. Rev. 373 (1994).