Wilson, Scott
(2012)
Settling For Discrimination: Hiv/Aids
Carriers And The Resolution Of Legal Claims.
International Journal of Asia Pacific Studies (IJAPS), 8 (1).
pp. 36-55.
ISSN ISSN: 1823-6243
Abstract
In the last decade, foundations and international non-governmental organisations
(INGOs) have provided financial backing and transferred litigious techniques to
Chinese NGOs operating in the HIV/AIDS area. A few NGOs have developed legal
programs that provide legal services to HIV/AIDS carriers. HIV/AIDS carriers seek
compensation for contracting their disease from transfusions of contaminated blood,
illegal and incompetent blood collection as well as discrimination in employment,
education and access to medical care. To date, China's courts have accepted few
cases brought by HIV/AIDS carriers seeking claims. Many HIV/AIDS carriers have
opted to pursue alternative dispute resolution (ADR) such as mediation and
conciliation in order to reach a settlement. The settlements offered by ADR, however,
institutionalise discriminatory practices. This paper argues that a combination of
societal discrimination against HIV/AIDS carriers, government policies and the
approach of courts to HIV/AIDS cases strongly discourages litigation and
encourages ADR. By analysing court decisions and more importantly, court refusals
to hear cases, the article claims that state policies toward HIV/AIDS carriers are
driven by state interests more than protecting the rights and interests of HIV/AIDS
carriers. The Four Free and One Care (simian yiguanhuai) policy is used by China
to channel potential plaintiffs away from litigation. Rather than undermining
discrimination, the courts' handling of HIV/AIDS cases helps sustain societal
discrimination.
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