NEWARK, NJ — The Women and AIDS Clinic at Rutgers Law School- Newark and the ACLU of New Jersey announced today that they filed a lawsuit against the New Jersey Division of Youth and Family Services and Capital Health System, Inc. for discriminatory policies and unlawful treatment of an HIV positive woman and her newborn child.
In July 1998, the woman, identified as Jane Doe in the federal court complaint, went to Capital Health System at Mercer for a doctor's visit when she began experiencing severe cramping during her pregnancy. The woman was advised that blood work would have to be performed to determine the cause of the cramping. At that time, the woman's blood was tested for HIV without written consent or authorization. Later, after the woman gave birth, the child was removed from her custody based upon her refusal to provide AZT to the newborn.
The complaint alleges constitutional and statutory violations stemming from an unauthorized HIV test, breach of confidentiality, and interference with custodial and parental rights. The complaint also alleges that DYFS filed false affidavits with the court, which stated that the woman was drug involved at the time of her pregnancy, in an effort to remove the child from the woman's custody.
The ACLU and the Women and AIDS Clinic argue that Capital Health System's and DYFS's actions violate the Americans with Disabilities Act, the New Jersey Law Against Discrimination, and the New Jersey AIDS Assistance Act. Further, they argue that DYFS violated rights of the woman that are protected by the United States Constitution and the New Jersey Constitution.
"New Jersey law mandates that pregnant woman be counseled regarding HIV testing," said Cynthia M. Dennis, Director of the Woman and AIDS Clinic. "The law does not permit unauthorized HIV testing after a pregnant woman has decided not to consent to testing."
"A woman does not lose her right to decide whether or not to undergo an HIV test simply because she is pregnant," added Lenora Lapidus, Legal Director of the ACLU-NJ. "And she certainly does not lose the right to raise her child simply because she is HIV-positive."
The case, Doe v. Division of Youth and Family Services, et al., was filed in the United States District Court for the District of New Jersey. Does' attorneys are Cynthia M. Dennis, Clinical Attorney and Director of the Women and AIDS Clinic at Rutgers Law School- Newark, and Lenora M. Lapidus, Legal Director of the ACLU of New Jersey.