This paper will focus on the probable impact of AIDS upon family law and family issues in America. Although it is still too early to tell precisely what effect AIDS will have in these areas, it is essential for lawyers and other professionals to begin a dialogue now in order to face the many challenges which lie ahead as the disease continues to spread and impact family relationships.
Among the many subjects discussed below is the likely trend that fear of infection and death will restrict the societal demand and acceptance of new definitions of family. In order to provide for security, monogamy is preferable and marriage, because it offers status and structure, follows. Within the marital home, the illusion of spousal unity will continue to retreat before the protective devises of torts, abuse, annulments, divorce and, where unity is preferred, a quest to obtain insurance, pensions, government benefits and medical assistance to preserve dignity and life. Whether in retreat from marriage for fear of infection, or security within marriage because of infection, the quest will be the same: economic security.
Also considered are the profound family law issues surrounding children-presumptions of best interest, primary caretaker, what the child would have enjoyed, the wishes of the child or enabling the child to thrive, custody and visitation, adoption, and termination of parental rights-all of which will continue to be affected by AIDS. Finally discrimination, intrusive governmental compelling interests and the responsibility of professionals to respond seriously and creatively to the many challenges presented by AIDS will be discussed.
Raymond C. O'Brien, AIDS: Perspective on the American Family, 34 VILL. L. REV. 209 (1989).