Compulsory Testing 99
Our halakhic discussion concerning mandatory testing for HIV centers on whether the halakhic concept of the rodef applies here. A rodef is a person who is threatening the life of another. A rodef might be stopped even if that meant taking a life, as the halakhah would already consider the endangering individual dead.
As we turn to our issue, one scholar , Rabbi Deichowsky , argues that it is possible to identify high-risk groups(e.g. homosexuals and hemophiliacs), which are in the category of a rodef. He also contends that a person or group might be considered a rodef even when the danger is in doubt(safek pikuach nefesh).’ Another scholar, G. Freudenthal disagrees on the grounds that(1) the laws of the rodef apply only to individuals and not to groups;(2) the victim is passive, whereas in our case the consenting partners transmit the disease. Others rightly reject this notion as“even as one speaks about mutual consent[that is assent to the sexual activity, not] mutual consent to acquire[the disease].
Freudethal’s first objection, however, stands. In addition, I find it hard to accept the notion that the person who causes a potential danger (safek pikuach nefesh) is a rodef as Golinkin has pointed out the original mishnaic text speaks of immediate danger.® Here I would also hold that the principle of rodef does not apply as HIV does not pose an “immediate” threat to others. Unlike other infectious diseases, the transmission of HIV is, in fact, restricted to specific forms of sexual practice, infected blood and contaminated syringes. To state that PWH are rodfim would mean that we consider them per se as promiscuous and without moral conscience. On the other hand with highly infectious diseases the category of rodef might apply.