Orphans, Inheritance, Birth Registration, Caregivers

Pages153-156

Page 153

The Issue

In the countries most affected by AIDS, the orphan population has exploded, causing severe strains on the social fabric. UNAIDS and WHO have estimated that in 2006 some 2.1 million people died of AIDS in sub-Saharan Africa alone, nearly three-quarters of all AIDS deaths in that year. Since 1990 the number of children who lost one or both parents due to AIDS in that region increased from less than 1 million to about 12 million. Even if children do not lose one or both of their parents to the epidemic, if there is AIDS in the family, children are likely to suffer adverse consequences due to loss of family income and impoverishment. They may have to miss school in order to care for ill family members or to go to work to help support the family financially. They are also likely to receive reduced parental care and supervision, and to be exposed to stigma and discrimination. They may be infected with HIV themselves. Key legal issues directly relevant to children who have lost one or both parents relate to inheritance, birth registration, and alternative care.

Legal and Policy Considerations

UNAIDS discourages the term "AIDS orphans" as overly stigmatizing and implying that the child has AIDS, which may not be the case. It suggests the term "orphans or other children made vulnerable by AIDS" and includes in the term "orphan" children who have lost one parent. In a major recent paper, UNICEF uses the terms "children affected by AIDS" and "affected children" to refer to children living with HIV, children who have lost one or both parents to AIDS, and "vulnerable children whose survival, well-being or development is threatened or impacted by HIV and AIDS" (UNICEF 2006 at 13). From a legal perspective, use of the term "orphan" to refer to a child who has lost one parent may be confusing: national laws frequently define orphans as children who are parentless, and the state has different responsibilities for children without parents than for children with a surviving parent.

The Convention on the Rights of the Child does not deal directly with inheritance; however, its prohibition on discrimination with respect to property could be deemed to include property obtained by inheritance. In its General Comment on HIV/AIDS and the rights of the child, the Committee on the Rights of the Child vigorously supports the property and inheritance...

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