Preventing Mother-to-Child HIV Transmission in South Africa: Background Strategies and Outcomes of the Treatment Action Campaign Case against the Minister of Health
![handle is hein.journals/soafjhr19 and id is 280 raw text is: CURRENT DEVELOPMENTS
PREVENTING MOTHER-TO-CHILD HIV TRANSMISSION IN
SOUTH AFRICA: BACKGROUND, STRATEGIES AND OUT-
COMES OF THE TREATMENT ACTION CAMPAIGN CASE
AGAINST THE MINISTER OF HEALTH
I INTRODUCTION
In July 2002, the Constitutional Court gave judgement in the Treatment
Action Campaign (TAC)'s constitutional challenge to government's
policy of limiting the provision of Nevirapine for the purpose of
preventing mother to child transmission (PMTCT) of HIV to a limited
number of 'pilot sites'.t In finding this policy to be unconstitutional, the
Court found that
[t]he policy of confining nevirapine to research and training sites fails to address the needs
of mothers and their newborn children who do not have access to these sites. It fails to
distinguish between the evaluation of programmes for reducing mother-to-child
transmission and the need to provide access to health care services required by those
who do not have access to the sites.2
The Minister of Health and the nine Health Members of the provincial
Executive Committees (MECs) were ordered 'without delay' to lift
restrictions on the availability of Nevirapine. Thus ended the legal contest
- one year and approximately 100 000 infant HIV infections after the
start of the case.3 The Health Ministry tried to put the best slant on the
judgment and continued as if it were business as usual: no apology was
offered, no admission made that it had been wrong. On the contrary, a
statement issued by the Minister on 5 July 2002 went as far as to suggest
that the judgment 'confirmed' the approach of the cabinet and welcomed
the fact that it 'has set aside the most restrictive aspects of the Pretoria
High Court order'.4
This paper contextualises the litigation that challenged the South
African government's PMTCT policy and documents its causes and
effects. It examines the resort to constitutional litigation by civil society
organisations, after being frustrated by what Cameron JA described in
1 Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC).
2 Ibid para 67.
3 On 5 April 2002, the front-page headline of The Sowetan was 'How Many More Babies Must
Die?' It added: 'Had government implemented the High Court ruling handed down in
December last year, and expanded its nevirapine programme to reach only one in every four
HIV-positive mothers, it would have saved more than 900 babies from being infected with
HIV'.
4 Government Communication and Information Service 'Statement by Government on the
Constitutional Court Judgment regarding PMTCT' (5 July 2002).](ViewImageLocal?handle=hein.journals/soafjhr19&div=19&collection=&method=preview&ext=.png&size=3)
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