Court Gives a Key Victory to South African AIDS Activists

Local AIDS activists won a landmark court case against the South African government Friday, forcing the state to make a key drug available to thousands of HIV-positive pregnant women.

Activists who packed the public gallery of the Pretoria High Court cheered and hugged one another as Judge Chris Botha ruled that the government is obliged to provide the antiretroviral drug nevirapine to all HIV-positive women giving birth in public hospitals.

Botha said the government also must establish a comprehensive program to reduce mother-to-child transmission of HIV, the virus that causes AIDS. The program is expected to include voluntary testing at prenatal clinics and the distribution of formula to infected mothers for their infants to prevent HIV transmission through breast milk.

About 200 babies are born HIV-positive every day in South Africa, and studies show that nevirapine can reduce the transmission of the virus from mother to child during labor by up to 50%. About 4.7 million South Africans, or one in nine of its 45 million citizens, are living with the disease.

Citing cost and safety concerns surrounding the drug, the government has so far refused to make nevirapine nationally available at public hospitals and clinics. The German drug company Boehringer Ingelheim has offered free nevirapine to developing countries, but South Africa has yet to accept the offer.

Earlier this year, the government won a landmark lawsuit against 39 of the world’s largest drug companies that opened the way for the importation of cheaper versions of AIDS drugs. Still, no agreement has been reached with manufacturers or suppliers to get inexpensive medicines.

No Health Ministry officials were available for immediate comment on the ruling Friday, and no government officials were present at the court. Repeated attempts to obtain comment from government health officials were unsuccessful.

Activists and pediatricians said the ruling, the first major challenge to the government’s policy on AIDS medication, was an important step toward saving tens of thousands of lives. The judgment might also eventually pave the way for the general distribution of such drugs, activists said.

“We’ve made history today,” said Mark Heywood, national secretary for the Treatment Action Campaign, which, backed by doctors, had launched the court action. Speaking to reporters outside the courthouse, he added that the ruling was “a very important victory, a great step forward.”

“Potentially this is going to save the lives of 50,000 babies next year,” said Haroon Saloojee, head of community pediatrics at the University of Witwatersrand in Johannesburg.

The government can appeal the 71-page ruling before the country’s Supreme Court. Activists said they hope it will not.

“We would like to think that this sad and sorry conflict has come to an end today and that we can now work with the government in making sure that the judge’s order is quickly and effectively implemented,” Heywood said.

Under the ruling, the Health Ministry has until the end of March to explain how it intends to implement a national nevirapine program.

The government has launched a pilot program at 18 test sites around the country. But Heywood said too few women have benefited from the program, which has been slow to take off.

Botha pointed out in his written judgment that by refusing to administer nevirapine beyond the test sites, the government is contravening the constitution.

“It is a breach of their negative obligation to desist from impairing the right to health care,” Botha said. “It is an unjustifiable barrier to the progressive realization of the right of health care.”

A dose of nevirapine in tablet form given to the mother during labor and a teaspoon of syrup given to the baby within the first 72 hours of birth can cut the chances of mother-to-child transmission of HIV by up to 50%, medical experts say.

Sarah Hlahele, who passed the virus to her son, Kgotso, said his infection probably could have been prevented if she had had access to the drug during labor.

“Maybe my baby was going to be fine, and I wouldn’t worry so much now,” Hlahele, 30, said as she cradled the frail 4-month-old in her arms outside the courthouse. She added that she was extremely happy about the ruling “because other children will now survive.”

Health workers and political opposition party members also applauded the court’s decision.

“We’ve had a kind of medical apartheid that comes from our past, but we now have the tools to fight,” said Cati Vawda, director of the Children’s Rights Center, a local nongovernmental organization.

“This court case and the way our democracy has been structured allow us to meet our obligations under the U.N. convention on the rights of the child, starting with a child’s right to life, starting with the access to health care.”

But although access to nevirapine would open the way to better treatment for mothers and children, it would make only a small dent in solving the overall HIV and AIDS pandemic, activists acknowledged.

Heywood suggested that the lobbyists’ next fight would be to try to ensure the distribution of antiretrovirals to all people carrying the virus, at an affordable cost.

“Our demand is that all people with HIV and AIDS in South Africa should have access to appropriate treatment,” Heywood said. “We don’t want to save the lives of children only to create a generation of orphans.”