rights
Liesl Gerntholtz There can be little doubt that women have made great strides since 1994. We have seen a large number of laws put into place to empower women and improve their status. As Nohlanhla Mjoli-Mncube says: “Gender equality is receiving more attention than in any other period in the history of South Africa. Women from all walks of life have emerged as victors … however … the reality for the majority of women has barely changed.”
One of the greatest threats to women’s autonomy and their ability to enjoy the fruits of democracy in the 21st century is the Aids epidemic and the unequal impact that it has on African women. South African women find themselves among the highest risk group in the world. Part of the group of women for whom the daily realities of life have not changed at all since 1994 are those women who are poor, pregnant and HIV-positive. Amid the increasing politicisation of the issue of mother-to-child transmission, these women face the grim double burden of dealing with their own illness, as well as that of their newborn child. The current price of antiretroviral drugs means that the majority of these women will be forced to watch their children die before they reach the age of two.
It is estimated that between 23% and 33% of pregnant women in South Africa are HIV- positive. Drs James McIntrye and Glenda Gray of the Perinatal HIV Research Unit at the Chris Hani Baragwanath hospital estimate conservatively that 800 000 babies are born in South Africa every year. About 70 000 of them will be infected with HIV. They conclude that: “The need for an effective and affordable strategy to reduce mother-to- child transmission is a matter of urgency.” In 1994 clinical trials showed that the use of AZT during pregnancy could significantly reduce the risk of mother-to-child transmission during pregnancy and labour. The results of these trials, which have become the standard of care in the United States and other developed countries, indicated that AZT should ideally be administered from 14 weeks of gestation. It was clear from early on that this regime, expensive and dependent on a high level of infrastructure, would simply not be appropriate in resource-poor Third World countries and a search for an effective and inexpensive intervention began The CDC/Thai trials, conducted in Thailand during 1996, indicated that a shorter and therefore less expensive regime of antiretroviral drugs could also significantly reduce the risk of transmission between mother and child. A second trial, this time conducted in Cte d’Ivoire, significantly among a breast- feeding population, also indicated a substantial reduction in the rate of transmission. Further trials, still attempting to find an intervention that would not wipe out the public health- care budgets of developing countries, were conducted in various African sites. It was clear by 1998 that considerable progress had been made, not only in reducing the risk of mother-to-child transmission of HIV, but in providing cost-effective interventions. The real light at the end of the tunnel, however, emerged when the results of the Saint (South African intrapartum nevirapine trials) were released recently during the 13th International Aids Conference, held in Durban in July. The results are compelling – a single dose of the drug administered to the mother during labour and another to the child shortly after birth – will substantially reduce the risks of transmission. The costs of the two pills are estimated to be in the region of R21 even without the price reductions offered by drug companies. To date, the Department of Health has declined to state whether it has any intention of providing these pills to pregnant women. In a recent letter to the Minister of Health, the Treatment Act Campaign, a NGO that campaigns for access to affordable treatment for people with HIV/Aids, states that “affordable treatment for HIV/Aids and all medical conditions is a basic human right”.
The Constitution, as well as international human rights law, clearly gives all women the right to access reproductive health care as well as the right to make decisions about reproduction. The failure on the part of the government to put in place policies and practices that support gender equality, including the provision of antiretroviral drugs to HIV-positive pregnant women, may well constitute a violation of their rights to health care and reproductive autonomy, as protected by the Constitution. It is critical that HIV-positive pregnant women are empowered to make informed choices about testing, disclosing their status and taking antiretroviral drugs.
It has been argued by the government, perhaps in an effort to forestall litigation, that questions about both the cost and safety of these drugs present barriers to their provision. Discussion at the Aids conference, however, clearly indicated that there is wide national and international scientific consensus on the safety and efficacy of Neviraphine. The issue of cost is also a red herring – even universal provision of Neviraphine (the provision of the drug to all pregnant women, regardless of their status) would be cost effective. Plainly this argument does not adequately consider the cost of not intervening – which will include the costs of caring for and treating children who are born HIV-positive. Without a reduction in the rate of mother-to-child transmission, the financial burden on the state will be relentlessly increased. The constitutional rights of HIV-positive pregnant women, without the implementation of an effective programme to prevent mother- to-child transmission, are fast becoming meaningless. The inability of particularly poor, black and HIV-positive women to access adequate health care during their pregnancies and their consequent inability to make informed choices about reproduction, fundamentally undermine their ability to realise their other constitutional rights, including their socio-economic rights. They will continue to bear the brunt of poverty, exacerbated by Aids, and will also have to take on the additional burden of caring for the sick and the dying. The failure on the part of the government to provide these women with affordable and effective treatment to prevent mother-to- child transmission will reverse the gains made by them since democracy. The cycle of poverty, gender-based violence and death in Africa will continue. Liesl Gerntholtz is a lawyer at the Aids law project at the centre for applied legal studies at the University of the Witwatersrand