The Treatment Action Campaign is seeking an order that nevirapine must be made available to all state hospitals and clinics
Nawaal Deane
“We see our wards full … of wasted little infants, struggling to breathe despite oxygen, refusing to feed as swallowing is too painful because of extensive candidiasis, with itchy, uncomfortable skin rashes. These children have a slowly fatal illness from which they are not going to recover,” says a statement by the Paediatric Department in East London Hospital.
The Treatment Action Campaign (TAC) is taking the government to court to demand that a national programme to prevent mother-to-child transmission of HIV be implemented immediately.
The lawsuit began in August when the TAC accused the provincial and national governments of breaching the Constitution by failing to provide the anti-retroviral drug nevirapine to pregnant women as part of their constitutional guarantee of a right to life and access to basic health care.
On Monday the TAC will enter the Pretoria High Court with guns blazing to challenge the government to set aside its policy that only pregnant women who give birth at sites it has designated as part of a two-year “trial period” may receive nevirapine. But with about 70 000 children being infected every year with HIV during labour and through breastfeeding the TAC argues that without nevirapine these children will suffer an unnecessary and painful death.
The TAC lawsuit seeks two orders. The first is that nevirapine be made available to all state hospitals and clinics. The second order would ensure that the government plans and implements a national comprehensive programme for HIV-positive pregnant women. The TAC estimates that a comprehensive national programme will cost R250-million.
“We are seeking an order where the government must produce this programme within three months,” says Geoff Budlender, attorney for the TAC. “We are in favour of the designated sites, but there is no reasonable explanation why nevirapine should not immediately be made available on a national basis wherever the doctor considers this in the best interest of the patient.”
Nevirapine has been approved and registered by the Medicines Control Council to reduce mother-to-child transmission and costs about R10 a dose. The manufacturer, Boehringer Ingelheim, has also offered nevirapine free of charge to the government for this purpose.
The TAC will argue that the use of nevirapine will significantly reduce the number of HIV-positive children and will show evidence by health economists that nationwide implementation of nevirapine will save the state money. The World Health Organisation says: “The benefit of these drugs in reducing mother-to-child HIV transmission greatly outweighs any potential adverse effects of drug exposure … The prevention of mother-to-child HIV transmission should be part of the minimum standard package of care for women who are known to be infected and their infants.”
The government’s policy limits the provision of anti-retrovirals to HIV-pregnant women at two designated sites in each province. Most women have no choice of the hospital at which they give birth, because of poverty or geographical location. The lawsuit says that access to nevirapine can cut transmission of the virus to infants by up to 50%. Therefore the policy excludes a large majority who will not have access to the drug unless it is available at all state hospitals and clinics.
In court papers the TAC argues: “The psychological impact on [an HIV-positive woman] who gives birth at a non-designated site is self-evidently devastating. She does so in the knowledge that the very process of giving life will simultaneously carry with it the risk of the transmission of a deadly virus. She will do so in the knowledge that there exists a drug, easily capable of administration, on offer free of charge to the government, which could dramatically reduce the risk of this horrific consequence.”
In its defence the government argues that it would be “irresponsible” for it “to make available nevirapine to the entire public sector when it is common cause that a percentage of the babies who are born HIV-negative would subsequently become HIV-positive as a result of breast-feeding”. The papers state that nevirapine cannot be administered in isolation; a comprehensive programme is needed that includes counselling of pregnant women, their spouses, HIV antibody tests and informing the mother of breast-feeding risks.
The government goes further to say that nevirapine cannot be provided unless breast milk substitutes are also provided. Its main arguments are cost and the lack of capacity to administer nevirapine on a national scale.
But the TAC has gathered affidavits from doctors in rural areas who testify that there is capacity as many hospitals have the infrastructure to implement these programmes.
Andrew James, a doctor at Bethesda hospital in Ubombo, KwaZulu-Natal, says in the papers: “My colleagues and I are convinced that our counselling framework is already in place and that we are in a position to effectively and safely implement a programme to reduce the transmission of HIV from mother to child through the administration of nevirapine.”
The doctors at Bethesda hospital have bought nevirapine “with their own money” and are administering it to HIV mothers who give “informed” consent.
Flying in the face of official policy, the Western Cape and Gauteng are operating with more than two designated sites. In the court action, the TAC has withdrawn the order against the Western Cape. “They are doing what is necessary,” says Budlender.
The court case is the first in a series of battles that the TAC has planned for the government. With World Aids Day on December 1, the TAC has organised an aggressive campaign throughout South Africa to gain support internationally and at home, challenging the government’s refusal to provide anti-retroviral drugs that are safe and affordable. Marches are planned in Durban and Cape Town in a three-day mobilisation campaign.
“We would like to get a favourable judgement that makes [mother-to-child transmission] a battle of the past so we can fight to save the HIV-positive parents and continue the campaign for access to affordable and life saving medicines,” says Mark Heywood of the Aids Law Project.
The Reproductive Rights Alliance put its weight behind the TAC’s court action this week by announcing: “The state is bound to respect, protect, promote and fulfil the rights of women, including the right to reproductive choice. This means that the state must take positive steps to ensure that women can exercise informed reproductive choice, including decisions regarding mother-to-child transmission of HIV and all other reproductive issues related to HIV/Aids.”
At the time of going to press the Department of Health had not responded to repeated requests for comment.