Belinda Beresford
Less than five minutes in a Pretoria courtroom shifted the world a few degrees this week for thousands of HIV-positive pregnant women when the government was ordered to facilitate their access to nevirapine.
Judge Chris Botha gave the government leave to appeal against his earlier judgement that it must provide a definite plan with time lines for expanding its programme to curb mother-to-child transmission of HIV. But he also granted an application by the Treatment Action Campaign (TAC) and two other applicants paediatrician Dr Haroon Saloojee and the Children’s Rights Centre for a compulsion order.
This means that although the judgement will be appealed in the Constitutional Court, the government must comply with it in the meantime.
So from last Monday any state medical facility that is able to provide voluntary counselling and testing for HIV for pregnant women must also be prepared to supply nevirapine. Failure to do so will put the relevant government national or provincial in contempt of court.
The decision will also have implications for funding. Money for the programme will have to be provided to the provinces. Although manufactuer Boehringer Ingelheim has offered nevirapine free to the state for use in curbing mother-to-child transmission of HIV, the drug itself is a small part of the cost of the programme. Far more expensive is providing the infrastructure and human resources necessary to counsel and test women. An ideal programme will also cope with the issue of breastfeeding, since HIV can be transmitted through breast milk.
The last national Budget did earmark money for rolling out the nevirapine programme, but it was only expected to be called on in future financial years. The judgement may mean that such funding will have to be accessed this fiscal year.
The issuing of the compulsion order was another incremental step in the long war between Aids activists and doctors and the government over the provision of anti-retroviral drugs to pregnant women.
Nevirapine can cut by up to 50% the number of children who become infected with HIV around the birthing period. The government has not yet said whether it will appeal against the compulsion order.
The Constitutional Court appeal will probably be heard in May. The government had said it was waiting for data to be collected from the nationwide pilot sites before deciding whether to roll out the programme.
A slightly surreal air has surrounded the saga in the past few weeks, with a government-ordered report recommending expansion of the nevirapine programme and several provinces announcing roll-out plans.
The Department of Health has said the appeal to the Constitutional Court is largely to define the separation of powers and to what extent the courts can order the government to obey policy decisions.
Lawyers say this is possibly the most significant factor of the TAC judgement if you ignore the thousands of babies who will possibly be saved from HIV by being given nevirapine. The judgement is the latest to define the government’s obligations to fulfil the socio-economic rights laid out in the Constitition.