TAC Statement on Legal Action Against the Minister of Health on Mother-to-Child Transmission Prevention of HIV/AIDS (MTCTP)

21 August, 2001

The Treatment Action Campaign (TAC), Dr. Haroon Saloojee, a Baragwanath paediatrician supported by more than 250 doctors and the Childrens Rights Centre have today launched an application in the Pretoria High Court demanding that the government institute a comprehensive programme across the country to reduce mother-to-child HIV transmission. This action records the tragedy of millions of South Africans through the voices of Busisiwe Maqungo, SH, Bongiwe Mkhutyukelwa, Thembisa Mhlongo and others. The Minister of Health and the MECs for Health in all nine provinces are named as the respondents.

The court case is about two issues:

  1. The state must make Nevirapine (a registered drug) available to women who have HIV and give birth in the public health sector, to reduce the risk of HIV transmission to their babies, if the doctor or attending nurse feels this is necessary.

  2. The state is obliged to implement and set out clear time-frames for a national programme to prevent mother-to-child transmission of HIV, including voluntary counselling and testing, antiretroviral therapy and the option of using formula milk for feeding.

More than 150 children are born with HIV every day in South Africa. They live short and miserable lives, encountering respiratory infections, malnourishment, diarrhea and fungal infection. Repeated regular visits to health facilities helps a little, but after a short life with much pain, these children die. The South African government can stop HIV in half these children if it implements a mother-to-child HIV prevention programme. It refuses to do this.

More than 1 million women give birth in South Africa every year. One out of every four will have HIV/AIDS. The majority of pregnant women do not know their HIV status. Many women with HIV/AIDS become ill during their pregnancy with a range of illnesses. Women feel terrible guilt when they learn that they have transmitted HIV to their children. A comprehensive mother-to-child HIV prevention programme will allow women to make choices about pregnancy and their own health. It will give them control over their bodies and health. It will give their children a much better chance of being born in good health.

A comprehensive MTCTP programme including voluntary counseling and testing, nutritional supplements, early detection of ill-health in the woman, anti-retroviral therapy to reduce HIV transmission and informed choices on breastfeeding and formula milk substitutes -- where possible -- will dramatically reduce transmission.

But, our Government has ignored science, economics, morality, good planning, good governance and the law for more than five years on this issue.


Our Court papers number more than 600 pages. This represents a fraction of the detailed and careful scientific research on preventing HIV transmission from mother-to-child. The WHO shows that antiretroviral drugs such as AZT and Nevirapine are safe and effective when used to prevent mother-to-child HIV transmission. The government constantly invents new obstacles and when they are resolved creates further obstacles to pursue an unscientific policy. Professor Robin Wood of Somerset Hospital has provided TAC with an expert affidavit on the science of preventing mother-to-child HIV transmission.


For less than 1% of the health care budget, less than R250 million or approximately R250.00 per pregnancy, the government can implement a programme that will save over 20,000 children a year. MTCTP has been subjected to extensive economic analysis. The governments own studies show that they will save lives and may even save money.


The government ignores the demands of good planning in the epidemic. Reducing mother-to-child HIV transmission will have an immediate impact on the health care system. Fewer babies will become ill and be admitted to hospitals. Fewer babies will return to hospital because of HIV/AIDS. Nurses, doctors and other health care workers can be used to assist in illnesses that cannot be prevented. Hospital beds can be allocated to those whose illnesses cannot be prevented.


The government ignores moral pleas from every sector in society to save childrens lives and to improve the condition of women. Doctors and nurses are increasingly angry with government because they have to ignore their ethical duties and comply with an immoral policy.


For more than four years, TAC and our allies have negotiated, petitioned, picketed, prayed, fasted, marched and rallied. We have presented government with scientific, economic, moral and legal arguments. Government has promised and broken their promises. Now they have 18 pilot/research sites. This covers almost 10% of pregnant women. In January 2001, the World Health Organisation issued a consensus statement on the safety and efficacy of antiretrovirals for use in MTCTP programmes. The WHO Technical Consultation concluded: There is currently no justification to restrict use of any of these regimens to pilot project or research settings. South Africa was a part of that consultation.


The government continues to ignore its legal obligations. Government policy on MTCTP violates the following rights.


The South African government also violates a range of international covenants and agreements on women, children, race, life and access to health care services.


Every person in South Africa has a constitutional and moral duty to support this court case. Our government fails to take decisive action to prevent new infections and to help those of us who already live with the virus. People living with HIV/AIDS include your brothers, sisters, partners, wives, husbands, parents and children.

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