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Litigating AIDS: Background, Strategies and Outcomes of the Treatment Action Campaign’s case to prevent mother to child

Litigating AIDS: Background, Strategies and Outcomes of the Treatment Action Campaign’s case to prevent mother to child HIV transmission in South Africa. M J Heywood AIDS Law Project (ALP) Treatment Action Campaign (TAC) ------------------------------------------------

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Litigating AIDS: Background, Strategies and Outcomes of the Treatment Action Campaign’s case to prevent mother to child

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  1. Litigating AIDS:Background, Strategies and Outcomes of the Treatment Action Campaign’s case to prevent mother to child HIV transmission in South Africa M J Heywood AIDS Law Project (ALP) Treatment Action Campaign (TAC) ------------------------------------------------ Paper for XIV International AIDS Conference Barcelona, July 2002

  2. Background • Partnership necessary • Litigation not the instrument of first resort • Positive benefits: media, discovery of information, determination of rights • Negative effects: polarisation, alienation • Litigation, when it becomes necessary, should not be seen as automatically oppositional: • SA Constitution envisages litigation as a means of determining rights, resolving conflicts over use of public resources

  3. Context: Hard facts • 85,000 infant infections per annum as a result of vertical transmission (ANS, 2001) • Rising infant mortality rate (DOH, 1998) • Cecilia Makiwane Hospital, Eastern Cape: • “wards are full of human suffering, both physical and mental. Wasted little infants, struggling to breathe despite oxygen, broad spectrum of antibiotics, nebulisations, refusing to feed as swallowing is too painful because of extensive candidiasis requiring parenteral antifungals, with itchy, uncomfortable skin rashes; some with incurable diarrhoea often with painful perineal rashes.”

  4. Affordable, effective interventions • Avoided, delayed, disputed by South African political leaders on grounds of: • Cost • Capacity • Toxicity / safety

  5. The advocacy and mobilisation campaign

  6. Litigation and advocacy sparks national debate

  7. The legal process: timelines

  8. The TAC case: Constitutional case founded on rights to: • Equality • Dignity • Reproductive autonomy • Access to health care services, including reproductive health care

  9. Relief sought • Order to allow doctors to prescribe Nevirapine where medically indicated and where capacity to councel and test for HIV exists • Order to provide a plan on the “Roll-out” of a national MTCT programme

  10. Botha Judgment (1), 14 Dec 2001 Findings: • “no unqualified commitment to reach the rest of the population in any given time at any given rate .. A programme that is open-ended and that leaves everything for the future cannot be said to be coherent, progressive and purposeful.” • “A countrywide MTCT programme is an ineluctable obligation of the State.”

  11. Government response • Announces appeal to the Constitutional Court • Announces ‘inclusive national consultation’ on MTCT • Launches media campaign to try to improve image and understanding of policy

  12. Cartoonists lampoon government’s response to the Botha judgment

  13. Judgment of the Constitutional Court [123] “The magnitude of the HIV/AIDS challenge facing the country calls for a concerted, co-ordinated and co-operative national effort in which government in each of its three spheres and the panoply of resources and skills of civil society are marshalled, inspired and led. This can be achieved only if there is proper communication, especially by government. In order for it to be implemented optimally, a public health programme must be made known effectively to all concerned, down to the district nurse and patients. Indeed, for a public programme such as this to meet the constitutional requirement of reasonableness, its contents must be made known appropriately.”

  14. Order of the Constitutional Court • “Government is ordered without delay to:  a) Remove the restrictions that prevent nevirapine from being made available for the purpose of reducing the risk of mother-to-child transmission of HIV at public hospitals and clinics that are not research and training sites. ……”

  15. Why did the TAC win? Keys to sucessful public impact litigation • Getting the facts and science right • Training your lawyers and counsel about AIDS • Supllementing legal argument through real life stories • Using experts • Building alliances between activists, scientists, health professional

  16. Positive outcomes of litigation • The judgment • High level of public knowledge and awareness of MTCT • High acceptance of MTCT programmes in pilot sites • Wide understanding that there is treatment for HIV; demand for treatment

  17. What now? • Make the roll-out programme a success; • Develop a National Treatment Plan

  18. Acknowledgments • TAC deponents, especially Sarah Hlalele & Haroon Saloojee • TAC NEC & ALP staff • Gilbert Marcus SC, Adv Bongani Majola, Geoff Budlender • The judgment and legal papers are available at www.law.wits.ac.za and www.tac.org.za

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