Government may soon face court action for its failure to implement a programme to prevent HIV positive mother from transmitting the virus to their babies, the Treatment Action Campaign (TAC) announced yesterday (Tues).

TAC’s Promise Mthembu said her organisation would intensify its campaign to pressurise government to implement its plan to provide the anti-retroviral drug nevirapine to HIV positive pregnant women at 18 sites countrywide.  

“We are exploring litigation to force government to start the mother-to-child transmission (MTCTC) programme, based on the babies’ constitutional right to life,” said Mthembu.

“We are exploring resorting to the courts, along with HIV positive women who are pregnant and need access to nevirapine to save their babies,” added Mthembu.

TAC’s lawyer Anita Kleinsmidt, from the University of the Witwatersrand’s AIDS Law Project, said she and her client would be briefing advocates next week on possible court action aimed at speeding up the state’s nevirapine programme.

“The delay is obviously very serious as, with every day that passes, more babies are infected by HIV,” said Kleinsmidt.  

TAC’s legal argument would be based both on constitutional principles and the fact that South Africa was a signatory to the Convention on the Rights of the Child, which committed the state to reducing infant mortality, said Kleinsmidt.

“We have already prepared founding affidavits and compiled expert opinions,” she added.

According to Mthembu, TAC had written to Health Minister Manto Tshabalala Msimang in April asking why the MTCT programme had been delayed and when it would be implemented, but the department had failed to respond adequately.

TAC’s Anneke Meerkotter, one of the MTCT campaign co-ordinators, said her organisation viewed court action as a last resort.

“This is not something we want to do,” said Meerkotter. “But we have become frustrated by the department’s lack of an adequate MTCT plan. It has no timeframes or deadlines, and there is no reason why it cannot implement its nevirapine programme at 18 research sites.”

Despite the fact that five provinces were ready to implement the nevirapine programme at selected sites on 1 April, the Health Minister decided at the last minute that the MTCT programme needed Cabinet approval. However, she has yet to table the matter before Cabinet.

The minister was unavailable for comment.