“I gave birth to an HIV positive baby who should have been saved. That was my experience, the sad one, and I will live with it until my last day.” – Busisiwe Maqungo, supporting affidavit for the Treatment Action Campaign.

The Treatment Action Campaign has instituted court action against the Minister of Health and eight provincial health MECs in a bid to:

• Ensure that doctors who are working in public health facilities are able to prescribe the anti-retroviral drug Nevirapine to pregnant women with HIV.
• Get government to provide a “comprehensive national plan” to prevent mother-to-child HIV transmission (MTCT), including the provision of voluntary counselling and testing and formula as a substitute for breastfeeding. The Western Cape has been exempted for court action as TAC is satisfied with its plans to roll out the availability of nevirapine.

Head of Community Paediatrics at Wits University, Dr Haroon Salojee, who represents Save our Babies, and Cati Vawda, representing the Children’s Rights Centre, are also applicants in the case. In the main affidavit,TAC’s Siphokazi Mthathi argues that nevirapine is a “safe, effective and affordable option for resource poor settings” in preventing MTCT. TAC argues that government is acting unconstitutionally and unlawfully by giving some women nevirapine and not others. This violates the constitutional right to life, and is in conflict with women and babies’right to access to health care services. Women are denied the right to make decisions about reproduction, while the right of doctors in the public sector to deliver a high standard of care is violated. Furthermore, says TAC, government’s approach is irrational and it discriminates against poor women who cannot afford to get nevirapine prescribed by a private doctor. TAC argues that the MTCT programme is cost-effective as it is far cheaper to prevent HIV infection than to treat an infected child. Children under the age of seven get free healthcare. A range of experts have submitted affidavits in support of aspects of TAC’s case, including economist Professor Nicoli Nattrass, Principal Medical Specialist for the Western Cape, Professor Robin Wood, KwaZulu-Natal epidemiologist Professor Quarraisha Abdool Karrim and Centre for Health Policy’s Professor Helen Schneider.