Mother-to-Child Transmission Prevention (MTCTP) Court Case Victory -- 11 
March 2002



The Pretoria High Court this morning ordered that the national government
and all the Provinces (except the Western Cape and KwaZulu Natal who have
already decided to make Nevirapine available outside pilot sites) should
carry out part of the original judgement pending the appeal before the
Constitutional Court.

The relevant part is quoted below:

2         The first to ninth respondents are ordered to make Nevirapine
available to pregnant women with HIV who give birth in the public sector,
and to their babies, in public health facilites to which the respondents'
present programme for the prevention of mother-to-child transmission of HIV
has not yet been extended,  where in the opinion of the attending medical
practitioner, acting in consultation with the medical superintendent of the
facility concerned, this is medically indicated, which shall at least
include that the woman concerned has been appropriately tested and
counselled.


This means:


(a) doctors have a right to prescribe Nevirapine, after the offer of
voluntary counselling and HIV testing, where a pregnant women is HIV
positive.


(b) the government has a duty to provide Nevirapine to all public health
facilities where the medicine is needed and can be properly used.



Also from the judgement:

(p.12)

"If order 2 is implemented, and the [government's] appeal succeeds, the
result will be that the health facilities will have suffered some
inconvenience here and there and that resources, especially human
resources, will have been strained.

In many cases that will be an inconvenience that ethically motivated health
workers will gladly assume. At the same time there will be a gain in lives
saved which cannot be considered a loss even if the Constitutional Court
should find that parallel access to Nevirapine should not have ben granted
at all.

If the order is suspended and the [government's] appeal were to fail, it is
manifest that it will result in the loss of lives that could have been
saved. It would be odious to calculate the number of lives that one could
consider affordable in order to save [the government] the sort of
inconvenience they forshadow. I find myself unable to formulate a
motivation for tolerating preventable deaths for the sake of sparing [the
government] prejudice that cannot amount to much more than organisational
inconvenience."