Pretoria High Court Judge ‘Inclined to Agree’ With Treatment Action Campaign That South African Government Should Distribute Nevirapine

The Pretoria High Court judge who is hearing the court case brought by the South African AIDS group Treatment Action Campaign to require the South African government to provide nevirapine to HIV-positive pregnant women to prevent vertical transmission "seemed inclined to agree" with TAC that the government should broaden access to nevirapine throughout South Africa, the New York Times reports (Swarns, New York Times, 11/27). TAC, the Children's Rights Center and Haroon Saloojee, a physician in charge of community pediatrics at the University of the Witwatersrand, filed suit against the South African Department of Health and eight of nine provincial health departments in an effort to force the government to provide nevirapine to all HIV-positive pregnant women through public hospitals and health clinics. In addition, the lawsuit is asking the government to plan and implement a national program to prevent vertical transmission. The plaintiffs are asking that the program be created within three months and that it include voluntary HIV/AIDS counseling and testing, the provision of nevirapine "where appropriate" and a supply of formula to prevent HIV transmission through breastfeeding (Kaiser Daily HIV/AIDS Report, 11/26). Pharmaceutical maker Boehringer Ingelheim has offered to provide nevirapine free to developing nations, but South Africa only offers the drug through 18 pilot programs nationwide (Kraft, AP/Boston Globe, 11/27).

Arguments Presented
Gilbert Marcus, a lawyer representing TAC, said during arguments yesterday that the government's decision to limit nevirapine to the 18 pilot programs "arbitrarily, unnecessarily and irrationally amounts to a conscious choice ... which results in the predictable and yet avoidable deaths of ... children" (New York Times, 11/27). He added that the government's policy on nevirapine is "not only a manifestation of irrationality, but nothing short of insanity" (McGreal, Guardian, 11/27). Marcus noted that nearly 23% of pregnant women in South Africa are HIV-positive, but only 10% of these women can access nevirapine through the 18 test programs (Kraft, AP/Philadelphia Inquirer, 11/27). Marumo Moerane, a lawyer representing the government, summing up today's arguments said, "There is a right to health care services; there is no right to nevirapine," adding that the government "cannot solve South Africa's woes overnight" (Kraft, Associated Press, 11/27). He said that the government must be "cautious" in introducing a nevirapine program. "In order to give maximum benefits to pregnant women and children, you have to have phased implementation. We are trying to be responsible," he said. TAC activists, however, say that the World Health Organization has deemed that nevirapine is effective and "does not need to be tested in pilot projects" (AP/Boston Globe, 11/27). Government officials said they need time to evaluate the test programs and work out any problems before launching a broader nevirapine program. They added that problems have already been found in several of the test sites, including a shortage of space and staff to handle the "surge" of pregnant women who seek HIV testing and counseling (New York Times, 11/27). Moerane said that more counselors are needed to help educate HIV-positive women about how the virus can be spread through breastfeeding (AP/Philadelphia Inquirer, 11/27). Ayanda Ntsaluba, director-general of the South African Ministry of Health, said that "it is very difficult to persuade women" to use formula instead of breastmilk (AP/Boston Globe, 11/27).

Judge's Remarks
Judge Chris Botha, who is presiding over the case, said that he believes nevirapine distribution "has to be extended across the country as soon as is practically possible" (New York Times, 11/27). Botha "repeatedly voiced frustration at [the government's] reasoning" and asked why the government had not set targets and timelines for the drug to be made available across the country (AP/Boston Globe, 11/27). He added that looking at the results of the program in the Western Cape province -- which already settled with TAC and offers nevirapine to all HIV-positive pregnant women -- is "like going into the promised land" (Guardian, 11/27).