Minister of Health and others v. Treatment Action Campaign and others

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Title
Minister of Health and others v. Treatment Action Campaign and others 

Court/Judicial Body:
Constitutional Court of South Africa

Citation:
CCT8/02 

Date:
5 July 2002 

Instrument Cited:
Constitution of the Republic of South Africa 

Summary:
The South African HIV/AIDS activist organization Treatment Action Campaign (TAC), along with a concerned doctor and the Children’s Rights Centre, sued the South African Ministry of Health for not making drugs to prevent mother-to-child transmission of HIV widely available to the population. 

In examining TAC’s claims, the Court looked to the South African Constitution, which grants the right of all citizens to public health care and the right of children “to be afforded special protection.” Sections 27 and 28 of the Constitution provide that:

27 (1) Everyone has the right to have access to

(a) health care services, including reproductive health care
…

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights
….

28 (1) Every child has the right-
….

(c) to basic nutrition, shelter, basic health care services and social services

In light of these provisions, the Court found that the government had not taken reasonable steps to reduce the risk of mother to child transmission of HIV at birth, both because (1) the government did not make the anti-retroviral drug Nevirapine available to HIV-positive mothers and at-risk newborns even when ordered or prescribed by doctors, and (2) the government had not set out a timeframe for creating a national program to prevent mother-to-child transmission of HIV. Given these violations, the Court ordered the government to:

  • Remove restrictions that prevented most public hospitals from making Nevirapine available to reduce the risk of mother-to-child transmission of HIV;
  • “Permit and facilitate the use of Nevirapine,” and make Nevirapine available where medically indicated;
  • Provide for counselors at public hospitals and clinics to advise about Nevirapine; and
  • Take “reasonable measures” to expand testing and counseling facilities at public hospitals and clinics “to facilitate and expedite the use of Nevirapine.”

Link to Full Judgement:
http://www.law-lib.utoronto.ca/Diana/TAC_case_study/MinisterofhealthvTACconst.court.pdf 

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

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