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S. African Court Upholds Decision on HIV Drugs for Pregnant Women - 2002-07-05

South Africa's constitutional court has upheld a lower court decision that ordered the government to provide drugs that help prevent mother-to-child transmission of HIV, the virus that causes AIDS.

South Africa's chief justice said government policy that restricts the supply of the drug Nevirapine in state medical facilities infringes on the constitutional right of HIV-positive mothers and their babies to health care.

The anti-retroviral drug helps prevent mother-to-child transmission of HIV if it is given to the mother and the baby according to a strict procedure, and if the baby is then formula-fed.

All 11 justices on the Constitutional Court concurred in the ruling. Chief Justice Arthur Chaskalson ordered the government, within available resources, to come up with a comprehensive program to combat mother-to-child transmission of HIV.

The decision was widely welcomed by trade unions, political parties, and by AIDS support groups and activists.

An activist group, the Treatment Action Campaign, filed the court suit. The group's national manager, Nathan Geffin, says a key part of the court decision permits health care workers, not bureaucrats, to decide how to treat HIV positive mothers. "The important point is that the decision belongs to the doctors and superintendents in the hospital," Mr. Geffin said. "It doesn't belong to the minister of health, or to people in the department of health. The decision has to be made by the doctors and superintendents in the hospital. Furthermore, the court ruling says where hospitals don't have the capacity, the government is going to have to create the capacity in those hospitals and clinics."

In April, the government had dramatically changed its position on use of the drug for HIV positive pregnant women and rape victims. And it commented favorably on the latest court ruling. Health department spokesperson Patricia Lambert describes the court's order as "workable."

"We believe that in those hospitals where the capacity exists for the program to roll out, they will be facilitated to do so," she commented. "And government will continue training people so that the benefits of the mother-to-child transmission program reaches all women."

The government earlier said it appealed the lower court ruling because it wanted to seek what it called the "wise counsel" of the constitutional court. It said the lower court decision could have taken away the government's authority to make policy. The constitutional court said its decision has no effect in this regard.