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

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Court/Judicial body:Constitutional Court of South Africa

Date:5 July 2002 
Instrument(s) cited:Constitution of the Republic of South Africa 

Case 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.”

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