The imperative to treat: the South African State's Constitutional obligations to provide antiretroviral medicines.

• Author: Forman, Lisa

Introduction

South Africa is in the grips of a shattering HIV and AIDS pandemic, with over eleven percent of its population infected. The pandemic's magnitude demands urgent and effective action to limit infection rates and mitigate impact, with the provision of antiretroviral medicines being a critical element of a comprehensive continuum of prevention, treatment, care and support. (1) While these medicines can prolong life and substantially contain the impact and spread of HIV and AIDS, access in South Africa remains negligible, and highly contested terrain.

This note explores this issue in terms of the obligations placed on the state by the domestic and international right to health. (2) South Africa's Constitution is marked by a pervasive commitment to individual equality, dignity and freedom, and justiciable health rights that require the state to act reasonably in progressively realizing access to health care services within available resources. (3) This article assesses what the prevailing social, economic, and constitutional context suggest are reasonable measures to provide access to essential medicines in the HIV/AIDS pandemic.

Part one describes the extent of the national epidemic, and Part two examines the state's obligations to provide access to health care services. Part three explores constitutional and international law for guidance as to what constitutes reasonable measures in relation to antiretroviral medicines.

1. HIV/AIDS in South Africa

   In a region where HIV/AIDS pandemics have reached unprecedented dimensions, South Africa has the largest numbers of infected people, with official estimates of almost five million, approximately one in nine South Africans. (4) Civil society studies put the figure closer to 6.5 million. (5)

   While no race, place or age is exempt, levels of infection are highest among black South Africans, amongst women, and in informal urban settlements. (6) The worst-affected age group is 25 to 29, followed by 30 to 34. (7) Tremendous stigma and marginalization associated with the illness manifest in pervasive discrimination in employment, health care, education, and violations of privacy rights. While this experience is common globally, stigma is greatest in high prevalence countries, where AIDS is viewed as a death sentence, creating considerable silence and denial about the illness. This social marginalization and discrimination is so great that the South African Constitutional Court has recognized people living with HIV and AIDS as one of the most vulnerable groups in South African society. (8)

   This vulnerability is compounded by the progressively fatal nature of the disease. AIDS accounted for twenty-five percent of all deaths in 2000, and has become the dominant cause of death in the country. (9) More than seven million people will eventually die from AIDS in South Africa, leaving two million children orphaned. (10)

   The illness and death of the most reproductively and economically active members of society has significant social and economic consequences, shattering families, deepening household poverty, and ultimately limiting economic growth and development. Public health care is being overwhelmed by HIV/AIDS: last year, forty percent of adult medical admissions at a public hospital in Johannesburg had HIV, as did sixty percent of pediatric admissions at a state hospital in Durban. (11) This sector is also suffering considerable attrition through AIDS-related morbidity and mortality among health care workers, with a similar pattern experienced in education and labour.

   Illness and death on this scale is all the more shocking since antiretroviral therapies can halt the virus' ultimately fatal destruction of the immune system. Comprehensive use in developed countries and Brazil has slashed rates of AIDS related illness and death, changing the disease's definition from progressive and fatal, to chronic and manageable.

   1. Antiretroviral Access in South Africa

      Access in South Africa is negligible, with only twenty thousand people using the drugs, predominantly through private health care. (12) There are growing numbers of corporate work-place programs offering treatment, (13) with non-governmental and research pilot programs able to provide treatment for small numbers of people. (14) There are no long-term antiretroviral therapies available in the public sector.

      The drug's average cost has plummeted from US$15,000 per year in 1999 to current generic prices of around US$200-300. (15) Although this cost is still high for developing countries, with grants from the Global Fund for HIV/AIDS, Tuberculosis and Malaria, and other international funding sources, many developing countries, including Botswana, Ghana, Malawi and Senegal, are moving towards national antiretroviral treatment programs. In addition, the World Health Organization (WHO) has formulated simplified treatment regimes for resource-poor settings, offering partial solutions to infrastructural obstacles. Although significant political obstacles remain, access to antiretrovirals is slowly becoming a reality even in poor countries.

   2. National AIDS Policy and Controversy

      Despite this changing global picture, and despite being one the richest countries in the region, access to antiretrovirals in South Africa remains a controversial topic, and a site of ongoing legal and political struggle. For many years, national AIDS policy has been "fraught with an unusual degree of political, ideological and emotional contention." (16)

      There have been ongoing controversies about national policy and leadership, compounded by President Mbeki's public espousal of AIDS denialist theories, which refute a causal link between HIV and AIDS, and argue that immune failure is rather caused by drug-oriented gay lifestyles and the toxicity of antiretroviral medicines, or in the case of Africa, from malnutrition and illness associated with poverty. An opposition to antiretrovirals is central to this belief.

      These ideas appear to have motivated, at least in part, the state's long running refusal and delay of any form of antiretroviral medicines in the public sector, most notably in respect of preventing mother-to-child transmission (MTCT) of HIV. This is at a time when infection rates in newborns are around 80,000 a year, with Nevirapine, the antiretroviral drug in question, holding the potential to prevent infection in 30-40,000 children, and offered free to the state for five years.

      In 2000, the government announced it would introduce MTCT pilot sites, but delayed setting up any for a year, while simultaneously blocking public sector availability of Nevirapine. Consequently, in 2001, civil...