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TREATMENT ACTION CAMPAIGN v MINISTER OF HEALTH:

A CASE STUDY 1

This case study is a teaching and learning resource meant to be used by researchers, activists, and academics who work in areas concerning women's human rights.  It contains background information and a description of the legal arguments and strategies used in a particular court case.  It also contains discussion and analysis of women’s reproductive rights and sexual health issues in relation to the case, including discussion questions and additional reading suggestions.

The subject of this case study is the case of the Treatment Action Campaign v. Minister of Health.  This is a South African case where a few non-governmental organizations, most notably the Treatment Action Campaign (TAC), took the government of South Africa to court over their failure to provide pregnant HIV positive women with drugs that could prevent the transmission of the virus to their child during labour.  This case made it to the Constitutional Court of South Africa, the highest court in the country for Constitutional issues, and has received international attention.

Mother-to-child transmission (MTCT) of HIV at first seems to be a children’s rights instead of a women’s rights issue.  This is the way it is often approached by legislators, courts and the media.  There are, however, significant women’s reproductive rights concerns that are under the surface in this case.  There are many issues that can only be seen from a women’s rights perspective.  Medication to prevent MTCT of HIV could be argued for under a woman’s right to be informed and have access to health care options, her right to reproductive choice, her right to have children and her right to equal treatment. 

Furthermore, looking at the issue from a women’s human rights perspective brings out other issues which must be considered in the implementation of a prevention of MTCT programme.  When MTCT of HIV is looked at only as a children’s rights issue the pregnant woman is viewed as a transmitter of disease instead of a woman with rights of her own.  Women’s rights that surround the issue of MTCT include: issues of informed consent, access to safe and legal abortions, and confidentiality.

CONTENTS

CASE IN BRIEF

Factual Background

  • A History of Women’s Human Rights
  • HIV and Mother-to-Child Transmission (MTCT)
  • South African Policy on Preventing MTCT
  • Unorthodox Views of the Cause of AIDS

Litigation: Using the Court System to Gain Access to Drugs to Prevent MTCT of HIV

  • Plaintiffs’ / Respondents’ Arguments
  • Defendants’ / Appellants’ Arguments
  • Decision of the Courts
  • High Court
  • Constitutional Court

SELECTED ISSUES

Strategy: How and Why Was the Battle for Nevirapine Won?

  • Why Use a Human Rights Strategy to Gain Health Care Reform?
  • Litigation as Part of a Larger Social Movement
  • A Committed Leader: How TAC’s Front man Lead the Way
  • The Government’s Strategy
  • The Government in the Eyes of the Public
  • Medical Evidence in the Courts
  • How Exportable is TAC’s Strategy?
  • The Need for a Constitutional Democracy
  • The Post-Apartheid Social Atmosphere
  • Conclusions, Discussion Questions and Additional Reading

Minimum Core Obligations and Positive Rights

  • What Does “Minimum Core” Mean and Where Does it Come From?
  • Minimum Core Obligations in South Africa
  • Conclusions, Discussion Questions and Additional Reading

Women’s Right to Health

  • Women’s Health Concerns Related to MTCT
  • Women’s Rights v. Children’s Rights
  • Combining Children’s Rights and Women’s Rights
  • Women’s Rights or Mother’s Rights?
  • Women’s Rights and the Prevention of MTCT
  • Women’s Rights and the TAC case
  • Conclusions, Discussion Questions and Additional Reading

Right to Found a Family

  • A Positive Right to Bear Children?
  • Right to Enjoy the Benefits of Scientific Progress
  • Conclusions, Discussion Questions and Additional Reading

Discrimination and Equality Rights

  • Advantages and Disadvantages of an Equality Argument
  • Discrimination and the TAC Case
  • Problems with Litigation: A Canadian Example
  • Conclusions, Discussion Questions and Additional Reading

ADDITIONAL INFORMATION

  • Timeline of Case
  • International Treaties
  • Legal System of South Africa
  • Studies on AZT and Nevirapine
  • Plaintiffs / Respondents’ Court Documents
  • Defendants / Appellants’ Court Documents

Forward to Case in Brief

1 Written by Kristin Bailey: B.A. (Hon.) Philosophy, University of Western Ontario, J.D. Student, University of Toronto.

 

 

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