Academic journal article Duke Journal of Comparative & International Law

Assessing the Barriers to Universal Antiretroviral Treatment Access for HIV/AIDS in South Africa

Academic journal article Duke Journal of Comparative & International Law

Assessing the Barriers to Universal Antiretroviral Treatment Access for HIV/AIDS in South Africa

Article excerpt


An estimated 5.3 to 5.6 million South Africans are living with HIV/AIDS, more than in any other country. (1) The adult infection rate is approximately 21 percent. (2) Of the 5 million people living with HIV/AIDS estimated 230,000 are children under the age of 15. (3) In 2003 alone, approximately 96,228 babies (about 250 per day) were infected with HIV through mother-to-child transmission (MTCT). (4) HIV disease attacks the immune system, and particularly focuses on CD4 (T-cell helpers) cells. (5) CD4 counts in a healthy adult usually fall within the range of 800 to 1200. (6) As HIV attacks the CD4 cells, this count drops. Once a person's CD4 count falls below 200, the HIV-infected person becomes most susceptible to other infections. (7) Eventually, if left untreated, HIV develops into AIDS. Because of its attack on the body's immune system, AIDS leaves a person nearly indefensible against illness. These illnesses will lead to certain death. Antiretroviral (ARV) treatment has proven successful at significantly slowing the progression of HIV to AIDS. (8) However, as of 2003, less than one percent of the South African HIV-infected population had access to antiretroviral treatment. (9)

This note will examine the recent and continuing struggle to widespread access to ARV treatment in South Africa in the contexts of both internal infrastructure and drug costs due to patent protection. Much has been written about the effects of the world patent system on access to HIV/AIDS medication in developing countries. (10) Particular attention has been paid to South Africa, in large part due to its 1997 Amendment to the Medicines and Related Substances Control Act and the uproar that law caused among major pharmaceutical companies. (11) A patent system that addresses the needs of HIV-infected South Africans in light of the tremendous costs of ARVs is certainly part of any long-term solution for providing ARV treatment on a widespread basis. However, I argue in part that neither the cost of medication nor the current global patent system has been the only, or indeed the most pressing problem facing South Africa's fight for widespread state distribution of ARV medication. (12) Basic domestic infrastructure and the government's delayed response to the crisis have played a larger role in delaying widespread distribution of ARVs. The first part of this note will examine these domestic issues. The second half of the note will then look at avenues for addressing the next step in the access crisis--how to secure affordable, safe ARVs for the treatment of HIV disease.


A. Income Levels and Medical Costs

At the end of 2003 the World Bank estimated the average per capita gross national income (GNI) in South Africa at US$2,780. (13) Within South Africa this translates to the buying power of INT$10,270. (14) The cost of ARVs can exceed US$10,000 per patient, per year. (15) Clearly this cost plays a role in the limited access HIV-infected South Africans have to the medications.

In a 1999 survey published by the Kaiser Family Foundation only 19 percent of South Africans reported full private health coverage. (16) The choice to use private health facilities, where most of the country's health resources are allocated, was largely determined by whether a person had access to private health coverage. (17) This trend was particularly pronounced when comparing public and private hospitals. Patients with private health coverage accounted for 85 percent of those seen at private hospitals while only four percent of patients visiting public hospitals paid via private health coverage. (18) South Africans reported cost as the main reason for not seeking medical attention when needed. In the survey, 66 percent of the respondents cited their inability to afford medical care as the reason they failed to get treatment. (19)

B. The Fight for Government Support

In recent years South Africans have been fighting an uphill battle with the government on the appropriate response to the AIDS crisis. …

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