29 June 2022, Johannesburg – SECTION27, together with three affected persons have launched litigation in the Gauteng Division of the High Court of South Africa, Johannesburg to confirm access to free healthcare for all pregnant and lactating women and children under six, including persons seeking asylum, undocumented persons and persons affected by statelessness.

We are asking the court to find that relevant Gauteng legislation, regulations and policies are unlawful to the extent that they fail to provide access to free health services to all pregnant women and young children who are not on medical aid, in contravention of the National Health Act. We further ask for an order that the Department of Health issue a circular and publish a poster at all public health establishments that makes clear that all pregnant women and young children are entitled to access free health services.

We bring the case together with  women who were denied access to health care services when they were pregnant and one woman whose child  was denied free health services. The respondents are the MEC for Health in Gauteng, the Minister of Health, the Director General for Health and Charlotte Maxeke Johannesburg Academic Hospital.  The Jesuit Refugee Service, Doctors Without Borders (Médecins Sans Frontières) and the South African HIV Clinicians’ Society have provided supporting evidence to this application, based on their experiences with cases of pregnant women and young children denied health care services.

SECTION27 launched this application in response to complaints by many pregnant women and mothers of young children who have been required to pay fees to access healthcare services at public hospitals in Gauteng. In one tragic case, a two-year-old died after being denied emergency treatment when he swallowed rat poison at home.

This denial of free health services prevails despite the fact that section 27 of the Constitution provides that everyone has the right to access healthcare services, including reproductive healthcare services. In addition, section 4 of the National Health Act provides that, subject to any condition prescribed by the Minister, the state must provide pregnant and lactating women and children under six, except members of medical aid schemes and their dependents, with free health services.

The Minister of Health has not prescribed conditions limiting this section, meaning that all pregnant and lactating women and children under six are entitled to free health services and the state has an obligation to provide such free health care services. The continued lack of access to healthcare can make the difference between life and death. Our application describes the Gauteng legislation and regulations as “confused and confusing”. As a result of the unclear provisions of the provincial legislation, the health policy in effect is read and used to exclude specific categories of vulnerable pregnant women and children from accessing free services. The practice of reading the policies in this exclusionary way is unlawful. In turn, the unlawful and contradictory governing instruments make it impossible to determine in what circumstances pregnant women and children will be afforded access to free health services and under what conditions those services will be provided.

The right to access health care services is a basic human right guaranteed by the Constitution. Access to free health services is critical to realising the rights of pregnant women and young children, both of which are universally recognised to be vulnerable categories of persons. For pregnant women, the lack of access to healthcare services is one of the underlying causes of maternal mortality and morbidity. The antenatal period is important to track risk factors like HIV and hypertension that can affect the pregnant woman and the fetus. During the birthing process, high-risk factors may lead to complications for both mother and child if unidentified and unmanaged.  

For young children, the lack of access to healthcare services can disadvantage them at this critical stage of development. For instance, in the absence of a timely diagnosis of a pregnant woman living with HIV, the opportunity to prevent HIV transmission to the infant is lost.

As a country that rightly prides itself on the impressive decrease in maternal and child mortality over the past decade, securing reliable access to health care services for all pregnant women and young children is vital and in accordance with our recognition of the health and reproductive health rights that should be enjoyed by all.

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