Dying for a transplant

By Patricia Erasmus

It is a lawyer’s worst nightmare — having to watch your client die.

But this was the reality for our staff when an Ethiopian man was brought to us in the final stages of double renal failure. As he lay in the parking lot of our offices, disorientated, weak and struggling to sit up — it was hard to believe that we had the constitutional guarantee to adequate healthcare for everyone in the country. As we watched disease overtake his body, there could be no starker illustration of the impassable divide between having rights and being able to access them.

Our client had been denied both dialysis and a place on the kidney transplant list purely because of his nationality. He was a recognised refugee from Ethiopia but transplants and chronic treatment like dialysis, it turned out, were reserved for citizens and permanent residents only. That he would die without this emergency treatment was not even a consideration when he was brought, collapsed and barely conscious, to the hospital.

The issue was clear to us as lawyers: Our client was dying and we had a wonderfully progressive Constitution that would surely save his life. A mad dash to approach the urgent court ensued, arguments were prepared, affidavits were signed and we were confident that he would get the help that he so desperately needed. All the jurisprudence, arguments and counter-arguments, however, never made it to court. He died the night before the matter was to be heard.

It was a devastating result, the very worst reason to have to remove a case from a court roll.

His death, however, should not go unaddressed. The legal issues in this case need to be confronted and a remedy is still there for the taking. Perhaps this time, a court can be approached to obtain broader relief that would have a lasting impact on the refugee community as a whole and end up saving someone else’s life.

To do this though, some questions need to be asked. Firstly, what is the issue to be tackled and secondly what is the vehicle for change?

The answer to the first question is relatively simple and the answer to the second question (as any human rights lawyer will tell you) is the Constitution — a constitutional challenge to existing legislation to be exact.

The problem is this: Refugees, despite being unable to return to their countries of origin because of the principle of non-refoulement (the duty of host states not to return a refugee to a country where he will face danger/persecution) cannot access services like transplants or dialysis in their country of asylum (South Africa) either. This is because the National Health Act limits the availability of transplant treatment to citizens and permanent residents only.

This provision of the Act is, in fact, unconstitutional. It does not take adequate account of international obligations and does not recognise that refugees simply cannot go home and cannot access treatment anywhere else. There appears to be a gaping and contradictory disparity between constitutional guarantees to progressive and inclusive healthcare and a provision in the National Health Act that excludes a vulnerable group of people from life-saving treatment on grounds that cannot be justified in terms of the so-called “limitations clause” of Section 36 of the Constitution.

Although transplants are expensive procedures and organs are in short supply, the perceived “burden” that refugees would place on limited resources is far from the lurking spectre depriving South Africans of medical treatment which might be imagined. Refugees form a very small percentage of the community in South Africa (latest estimates indicate that there are only 65 000 recognised refugees in South Africa). It is therefore a very small percentage of this number who would actually need to access transplant treatment therapy. Their inclusion would be a small burden to bear but their exclusion is of enormous consequence to each person turned away.

The solution lies in the hands of the judge who will ultimately hear our constitutional challenge.

Both South African and international lawyers and activists hail the South African Constitution and its health (both socio-economic and emergency) rights. We have a wealth of jurisprudence that interprets these rights and the operational legal framework can be described as progressive. But the system is by no means perfect, and it was by no means helpful for the client who died, essentially, because of his documentation status.

Two words. Only two words are needed to remedy this situation. A judge needs to order an amendment of the National Health Act to include the words “and refugees” so that transplants are available to citizens, permanent residents and refugees.

Those two words could save lives and make the rights enshrined in Section 27 of the Constitution real.

Patricia Erasmus heads the Refugee and Migrant Rights Programme at Lawyers for Human Rights