While several other misunderstandings about health as a human right and how we achieve that through health care, I want to address the position many take that if we recognize health as a right, we are essentially allowing means that people must have affordable access to any and all treatment.
Health is in fact a human right as recognized in international law and codified in:
- The Universal Declaration of Human Rights
- The International Covenant on Economic, Social and Cultural Rights
- The preamble to the WHO constitution
- The Additional Protocol of the American Convention on Human Rights
- Protocol of San Salvador
- The American Declaration of the Rights and Duties of Man
- The Convention on the Elimination of All forms of Racial Discrimination
- The Convention on the Elimination of All Forms of Discrimination Against Women
- The Convention on the Rights of the Child
Limits on Health Care as a Right:
I think the fundamental misunderstanding of health as a human right is that people believe that as a right it allows every person to have access to the newest and greatest medical technologies and treatments. While health is a right, the means to achieve health through the provision of health care services, is limited. The demand for health care is unlimited and outstrips the supply, we all recognize, resources are limited. But this does not mean health cannot be a human right -right exists, but it is not boundless. We must face the ethical questions of what this right provides – this surely just as difficult a question as addressing other human rights such as the right to food, clothing, and housing.
The South African case Soobramoney v. Minister of Health ((KwaZulu-Natal), 4 BHRC 308 (Constitutional Court, South Africa 1997)) helps us understand health as a human right can in light of limited resources. In this case, an man with type 2 diabetes needed dialysis because of kidney failure and he requested treatment at a hospital that did not have a enough dialysis machines to provide him the treatment he needed. Because of the limited resources, the hospital could only afford to put patients on dialysis if they were eligible for a kidney transplant, which this man was not. This is truly unfortunate, we wish that we could provide everyone the best of care but we cannot. It does not mean that health is not a human right, it just means that right has limits. In fact the court said the right cannot “be extended to encompass the right indefinitely to evade death.”
Consider the right to speech or the right to bear arms. These are rights recognized and ardently fought for in the United States. But the courts know these rights have limits as well. Free speech does not apply to child pornography or speech that incites imminent lawless action. Free speech finds limitations in the areas of copyrights, patents, advertising, slander, defamation, among others. The right to bear arms is limited by gun control laws which require background checks or restrict some individuals convicted of felonies from possessing firearms. These limits though do not lessen the fact that these remain rights in America.
Nor do limits on health lessen the fact that it remains a right, one that American must recognize not only to uphold the commitments we’ve made in international treaties but also because it is a moral imperative.
Several other countries have addressed the issue of health as a human right particularly in regards to access to essential medicines (as defined by the World Health Organization) including Argentina, Brazil, Bolivia, Colombia, Costa Rica, Ecuador, India, Nigeria, Panama, San Salvador, and Venezuela.