It is a well-accepted fact that majority of the people in the world today are living at appallingly low levels of nutrition an

Legal Position Paper On Right to Heath Care

(Part I)

It is a well-accepted fact that majority of the people in the world today are living at appallingly low levels of nutrition and health. Health and nutrition are becoming issues that non-governmental agencies are increasingly being asked to tackle during the course of their work. Governmental agencies are spending lesser amounts on public health care, leading to a situation where the populations are accessing private health care services, which can be unaffordable.

A person’s health is related to several other aspects of her/ his life, and good health becomes a pre condition to the enjoyment of other rights as well as the individual participation in social, political, economic life. A World Health Organization Report on Health and Economics from 1989, states that, globally government spending on health averaged less than 10 dollars per person per year. Most developing countries have large populations that live in endemic poverty. Health care systems in these countries do not serve these populations. Infrastructure investment in health is not a priority spending area for governments.

There are many factors that influence health and are integral to it. These include access to nutritious food, clean environments- air and water, source of livelihood that is constant, etc.

In this context it becomes imperative to closely examine what the burden of the State in providing health is care and will making right of health care a fundamental right act as a pressure on the State to provide quality health care services.

The concept of the State being responsible to provide health care facilities, has its origins in the Charter of the United Nations and has been held in several individual constitutions.

United Nations Charter hold that “…the United Nations shall promote

a. higher standards of living, full employment, and conditions of economic and social progress and development; and

b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; …”[i]

Article 25 further outlines the protection of health and also details the protection of health of vulnerable populations, such as women and children should be specially protected.

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection”[ii]

The World Health Organisation, in its Constitution, states clearly, “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”[iii]

However it is only in the International Covenant on Economic, Social and Cultural Rights that one explicitly sees that health is recognized as a fundamental right of every human being.

International Covenant on Economic, Social and Cultural Rights:[iv]

Article 7 (b)

“ Safe and healthy working conditions;”

Article 10 (2)

“ Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.”

Article 11 (1)

“…recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions…”

Article 12

“1. …recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a)The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”

This is the most comprehensive and direct statement on the right to health at the international level. Article 12 (2) outlines the specific goals that must be attained with regard to the enforcement of this right.

Several countries, in their constitutions, have held the right to health in varying degrees. Perhaps the most comprehensive of these is the South African Constitution that takes into account several rights that are necessary for healthy living apart from access to health care services. It also clearly states the right to access reproductive health care.

Chapter 2, The Bill of Rights in the South African Constitution states as follows-

“Section 24 Environment

Everyone has the right -

(a) to an environment that is not harmful to their health or well-

being; and…

Section 27 Health care, food, water and social security

(1) Everyone has the right to have access to -

(a) health care services, including reproductive health care;

(b) sufficient food and water; and

(c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

(3) No one may be refused emergency medical treatment”[v]

Similarly, the Constitution of Uzbekistan, holds the right of citizens to skilled medical care, social security in the case of old age and disability. It also guarantees the access to skilled

medical care.

Constitution of the Socialist Republic of Vietnam:

Chapter V: Fundamental Rights and Duties of the Citizen

Article 61

“The citizen is entitled to a regime of health protection.

The State shall establish a system of hospital fees, together with one of exemption from and reduction of such fees.

The citizen has the duty to observe all regulations on disease prevention and public hygiene…”

Constitution of Mongolia

Chapter Two: Human Rights and Freedoms Article 16 “2) The right to healthy and safe environment, and to be protected against environmental pollution and ecological imbalance.…

5) The right to material and financial assistance in old age, disability, childbirth and childcare and in other cases as provided by law.

6) The right to the protection of health and medical care. The procedure and conditions of free medical aid shall be determined by law.”[1]