Bioethics & human rights: Access to health-related goods

Hastings Center Report

Volumn 39, Issue 5, 2009, Pages 27-38

  Arras, John D ^a   Fenton, Elizabeth M ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

NEVIRAPINE; ZIDOVUDINE;

ACQUIRED IMMUNE DEFICIENCY SYNDROME; BIOETHICS; CLINICAL PRACTICE; CULTURAL FACTOR; HEALTH CARE ACCESS; HEALTH CARE ORGANIZATION; HEALTH CARE POLICY; HUMAN; HUMAN IMMUNODEFICIENCY VIRUS INFECTION; HUMAN RIGHTS; MEDICAL DECISION MAKING; PATIENT AUTONOMY; PATIENT DECISION MAKING; PHILOSOPHY; PRIMARY MEDICAL CARE; REVIEW; SOCIOECONOMICS;

BIOETHICAL ISSUES; BIOETHICS; CULTURAL CHARACTERISTICS; CULTURAL DIVERSITY; HEALTH CARE RATIONING; HEALTH POLICY; HEALTH SERVICES ACCESSIBILITY; HUMAN RIGHTS; HUMANS; MORAL OBLIGATIONS; SOCIAL VALUES;

EID: 70450252289     PISSN: 00930334     EISSN: 1552146X     Source Type: Journal    
DOI: 10.1353/hcr.0.0185     Document Type: Review

References (77)

1. Since the notion of a "right to health" obviously assumes the impossible in many cases involving people who cannot possibly be cured, and since the notion of a right to health care is excessively narrow, omitting the social determinants of health, we prefer the language of a "right to health-related goods."
2. We explore another facet of this larger agenda in a forthcoming companion paper: "Bioethics and Human Rights: Curb Your Enthusiasm," Cambridge Quarterly of Healthcare Ethics 19, no. 1 (2010).
3. J. Mann, "Medicine and Public Health, Ethics and Human Rights," Hastings Center Report 27, no. 2 (1997) : 6-13, at 6;
4. P. Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley: University of California Press, 2003), 213-46.
5. See also P. Farmer, Never Again? Reflections on Human Values and Human Rights, Tanner Lectures on Human Values (Salt Lake City: University of Utah, 2006) ;
6. G. J. Annas, American Bioethics (New York: Oxford University Press, 2005).
7. H. Shue, Basic Rights, second ed. (Princeton, N. J.: Princeton University Press, 1996), 15.
8. With an appreciative nod to Tom Lehrer, "Bright College Days," available at http://www.youtube.com/watch?v=dl3mRjydcPw.
9. The United Nations' International Covenant on Economic, Social, and Cultural Rights (1966), and the corresponding Covenant on Civil and Political Rights (1966) are two such binding covenants.
10. An instructive case in point is UNESCO's Universal Declaration on the Human Genome and Human Rights, which tends to substitute a motley collection of "recallings, "solemnly recallings," "bearings in mind," "bearings in mind also," and "recognizings" for rigorously stated premises, and then confidently "proclaims" and "adopts" a number of propositions that may or may not have any direct relationship to all the above; http://portal.unesco.org/en/ev. php-URL-ID=13177&URL-DO=DO-TOPIC&URL-SECTION=201.html.
11. Current work in bioethics is well on its way to expanding the narrow focus on health care. See N. Daniels, Just Health (Cambridge, U. K.: Cambridge University Press, 2008).
12. See Farmer, Pathologies of Power, and Annas, American Bioethics.
13. We are grateful to April Harding for emphasizing this last point to us. One specific worry in this connection is that a simplistic insistence on a human right of access to healthrelated goods might lead some to conclude that any rationing of life-sustaining health care is morally or constitutionally illicit, which it most certainly is not. See, for example, the human rights-inspired claim to virtually unlimited renal dialysis in the South African constitutional case, CCT 32/97, Thiagraj Soobramoney vs. Minister of Health (Kwazulu-Natal), available at: http://graduateinstitute.ch/faculty/clapham/hrdoc/docs/ soobramoney.pdf.
14. J. Maritain, introduction to Human Rights: Comments and Interpretations (New York: Columbia University Press, 1949), 9; italics in original.
15. For an extended treatment, see J. Griffin, On Human Rights (Oxford, U. K.: Oxford University Press, 2008)
16. and E. M. Fenton, "Overlapping Consensus and Human Rights" (PhD dissertation, University of Virginia, 2008).
17. A. Sachedina, Islam and Human Rights (Oxford, U. K.: Oxford University Press, 2009) ;
18. The wording of this criterion is due to D. Miller, National Responsibility and Global Justice (Oxford, U. K.: Oxford University Press, 2007), 164.
19. See also J. Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 2001)
20. and M. Ignatieff, Human Rights as Politics and Idolatry (Princeton, N. J.: Princeton University Press, 2001).
21. See Ignatieff, Human Rights as Politics and Idolatry.
22. For two good examples of this attempt to reconstruct various religious traditions in order to render them compatible with human rights, see J. Cohen, "Minimalism about Human Rights: The Most We Can Hope For?" Journal of Political Philosophy 12 (2004) : 190-213
23. and Sachedina, Islam and Human Rights.
24. For a more complete and devastating criticism of the reliance on current practice, see Griffin, On Human Rights, 202-6.
25. See also J. Tasioulas, "Human Rights, Universality, and the Values of Personhood: Retracing Griffin's Steps," European Journal of Philosophy 10 (2002) : 79-100.
26. See M. Cranston, What Are Human Rights? second ed. (London, U. K.: Bodley Head, 1973)
27. and Ignatieff, Human Rights as Politics and Idolatry.
28. J. Raz, "On the Nature of Rights," Mind 93 (1984) : 194-214.
29. See Shue, Basic Rights;
30. M. C. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge, U. K.: Cambridge University Press, 2000)
31. and "Capabilities and Human Rights," Fordham Law Review 66 (1997) : 273-300;
32. for discussion of agency, see Griffin, On Human Rights
33. and J. Griffin, "First Steps in an Account of Human Rights," European Journal of Philosophy 9, no. 3 (2001) : 306-327;
34. on human flourishing, see A. Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations of International Law (Oxford, U. K.: Oxford University Press, 2004).
35. See also J. Nickel, "Poverty and Rights," Philosophical Quarterly 5, no. 220 (2005) : 385-402.
36. R. Geuss, History and Illusion in Politics (Cambridge, U. K.: Cambridge University Press, 2001), 143.
37. O. O'Neill, Bounds of Justice (Cambridge, U. K.: Cambridge University Press, 2000), 105
38. and Towards Justice and Virtue (Cambridge, U. K.: Cambridge University Press, 1996), 131-34.
39. John Tasioulas provides a sound argument against both Geuss and O'Neill in "The Moral Reality of Human Rights," in Freedom from Poverty as a Human Right, ed. T. Pogge (Oxford, U. K.: Oxford University Press, 2008).
40. See Griffin, On Human Rights, 99.
41. See Geuss, History and Illusion in Politics.
42. See also O'Neill, Towards Justice and Virtue, 133.
43. See Daniels, Just Health
44. and A. K. Sen, "Elements of a Theory of Human Rights," Philosophy and Public Affairs 32, no. 4 (2004) : 315-56, among many others.
45. We could say the same thing for the existence of much less controversial, so-called negative rights bearing on the security of persons and property in places like Somalia and Darfur, where the existence of the rule of law has completely broken down.
46. Office of the High Commissioner for Human Rights, opening address at the signing of the Convention on the Rights of Persons with Disabilities and its Optional Protocol, "From Vision to Action: The Road to Implementation of the Convention," at http://www2.ohchr.org/english/issues/disability/docs/ speakingnotesfinal.doc.
47. See G. J. Annas and M. A. Grodin, "Human Rights and Maternal-Fetal HIV Transmission Prevention Trials in Africa," American Journal of Public Health 88, no. 4 (1998) : 560-63.
48. Annas, American Bioethics, 59-67.
49. See J. D. Arras and R. Crouch, "AZT Trials and Tribulations," Hastings Center Report 28, no. 6 (1998) : 26-34. For a convincing demonstration that one can morally approve of such placebocontrolled studies without resorting to moral relativism
50. see A. J. London, "The Ambiguity and the Exigency: Clarifying 'Standard of Care' Arguments in International Research," Journal of Medicine and Philosophy 25, no. 4 (2000) : 379-97.
51. D. Callahan, What Kind of Life? reprinted ed. (Washington, D. C.: Georgetown University Press, 1995).
52. B. Brody, "Why the Right to Health Care Is Not a Useful Concept for Policy Debates," in Rights to Health Care, ed. T. B. Bole and W. B. Bondeson (Dordrecht, the Netherlands: Kluwer Academic Publishers, 1991), 113-31.
53. For cost-effectiveness analysis, see A. F. Gibbard, "Health Care and the Prospective Pareto Principle," Ethics 94, no. 2 (1984) : 261-82;
54. D. M. Eddy, Clinical Decision-Making: From Theory to Practice (Boston, Mass.: Jones and Bartlett, 1996).
55. On the Rawlsian approach, see J. Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971/1999)
56. and Daniels, Just Health.
57. For hypothetical consent, see R. Dworkin, "Justice and the High Cost of Health," in Sovereign Virtue (Cambridge, Mass.: Harvard University Press, 2000), 307-19;
58. and P. Menzel, Strong Medicine: The Ethical Rationing of Health Care (New York: Oxford University Press, 1990).
59. N. Daniels and J. Sabin, Setting Limits Fairly: Can We Learn to Share Medical Resources? (New York: Oxford University Press, 2002) ;
60. L. M. Fleck, Just Caring: Health Care Rationing and Democratic Deliberation (Oxford, U. K.: Oxford University Press, 2006).
61. See Daniels, Just Health, 321-23.
62. A. Gutmann and D. Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1998).
63. See also S. Gruskin and N. Daniels, "Justice and Human Rights: Priority Setting and Fair Deliberative Process," American Journal of Public Health 98, no. 9 (2008) : 1573-77.
64. See Ignatieff, Human Rights as Politics and Idolatry, 20.
65. See Shue, Basic Rights, 40. This would also, naturally, be the libertarian's sole response to global injustice.
66. See L. Lomasky, "Liberalism beyond Borders," Social Philosophy and Policy 24 (2007) : 206-233.
67. See Shue, Basic Rights, 160-61.
68. See Shue, Basic Rights, 153-80.
69. For another powerful articulation of the institutional turn in human rights, see T. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (Cambridge, Mass.: Polity Press, 2002).
70. Committee on Economic, Social and Cultural Rights, "Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights-General Comment No. 14," (2000), at http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E. C.12.2000.4. En?Open-Document.
71. As Jonathan Quick et al. observe, a third of the world's population-roughly two billion people-lack regular access to essential medicines. In the poorer areas of Africa and Southeast Asia, 50 percent of the population lacks access to these drugs. J. Quick et al., "Twenty-Five Years of Essential Medicines," Bulletin of the World Health Organization 80, no. 11 (2002) : 913-14;
72. and the "Montreal Statement on the Human Right to Essential Medicines," at http://www.accessmeds.org/Statement.html.
73. The emphasis on states may be problematic, however, since states may not always be best placed to create the necessary infrastructure.
74. General Comment No. 14, sec. 44 (d). The WHO's "essential medicines" project can be accessed at http://www.who.int/medicines/en/.
75. See also Quick et al., "Twenty-Five Years of Essential Medicines, "and the "Montreal Statement on the Human Right to Essential Medicines."
76. This claim must be qualified immediately, however, because our conception of human rights is firmly rooted in the conditions of modernity and thus differs from traditional conceptions of natural rights, which do not owe their existence in any way to social conditions or institutional sources. Through this qualification we satisfy the "practice criterion" for human rights.
77. See Daniels, Just Health, 321-23.