From conception to realization: a human right to health.
|Article Type:||Letter to the editor|
Meier, Benjamin Mason
|Publication:||Name: The Hastings Center Report Publisher: Hastings Center Audience: Academic; Professional Format: Magazine/Journal Subject: Biological sciences; Health Copyright: COPYRIGHT 2010 Hastings Center ISSN: 0093-0334|
|Issue:||Date: May-June, 2010 Source Volume: 40 Source Issue: 3|
To the Editor: John Arras and Elizabeth Fenton are, it seems,
trying to write a provocative piece ("Bioethics and Human Rights:
Access to Health-Related Goods," Sept-Oct 2009). Sharp digs at the
United Nations generally and the World Health Organization specifically,
quick observations about commentators that lend support to their
positions with inadequate attention to more nuanced writings, and
sweeping generalizations about the nature of human rights and about
those academics and practitioners working in the area all make for
lively reading. Reaching beyond the rhetoric, however, one is left to
conclude, after many pages of reflection and at times inchoate attack,
that human rights may offer something important to bioethics, as long as
it does not take away from what bioethics has to offer. But is this
really a contentious position?
To build on what is proposed in this article, a few points about human rights would seem to require attention. While certainly the authors' emphasis on the right to health is well placed, determining the value of rights for bioethical discourse requires explicit attention to the indivisibility and interdependence of rights as concerns both the underlying determinants of health and the delivery of health services. We must try to assess the value of such rights as privacy, education, information, participation, and freedom from discrimination as they interact with the right to health and with one another. To consider the right to health in isolation is to miss a key contribution of rights to health and well-being and an important area for reflection and debate.
With respect to the authors' specific focus on the right to health--or, more accurately, on the component of the right to health concerned with access to health care and the allocation of health-related goods--several points are worth emphasizing. As I have noted in earlier writings, a rights-based approach sets out a process, contributes legal accountability and established criteria to be debated within the process itself, but was never intended to determine "who should receive which resources here and now in resource-poor settings." Its distinct contribution is requiring analysis of which rights and which populations would be impacted by each intervention, with specific attention to the availability, accessibility, acceptability, and quality of the proposed intervention and the establishment of accountability mechanisms in relation to meeting goals. While it seems the authors would be willing to engage with these points given their attention to so-called institutional conceptions of human rights, explicit attention to these criteria and their implications for health would do much to clarify the specifics of the right to health and move away from the "ideal conception" of human rights that they find so disconcerting.
We would all likely agree that philosophically, human rights are intended to be generally applicable to every human being everywhere around the world and can be understood to be ascribed to us on the basis of our humanity. It appears, however, that the authors think that the fact that human rights treaties and the procedural mechanisms to implement them are institutionalized challenges the credibility of this notion. These mechanisms do not determine what the "right answer" should be in attempting to answer health--or other--policy questions, but the fact that this approach has been agreed to by the governments of the world and not simply picked up haphazardly by individual governments supports not only its philosophical underpinnings, but its universal credibility under international human rights law.
Harvard School of Public Health
To the Editor: While we are encouraged by Arras and Fenton's efforts to consider the philosophical traditions of the right to health and how bioethicists can contribute to the human rights endeavor, we disagree with their vacillating and at times contradictory concerns for the health and human rights enterprise. Where the authors resurrect criticisms of the very existence of a human right to health, these criticisms neglect the ethical development of the right to health, the evolving efforts to define its normative content, and the successful efforts to achieve rights-based accountability.
It is true that human rights tend "to ossify into a highly legalistic and bureaucratic practice," but this construction of human rights through the United Nations does not deny rights any moral foundation; rather, the development of human rights exemplifies how bioethics has made influential policy gains through the right to health. As a result of World War II atrocities, states developed human rights pursuant to international law, seeking to realize "freedom from want" and secure "the highest attainable standard of health." Through the authors' criticism of the codification of a right to health as "hyperbolic drafting nonsense," it becomes clear that they have considered neither the interpretive gains nor the dynamic nature of interdependent human rights, with this evolving legal discourse benefiting from ethical clarifications of state obligations.
To the extent that any "practice problem" exists in the definition of the right to health, the UN's human rights institutions ameliorate problems of "endlessly proliferating rights" through the formal evolution of normative frameworks. Combining the stability necessary in a universal rights-based tradition with the dynamism necessary to account for changing global conditions, the UN's 2000 General Comment on the right to health has provided a blueprint for its progressive realization in a globalizing world, specifying the ethical ends of health policy. Rather than looking only to the allocation of "health-related goods"--a reductionist interpretation that reverts back to bioethics' traditional fixation on medicine--the General Comment specifies obligations to respect, protect, and fulfill the various human rights that underlie the public's health.
Although the authors view the right to health as "a cruel hoax on the world's poor," numerous legislative and jurisprudential examples illustrate how human rights obligations can provide accountability for health policy. The authors' argument that the right to health "is incapable of solving complex allocation problems within a context of scarcity" misinterprets the achievement of rights-based accountability for the allocation of antiretroviral therapies. In the South African case, the authors fail to acknowledge how litigation over Nevirapine broke a political deadlock, assuring access to a key medical intervention unjustly denied to the poor and marginalized. Indeed, with civil society groups advancing the right to health to claim health care services globally, human rights organizations increasingly act in concert with social movements to prioritize health needs.
Benjamin Mason Meier
University of North Carolina
at Chapel Hill
University of Toronto
Arras and Fenton reply:
Unfortunately, both of our correspondents have, at least in part, misunderstood our aim and argument in this paper. First, both suggest that our focus on access to health-related goods is too narrow and, according to Meier and Forman, "reductionist." We agree with Meier and Forman that bioethics has often had far too narrow a focus on medical care, but the term "health-related goods" was chosen explicitly to signal that we included under it not only health care but also the complex interplay of social, political, and cultural factors now well-recognized as having an important influence on health. We agree that, to the extent that human rights or social policy protect and foster health at all, they do so by focusing on these social determinants of health and not simply on the delivery of health care, important though that is.
Gruskin argues--rightly, in our view--that many different human rights (like education, privacy, and freedom from discrimination) must be interpreted and weighed in terms of their contribution to health. But this important point only reinforces our argument that the institutions required to protect and deliver on the right to health--the institutions that can tell us who gets what as their entitlement under the right--must be designed relative to the circumstances in different places and at different times. However, contrary to Gruskin's interpretation, we do not view this institutionalization as a threat to the universality of the ideal conception of human rights. Rather, we take the ideal conception as an important starting point in telling us which fundamental human interests must be protected and, therefore, which human rights everyone shares. But that conception does not tell us what people in vastly different circumstances are actually entitled to as a function of those rights. For that we need institutions. Far from threatening the credibility of the ideal conception of universal human rights, institutionalization is the meat on the bones of that conception.
Meier and Forman have simply misread us on several points. First, we clearly note that the General Comment of 2000 significantly improves on the hyperbole of the framing of the right to health in the Universal Declaration on Human Rights and argue that this is in fact a good example of what we have called the institutional turn in bioethics and human rights. Second, we did not say--nor would we ever say--that the right to health is a cruel hoax on the world's poor. Our criticism of the ideal conception of human rights is that it is unable to meet the challenge of scarcity. Without institutionalization, we argue, without an account of how the right will be protected and fulfilled when resources are scarce--an account like that offered by the General Comment--the right to health is such a hoax. The third misreading charges that we ignore a key case in which human rights were invoked to ensure access to the HIV drug Nevirapine in South Africa. On the contrary, we state unambiguously in a footnote that this case was "an ethical and legal no-brainer." Perhaps in line with our agreement with the authors on this point, we wholeheartedly endorse the agenda they lay out in their final paragraph, which seems to us to be a succinct summary of our argument.
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