Right to health | DELS

The right to health is one of the fundamental human rights, which are those that exist prior to society and the State, since they correspond to the human person by his condition of such and by the mere fact of being so.

In addition to its recognition, however, citizens are entitled to its protection not only by the national State but also at the international level.

In this regard, it should be noted that the so-called legal pyramid is significantly modified in relation to the order of priority of the different norms, since the constitutional reform of 1994, which in article 75, paragraph 22, of the National Constitution (CN) establishes that treaties and concordats have a higher hierarchy than laws.

The protection of life and the psychophysical integrity of the human person, displaced from the orbit of individual rights and within the framework of social and collective rights, was emphasized precisely from the aforementioned reform of the constitutional text, which gave constitutional hierarchy to international treaties on human rights, strengthening the supremacy of the person (Galdós,Jorge Mario, La Ley, 2008).

In fact, and according to the author cited, health is a collective, public and social right of constitutional roots, anchored in article 42 of the National Constitution, which reads, as appropriate, as follows: Consumers of goods and services have the right, in the consumer relationship, to the protection of their health, safety and economic interests; to adequate and truthful information: to freedom of choice, and to conditions of equitable and dignified treatment.

This right involves not only the guarantee of access to basic health benefits, but also their maintenance and regularity over time, and which according to uniform jurisprudence is primarily the responsibility of the State, even more so in the specific cases of legal protections involving vulnerable people such as children,the elderly, persons with disabilities, children in a situation of helplessness, from pregnancy to the end of the period of elementary education, and of the mother during pregnancy and lactation time (inc. 23, art. 75, CN). 

The right to health in the National Constitution and in the international treaties incorporated. In principle, it should be noted that the right to health in the constitutional text is not systematized, as would be desirable, but the doctrine and jurisprudence of our courts have largely replaced this flaw by recognizing it as a fundamental right.

As constitutional foundations of the right to health in the very text of our Magna Carta we must include the following articles:

Article 14 bis: … The State shall grant social security benefits, which shall be comprehensive and inalienable. In particular, the law will establish: compulsory social insurance…

Article 33: The declarations, rights and guarantees enumerated in the Constitution shall not be understood as a denial of other rights and guarantees not enumerated but arising from the sovereignty of the people and the republican form of government.

Article 41: All inhabitants enjoy the right to a healthy, balanced environment suitable for human development and for productive activities to meet present needs without compromising those of future generations; and they have a duty to preserve it…

Rt. 42: Consumers of goods and services have the right in the consumer relationship to the protection of their health, safety and economic interests; adequate and truthful information, freedom of choice and conditions of equitable and dignified treatment.

Art. 75, inc. 18: Corresponds to the Congress… To provide what is conducive to the prosperity of the country, to the advancement and well-being of all the provinces…

Art. 75, inc. 19: Provide what is conducive to human development, economic progress with social justice…

The Supreme Court of Justice of the Nation (CSJN) in Rulings 68:221-1897, directly empowers Congress to influence even in the field of competences reserved to the provinces.

There is no doubt that health is embedded in the concept of general well-being to which our National Constitution (CN) refers, even more so it is a parameter of well-being and as such it is a social, public and collective good and a corollary of the right to life, psychophysical integrity and freedom.

Likewise, the term human development, contained in paragraph 19 of article 75 of the CN already referenced, will only be possible through the effective protection of the right to health.

The concept of human development has been defined by the United Nations Development Programme (UNDP) as a process by which the opportunities of individuals are expanded, the most important of which are: a long and healthy life, access to education and enjoyment of a decent life.

The foundations of the right to health, in accordance with the specialized doctrine, are found in the text of the National Constitution itself mentioned above, in the rulings of the Supreme Court of Justice of the Nation, in the international human rights treaties incorporated into our Magna Carta and in the interpretations, observations and recommendations made by the relevant bodies created by said treaties for the application of their prescriptions.

For the analysis of the international documents referred to above, it is important to note that not all of them make a specific and literal mention of the right to health.

In the first place we can refer to the American Convention on Human Rights – Pact of San José de Costa Rica, 1969 – which in its article 4 establishes: everyone has the right to have his life respected.

Article 6 of the International Covenant on Civil and Political Rights (1966) establishes that the right to life is inherent in the human person.

For its part, the Universal Declaration of Human Rights – 1948 – establishes in its article 3 that everyone has the right to life and, in article 25, paragraph 1, it reads: everyone has the right to an adequate standard of living, which ensures, as well as to his family, health and well-being and especially food and clothing,housing, medical care and necessary social services.

It is also worth mentioning the International Convention on the Elimination of All Forms of Racial Discrimination (1965), which in its article 5, paragraph e, paragraph IV), establishes that it is the duty of States to guarantee the right to public health and medical care.

Already with a greater degree of precision, the American Declaration of the Rights and Duties of Man – 1948 – establishes in its article 1 that every human being has the right to life, liberty and integrity, and in its article 11 it reads: everyone has the right to have his health preserved.

Likewise, the Convention on the Elimination of All Forms of Discrimination against Women (1979), promulgated by the Argentine Republic in 1980, establishes in its article 11, paragraph 1, paragraph f), the protection of health, and article 12 provides for access to medical care.

No less important for the universe it covers, is the Convention on the Rights of the Child –1989–, which in its article 24 establishes that the right to the enjoyment of the highest possible standard of health and to the service for the treatment of diseases and the rehabilitation of health is recognized.

We cannot ignore because of its importance and importance, the International Covenant on Economic, Social and Cultural Rights -1966-, which contains the most complete and far-reaching provisions on the right to health within the international human rights system, understanding health according to the World Health Organization (WHO), as the state of complete physical well-being,mental and social, and not only the absence of disease.

In this regard, General Comment 14 of 11 August 2000 (paragraph 8 of the Covenant) is clarifying, which not only recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, but also covers those socio-economic conditions that make it possible to lead a healthy life, namely:Adequate supply of healthy food.Adequate nutrition and housing.Access to clean drinking water.Adequate sanitary conditions.Healthy and safe working conditions.Healthy environment.Access to education and information on health-related issues, including sexual and reproductive health.

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