PHA-Exch> Why and how is health a human right? (copied as 'fair use')

[Claudio Schuftan]

From: Meghana Bahar meghana at haiap.org


The Lancet, Volume 372, Issue 9655, Page 2010, 13 December 2008
doi:10.1016/S0140-6736(08)61784-5

Why and how is health a human right?

Amartya Sen

In doing a special issue on the right to health, The Lancet is helping to
draw attention to an extraordinarily important subject that does not get
as much attention as it deserves. There are understandable reasons why the
perspective of the right to health seems to many to be remote. First,
there is what we might call the legal question: how can health be a right
since there is no binding legislation demanding just that? Second, there
is the feasibility question: how can the state of being in good health be
a right, when there is no way of ensuring that everyone does have good
health? Third, there is the policy question: why think of health, rather
than health care, as a right, since health care is under the control of
policy making, not the actual state of health of the people?


The legal question assumes that the idea of right has to be inescapably
legal. Indeed, Jeremy Bentham described the 1789 French declaration of the
rights of man (what rights every human being has) as "nonsense", since a
right had to be, he argued, legislated and must be a "child of law".1 But
there is a long tradition of thinking of rights in terms of social ethics:
what a good society must have. Indeed, when the American Declaration of
Independence invoked "certain inalienable rights" that everyone had, the
idea of human rights served not as a "child of law" but more as a "parent
of law" in guiding legislation.2 In seeing health as a human right, there
is a call to action now to advance people's health in the same way that
the 18th-century activists fought for freedom and liberty.

The feasibility question is based on a common confusion about what can or
cannot be a right. If feasibility were a necessary condition for everyone
to have any right, it would be nonsensical to say that everyone has the
right to liberty, in view of the difficulty in ensuring the life and
liberty of all against transgression. We cannot prevent the occurrence of
murder somewhere or other every day. Nor, with the best of efforts, can we
stop all mass killings. The acceptance of health as a right of all is a
demand to take action to promote that goal, going beyond what is sometimes
called the first-generation rights that involve personal liberties and
political entitlements such as the right to vote (none of these rights are
completely realisable).

The policy question points to the important fact that good health depends
on health care, and health care is something that we can legislate about.
But good health does not depend only on health care. It also depends on
nutrition, lifestyle, education, women's empowerment, and the extent of
inequality and unfreedom in a society. A human right can serve as a parent
not only of law, but also of many other ways of advancing the cause of
that right. Even the fulfilment of the first-generation rights (such as
religious liberty, freedom from arbitrary arrest, the right not to be
assaulted and killed)3 depends not only on legislation but also on public
discussion, social monitoring, investigative reporting, and social work.4
The right to health has similarly broad demands that go well beyond
legislating good health care (important as that is). There are political,
social, economic, scientific, and cultural actions that we can take for
advancing the cause of good health for all.5—10 Indeed, this special
issue, which is aimed at knowledge and understanding of the parameters of
the right to health, is itself a contribution to that splendid cause. In
seeing health as a right, we acknowledge the need for a strong social
commitment to good health. There are few things as important as that in
the contemporary world.
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