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date: 04 June 2020

Human Rights and Public Health Ethics

Abstract and Keywords

This chapter relates human rights to public health ethics and policies by discussing the nature and moral justification of human rights generally, and the right to health in particular. Which features of humanity ground human rights? To answer this question, as an alternative to agency and capabilities approaches, the chapter offers the “fundamental conditions approach,” according to which human rights protect the fundamental conditions for pursuing a good life. The fundamental conditions approach identifies “basic health”—the adequate functioning of the various parts of our organism needed for the development and exercise of the fundamental capacities—as the object of a human right. A human right to basic health entails human rights to the essential resources for promoting and maintaining basic health, including adequate nutrition, basic health care, and basic education. Dutybearers include every able person in appropriate circumstances, as well as governments and government agencies, private philanthropic foundations, and transnational corporations.

Keywords: human rights, public health policies, right to health, fundamental conditions approach, basic health, dutybearers, public health, ethics

(p. 47) Introduction

Many people who care about public health believe that the human rights framework is and should be an integral part of public health policies (Mann et al., 1994; Mann, 1997; Gruskin and Dickens, 2006). After all, the human right to health is enshrined in the Universal Declaration of Human Rights (UNGA, 1948) and other international documents, such as the International Covenant on Economic, Social and Cultural Rights (UNGA, 1966). In addition, public health policies and human rights interact with one another in myriad ways (Mann, 1997). For instance, public health policies can sometimes “burden” human rights (Mann et al., 1994). Mandatory testing, quarantine, and isolation during pandemic outbreaks require prioritizing public welfare over individual liberty. Human rights violations also often have a negative impact on health. Torture, rape, and other traumatic events are associated with severe psychological trauma in both children and adults (Patel, Kellezi, and Williams, 2014). More positively, protecting human rights often improves health. As an example, helping girls and women to gain access to education, an adequate standard of living, necessary medical care, and safety and security of the person—each of which is identified as the object of a human right by one or more international documents—has significantly improved their ability to protect themselves from diseases such as HIV/AIDS (UNESCO, 2016).

For the human rights framework to be effective at advancing the objectives of public health policies, however, it is important to have an adequate account of the nature and moral justification of human rights generally, and of the right to health in particular. In addition to addressing the skepticism that some people have expressed about whether there is a human right to health (Sreenivasan, 2012, 2016; Buchanan, 2013), it is necessary to delineate who bears the duty (dutybearers) of making real the putative right to health, the scope and limits of moral obligations to promote health, and anything else that is (p. 48) needed to supplement the human rights framework when devising public health policies. The aim of this chapter is to provide an overview of such an account.

The Nature and Grounds of Human Rights

Human rights are, as A. John Simmons (2001, 185) states, “rights possessed by all human beings (at all times and in all places), simply in virtue of their humanity.” But which features of humanity ground human rights? According to James Griffin (2008, 2), human rights can be seen as “protections of our normative agency.” While such an agency approach has attractive elements, it seems limited in other ways (Liao, 2010a; Tasioulas, 2010). For example, consider the paradigmatic human right not to be tortured. The fact that torture undermines one’s agency by undermining one’s capacity to decide how to act, and to stick to that decision, is certainly an important factor in justifying the existence of a human right not to be tortured (Griffin, 2008, 52–53). But it seems that the fact that torture causes great pain is also important in justifying a human right not to be tortured. Thus, it counts against the agency approach that it seems to rule out causing great pain as a justification for a human right not to be tortured.

According to Martha Nussbaum (2011, 20–26), capabilities form the basis of human rights. Capabilities are an individual’s real opportunities to choose and to act to achieve certain functionings, while functionings are various states and activities that an individual can undertake. Nussbaum argues that there are ten central human capabilities that are particularly important, as they are “entailed by the idea of a life worthy of human dignity”: life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; other species; play; and control over one’s environment (33–34). In Nussbaum’s view, all human beings are entitled to these capabilities as a matter of human rights (62).

A problem with Nussbaum’s capabilities approach is that it seems that a significant number of human rights cannot be adequately explained in terms of capabilities (Liao, 2015a). For example, capabilities do not seem adequate for explaining what might be called status rights, which are rights that protect our moral status as persons. In the Universal Declaration of Human Rights, the right to recognition everywhere as a person before the law (Article 6); the right to equal protection before the law (Article 7); the right against arbitrary arrest, detention, or exile (Article 9); the right to a fair and public hearing (Article 10); and the right to be presumed innocent until proven guilty (Article 11) are all status rights, since they protect our moral status as persons. If the capabilities approach were correct, it would imply that one can sometimes choose not to exercise these rights, since capabilities are concerned with real opportunities to choose. But it does not seem that one can sometimes choose whether or not to exercise these rights. For instance, it does not seem that one can sometimes choose not to be recognized everywhere as a person before the law, choose not to have equal protection before the law, choose to be (p. 49) arrested arbitrarily, choose to have an unfair hearing, or choose to be presumed guilty. Hence, capabilities do not seem particularly well suited to explain these rights.

A third answer to the question of which features of humanity ground human rights takes a broader view, according to which human rights are grounded in a plurality of conditions. Liao (2015a) defends the fundamental conditions approach, according to which human rights protect the fundamental conditions for pursuing a good life. The fundamental conditions comprise various goods, capacities, and options that human beings qua human beings need, whatever else they qua individuals might need, in order to pursue certain basic activities, such as deep personal relationships with one’s partner, friends, parents, children; knowledge of the workings of the world, of oneself, and of others; active pleasures such as creative work and play; and passive pleasures such as appreciating beauty.

The fundamental goods are resources that human beings qua human beings need in order to sustain themselves corporeally, including food, water, and air. The fundamental capacities are powers and abilities that human beings qua human beings require in order to pursue the basic activities. These capacities include the capacity to think, to be motivated by facts, to know, to choose an act freely (liberty), to appreciate the worth of something, to develop interpersonal relationships, and to have control over the direction of one’s life (autonomy). The fundamental options are those social forms and institutions that human beings qua human beings require if they are to be able to exercise their essential capacities to engage in the basic activities. These social forms and institutions include options to have social interaction, to acquire further knowledge, to evaluate and appreciate things, and to determine the direction of one’s life. (It may also be possible to use the fundamental conditions approach to justify the rights of some nonhuman animals. For a non-speciesist account of human moral status, see Liao, 2010b.)

The fundamental conditions approach can explain why the fact that torture causes great pain is relevant for the justification of a human right not to be tortured—namely, because freedom from extreme pain is a fundamental condition for pursuing a good life. Likewise, it can explain why there are status rights. When we pursue a good life, conflicts with others are bound to arise. If and when such conflicts arise, we need guarantees that we will be treated fairly and equally. Fair trial, presumption of innocence, equal protection before the law, not being arrested arbitrarily, and similar protections serve to ensure that we will be treated fairly and equally. For this reason, they are things that human beings qua human beings need whatever they might need in order to pursue a good life; that is, they are fundamental conditions for pursuing a good life.

The Nature of Basic Health

Next, let us consider how health should be understood. According to the World Health Organization (WHO), health is “a state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity.” As numerous people have pointed (p. 50) out, this definition seems too broad (Griffin, 2008, 101). Among other things, the WHO’s definition seems to imply that if an individual’s complete well-being depended on working at one’s dream job, then an individual who was not working at her or his dream job would thereby lack health. More charitably interpreted, the WHO may have offered such a broad definition of health because it was motivated to incorporate social determinants of health into the definition of health itself. Researchers have found that health care is only one of many determinants of health; other determinants include nutrition, education, housing, the level of equality in a society, and a clean environment (Wilkinson and Marmot, 2003). One can acknowledge these social determinants of health, however, without defining health in terms of them.

Alternatively, drawing on Christopher Boorse’s (1975) work, Norman Daniels (2008, 37) has defined health as “normal functioning for our species.” In particular, for Daniels, health is the absence of pathology (diseases, injuries, and disabilities), where pathology is “any deviation from the natural functional organization of a typical member of a species” (37). A problem with this type of definition of health is that it seems to categorize certain health states incorrectly as pathology. For instance, homosexuality interferes with the statistically normal reproductive function of human species, and accordingly, Boorse (1975, 63) has acknowledged that his definition of health implies that homosexuality is a pathology. To make this implication more palatable, Boorse argues that classifying homosexuality as a pathology is a descriptive project and need not carry any normative/practical implications (see also Kingma, 2007; Daniels, 2008, 37–42). Nonetheless, homosexuality does not seem to be a pathology.

To define health in a way that does not invite these objections, let us first distinguish between basic and non-basic health:

Basic health is the adequate functioning of the various parts of our organism that are needed for the development and exercise of the fundamental capacities.

Non-basic health pertains to any biological functioning that does not affect the various parts of our organism that are needed for the development and exercise of the fundamental capacities.

 (Liao, 2016, 263)

Recall that the fundamental capacities are powers and abilities that human beings qua human beings need in order to pursue a good life. Various parts of our organism are needed for the development and exercise of these fundamental capacities. For instance, various life processes (including respiration, digestion, absorption, metabolism, circulation) and various organ systems (including the nervous system, skeletal system, cardiovascular system, digestive system, immune system, and reproductive system) make up, enable, and sustain these fundamental capacities. These parts of our organism need to be adequately functioning in order to support the development and exercise of the fundamental capacities.

Accordingly, an individual has basic health if the various life processes, organ systems, and so on that are needed for the development and exercise of the fundamental capacities in the individual are adequately functioning. An individual does not have (p. 51) basic health if the life processes, organ systems, and so on that are needed for the development and exercise of the fundamental capacities in the individual are not adequately functioning.

Sometimes, parts of our organism can undergo certain developments or experience certain events that do not affect in any way the adequate functioning of the parts needed for the development and exercise of the fundamental capacities. Such developments and events can be classified as non-basic health matters. For instance, one might develop a benign cyst that affects one’s singing ability but nothing else. Suppose that the cyst does not affect in any way the adequate functioning of the parts needed for the development and exercise of the fundamental capacities. It would then be classified as a non-basic health matter.

Some of the crucial factors that can affect basic health include diseases, injuries, disabilities, nutrition, behavior, and aspects of the social, political, and economic environment (Liao, 2016). For instance, pathogenic microorganisms such as bacteria and viruses can infect individuals and give them diseases, thereby resulting in the dysfunction of various parts of our organism that are needed for the development and exercise of the fundamental capacities. Or one may behave in a certain way without realizing that a particular action can damage one’s basic health. For instance, a man who is heterosexual and does not use intravenous drugs may mistakenly believe that he cannot get HIV, and therefore need not use protection when having sex.

It should be clear that basic health is narrower than the WHO’s definition of health. Among other things, the WHO’s definition does not distinguish between basic and non-basic health matters. Moreover, one can accept that basic health crucially depends on social determinants of health and that health care may be less important than some of these social determinants in promoting basic health, without accepting that basic health should be defined or analyzed in terms of these social determinants. Furthermore, this account avoids some of the potential problems that arise with theories that define health in terms of species-typical functioning. For instance, it does not entail that homosexuality is a pathology, since an individual whose sexual orientation is toward members of the same sex can still have basic health.

The Human Right to Basic Health

According to the fundamental conditions approach, there is a human right to basic health because human beings have human rights to the fundamental conditions for pursuing a good life, and basic health is a fundamental condition for pursuing a good life (Liao, 2016). As noted in the section on “The Nature and Grounds of Human Rights,” fundamental conditions are fundamental goods, capacities, and options that human beings qua human beings need whatever else they might need in order to pursue a good life. Basic health is a fundamental condition in this sense. Indeed, without the adequate functioning of the various parts of our organism that are needed for the development and exercise of the (p. 52) fundamental capacities, human beings would not possess the requisite fundamental capacities; and without possessing the requisite fundamental capacities, human beings would not be able to pursue a good life. Because basic health is a fundamental condition for pursuing a good life, human beings have a human right to basic health.

A human right to basic health entails, among other things, that we have a right to the essential resources for promoting and maintaining basic health, including adequate nutrition, basic health care, and basic education. Who has the duty to provide these essential resources? On one view, human rights are rights against every able person, in appropriate circumstances, (Cranston, 1973, 69). This view implies that every able person, in appropriate circumstances, has a duty to provide the essential resources for promoting and maintaining basic health to everyone else. But can everyone have such a duty? It might seem that the answer is no. In fact, this is one reason why some people are skeptical that there can be a right to health (Sreenivasan, 2012). Moreover, lest one think that one can avert this concern by designating states as the sole dutybearers of the right to health, it has also been noted that some resource-poor countries, such as Mozambique, do not have sufficient resources to provide basic health for their citizens (Sreenivasan, 2012).

However, two points should make it more plausible that everyone has this duty (Liao, 2015b). First, we can have partial duties. This means that even if one cannot fulfill all that is required of a duty, as long as one is able to fulfill part of what is required, one has a duty to do as much as one can. Second, everyone’s having the duty to provide basic health does not mean that everyone has to do the same thing. Thus, the fact that everyone has this duty does not mean that each of us has to provide basic health for everyone else directly. One’s duty could instead be to pay taxes in order to support a system that aims to distribute the essential resources for promoting and maintaining basic health to everyone, or at least to as many people as possible. A discussion of how demanding the duty to provide basic health should be, which relates to how demanding morality itself should be (Liao, 2015b), is outside the scope of this chapter, but the present remarks should go some way toward addressing the concern that there cannot be a right to basic health. With respect to resource-poor states like Mozambique, it seems that the appropriate and plausible thing to say is that the rest of us have the responsibility to do as much as we can to help such states acquire the needed resources (Liao, 2016).

As noted above, in addition to basic health care, factors such as nutrition, education, and a clean environment can also affect basic health, and there are corresponding human rights to nutrition, education, and a clean environment. This raises the issue of how much priority should be given to the right to basic health care as opposed to, for example, the right to education. While space constraints prohibit detailed discussion here, it seems that we generally have an obligation to structure our society and political institutions in such a way that every right of every individual is respected and promoted (Liao, 2016). In a world in which this is not possible, we need a theory of distributive justice to determine how resources can be allocated fairly and in such a way as to ensure that as many people’s rights are respected and promoted as possible; Govind Persad’s chapter in this volume, “Justice and Public Health,” provides a helpful overview of theoretical resources.

(p. 53) Addressing Some Skepticisms Regarding the Right to Health

While many people accept that there is a right to health, some are skeptical about the existence of such a right (Sreenivasan, 2012, 2016; Buchanan, 2013). This section will focus on the following argument by Gopal Sreenivasan: The promotion of health, especially public health, often involves providing public goods. Individuals do not have a (claim) right to public goods. Therefore, individuals do not have a right to (the promotion of) health. To support this argument, Sreenivasan gives the example of herd immunity to diphtheria. Herd immunity seems to be a public good in that it is non-rival (its consumption does not diminish the protection available to others); it is non-excludable (if one person can consume it, then no one else in the herd can be excluded without significant cost); and it is indivisible (each person who enjoys it enjoys all of its protection) (Sreenivasan, 2012). At the same time, argues Sreenivasan, it seems that no individual has a right to herd immunity, not just because of the material cost of a vaccination program, but also because of the “moral” cost of compelling people to be vaccinated (257). If promoting health means, among other things, providing public goods such as herd immunity, but if no individual has a right to public goods such as herd immunity, it would seem to follow that individuals do not have a right to (the promotion of) health.

Here is a way to respond to Sreenivasan. Even if, under normal circumstances, there is no right to herd immunity as a specific public good, there may be a defeasible right to some public goods. Under normal circumstances (e.g., there is not a global pandemic outbreak), there is no right to herd immunity, because achieving herd immunity requires compelling people to be vaccinated, and this should not be done, because people have a right to bodily integrity, at least under normal circumstances (Liao, 2015b). However, this does not establish that there could not be rights to public goods, especially in cases where the public goods do not require impinging on an individual’s right to bodily integrity. There is not enough space here to offer a detailed defense of a right to a particular public good, but consider the following: Street lighting is a public good. It does not seem implausible that people could have a right to street lighting, especially if traveling on certain streets at night is particularly dangerous. Such a case suggests that there could be a right to public goods, thus calling into question a crucial premise in Sreenivasan’s argument against the right to health.

Some Implications for Public Health

These discussions regarding the nature and justification of human rights in general, and the right to health in particular, contribute to the objectives of public health policy in at least two ways.

(p. 54) First, in public health it is common to think that the responsibilities of promoting and enacting public health measures fall on governments, governmental agencies, and large-scale public programs. But if the duty to promote and maintain basic health belongs to everyone, then the responsibilities of promoting and enacting public health measures do not just fall on state actors; they also fall on individuals and nonstate actors such as private philanthropic foundations and transnational corporations. One might ask how individuals can promote and support public health measures. Some possibilities include paying taxes that would help fund public health measures and complying with public health measures themselves. An implication of the latter may be that individuals have the responsibility to have themselves and their children vaccinated against infectious diseases so that they do not place others at risk of such diseases, even granting that compulsory vaccination would violate their right to bodily integrity.

Second, it is worth considering whether human rights concerns exhaust public health policy. John Tasioulas and Effy Vayena (2015) argue that they do not. Suppose that there is an obesity epidemic in a certain population. According to Tasioulas and Vayena, this would be a public health concern, but not a human rights concern, because “[h]uman rights are about how we treat others, not how we treat ourselves. In avoidably neglecting my health, I do not violate my own rights” (e42). However, it is not clear that one could not violate one’s own rights. A plausible case can be made that a person would violate his right not to be enslaved if he sold himself into slavery (Arneson, 2010). In addition, basic health is the adequate functioning of the various parts of our organism that are needed for the development and exercise of the fundamental capacities. Obesity threatens to undermine basic health in a number of ways, such as by raising the likelihood of high blood pressure, diabetes, coronary heart disease, stroke, and respiratory problems. Given that there is a human right to the essential resources for promoting and maintaining basic health, it seems that one would have a right to the essential resources for ameliorating obesity. This may include a right to be educated about proper nutrition, a right to have access to nutritious food, and a right to a system of health care that can diagnose, prevent, and treat obesity.

Tasioulas and Vayena (2015, e43) appear to agree, since they say, “Certainly, people have the right to access a healthy diet and also a right to treatment for obesity.” They go on to say, however, that “obesity does not necessarily signify a violation of rights, as indicated by the fact that in developing countries this disorder is more prevalent in people of a higher socioeconomic status than in poorer people” (e43). This line of reasoning seems to presuppose that human rights violations could not take place among people of higher socioeconomic status. But consider sexual and racial discrimination, which are arguably human rights violations. Such discrimination can take place among people of higher socioeconomic status. So the fact that obesity may sometimes be more prevalent in a population of a higher socioeconomic status does not by itself mean that there couldn’t be human rights violations in such a population.

That said, it seems correct that human rights concerns do not exhaust public health policy. One reason is that there can be conflicts of rights. Conflicts of rights can arise when two people have the same right to the same medical resource, but there is enough (p. 55) for only one of them (same rights conflict); or when one person’s or group’s right to something (e.g., not to be harmed) requires restricting another person’s or group’s right to something else (e.g., freedom of movement) (different rights conflict). In cases of conflicts of rights, a theory of how to adjudicate such conflicts (e.g., a theory of distributive justice, as discussed by Persad in this volume) is needed. The need for such a theory suggests that human rights concerns do not exhaust public health policy.

Conclusion

Human rights are an integral part of public health policies. This chapter argues that we can further understand and shape the objectives of these policies by considering the merits and demerits of grounding human rights in terms of agency, capabilities, or fundamental conditions for pursuing a good life, and by recognizing that the proper object of human rights is basic health. Also, these discussions reveal that the duty to promote and maintain public health measures does not fall only on governments, but rather belongs to everyone, and that in cases of conflicts of human rights, we need theoretical resources beyond the human rights framework. Attending to the philosophical nature of human rights and the right to health thereby yields additional insights regarding how public health policies should be understood and devised. Human rights theory deserves to be part of the debate concerning the foundations of public health ethics.

Acknowledgments

Parts of this chapter are drawn from Liao (2015a). The author would like to thank Maria Merritt, Jeff Kahn, Andrew Siegel, and Adam Etinson for their helpful comments regarding earlier versions of this chapter.

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