through treatment and prompt access to drugs free of charge. That Court also referred to
the need for the health authorities to develop mechanisms for education on HIV/AIDS and
its prevention.67
28.
The Constitutional Court of Peru has determined that comprehensive care for a
person living with HIV is not limited to mitigating the effects of the disease with the
provision of drugs and regular testing, but requires more actions at the stage of disease
prevention.68 In addition, it has deliberated on the special circumstances of extreme poverty
of some of those living with the infection, finding that providing them with care was a
priority.69
29.
The SCJN studied the shortcomings in the facilities of the public health services that
resulted in the infection with opportunistic diseases of people living with HIV, who were
treated in a certain hospital. It considered that the lack of adequate facilities was sufficient
to constitute a violation of the right to health and ordered the authorities to ensure to people
living with HIV/AIDS the broadest possible enjoyment of the right to health by investing in
facilities – based on existing financial circumstances – and established that the respective
new investment should be made from a medical and scientific perspective. 70
30.
As can be seen, high national jurisdictions have developed important standards in
this area, under which people living with HIV are a group requiring priority care in which one
of the essential components to safeguard their rights (to health, life and personal integrity)
is the continuous and uninterrupted provision of antiretroviral drugs. However, for the
treatment to be comprehensive, it is also necessary to provide medical care for opportunistic
infections, using the maximum available resources. This series of obligations is in keeping
with the obligations that the Inter-American Court has incorporated into this judgment.71
Consequently, the provisions that the Inter-American Court has incorporated into this case
constitute a minimum threshold as regard the right to health of people living with HIV.
II. THE INTERSECTIONAL DISCRIMINATION AGAINST TWO PREGNANT WOMEN
LIVING WITH HIV
31.
The judgment also addressed the allegations concerning the discrimination that some
pregnant women had presumably suffered, who had not received medical treatment that
took into consideration the intersectional form of discrimination they faced. In this regard,
the judgment concluded that the State had failed to comply with the prohibition of
discrimination in relation to the obligation to ensure the right to health recognized in Article
26 of the Convention, to the detriment of two victims in the case. 72 This conclusion was
Constitutional Court of Ecuador, Judgment No. 364-16-SEP-CC, Case 1470-14-EP. Judgment of November
15, 2016, p. 35.
67
Cf. Constitutional Court of Peru, File No. 2016-2004-AA/TC, Justice José Luis Correa Condori. Judgment of
October 5, 2004, paras. 44 and 47.
68
Cf. Constitutional Court of Peru, File No. 2945-2003-AA/TC. Judgment of April 20, 2004, para. 48, and Cf.
Constitutional Court of Peru, File No. 2016-2004-AA/TC, Justice José Luis Correa Condori. Judgment of October 5,
2004, para. 47.
69
Cf. SCJN, Second Chamber, Amparo in review 378/2014, Rapporteur: Justice Alberto Pérez Dayán, Mexico,
2014, pp. 61 and 63.
70
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of August 23, 2018. Series C No. 359, paras. 108 to 117.
71
Cf. Case of Acevedo Buendía et al. (Dismissed and Retired Employees of the Comptroller’s Office”) v. Peru.
Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198, para. 102, and
Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of August
23, 2018. Series C No. 359, para. 139.
72
12
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents