23.
In this context, the right to health of people living with HIV is not an issue that is
entirely foreign to the jurisprudence of the high courts and they have had occasion to rule in
this regard. This is of fundamental importance, because many of the advances made in
jurisprudence with regard to protection of the right to health have been jurisprudential
developments at the national level.
24.
The Argentine Supreme Court of Justice of the Nation determined that the Ministry of
Health and Social Action was obliged to provide assistance, treatment and the special
provision of drugs to people living with HIV/AIDS under the premise that health is included
in the right to life. It considered that adequate treatment included the provision of drugs,
and that they should therefore be supplied on a regular, prompt and continuing basis to
avoid the risks related to their interruption. In addition, it indicated that, to ensure adequate
assistance, programs aimed at detection, research, diagnosis, treatment, prevention and
rehabilitation should be implemented, with the provision of the necessary financial
resources.61
25.
The Plurinational Constitutional Court of Bolivia determined that, given the failure to
provide drugs regularly to a minor living with HIV/AIDS, the rights to life and to health had
been violated, considering the special protection called for in the case of children, especially
if they do not have sufficient resources. 62 In addition, it recognized that this disease was
“catastrophic” in view of its impact on the patient’s personal and family relations and
financial resources. It also deliberated on the continuity of the treatment owing to the
imminent risk for the life of the person living with the disease, due both to the occurrence of
opportunistic infections and to the development of drug resistance.63 It further indicated that
it corresponded to the authorities to develop policies of prevention, care and rehabilitation. 64
26.
The Constitutional Court of Colombia has decided that people living with HIV/AIDS
form part of a group that requires special constitutional protection, so that the protection of
their right to health is reinforced by developing the right to equality. It has also considered
that, in the provision of health services, the “principle of continuity” should be observed,
which included the constant and uninterrupted supply of the medical services governed by
the “principle of comprehensiveness” (drugs, surgical procedures, and diagnostic and other
tests).65
27.
The Constitutional Court of Ecuador has also determined that people living with HIV
are part of a group requiring priority care, and that it therefore corresponded to the State to
implement reinforced mechanisms of protection, by either legislation or public policies, to
this end.66 Accordingly, the State should guarantee their right to comprehensive health
Cf. Argentine Supreme Court of Justice of the Nation, Asociación Benghalensis et al. c/ Estado Nacional,
ref. Amparo Law 16,986, A. 186. XXXIV, June 1, 2000, consideranda 9, 13 and 14.
61
Cf. Plurinational Constitutional Court of Bolivia, Constitutional judgment 0108/2010-R, File No. 200614391-29-RAC. Judgment of May 10, 2010. Rapporteur: Justice Dr. Ernesto Félix Mur, p. 10.
62
Cf. Plurinational Constitutional Court of Bolivia, Judgment SC 0026/2003-R, File No. 2002-05354-10-RAC,
Rapporteur: Justice Elizabeth Iñiguez de Salinas. Judgment of January 8, 2003, pp. 6 and 7.
63
Cf. Plurinational Constitutional Court of Bolivia, Constitutional judgment 0108/2010-R, File No. 200614391-29-RAC. Judgment of May 10, 2010. Rapporteur: Justice Dr. Ernesto Félix Mur, p. 8.
64
Cf. Constitutional Court of Colombia, Judgment T-599/15, AA v. COMFAMILIAR E.P.S-S (…), September 15,
2015, File T-4.936.041, Rapporteur: Justice Alberto Rojas Ríos, pp. 21, 24 and 27.
65
Constitutional Court of Ecuador, Judgment N. 068-18-SEP-CC, Case 1529-16-EP. Judgment of February 21,
2018, p. 50. Judgment No. 016-16-SEP-CC, Case 2014-12-EP. Judgment of January 13, 2016, p. 35. Judgment No.
080-13-SEP-CC, Case of 0445-11-EP. Judgment of October 9, 2013, p. 19.
66
11
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