CEDAW/C/49/D/17/2008
between the right to health and the right to health assistance, wherein the latter is
restricted to medical actions performed to detect and treat illnesses and relates to the
right to health in terms of the ability to cure illnesses or extend life expectancy. The
right to health care or health assistance requires by definition the organization and
operation of assistance services.
4.2 The State party then proceeds to examine the right to health in the context of
its Federal Constitution and the corresponding competencies of the respective
political spheres and the private sector. Article 196 of the Federal Constitution
defines health as a right of all and a duty of the State assured through policies and
universal equal access to the actions and services aimed at health promotion,
protection and recovery. The execution of health actions and services may be
performed directly by the Government or through third parties, with the Government
retaining exclusive authority for their regulation, oversight and control. The State
implements these actions and services through a regionalized and hierarchical
network composed of a unified health system (Sistema Único de Saúde). Health
actions and services, therefore, include health assistance or healt h care, as well as a
number of other functions such as health surveillance, which together comprise the
right to health.
4.3 The Federal Constitution mandates that the private sector may only provide
health assistance. It is not authorized to execute the health-care actions prescribed in
article 200 of the Constitution, 6 which bear no connection to health care. Private
institutions may participate in the health system in accordance with its guidelines by
means of a public law contract or agreement. As regards the distribution of
responsibilities among the political spheres, section VII of article 30 of the
Constitution mandates that the municipal governments provide health services to the
population with the technical and financial cooperation of the federa l and state
governments.
4.4 The division of responsibilities, as outlined in the Constitution, indicates that
the duties corresponding to the right to health, in its broadest positive dimension,
including health care and other health actions and services, are the sole purview of
the State, as are their regulation, enforcement and control. The private sector is
authorized to provide health assistance, which encompasses medical and
pharmaceutical services, while municipalities retain sole responsibility ove r the
health services intended for the general population. The scope of State action,
therefore, is far broader than that prescribed for the private sector. Health policies,
in other words, are the exclusive domain of the political spheres, as are the acti ons
aimed at monitoring the health assistance services provided by the private sector.
__________________
6
11-51699
According to this provision, it is incumbent upon the unified health system, in addition to other
duties, as set forth by the law: to supervise and control proceedings, products and substances of
interest to health and to participate in the production of drugs, equipment, immuno -biological
products, blood products and other inputs; to carry out actions of sanitary and epidemiological
surveillance, as well as those relating to the health of workers; to organize the training of
personnel in the area of health; to participate in the definition of the policy and in the
implementation of basic sanitation actions; to foster, within its scope of action, scientific and
technological development; to supervise and control foodstuffs, including their nutritional
contents, as well as drinks and water for human consumption; to participate in the supervision
and control of the production, transportation, storage and use of psychoactive, toxic and
radioactive substances and products; and to cooperate in the preservation of the environment,
including that of the workplace.
9