Access to essential medicines to guarantee women's rights to health: The pharmaceutical patents connection

• DOI: http://doi.org/10.1111/jwip.12161
• Published date: 01 July 2020
• Author: Jennifer H. M. Mike
• Date: 01 July 2020

J World Intellect Prop. 2020;23:473–517. wileyonlinelibrary.com/journal/jwip

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DOI: 10.1111/jwip.12161

ORIGINAL ARTICLE

Access to essential medicines to guarantee

women's rights to health: The pharmaceutical

patents connection

Jennifer H. M. Mike

School of Law, American University of Nigeria,

Yola, Nigeria, Nigeria

Correspondence

Jennifer H. M. Mike, School of Law, American

University of Nigeria, 98 Lamido Zubairu Way,

Yola, Nigeria 660101, Nigeria.

Email: Jennifer.mike@aun.edu.ng and

Jennifer2heaven@yahoo.com

Abstract

Indubitably, everyone is entitled to the right to a stan-

dard of health. While women's rights to health and life

are clearly established in legal instruments, having

these laws without the fulfilling them will not serve the

people they are meant to safeguard. For this reason, this

article argues that the right to health and life includes the

right to an effective access to available, good quality, safe

and effective medicines that are equally affordable to

everyone. Essentially, human rights principles, norms and

standards provide strong moral support for the con-

sideration of women's access to medicines, in view of the

adverse impact of international and national patent law

on public health. It is also submitted that ensuring this

access to a choice of essential medicines at an affordable

price requires the state to ensure that the granting of

patent rights to inventors and pharmaceutical companies

does not hinder access to essential drugs. In the same

vein, the article argues for the design, interpretation and

implementation of patent rights to respond to the right

to health, life and access to medicines.

KEYWORDS

access to essential medicines, developing countries,

pharmaceutical patents, rights to health, women

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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2020 The Authors. The Journal of World Intellectual Property published by John Wiley & Sons Ltd

The right to health refers to the right to the enjoyment of a variety of goods (medicines), facilities, services

and conditions necessary for its realisation (OHCHR, 3). The state's obligation with regard to the right to

health […]encompasses not only the positive duty to ensure that its citizens have access to health care

services and medication but must also encompass the negative duty not to do anything that would in any

way affect access to such health care services and essential medicines. Any legislation that would render the

cost of essential drugs unaffordable to citizens would thus be in violation of the state's obligations […]

(Patricia Asero Ochieng and others v Attorney General, 2009, para 66)

1|INTRODUCTION

The issue of access to medicines within the context of pharmaceutical patents has been in the forefront of many

international debates. Accordingly, the patent protection of pharmaceuticals and the exercise of this patent right

raises concerns for health, particularly, for the quest to access to essential medicines. It is within this ongoing

debate about pharmaceutical patents and public health that this paper argues for an enhancement of women's

access to medicines within human rights law and standard.

In this paper, access to medicines is identified as a fundamental human right to health, given that the right to

health cannot be achieved without access to essential medicines for effective treatment of ailments and diseases.

Health as a human right is enumerated in several human rights instruments. Article 25 of the United Nations

Declaration of Human Rights identifies that: “[e]veryone has the right to a standard of living adequate for the

health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary

social services.”The 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

in Article 12(1) makes provisions for the consideration and protection of women's right to health. In addition,

health, and the importance of accessing essential medicines for adequate healthcare, are identified as significant to

an adequate standard of living and connected to other human rights such as the rights to life, human dignity,

education, development and the participation in civil and political life of society. Significantly, universal access to

“quality essential health‐care services and access to safe, effective, quality and affordable essential medicines and

vaccines for all”is one of the Sustainable Development Goals (Goal 3) (WHOa; Perehudoff, Alexandrov, & Ho-

gerzeil, 2019). In this respect, it is argued that human right is significant to the issue of access to medicines not only

because it seeks to guarantee the moral and legal freedoms and entitlements of every individual, human rights also

protect and promote the realisation of certain rights, such as the right to health, life and medicines—usually in

relation to the responsibilities of states to uphold, guarantee and implement.

In this vein, the article argues that the exercise and implementation of patent rights can raise human rights

issues in the context of human health, life and access to essential and affordable life‐saving pharmaceuticals. Thus,

the design, interpretation and enforcement of patent rights should respond to the right to access medicines, as a

component of the right to health and life. Essentially, human rights principles, norms and frameworks provide

additional moral and humane support for the consideration of women's access to medicines, in view of the adverse

effect of international and national patent law and the nature of the right conferred to inventors.

This article is divided into four parts. The first part examines the social‐economic, tradition and cultural factors

that impinge on women's health and the need to particularly focus on women's access to medicines. The second

part examines the legal commitment to the rights of women to health in international legal instruments. It starts by

examining the right to health and its medicinal component, implications for specific individuals or groups (women

specifically), the obligation on states in respect of the right, and its connection to the accessibility of medicines. This

part also links the quest for accessibility to the right to life.

The third part examines the relationship between patents and access to medicines within the context of the

Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The last part makes a case for women's

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access to medicines as a basic human right to health and concludes. The study argues that the state has a legal

obligation to safeguard the health and wellbeing of everyone, particularly women, in the context of patent pro-

tection and its effect on access to life‐saving treatments.

1.1 |Liberating women's health: Enhancing women's access to essential medicines

While it is acknowledged that the problem of access to medicines is one that affects everyone—males, females and

children, particularly the poor in developing countries,—the central focus of this study is on women.

1

Reasons being

that women, especially those in developing countries, often face diverse social, economic and cultural challenges

that could make access to healthcare and medicines particularly difficult for them (Sen, Östlin, & George, 2007,p.

119; Namasivayam et al., 2012, pp. 352–353; Gammage, Jorgensen, McGill, & White, 2002, pp. iv–v; Ojanuga &

Gilbert, 1992, pp. 613–617).

The particular emphasis on women's health and access to essential medicinal treatments is not to say that

men's health is not as important as women's health. In addition, the focus on women is not based solely on the fact

that women have special needs over and above men's but, because some fatal illnesses that affect women in many

developing countries and their inabilities to access health treatments could also be traced to their subordinated

social and economic situation, gender‐related barriers, biological predispositions and vulnerabilities (Cooke &

Tahir, 2013, pp. 4–5; Gammage et al., 2002, pp. iv–v; Namasivayam et al., 2012, pp. 352–353;

Puentes‐Markides, 1992, pp. 619–626; Sen et al. 2007, p. 119).

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Therefore, understanding the health‐related

experiences and social positions of men and women is fundamental to analysing the various ways which women

may experience problems of accessing medicines within the context of trade rules in a different and sometimes

more severe manner (Sampath, 2004, pp. 255–256). However, this article does not focus solely on the socio-

economic and cultural barriers women face in accessing medicines. Instead, it advocates for a consideration of the

ways which patent rights could also impact on their access, in light of their social, economic and cultural

circumstances.

In the assessment of access to medicines, discussions have focused on the disparity between developing and

developed countries. Within states, however, social inequalities and discrimination on grounds of gender can

further exacerbate the problem. Scholars have emphasised the social and cultural nature of the differences be-

tween men and women, particularly, their unequal power and status in society that should be included in health and

development debates (Gammage et al., 2002, pp. 1–12; Macintyre, Hunt, & Sweeting, 2013, pp. 161‐170; Sen,

George, & Östlin, 2002, pp. 1–11). Others also argue that an adequate response to women's health in the area of

treatments should be sensitive to the various dimensions of the access problem (Sampath, 2004, p. 258). The

particular focus on women in this article is relevant because it demonstrates the constituent reality of the access to

medicine phenomenon, and exposes the issues taken for granted in examining the effect of inaccessibility to

medicines within the context of patent rights. Therefore, from a patent standpoint, this article makes a case for

women's increased access, as a means of realising their rights to health. It however, makes a case for women's

rights to health, not only for their development but also for that of everyone. Hence the recommendations have

wider implications for everyone—women, children and men.

1.1.1 |Why women? an analysis of the social system, gender and cultural or traditional

factors that impinge on women's health

Women occupy important positions in the family and have always played a significant role in society, especially in

caring for the healthcare needs of the family. Gender or sex‐role ascriptions, social expectations and traditional

practices however, often lead to gender discrimination and inequality that could have a trickle‐down effect on

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