SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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India’s deadline to comply with the TRIPS Agreement came in 2005 and in amending its Patents Act, 1970 introduced several public health safeguards. This included stricter patentability standards, allowing oppositions both before and after the grant of a patent, compulsory licencing, etc. In Novartis AG v. Union of India and others 707 the strict patentability standard of the amended patent law were challenged before the Madras High Court. The provision in question, Section 3(d) does not allow patents on new forms, new uses or combinations of existing substances. 708 Novartis AG which was denied a patent by the Indian patent office on a new form of a cancer medicine filed the challenge. Upholding the provision in the Indian law, the Madras High Court held: “We have borne in mind the object which the Amending Act wanted to achieve namely, to prevent evergreening; to provide easy access to the citizens of this country to life saving drugs and to discharge their Constitutional obligation of providing good health care to its citizens.” These provisions of India’s patent law have been used by patients groups and networks of people living with HIV to challenge patent applications on HIV and other medicines. In Boehringer Ingelheim v. Indian Network for People Living with HIV/AIDS (INP+) and Positive Womens Network (PWN), the Delhi Patent Office rejected the patent application on Nevirpaine Hemihydrate which is used in the treatment of pediatric AIDS. 709 707 Novartis AG and another v. Union of India and others, W.P. Nos 24759 and 24760 of 2006, High Court of Madras (Date of Judgment: 6 August 2007). 708 Section 3(d), Patent Act, 1970 (India) states: The following are not inventions within the meaning of the Act…the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant. Explanation.- For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy. 709 In the matter of an application for patent having no. 2485/DEL1998, Delhi Patent Office, 11 June 2008 150
7. INFORMATION, EDUCATION AND EXPRESSION RELATED TO SEX AND SEXUALITY Sexuality education and the right to health/sexual health Rights to education, information and expression are inter-dependent, and the impact of each on sexual health must be addressed with an eye to their interrelation. Nonetheless, because education (both formal and informal) constitutes a specific right 710 , a distinct field of law, specific state institutions, and a distinct field of practice (characterized by mutual exchange between teachers and students), we address education and sexuality education in a separate section from information and expression. A rights approach to sexuality education is derived from the rights to health, education, to information and expression, as well as the right to participate in, and benefit fully from, scientific progress, combined with fundamental guarantees to equality, dignity and the right to participate in the cultural and political life of one’s community and nation. Sexuality education, as a component of education, is understood to be essential to the full development of the human personality, in addition to being an essential means to protect oneself from sexual ill-health, whether from sexually transmitted infections, unwanted pregnancies, or sexual violence and abuse. 711 Many different sectors of law are essential to ensure adequate education in general and adequate sexuality education in particular. These sectors include administrative regulations regarding educational curricula, and constitutional provisions on rights to education; equality and non-discrimination law (regarding sex, gender, sexual orientation, race, religion, disability, health status and national status among other grounds). Other important laws engaged to support effective sexuality education include those protecting freedoms of speech and expression, and laws guaranteeing both teachers and students safe and nondiscriminatory environments. Sexuality education is understood to include not only accurate, age appropriate, scientifically supported information on health, sexual health and sexuality as an aspect of human conduct, but also ideas on non-discrimination and equality, tolerance, safety and respect for the rights of others, which are delivered through trained agents using age- and context-appropriate pedagogical methods. In particular, a rights-based approach to sexuality education requires the participation and contributions of young people, particularly adolescents and older teens. 712 Sexuality education, coupled with comprehensive access to information, contributes to health through promoting individuals’ ability to have preferences for, and act on decisions that protect their health, as well as determine the number and spacing of children. Sexuality education is also essential to each person’s ability to develop themselves and their sense of self-worth, particularly in regard to any decision regarding their sexual and gender identity, and sexual behaviour as an aspect of their personhood. Sexuality education is aimed at 710 Are we footnoting references to treaties or cross-referencing? Can include: CRC, CESCR articles 13 and 14 CEDAW article 10, CERD, article XX, and CRPD etc. Note that the persons covered by the CRC include children, adolescents and young people up till age 18. Young people (in WHO terms, see-- http://www.who.int/child_adolescent_health/en/) range in age from 10 to 24 make up an overlapping but separate category for policy makers. 711 See in particular CEDAW, CRC and CESCR ad the discussion in the international section 712 CRC general comments cite et al address participation of adolscents in particular. 151
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THE INTERNATIONAL COUNCIL ON HUMAN
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6. ACCESS TO HEALTH SERVICES IN REL
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ABBREVIATIONS AIDS ART ARV CEDAW CE
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in the regional reviews. This is a
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provide for information and distrib
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B. METHODOLOGY In keeping with the
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elevant and key laws and judgments;
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The inability of many sexually stig
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Equality irrespective of a person
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The centrality of women’s rights
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social standing, religious belief,
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according to the physical condition
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Constitutional Court in The Nationa
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protections or statutory law. There
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However it also noted that every Ri
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concerned with declaring that the h
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without guaranteeing the personal p
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to enlarge the meaning and content
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a concept has wider dimensions than
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Such conduct mentioned in clauses (
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embraced the complainant and asked
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does not sever the ties between the
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The potential recognition of same-s
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Similarly, seeking out sex educatio
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condom). Across such laws, the defi
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jurisdictions. Nepal, a country wit
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the conviction of the accused for s
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with an unmarried woman is not puni
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physical characteristics (virginity
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interventions and safeguards such a
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The opinion of the National Commiss
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was married to she would acquire im
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to consider the case of a woman see
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oth parties and deems all marital p
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female who has not attained 12 year
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Article 16 of the Universal Declara
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In Bangladesh, polygamy is allowed
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immovable property. The above propo
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consummation of marriage. The incap
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Violence, especially sexual violenc
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gender norms which many remand home
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female or a female to a male. It in
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from other forms of inequality as w
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c. Whereas victims of violence in h
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courts. 350 According to the Commis
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The Act provides for the appointmen
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Rani 383 it was held that a shared
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The Act specifies imprisonment of 6
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property jointly or separately held
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Page 103 and 104: Addararachchi 439 the court conside
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Page 109 and 110: In holding that there was no justif
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Page 121 and 122: every person “the right against e
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Page 127 and 128: Broader provisions related to child
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Page 131 and 132: her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
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Page 137 and 138: In Thailand too, abortion is illega
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Page 141 and 142: Further, any pregnant woman may vol
Page 143 and 144: childbearing age to establish a hea
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Page 149: Members' right to protect public he
Page 153 and 154: education as well as non-discrimina
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Page 157 and 158: community.” 727 In each case, the
Page 159 and 160: Nepal’s Interim Constitution limi
Page 161 and 162: Sections 292, 292A, 293 and 294 of
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Page 165 and 166: “1 (a) Condones or extenuates act
Page 167 and 168: In Thailand, places of entertainmen
Page 169 and 170: 8. SEX WORK This section examines h
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Page 173 and 174: clients or make an offer for a sex/
Page 175 and 176: and non-rehabilitative juvenile jus
Page 177 and 178: “In view of the aforesaid proposi
Page 179 and 180: person who commits the act are of t
Page 181 and 182: as parent or guardian has given his
Page 183 and 184: with one) on the charge that it was
Page 185 and 186: for sex workers while emphasizing t
Page 187 and 188: 19. Azimuddin v State of Uttar Prad
Page 189 and 190: 1. Acid Control Act, 2002 2. Acid-O
Page 191: 13. Intellectual Property Act, 2003
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