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I. Glenn Cohen, On the Human Right to Health: Statistical Lives, Contingent Persons, and Other Difficult Questions, in Human Rights, Democracy, and Legitimacy in a World of Disorder 163 (Silja Voeneky & Gerald Neuman eds., 2018).

Abstract: In ethics and political philosophy, it is not uncommon to distinguish the question of who is a moral agent (one who bears moral responsibility) from the question of who is a moral patient (one to whom moral obligations are owed). The two need not go together: one could be a moral patient but not have moral agency – infant children are a plausible example. In this draft chapter, I examine the allied notion of a human rights patient for the human right to health. I consider two particular questions. First, to what extent should a human right to health focus on identified lives, those whom we have identified as currently in need and who make claims on us, as opposed to statistical lives – the faceless masses who may also need our help just as much? This question sadly comes up all the time for ministries of health – whether to fund an expensive treatment for a sympathetic child who has come forward and demanded the treatment to save his or her life or to invest in programs that distribute less expensive, more quotidian benefits to hundreds of children in need. In particular, I will dwell on how countries like Colombia that have made a right to health justiciable may have tilted spending towards identified lives in a way that is potentially troubling. This discussion will occupy Section I of this chapter. In Section II I will go into even more murky territory and discuss whether a human right to health ought to encompass as its moral patients only those who currently exist, those who certainly will exist but do not yet exist, those whose existence may be contingent on the decisions we make, all of the above, or only some of the above. To give some tangible examples: How should a health care allocator, trying to fulfill a human right to health, make trade-offs between expending resources to prevent a very bad disability (say blindness) in an individual who currently exists versus implementing a program that works on asymptomatic adults but prevents them from transmitting the same bad disability to the children they are about to conceive? This is a trade-off between currently existing lives and lives that are certain to exist but do not yet exist. What if the way that “prevention” is accomplished is by having those women delay getting pregnant (think of the Zika virus) or choosing a sperm donor rather than their romantic partner who is a carrier of the disease? This form of prevention does not prevent a disease for those who do not currently exist but will certainly exist, instead it prevents the disease by changing who comes into existence – a different sperm meets the egg and a different child is born. Call this the question of contingent persons. Does the human right to health treat contingent persons as its moral patients?