Multinational pharmaceutical manufacturers' opposition to patent law reform in South Africa: a bitter moral pill

Abstract

It is estimated that about two billion people, one-third of the world's population, lack regular access to essential medicines (Forman & Kohler 2012: 26). The situation is worst in Africa and South East Asia, where it is reported that about half the population do not have regular access to potentially life-saving drugs (Forman & Kohler 2012:26). A normative study was undertaken to probe whether legal duties to provide affordable medicines place or ought to place limitations on the exercise of pharmaceutical patents in developing countries. I have used the bioethics theory of justice and the jurisprudence on the right-to-health, enshrined in international human rights law, as my argumentative framework. Like other pro-health equity academics (Forman & Kohler 2012, Cameron 2005, Gostin 2014) I argue that the exorbitant prices charged by the multinational pharmaceutical industry for patented drugs are a barrier to equitable access to essential medicines for the world’s poor, most of whom live in developing countries. I concur with (Forman and Kohler 2012:1) that, “access to essential medicines (should be) authoritatively interpreted to constitute a minimum core entitlement under the human right to the highest attainable standard of health (the right-to-health), placing correlative duties on a range of actors to enable and ensure access." In addition, I posit that the interests of social justice ought to justify a partial infringement of private commercial interests in the public interest – to speed up regular and affordable access to essential medicines to all who need them. My argument proceeds as follows: Firstly, nation states bear the primary responsibility to meet right-to-health responsibilities as espoused in international human rights law and applicable African regional laws. Secondly, I argue that richer states (should) have joint legal and moral responsibilities to assist poorer nations to realize access to the "highest attainable standard of health" which is the legal entitlement of "every person" (WHO 1946, African Charter of Human Rights, 1981). I conclude by arguing that the multinational pharmaceutical industry ought to assume binding right-to-health human rights obligations, with nation states.