The Impact of TRIPS on Access to Medicines and the Right to Health of Children

» by Clara van Gulik

'Break the patents, treat the people.' These were the words chanted by the audience at the XVth International AIDS Conference that took place in July 2004 in Bangkok. In a global health crisis where 42 million people are estimated to be infected with human immunodeficiency virus (HIV) and only 400,000 of the 6 million who need immediate antiretroviral treatment have access, the Conference was appropriately named 'Access for All'. The need for more funding, better policies and sustainable programmes were discussed amongst world leaders in health, politics, civil society groups and many AIDS-activists, often patients and their doctors, on increasing access to medicines. An issue that continued to be highly debated was the impact of medical patents driving the high prices of antiretroviral medicines (ARVs) manufactured by the commercial pharmaceutical industry which is one of many, \yet significant, barriers to accessing drugs. This debate has centred around two areas of international law, intellectual property law and human rights law, which have been brought together by the issue of access to medicines over many conference tables and meetings. The World Trade Organisation (WTO) requires its members to implement trade agreements into their domestic legislation, one of which is the Trade-Related Intellectual Property Rights Agreement, also known as TRIPS. This agreement provides patents of products and processes for twenty years and essentially acts as a global patent protection system that includes pharmaceutical products. The requirement of developing countries is to implement patent protection into their domestic legislation by the end of 2005, and although the least developed countries (LDCs) have had an extension to 2016, the impact that TRIPS can potentially have on the poor living in the developing world who rely on accessing cheaper generic drugs could be detrimental to the battle against HIV/AIDS.

Another important issue in the global fight against HIV/AIDS that was highlighted at the Conference is that children are in danger of being forgotten. Children are at the heart of this crisis; they are the most vulnerable and most devastated, yet are also the bearers of the future of their countries. The United Nations Children's Fund (UNICEF) has reported that there are three million children infected with the virus. In 2002, around 800,000 children under the age of 15 years became infected, of which 90% were through vertical transmission from their mothers. Of these babies born with HIV, only 50% will reach their second birthday. The number of children infected may be marginal in comparison to adults infected at present, but what is not a marginal problem is the number of children who are being orphaned by AIDS. UNICEF has estimated that by 2010, up to 25 million children may be orphaned as a result of pandemic.

Lack of access to medicines has had a drastic impact directly and indirectly on the lives of millions of children. In the developing world, children living with HIV have been denied access to medicines and babies are denied adequate prevention from infection from their mothers. Those who are not infected but live with HIV/AIDS in their families are also being denied their basic rights. The enjoyment of the right to health, the right to life, survival and development, the right not to be separated from their parents, the right to education, non-discrimination and many more rights which are fundamental to children are being denied. The Convention on the Rights of the Child (CRC) is the most globally ratified human rights treaty and should be at the centre of the battle against HIV/AIDS, and the TRIPS Agreement should in no way hinder children from enjoying their most fundamental rights.

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