2.1 Objectivity of values (cf. Nagel, 1986)

In order to argue that the right to health follows from the existence of a value of health it first needs to be defined what is understood by value from the ethical perspective taken here. Following Thomas Nagel's chapter on “Value” in his book The view from nowhere, values are understood as to be grounded in “normative realism” (Nagel, 1986, p. 145) and to present reasons to act (cf. p. 138). As such, they are at least partially (cf. pp. 148f.) objective. Although Nagel does not prove normative realism but tries to defend it by refuting still refutable – e.g. his argument that to reduce pain is an objective value because it would “seem[] […] insane” (p. 157) to assume that pain is merely a means to avoid painful, possibly life threatening situations, and not objectively valuable – objections to it (cf. p. 144), after all, from his perspective, it can be argued that there are at least any objective values (cf. pp. 148f.), and it might be argued that not the avoidance of pain, but the avoidance of death is objectively valuable.

Nagel concludes normative realism from the assumption of “the possibility of realism” (p. 144). That is, the assumption that there is a reality that is not identical with “appearances” (p. 147). He argues that not merely physical reality but also normative reality can be described as a form of truth:

Normative realism is the view that propositions about what gives us reasons for action can be true or false independently of how things appear to us, and that we can hope to discover the truth by transcending the appearances and subjecting them to critical assessment. What we aim to discover by this method is not a new aspect of the external world, called value, but rather just the truth about what we and others should do and want. (Nagel, 1986, p. 139)

Nagel would argue that health is an objective value because of his assumption of hedonism. However, there is another way to defend the objective normativity of health from the objectivity of values. Nagel considers whether there are intrinsic or, as he calls them, external values. Unlike all other values, these are not merely instrumental, i.e., a “value for anyone” (p. 153; emphasis in original). If there is an intrinsic value of an individual, such as a human being – as this article considers human health, the value of non-humans is not discussed, although, from an ethical perspective, it is, nevertheless, very important to consider non-anthropocentric conceptions of value, especially in discussions on the value of animal research for the development of new health technologies – it follows that there is a normative reason to generally preserve both the life and the health of human beings because of their intrinsic value. This rule notwithstanding, there might be exceptions to it in cases of end-of-life decision-making (cf. Cummiskey, 2004), as “[r]easons may be universal […] without forming a unified system that always provides a method for arriving at determinate conclusions about what one should do” (Nagel, 1986, p. 152).

From the objective intrinsic value of a human being, therefore, follows an objective instrumental value of health.

2.2 Definition of the right to health as encompassing socioeconomic, environmental, and other rights and a right to healthcare (cf. ICESCR, 1966)

Like health, healthcare is of instrumental value (cf. DeCamp, 2019, p. 233; Porter, 2010, p. 2478) and results from the intrinsic value of the human being. The value of health and of healthcare is the normative basis for a right to health and to healthcare, as, in order to preserve the value of health and, thus, the intrinsic value of human beings, it is necessary to put this value into the legally binding form of a right, such as: “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (ICESCR, 1966, Art. 12, para. 1). Throughout this paper, the shorter formulation ‘right to health’ can be understood as encompassing all aspects of this right as specified by the ICESCR in 1966 as well as in its General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) by the United Nations’ (UN) Committee on Economic, Social and Cultural Rights (CESCR, 2000).¹ Similarly, when I use the formulation ‘right to healthcare’, I refer to the specifications made in these international documents by the UN, as the right to health encompasses “the right to health care” (CESCR, 2000, para. 4). Furthermore, it encompasses socioeconomic, environmental, and other rights, in detail:

the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment. (CESCR, 2000, para. 4)

To grant the right to health to everyone, therefore, necessitates, on the one hand, the creation and sustaining of a healthy environment and healthy social conditions. On the other hand, it requires the provision of healthcare to everyone.

2.3 Refutation of arguments against a universal right to healthcare

Because the right to health and to healthcare is guaranteed to everyone, it is called universal. In response to the definition of this universal right to healthcare by the ICESCR in 1966, some authors have argued that there is no right to healthcare. In the following, by referring to the General Comment (CESCR, 2000), I will try to refute several aspects of this line of argument as put forward in two selected articles on the issue (Baumrin, 2012; Narveson, 2011).

In his article “Why There Is No Right to Health Care”, published in Medicine and Social Justice: Essays on the Distribution of Health Care (Rhodes et al., 2012), Stefan Bernard Baumrin points out that as ‘ought implies can’, there can be no universal right to healthcare because it is impossible for any individual state to guarantee universal healthcare for the entire world: “no state thinks itself obliged, nor is it able to provide health care for everyone (i.e., of every nation)” (Baumrin, 2012, p. 93). This is the same argument presented by both Michael Green in “Global Justice and Health: Is Health Care a Basic Right” (cf. Green, 2004, p. 215) and Jan Narveson in “The Medical Minimum: Zero” (cf. Narveson, 2011, p. 563). It is an interesting objection and points to what the CESCR states in its comment on article 12: “The Committee is aware that, for millions of people throughout the world, the full enjoyment of the right to health still remains a distant goal” (CESCR, 2000, para. 5). In order to alleviate this situation, the CESCR lists several “International obligations” (para. 38–42, 45). It is explicitly stated that “[s]tates parties have to respect the enjoyment of the right to health in other countries […], wherever possible, and provide the necessary aid when required” (para. 39), and that

For the avoidance of any doubt, the Committee wishes to emphasize that it is particularly incumbent on States parties and other actors in a position to assist, to provide ‘international assistance and cooperation, especially economic and technical’ which enable developing countries to fulfil their core obligations (CESCR, 2000, para. 45).

Whereas the preceding argument refers to a right to healthcare at an international level and duties of states to assist other states in fulfilling that right, Narveson lists several other arguments against a universal right to healthcare by denoting problems of universal health coverage financed by an insurance system that rests on the high insurance premiums of the rich. In his objection to a universal right to healthcare, Narveson, thus, identifies at least three problems with realising that right at the national level.

Firstly, Narveson argues from a libertarian perspective that if there was agreement on the duty of the rich to finance healthcare for the poor, there would be no need for legal enforcement of this principle, as it could be ensured that the poor's healthcare would be covered by the charitable donations of the rich: “If we think it that good, we will buy it out of our own free will” (Narveson, 2011, p. 563). This argument ignores charitability's inability to organise and justly allocate the healthcare fund collected for the poor, especially as donations are always relative to personal preferences of those who donate (Buchanan, 1984, p. 69f.).

Narveson further argues that there is not “one standard health insurance that would plainly be best for everyone” (Narveson, 2011, p. 570). Here, the author overlooks that the ICESCR does not recommend implementing a single insurance scheme in any of its member states but to alleviate possible threats to the universal right to health by private insurances (cf. CESCR, 2000, para. 35). There is no reason why there could not be more than one insurance. After all, the ‘one-for-all approach’ would only be a foundation that could be complemented by private insurances (cf. Pellegrino, 1994, pp. 314f.). Or there could even be a system that includes several such foundational, public, insurances, among which people can choose in alignment with their preferences regarding minimal differences in the additional benefits these insurances offer, and which are reflected in insurance premiums, as, for example, is the case in Germany.²

Eventually, Narveson argues that from rights, like the right to healthcare, does not follow a governmental securement of these rights (cf. Narveson, 2011, p. 567). This conflicts with the CESCR's (2000) list of “State parties’ obligations” (para. 30–45). Furthermore, the rationale that there is no duty of states to pay for medical education (Narveson, 2011, p. 565) can be refuted by pointing to the ICESCR: “Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education” (ICESCR, 1966, article 13, para. 2, c). Along with further arguments in favour of a universal right to healthcare (e.g. Daniels, 2001; Ruger, 2006; Hessler and Buchanan, 2012; Buchanan, 1984; Buyx, 2008; Green, 2004), it can, therefore, be concluded that there is a universal right to healthcare.

2.4 Agent-neutral and agent-relative right to health(care) (cf. Nagel, 1986)

As has been concluded above, with Nagel, the objectivity of values can be presumed. I have argued that from the intrinsic value of human beings follows the objective value of health and healthcare, as both are instrumental for human beings. Nagel arrives at the objective standpoint necessary for assessing and ‘discovering’ (Nagel, 1986, p. 146) values by a “view from nowhere” (title of his book), i.e. from outside the world. This perspective allows for an assessment of what is objectively, i.e. reasonably, valuable for a specific person in a specific situation, or even for all persons in that situation. It differs from a subjective assessment of the situation, i.e. from how human beings, like me or you, can subjectively arrive at an answer to the question: “What is valuable for me?”, as, only from an objective standpoint, according to Nagel, this question can be answered in a normatively reasonable and perhaps normatively true manner. Similar to “theoretical reasoning”, where “objectivity is advanced when we form a new conception of reality that includes ourselves as components” (p. 138), “[w]e try to arrive at normative judgments, with motivational content, from an impersonal standpoint” (pp. 138f.). Therefore, we view the world from outside, where what is valuable for me is decided upon an impersonal view on myself as an answer to the question what for “that person“ (p. 155; emphasis in original), which happens to be me, is reasonably valuable. As “that person“ can also be another person, according to Nagel, it is possible to objectively assess what is valuable for a specific person, e.g. me and you. What we arrive at by this method are personal or agent-relative values and reasons (cf. p. 153).

It can easily be understood that the agent-relative value of health and of healthcare can be attributed to every human being, as it has been concluded above that the value of health and of healthcare is universal. Therefore, there is not only an agent-relative value of health(care), but also, to again implement Nagel's terminology, an agent-neutral, or impersonal, value (cf. p. 152) of health(care). It is much more complicated to arrive at agent-neutral values, as a fully objective perspective might abstract from any agents that could have and for whom there could be value: “It is true that with nothing to go on but a conception of the world from nowhere, one would have no way of telling whether anything had value” (p. 147). Nagel, therefore, suggests to simply consider all agents at once when trying to arrive at impersonal values, i.e. not to abstract from personal viewpoints but to collectively put them together:

We are thinking from no particular point of view about how to regard a world which contains points of view. What exists inside those points of view can be considered from outside to have some sort of value simply as part of what is happening in the world, and the value assigned to it should be that which it overwhelmingly appears to have from the inside. (Nagel, 1986, p. 161)

Consequently, it is possible, with Nagel, to assume that there are agent-relative as well as agent-neutral values. The value of health and of healthcare is such. As it has been argued above that from these values follows a right to health and to healthcare, this right can as well be specified so that it comprises agent-relative rights of specific persons to health(care) and an agent-neutral right to health(care). Both are universal rights, as everyone has them.

In the debate on the value of healthcare, DeCamp (2019) refers to agent-relative and agent-neutral value as well. He uses the terminology slightly differently to Nagel and does not explicitly refer to him. I will refer to the divergence in the discussion section of my paper (section 4). For an overview on agent-neutral versus agent-relative reasons, one may also read Ridge (2017) and Schroeder (2016).

3.1 Traditional concept of sustainability (cf. WCED, 1987; Elkington, 1999; MacDonald and Norman, 2007)

In the following, it will be conceptualized how from the universal right to health and to healthcare follows a sustainable right to health and to healthcare. Before doing so, I will briefly summarise what I refer to as the economic, or the traditional, concept of sustainability, which originated in economic sciences and has been discussed in business ethics. In 1987, the UN's World Commission on Environment and Development (WCED) adopted the so-called Brundtland Report Our Common Future, where it set forth in paragraph 1 of the conclusion of chapter 2:

Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: the concept of ‘needs’, in particular the essential needs of the world's poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs. (WCED, 1987, chapter 2)

Thereafter, in the 1990s, economist John Elkington formed the concept of a “triple bottom line” sustainability approach aiming at measurability of the sustainability of businesses. Since then, the concept has quickly been widely adopted “in management, consulting, investing, and NGO circles” (Norman and MacDonald, 2004, p. 243), as well as broadly discussed from the perspective of business ethics. Whilst a literature review of the discussion on the ethical aspects of the triple bottom line approach is beyond the scope of this paper, it could start by analysing the vast amount of articles including the term “triple bottom line” that have been published in the Journal of Business Ethics.

Like the WCED, Elkington defines sustainability with reference to future generations: “Sustainability is the principle of ensuring that our actions today do not limit the range of economic, social, and environmental options open to future generations” (Elkington, 1999, p. 20). This has been the point of origination of my interest in his approach for a discussion of the value of health and healthcare from an ethical perspective. For if there is a universal right to health and healthcare, it follows that not only at present but also in the future, entitlements to this right uphold, i.e., as has been stated above, that to grant the right to health to everyone, a healthy environment, healthy social conditions, and the provision of healthcare do not only have to be created but also sustained. Therefore, the right to health and to healthcare if universal, needs to be sustainable and sustained for future generations. In cases where potential health services or health technologies would or could negatively affect the health of future generations, the sustainable right to health and to healthcare is violated. This is one reason why a potential health technology that generates inheritable changes in the patient is regarded as ethically unacceptable, and why the aspect of effect on future generations is an important ethical criterion in the debate on germline genome editing, as germline genome editing might be unsustainable. In search of an approach to integrate the aspect of future generations in a broader conception of the value of healthcare, the concept of sustainability, therefore, presented itself as highly suitable.

However, Elkington's triple bottom line approach cannot be copied, as it stands, for a concept of sustainable health and healthcare, especially since his aim is to use the approach for business accounting. He, thus, takes an economic perspective that is not suitable for an ethical view on the right to health(care). By including the “social bottom line”, the “economic bottom line”, and the “environmental bottom line” into his approach (pp. 73f.), he argues that all of these can be taken together to “assess a company's […] performance”, in the way that “accountants pull together, record and analyze a wide range of numerical data” (p. 74). The hierarchy of the three bottom lines be defined by their interdependencies: “Society depends on the economy – and the economy depends on the global ecosystem, whose health represents the ultimate bottom line” (p. 73). Because Elkington especially points to values that influenced his approach (in a chapter of his book from 1999 named accordingly, pp. 123–158), “such as concern for future generations” (p. 124), it is justified to see his intention in the fact that the social and the environmental bottom line are supposed to integrate ethical aspects into business accounting. Therefore, it would have been necessary that he clarified why he, on the one hand, separates the economic bottom line from the other two, ethically oriented, bottom lines but, on the other hand, frames the entire approach as one of accounting, hence, one of economics, and not one of ethics. As MacDonald and Norman (2007) have argued in response to Pava (2007) Pava (2007) responded to the paper by Norman and MacDonald (2004) quoted above):

the accounting paradigm is inappropriate as a comprehensive methodology for the ethical evaluation of a firm and its operations. Crucially qualitative distinctions – especially deontic distinctions between different kinds of obligations and responsibilities – would be bulldozed over by an entirely quantitative evaluation scheme. (MacDonald and Norman, 2007, p. 112; emphasis in original)

Aligning with John Elkington (1999) but considering the criticism of his approach and in recourse to the WCED's definition of sustainable development, I understand the traditional concept of sustainability as including social aspects (as a concern for present as well as future generations), economic aspects (as the “[s]ociety depends on the economy”; Elkington, 1999, p. 73), and environmental aspects (as “the economy depends on the global ecosystem”; ibid.; but especially as society depends on the health of the environment).

3.2 The concept of a sustainable right to health

Daniel D. Reidpath and colleagues, in their article “Is the right to health compatible with sustainability?” (Journal of Global Health, 2015) argue that the universal right to health as understood by the ICESCR (1966) conflicts with sustainability (Reidpath et al., 2015, p. 1). Measuring sustainability by reference to a country's per capita ecological footprint, and assessing realisation of the right to the highest attainable standard of health (HASH) by taking life expectancy as a HASH point, an analysis of 147 countries, conducted in 2008, revealed that countries with the highest HASH point were significantly less sustainable than countries with lower HASH points (p. 2). The authors, therefore, claim to replace the right to the highest attainable standard of health by “a fundamental human right to the highest sustainable standard of health” (p. 3; emphasis in original).

As has been shown in the previous section, I do not agree with Reidpath and colleagues’ negative answer to the question “Is the right to health compatible with sustainability?”. I understand the universal right to health as comprising a sustainable right to health, as the latter follows from the former. I, therefore, do agree with the request of Reidpath and colleagues to alleviate the problem that “at a population level, the highest attainable standard of health is a standard that is achieved (or progressively realised) through unsustainable levels of consumption” (Reidpath et al., 2015, p. 1). In order to mitigate this problem, I suggest that the universal right to health can, firstly, only be realised at an international level, which transcends the “population level”, and, secondly, must be understood as a sustainable right to health that includes the right to health of future generations.

However, I do not think that such a concept of a sustainable right to health is limited to the mitigation of “unsustainable levels of consumption”, but that it is also suitable to prevent problems resulting from the implementation of certain health technologies or specific practices in healthcare, inasmuch as these technologies or practices might result in a successful treatment of one patient at the cost of the health or even the life of another human being. Here again, I may refer to the example of assisted reproductive medicine.

As in germline genome editing, the embryo that is edited might be successfully treated but might, nevertheless, bequeath unintended effects of the treatment to its descendants and, accordingly, pass on a negative effect to the health of future generations (e.g., cf. Petre, 2017; Schöne-Seifert, 2017), so too, in another form of reproductive medicine, negative effects on the health of human beings are negative side effects. Selective embryo transfer following in vitro fertilization or preimplantation genetic diagnosis is an apt example. These health technologies are applied to cure the infertility of couples, hence, in respect for the agent-relative reproductive rights (as part of the universal right to health) of patients who are unable to have (healthy) children naturally. Respect for these agent-relative rights may disregard the agent-neutral right to health (and life) of the embryos that are discarded or selected against in the process of the treatment, at least if these embryos have intrinsic value that justifies their agent-neutral right to health (including a right to life). In both examples, granting of the right to health disregards the sustainable right to health of future generations.

If it is considered that, also in the process of germline genome editing, embryo selection cannot be avoided (e.g., cf. Ranisch, 2020, p. 64; Wells, 2019, p. 347), those embryos that are successfully edited are those whose right to health is respected, but it is respected at the cost of the discarding of other embryos in the process of the application of the technology. Hence, respect for the right to health of successfully edited embryos in the case of genome editing comes at the cost of disregard for the right to health (and life) of other embryos that have been created at around the same time as the successfully edited embryos, and are, therefore, (from the point of view of the successfully edited embryos) not members of future generations but of the same generation. Similarly, one can argue that the right to health of members of the same generation is affected by healthcare for other members of that same generation in cases of “[t]he prevention, treatment and control of epidemic, endemic, occupational and other diseases” (ICESCR, 1966, Art. 12, para. 2, c), such as immunization, but also as triage and allocation of scarce resources (e.g., cf. ÖGARI, 2020). The latter has been the focus of medical ethics during the SARS-CoV-2/COVID-19 pandemic that, at the time of writing this article, remains an unsolved global problem.

Summing up these examples, it can be stated that viewing the right to health from the perspective of sustainability does allow for an approach to realise the agent-neutral right to health, including the right to health of future generations as well as of all members of the global community of present generations. Thus, one aspect of the concept of a sustainable right to health resembles the component “societal aspects” of the traditional concept of sustainability. Furthermore, it is especially important to sustain healthy social conditions to fulfil the right to health inasmuch as it transcends the right to healthcare (cf. CESCR, 2000, para. 4).

As has also been shown in the examples, the agent-relative right to health of specific individuals in specific situations is another important aspect of a sustainable right to health. To only reiterate one example, the reproductive health is important when deciding whether to undertake preimplantation genetic diagnosis. Equally important in this case may be the right to health and life of specific embryos that might be discarded in the process of the infertility treatment. Depending on the point of view, either of those rights can be described as agent-relative, as either of those rights indeed is agent-relative as well as agent-neutral. However, when the perspective of the (potential) parents is taken, their reproductive rights are agent-relative as they result from their specific intrinsic value as human beings.

Especially when conceptualizing the sustainable right to healthcare (see next section), the patient in a specific patient-physician relationship can be viewed as the agent whose agent-relative right to healthcare needs to be primarily considered (cf. DeCamp, 2019), although it may be possible to discuss with the patient how treatment for her/him influences the availability of treatment for other patients through economic aspects, i.e. costs of her/his individual treatment (cf. DeCamp 2019, pp. 238f.; Pearson, 2000). A third aspect of a sustainable right to health, therefore, is the economic aspect. Contrary to Elkington's approach on sustainability, from an ethical perspective, the economic aspect can only be viewed as instrumental to the fulfilment of the agent-relative and agent-neutral sustainable right to health. Nevertheless, this aspect resembles the economic aspect of the traditional concept of sustainability.

Finally, a fourth aspect is similar to the traditional concept of sustainability; this is the inclusion of environmental aspects into a sustainable right to health, as it is especially important to sustain not only healthy social but also healthy environmental conditions in order to fulfil the right to health inasmuch as it transcends the right to healthcare (cf. CESCR, 2000, para. 4).

It can, thus, be concluded that the concept of a sustainable right to health comprises the agent-relative right to health (health of individual with intrinsic value, in a specific situation), the agent-neutral right to health (health of each individual within the global society, at present and in future; healthy social conditions to sustain the right to health), economic aspects (inasmuch as they are necessary to fulfil agent-relative and agent-neutral rights to health), environmental aspects (healthy environmental conditions to sustain the right to health).

3.3 The concept of a sustainable right to healthcare

As there is a universal and sustainable right to health, there is also a universal and sustainable right to healthcare for, as stated in ICESCR (1966) and CESCR (2000), the right to health encompasses the right to healthcare. This has been outlined above. Furthermore, in the previous section, the four components of a sustainable right to health have been described. Those already comprise the three components of the sustainable right to healthcare.

The sustainable right to healthcare, thus, encompasses the agent-relative right to healthcare (of an individual patient, such as in a specific patient-physician relationship; cf. DeCamp, 2019, pp. 235ff.), the agent-neutral right to healthcare (of each present and future member of society), economic aspects (especially of the health economy; no economic interests that are beyond moral interests, i.e. none that exceed guaranteeing a sustainable right to healthcare).

Because the sustainable right to healthcare depicts the component of the sustainable right to health that refers to healthcare, it does not include the other components and conditions for health. As such, its scope is narrower. This is the reason why environmental aspects are not included as a fourth component.

4.1 Selected aspects of the debate on healthcare rationing in different countries

With the preceding two paragraphs, the argument outlined at the beginning of this paper that has been discussed in sections 2 and 3 concluded with an ethical conceptualization of a sustainable right to health and a sustainable right to healthcare. As depicted in the section on the traditional concept of sustainability, one of the main motivations for the development of this approach has been the urge to conceptualize the value of healthcare and the right to health in a way that integrates future generations’ rights. Another driving point was to find a way, at least on a broad, conceptual level, to integrate economic aspects of the value of healthcare into an ethical approach on the right to health.³

This issue is especially pressing considering that economic decisions can have a considerable impact on the stability of the health system. That might result in threats to the long-term availability of healthcare, for example, if physicians’ values regarding care for their patients conflict with health reforms that aim at saving costs. This was the case in New Zealand, where many young physicians left the country to practice in Australia instead, where economic pressures were less acute (cf. Brunton, 2017).

As several contributions in this volume on the value of healthcare can be found that relate to healthcare in various countries,⁴ it might be suitable to refer to further examples of country-specific discussions on economic aspects of healthcare, but not without clarifying that those are eventually relevant for other countries where similar problems may arise or are already prevalent (cf. Brunton, 2017, p. 720).

Chaar and Lee (2012) might be mentioned; they discuss the impact of direct-to-consumer advertising of drugs by pharmaceutical companies on costs in the Australian public healthcare system.

For the United Kingdom, the Centre for Evidence-Based Medicine's (CEBM) 2019 report Defining Value-based Healthcare in the NHS might be quoted. It also refers to the National Institute for Health and Care Excellence's (NICE) “systems of resource allocation” (CEBM, 2019, p. 7). The report defines: “Value-based healthcare is the equitable, sustainable and transparent use of the available resources to achieve better outcomes and experiences for every person” (CEBM, 2019, p. 3), and considers the environmental as well as economically sustainable use of health(care) resources (e.g., cf. p. 8). The CEBM's understanding of value-based healthcare might, therefore, be similar to the conceptualization I present in this paper.

In Germany, the German Interdisciplinary Association for Intensive and Emergency Medicine (Deutsche Interdisziplinäre Vereinigung für Intensiv- und Notfallmedizin, DIVI) restricts economic considerations in evaluations of the reasonableness of intensive care medicine, on the one hand, to those that have been socio-politically justified. On the other hand, the DIVI acknowledges deviations from the economic efficiency dictate in case-by-case-decisions (cf. DIVI, 2016, section 1). This, as well, might resonate with my approach. Furthermore, the German Society for Internal Medicine (Deutsche Gesellschaft für Innere Medizin, DGIM) adopted a Clinic Codex: Medicine before economics in 2017 (Schumm-Draeger et al., 2017), which is consistent with the limitations of the economic aspects of a sustainable right to health(care) described above.

4.2 Inability to pay as a possible restriction to the right to healthcare?

In the past, the debate on economic restrictions to the universal right to healthcare has considered whether the inability to pay could be a valid reason for physicians to step out of their contract with the patient, i.e. to disregard agent-relative rights to healthcare of those who are unable to pay, in order to save their resources for the rest of society and their agent-neutral rights (cf. Mehlman and Massey, 1994). These considerations may also be restricted to those who voluntarily risk their own health, e.g. through dangerous sports (cf. Veatch, 1980), or to those who voluntarily decided to pay for only minimal insurance coverage in a system of economic competition between health insurers and are then unable to pay for their healthcare by themselves in cases that are not covered by their minimal insurance (cf. Menzel, 1987).

As Pellegrino argues in response to Mehlman and Massey (1994), and as I have referred to above in response to one of Narveson's (2011) arguments (see section 2), because of “the ethical obligations of physicians that are inherent in the physician-patient relationship” (Pellegrino, 1994, p. 309), inability to pay is an invalid argument to withhold care from “the poor” (p. 313), or practically from anyone, as every human being has a right to healthcare.

4.3 Disregard for agent-relative rights to healthcare in Porter's economic definition of the value of healthcare (cf. DeCamp, 2019; Porter, 2010)

DeCamp, inspired by Pellegrino, identifies the latter aspect as agent-relative. He argues that an economic definition of, or, as he calls it, the contemporary view of the value of healthcare is entirely agent-neutral, whereas an ethical definition be “agent-relative (relative to the patient)” (DeCamp, 2019, p. 235; emphasis in original). Slightly different from Nagel's understanding of the term, DeCamp refers to agent-neutrality as an economically calculating approach that assigns greater value to what has the same or an equally ‘large’ health outcome but costs less. He, thereby, refers to how Michael Porter defines the value of healthcare: “value defined as the health outcomes achieved per dollar spent” (Porter, 2010, p. 2477); “value is defined as outcomes relative to cost” (ibid.). This does not resemble how I have defined agent-neutral value and rights (see corresponding section in section 2).

I, nevertheless, agree with DeCamp in that, firstly, (a) economic aspects of a discussion on the value of and rights to health(care) are foremost necessary to secure sustainable agent-neutral rights to health(care), and that, secondly, (b) as has already been outlined above (see section on the concept of a sustainable right to health in section 3), agent-relative rights conflict with these agent-neutral rights.

Regarding the first aspect (a) Porter's account on the value of healthcare clearly needs to be rejected. Insofar as value, in Porter's definition, is dependent on a relation of health outcome and healthcare spending, it is not defined independently of economic considerations because the value of healthcare ultimately depends on healthcare spending if a slightly different – and slightly better – health outcome is achieved by a very different amount of “dollar[s] spent”, i.e. if by spending $ 1 Million for healthcare A, a slightly better health outcome can be achieved than by spending $ 5,000 for healthcare B. Despite the better health outcome of healthcare A, according to Michael Porter's definition, the value of healthcare B will be higher than the value of healthcare A. It is, therefore, evident that Porter's definition is almost exclusively economic. It is, however, problematic that Porter does not define what he means by “health outcome”.

Regarding the second of these two aspects (b), I want to once again clarify that the right to health and to healthcare is an agent-neutral right because everyone has this right, in Nagel's words: to act in such a way to promote anybody's health, regardless whose health it is, has an objective reason. Respecting the intrinsic value of each individual is priority number one. Therefore, it seems reasonable to argue that any decision that not merely indirectly but directly disregards the intrinsic value of any present or future individual cannot be justified. Only when there is no such disregard, the agent-neutral right of society (at present and in future) requires the inclusion of economic discussions and the search for a healthcare system (and health economy) that is universally accessible and can be sustained for as long as possible (cf. Reidpath et al., 2015).