Case SU-1167/01

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Doris Fabiola Reinoso Barroso was the daughter of Esteban Reinoso (the Plaintiff) a Colombian Petroleum Company (the Respondent) pensioner, who enjoyed medical assistance services covered by the Respondent. Although she was an adult, Ms. Barroso was listed as a beneficiary of the Plaintiff on these medical assistance services, as her paranoid schizophrenia meant that she was financially dependent on him.

Ms. Barroso’s medical assistance service was suspended as a result of her having a daughter, on the assumption that she had started her own family and was independent of her father. However, neither the Plaintiff nor his daughter knew who the father of the child was, and Ms. Barroso continued to depend on her father financially.

The Plaintiff filed a writ of tutela claiming for the protection of the rights to health, to equality and to free development of personality of his daughter and his granddaughter. The judge of first instance denied the writ and the Chamber of Revision of the Constitutional Court selected the judgment for revision.

The Court held that the Respondent should not have terminated Ms. Barroso’s coverage upon her pregnancy, but that it was entitled not to extend coverage to her daughter.

The Court considered that it was discriminatory to assume that Ms. Barroso’s pregnancy had ended her dependence on the Plaintiff, and to terminate her health care entitlements on that basis. In the Court’s opinion, as parenthood created obligations only toward the child, and not to the other parent, it could not be assumed that a woman who fell pregnant was starting her own family with the father of her child. As such, the Respondent’s decision violated Ms. Barroso’s right to equality and free development of personality.

However, this reasoning did not extend to the provision of health coverage to Ms. Barroso’s daughter. A private contract between the Plaintiff and the Respondent defined the beneficiaries entitled to use the Plaintiff’s health coverage. This contract did not cover grandchildren, and it was not for the Court to modify the private contract and extend it to a new party in the absence of a violation of fundamental rights. As the obligation to provide health care to children fell on the family and State, and not a private insurer, no such violation of fundamental rights existed.

“The freedom of a woman is not reduced with pregnancy. The option of pregnancy does not create obligations towards the father except the obligation to take care of the child they have in common. The father does not have the obligation to take care of the woman. She is as responsible as the father of achieving their livelihoods –not in vain, article 25 of the Constitution establishes that, without gender distinction, work “is a social obligation”. Neither does pregnancy imply the obligation to form a family. On the contrary, as it is prescribed by article 42 of the Constitution, the family is the result of a ‘responsible decision’, not the legal effect of having a child.” Para. 4.

“Hence, in principle (as it is not the object of the present debate) there is no Constitutional issue on restricting access to health to the financially dependent sons or daughters. This implies that the company has the right to deny the service whenever it is proven that the beneficiary son or daughter is not financially dependent on their parents. The restriction that the Court has set forth exclusively refers to the unconstitutionality of the argument that pregnancy indicates cessation of financial dependence. Thus, while the absence of financial dependence is not demonstrated, the Company is obliged to continue providing medical care to the Plaintiff’s daughter.” Para. 6.

“Health benefits that are provided to the retirees of ECOPETROL and its subsidiaries are of a conventional character. Therefore, it is not possible to extend it to persons other than those included under the agreement and the benefits incorporated therein. … This solution does not imply that the grandchild is not protected. The Constitution establishes that, in first place, it is upon the family to protect children. Only when the family is unable to provide such protection, it is for society or the State to provide such protection.” Paras. 7-8.

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