K., C. N. v. OSECAC

K. 12. XLIX.
Download Judgment: Spanish
Country: Argentina
Region: Americas
Year: 2014
Court: Supreme Court of Justice [Corte Suprema de Justicia de la Nación Argentina]
Health Topics: Health care and health services, Health systems and financing, Sexual and reproductive health
Human Rights: Right to health, Right to life
Tags: Access to health care, Access to treatment, Assisted reproductive technology, Health funding, Health insurance, Health regulation

The plaintiff filed a guarantee of protection of individual constitutional rights protection (amparo protection) against the Health Insurance of Commerce and Civil Activities Employees (Obra Social de los Empleados de Comercio y Actividades Civiles – OSECAC) to condemn coverage of all expenditures that could arise from reproductive assisted therapy in the egg donation process.

The First Instance Federal Court dismissed the claim. The plaintiff brought the case to the Federal Courts of Appeal of Bahia Blanca and it confirmed the first instance judgement. To do so they said that as there was no legislation that permitted the egg donation, it should be understood that it was prohibited. Also it was against the children’s right to be born during marriage because the parents representation would cease from the moment of birth for not being biologically related to the mother. The plaintiff filed an extraordinary appeal to the Supreme Court of Justice.

The Supreme Court of Justice held that because in 2013 federal legislation (Law 26. 862) was passed that established that all health services providers (public or private) should guarantee the access to reproductive health technology and treatment,  it was unnecessary for the court to pronounce judgement. However, according to the "Peso" case, the court could revoke a challenged judgement if it would produce an unjustified harm to the plaintiffs. Therefore, the Court revoked the challenged judgement.