Commentary: Special Duties and the AIDS-Crisis – A Commentary on the Roche Case

Abstract

This comment concerns the question whether with respect to the AIDS-crisis in Africa waiving legally acquired and economically important patents, and other actions on the part of pharmaceutical company Roche, can and/or should be understood as a matter of moral duty. More specifically, the question is whether it is a case of a special duty on the basis of which pharmaceutical companies such as Roche, ought to take certain actions. Four possible foundations of a special duty of Roche are examined: (1) the voluntary, self contracted duties of the company, (2) the special bond that the company has with the victims on account of other causes than self contracting, (3) the special character of the good or the need that the products of the company provide for, (4) and the catastrophic character of the situation we are dealing with. It is concluded that in none of these ways a special duty can be successfully argued for. There may, however, be a case to make on the basis of the general principle that anyone in “Samaritan” circumstances, is bound to do what is in his power to improve the situation of others, at reasonable costs.