This is the seventh installment of the joint ICONnect/IberICOnnect symposium on the IACtHR Advisory Opinions on the climate emergency and the right to care. For the introduction, see here.
Ana Marrades Puig, Professor of Constitutional Law, University of Valencia
Finally, the Inter-American Court of Human Rights (IACtHR) has ruled on the request for an Advisory Opinion that the Republic of Argentina submitted on January 20, 2023, regarding “The content and scope of the right to care and its interrelation with other rights” (OC -31/25, of June 12, 2025).
The anticipation surrounding this issue was tremendous, as we have been waiting for decades for an institutional response from an authority capable of legitimizing the demand for recognition of the right to care. I use the first person plural because many of us have been engaged in advocating for the right to care from various fields of expertise. Care has been examined from numerous perspectives in anthropology, philosophy, pedagogy, political science, social science, economics, and notably in the health sciences, including medicine, nursing, and psychology. In the realm of law, the concept of care is gaining traction—not only in civil law concerning familial obligations and support but also in labor law, which encompasses a range of considerations, particularly regarding the perspective of caregivers (such as work-life balance, co-responsibility, and labor rights of care workers). Furthermore, constitutional law is beginning to be invoked to seek the autonomous recognition of the right to care.
After analyzing the connections with other constitutional rights, the need for a legal and constitutional right to care as an autonomous right is proposed, considering the advisability of a care law and a constitutional revision that includes it. Throughout the process of analysis and study, numerous normative sources, especially international ones and jurisprudential ones, have been sought to support its existence. In this case, the Advisory Opinion of the Inter-American Court is an essential source that legitimizes the process of recognizing care as an autonomous right. However, what is its scope?
The most important issue is to determine the obligations of States to make the right effective. As Miguel Revenga has pointed out regarding social rights and their guarantees, it is necessary to carefully examine which are the States’ obligations and their commitments following this decision by the Inter-American Court. This is the core of the matter because, without an obligation, the recognition will only be superficial. The Court has ruled that “States have the obligations to: refrain from engaging in conduct that violates the right to care; organize the state apparatus in such a way that they are capable of legally guaranteeing the full exercise of the right; and adopt or repeal domestic laws as needed to ensure the effectiveness of the right to care and its scope, which includes recognizing the right of all persons to care and to be cared for” (para. 122 OC-31/25).
The Court’s stance is unequivocal; however, to grasp these obligations fully, it is essential to first examine the substance of the right in question. This analysis will help identify what must not be infringed upon, how its exercise should be safeguarded, and how to ensure its effectiveness. In essence, it is crucial to clearly define the content of the right and, above all, to precisely delineate the specific actions to which states commit.
The Advisory Opinion determines what these obligations entail as follows: First, it emphasizes the enhanced protection of groups in vulnerable situations, particularly pregnant women and breastfeeding mothers, children and adolescents, the elderly, individuals with disabilities, and those suffering from serious or chronic illnesses that impair independence and necessitate caregiving (para. 123). Secondly, it emphasizes the protection of the rights of caregivers—covering labor-related, health, and educational aspects as detailed in Section VII—whether they are engaged in caregiving as a paid profession or performing unpaid care work. This is anchored in a legal framework that rests on the principles of shared responsibility among families, society, and institutions (para. 123). Third, it focuses on the need to establish national care systems (NCS) to reorganize care tasks under a logic of co-responsibility and equity, thus preventing them from continuing to fall mostly on women. The Court recognizes the importance of integrating a gender perspective not only in the design of the NCSs but also in the analysis it undertakes to address the root causes of discrimination against women, specifically the exclusive delegation of care responsibilities, which is identified as a structural issue. It seeks to focus on the revaluation of these roles (para. 127). It thus connects with the process of recognizing the right to care embodied in the Foundational Document for Care by the Women’s Institute of the Government of Spain (2023), coordinated jointly with Leyre Burguera, Beatriz Bosch, and Ana Marrades. For the IACtHR, “the SNCs constitute an ideal structural mechanism through which States can guarantee the right to care, especially regarding the comprehensive protection of persons in situations of dependency and of caregivers” (para. 131).
Finally, in matters of resolving litigation and legal affairs, “the competent authorities must carry out due control of conventionality with the standards developed by the Court in its jurisprudence and, in particular, in this Advisory Opinion” (para. 124). With this, the IACtHR is mandating the use of the AO standards to protect and guarantee human rights.
These obligations complete the acknowledgment of the autonomous right to care, which is already being advocated at the constitutional level within our Spanish national framework, primarily aimed at safeguarding the commitment of public authorities against potential regressions. As Luís Jimena points out, the effectiveness of this recognition will largely depend on “appropriate legislative configuration and administrative action” (p. 84). In Spain, established initiatives are already in place to bolster the foundations for this acknowledgment. Alongside the previously mentioned Foundational Document for Care, which has been shaped by contributions from various societal sectors, academia, and care professions, the “State Strategy for a New Model of Community Care: A Deinstitutionalization Process (2024-2030)” has been introduced. This strategy is grounded in the “European Care Strategy (7.09.2022)” that focuses on two primary pillars of protection: childhood and long-term care. It also addresses the conditions surrounding care work and underscores the urgent need for investment in care to meet the existing care demands that are increasingly pressing. However, there remains a lack of an institutional declaration akin to that issued by the Inter-American Court, which would lay down the essential foundations for its acknowledgment within the legal system. In the meantime, it is crucial to recognize the significant value of this advisory opinion as an interpretative guideline for fundamental rights within the constitutional framework.
Suggested citation: Henry Jiménez Guanipa, The recognition of the right to care by the Inter-American Court of Human Rights and the obligations of States, Int’l J. Const. L. Blog, Nov. 27, 2025, at: https://www.iconnectblog.com/symposium-on-the-inter-american-court-advisory-opinions-regarding-the-climate-emergency-and-the-right-to-care-part-7-the-recognition-of-the-right-to-care-by-the-inter-american-court-of-human-rights-a/