The right to health, enshrined in Article 196 of the Federal Constitution, is one of the fundamental rights guaranteed to all citizens and, through it, the realization of other rights becomes possible—such as the right to human dignity. However, despite this constitutional guarantee, its fulfillment does not always occur through the direct and exclusive action of the State.
In Brazil, where the Unified Health System (SUS) plays an essential role but faces structural and budgetary limitations, the pursuit of quality care has led to reliance on the private sector as a way to supplement the right to health. In this context, private health insurance plans have gained importance but have also become the subject of controversies surrounding the scope of contractual coverage in light of beneficiaries’ needs.
Supplementary health care is mainly regulated by Law No. 9.656/1998 and by the National Supplementary Health Agency (ANS), which is responsible for defining the so-called List of Health Procedures and Events (Rol de Procedimentos e Eventos em Saúde).
This list was created to establish the minimum treatments that must be mandatorily covered by all health insurers. However, over time, therapeutic advances have introduced new treatment options for the same illness depending on each patient’s condition, and the list has not always kept pace with medical discoveries. This has resulted in the denial of coverage for treatments with proven efficacy prescribed by qualified professionals.
Often, treatments prescribed by qualified medical professionals with proven effectiveness are not included in the ANS list, leading health plans to deny coverage. The justification from the insurers is always the same: if a procedure is not included in the ANS list, there is no obligation to cover it—even if medically prescribed and scientifically validated.
Health insurers have used the ANS list as the legal basis for denying coverage, arguing that if a procedure is not listed, they are not required to fund it. These repeated denials led many beneficiaries to turn to the Judiciary to seek court orders mandating coverage.
The high volume of conflicts between health insurers and policyholders exposed gaps in regulatory oversight and sparked significant debate over the nature of the ANS list—whether it should be considered merely illustrative or strictly exhaustive. This debate raised a more delicate issue: to what extent can contractual autonomy be used to restrict access to the fundamental right to health? Should standardized contractual clauses—often imposed on vulnerable consumers—be allowed to limit this constitutional right?
For many years, the prevailing interpretation in the courts was that the ANS list was illustrative, allowing for coverage of treatments not listed, provided they were recommended by physicians and supported by scientific evidence. However, this interpretation was revised in 2022 with the judgment of two Divergence Embargos in Special Appeals (EREsp 1.886.929 and EREsp 1.889.704), in which the Superior Court of Justice (STJ) ruled that the list should, as a rule, be considered exhaustive, allowing exceptions only in specific situations and under strict technical requirements—a position described as a “mitigated exhaustiveness.”
Even in its mitigated form, treating the ANS list as exhaustive may still create barriers to protecting the right to health, especially for individuals with rare diseases, costly treatments, or innovative therapies not yet recognized by the ANS.
The STJ’s central argument was that this approach would provide legal certainty and predictability for health insurers, avoiding financial and economic imbalance in contracts. However, this position was widely criticized, as it seemed to prioritize the stability and profitability of private companies over the values of life and human dignity—core principles of the Constitution.
It’s worth noting that health insurance contracts are, by nature, adhesion contracts, as defined in Article 54 of the Consumer Protection Code. These contracts are entered into without any possibility of individually negotiating the terms—particularly those related to coverage—placing beneficiaries at a significant disadvantage.
In response to the legal uncertainty created by the STJ’s decision, the National Congress approved Law No. 14.454/2022, which amended the Health Insurance Law and settled the debate by establishing that the ANS list is merely illustrative and should serve only as a basic reference. The new law also sets out objective criteria for the coverage of procedures not listed, such as scientific evidence of efficacy or recommendations from nationally or internationally recognized assessment bodies.
This legislative change reaffirmed the principle that constitutional rights must prevail over limiting contractual clauses, especially when such clauses hinder the realization of the right to health.
The debate over the nature of the ANS list reveals the tension between the contractual autonomy of health insurers and the constitutional guarantee of the right to health. Although Brazilian law acknowledges contractual freedom, that freedom cannot be absolute when it undermines fundamental rights. Denying coverage based on standardized clauses, signed in contexts of clear imbalance between the parties, highlights the need for regulatory and judicial actions that prioritize the fundamental rights protected by the Constitution.
Even though Law No. 14.454/2022 has put an end to the legal discussion by establishing that the ANS list is merely a basic reference, that does not mean all conflicts have ceased. In practice, many beneficiaries still face denials and must resort to the courts to secure a right that, in theory, is already protected.
The mere fact that a treatment or medication is not listed in the ANS list can no longer serve as an automatic justification for denying coverage—especially when there is a medical indication and proven effectiveness.
Nonetheless, health insurers continue to act abusively, obstructing the preservation of beneficiaries’ right to life, in direct contradiction to both Law No. 14.454/2022 and the guarantees established by the Federal Constitution. This scenario shows that, despite legislative advances, the realization of the right to health within supplementary health care remains an ongoing legal and social challenge.
Isabella Parisi holds a Law degree from the Pontifical Catholic University of Campinas, a postgraduate degree in Civil Procedural Law from the same institution, and is a litigation lawyer at Granito Boneli Advogados.