As a general rule, in accordance with article 5, section II, of the Amparo Law, the amparo proceeding proceeds against acts of authority, however, it also allows the possibility that an individual be considered as an authority for purposes of the amparo trial when they carry out acts equivalent to those of an authority that affect human rights and whose functions are determined by a general rule.
Insurance companies carry out their activities because they have a special authorization granted by the State.
Through their insurance agents, they sign medical expense contracts through which people’s right to health is protected.
Therefore, although medical expense insurance contracts seem to be only within the scope of private law, the truth is that, being related to the right to health protection, which has constitutional status, limits insurers to respect human rights and not to act unilaterally violating them.
So, when an insurer properly denies the signing of an insurance contract to anyone who requests it or to a newborn whose mother is insured, under some argument that he was born with a disability and therefore cannot assume the risk that the insurance policy covers you – a situation that could be extended to any other category of those contemplated in article 1 of the General Constitution, such as previous illness (which is being reported), diverse sexual preference or any other condition – then, the insurer will be acting in terms of article 5, section II of the Amparo Law and could be considered as an authority for purposes of the amparo trial.
In this sense, the First Chamber of the Supreme Court of Justice of the Nation ruled, when resolving the complaint resource 40/2020 in which it determined that an insurer could be considered as a responsible authority for the purposes of the amparo trial, having denied to a newborn whose mother was indeed insured, considering that the disability with which he was born represented a risk that they could not assume.
However, beyond the issue of access to justice, which was what the Court decided, at the bottom of the matter, the conduct of the insurer leaves the newborn totally unprotected for violating the principles of equality, non-discrimination and inclusion of the minor person. Therefore, what insurance companies can do is modify the premiums, but not refuse to issue a medical insurance policy to people who are within the so-called suspicious categories contemplated in article 1 of the General Constitution. (disability, gender, age or, illness or other condition) under the argument that they are risks that they cannot assume.
If they act like this, they would be considered as authorities for the purposes of the amparo proceeding as they are violating the human right to equality and non-discrimination.