Health insurance of people with down syndrome. Comments on casement 7225-2022 Lima. The confusing boundaries between freedom of contract and consumer protection

Abstract

This article critically analyzes cassation ruling 7225-2022-Lima, which sanctioned an insurance company for refusing to provide health insurance to a person with Down syndrome. The authors also examine the conceptual errors in the judicial decision and its potential impacts on the Peruvian insurance market. According to the analysis, the ruling increases the obligations of insurance companies without considering that the additional costs will be passed on to consumers, thereby affecting access to insurance and health services. Additionally, it is highlighted that the case was resolved within a limited regulatory framework, which posed challenges in applying constitutional principles, such as non-discrimination, in contrast to freedom of contract. Finally, the authors propose that state intervention in public policies must be clear and avoid shifting its responsibilities to private actors in order to ensure proportionality between individual and business rights.