CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ JEHOVAH’S WITNESSES AND THE BEST INTERESTS OF THE CHILD file no. III. ÚS 459/03, 8 in which it decided on the constitutional conformity of an interim measure allowing the provision of blood transfusions to a six-year-old son of Jehovah’s Witnesses against the parents’ will. The information provided by the hospital was that it cared for a minor who was diagnosed with a highly malignant cancer which, if not adequately treated, would lead irreversibly to the death of the patient. Current available treatment methods offer hope for a cure but require the application of blood derivatives. Both parents were informed of these facts, but they told the hospital that they were Jehovah’s Witnesses and had shown a negative attitude towards the application of blood derivatives from the beginning of the treatment. While they agreed with their administration at first, they refused to grant consent for the continuing treatment and asked for the child to only be provided with pain relievers. The hospital claimed that if it would not be able to proceed with the new round of chemotherapy (which require blood transfusions) within eight days, the patient’s life will be in acute danger. After the court issued the interim measure enabling the hospital to use blood derivatives, the parents unsuccessfully appealed against the decision and ultimately filed a constitutional complaint. The Constitutional Court acknowledged that by entrusting a child to the custody of a hospital, the lower court interfered with the parents’ right to care for their children and to respect for private and family life. Nevertheless, the interference was deemed permissible. The meaning and purpose of issuing the interim measure was to protect the rights of the minor, namely, the right to the protection of health and the right to life guaranteed by the Charter of Fundamental Rights and Freedoms. Importantly, the measure limited the rights of the parents only to the extent necessary to achieve its aim. It was considered to be necessary in a democratic society, i.e., the Constitutional Court found that there were relevant and sufficient reasons for it. The Constitutional Court reasoned that since the health and life of a child clearly represent priority values in the system of human rights law, their protection is a completely relevant and more than a sufficient reason for interfering with parental rights. The courts are obliged to ensure a fair balance between the interests of the child and the interests of his parents, but special attention must be paid to the interest of the child; above all, parents cannot be allowed to take measures harmful to the health or development of the child. 9 The outlined approach – consisting in the preference for the health and life of children – has been repeatedly confirmed by the Constitutional Court. One of the latest examples can be found in its early 2021 decision file no. I. ÚS 3444/20. The Constitutional Court upheld a decision of a lower court to issue an interim measure to ensure the provision of proper medical treatment (including a tetanus vaccination) to a girl who had suffered a minor injury caused by a horse. Importantly, the Constitutional Court reasoned that if the mother left the hospital with the patient on the day of the accident after the initial treatment in spite of the doctors’ recommendation (for hospitalisation and vaccination), then the concern about the child’s health can be considered sufficiently substantiated to provide the basis for the interim measure. 10 8 The judgment of the Constitutional Court of 20 August 2004, file no. III. ÚS 459/03. 9 In this context, the Constitutional Court referred to the European Court of Human Rights judgment in the case of Johansen v. Norway of 7 August 1996, app. no. 17383/90. 10 See the decision of the Constitutional Court of 19 January 2021, file no. I. ÚS 3444/20, paragraph 14.

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