CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ

JEHOVAH’S WITNESSES AND THE BEST INTERESTS OF THE CHILD

3. International Law Context While the legal and cultural issues regarding the Jehovah’s Witnesses approach to blood products arise all over the world, 22 international law does not specifically address the problem. Some of the more general human rights that are applicable to it are guaranteed by several international law documents, such as the right to life (for example, Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights, the right to respect for private and family life (Article 8 therein), or the right to freedom of thought, conscience, and religion (Article 9 therein). The alleged violations of these rights are considered by the European Court of Human Rights (ECtHR) which has, however, not been given the opportunity to decide in any case specifically involving the refusal to use blood products in children as of yet. For adult patients, the ECtHR upheld their right to decide on their health care, while it made it clear that the refusal of certain medical procedures by a person who still wishes to get well and does not exclude treatment altogether cannot be viewed as suicide encouraged by the religious community. 23 Should a case concerning a child come to Strasbourg, it is very likely that the key issue the ECtHR will have to resolve will be that of the minor’s competence to refuse a life-saving treatment. 24 This issue is closely related to the participatory rights of the child as they are guaranteed under the United Nations system of human rights protection. We will look at this problem soon. Nevertheless, we will first address the fundamental principle for any decision-making regarding a child as it was established within the frame of the same human rights protection The Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in 1989, states in its Article 3(1) that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” There is no doubt in doctrine or case law that saving the life and preserving health of a child is objectively in their best interests. Nevertheless, the concept of the best interests has justified state interference with parental rights and hence has been potentially controversial. 22 The awareness of Jehovah’s Witnesses teachings on blood products and potential resulting conflicts can be illustrated bymany sources fromaround the globe. See for example the following articles fromtheUSA, Australia, and India: SHUERGER, B. L. When blood transfusion isn’t an option. American Nurse. (2022). accessed 23 August 2022, Teenage Jehovah’s Witness loses court bid to refuse life-saving blood transfusion. ABC News. (27 September 2013). accessed 23 August 2022, KIRAN CHAND, N., BALA SUBRAMANYA, H., VENKATESWARA RAO, G. Management of patients who refuse blood transfusion. Indian Journal of Anaesthesia . (2014, Vol. 58, No. 5), pp. 658–664. 23 See Jehovah’s Witnesses of Moscow and Others v. Russia (App. No. 302/02), ECtHR, First Section, Judgment of 22 November 2010, paragraph 132. 24 See Ó NÉILL, C. Jehovah’s Witnesses and Blood Transfusions: An Analysis of the Legal Protections Afforded to Adults and Children in European/English Human Rights Contexts. European Journal of Health Law. (2017, Vol. 24, No. 4), pp. 368-389. doi: https://doi.org/10.1163/15718093-12341417. system: the standard of the best interests. 3.1 The Best Interests of the Child Religious Society of Jehovah’s Witnesses Refuses a Blood Transfusion.] Zdravotnictví a právo. (2005, Vol. 9, No. 5), pp. 25–27.

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