CYIL vol. 13 (2022)

PETR ŠUSTEK CYIL 13 ȍ2022Ȏ Under most circumstances, adolescents’ tendency towards risk-taking means that they are more likely to consent or assent with potentially dangerous medical interventions. However, in cases of Jehovah’s Witnesses, it might manifest in the opposite way: the minor can be boldly willing to risk or even sacrifice their life for what they perceive a higher goal. At the same time, the minor is usually under a strong influence of their family and the values and beliefs that have surrounded them their whole life. Furthermore, Jehovah’s Witnesses often maintain close personal contacts with each other so at least some of their children’ friends are likely to come from the same faith. It might prove very difficult or even impossible to shield the minors from these influences. The Czech legislature intuitively reflected the cognitive capacity of adolescents by enacting a specific rule applicable to situations when the minor is at least fourteen-year-old. Based on Section 100 of Act No. 89/2012 Sb., the Civil Code, if such a minor (who has not yet acquired full legal capacity) seriously objects to an intervention with their integrity, although their legal representative consents to it, the intervention requires the court approval. The same applies when the minor wishes to undergo the intervention but the legal representative does not consent. We can imagine a situation when a child either converts to Jehovah’s Witnesses, or (at least internally) leaves the faith of their parents. It can be safely assumed that in any similar case, the court would provide its approval with blood transfusion. However, neither of the outlined options is typical. Far more often, a minor in question who has been raised as a Jehovah’s Witness is still too young to meaningfully question their family’s faith. It may not be clear to what extent their opinion on the matter can be considered truly their own and what weight should be given to it. Moreover, in some cases it might be impractical for the court to seek the opinion of the child if it must make the decision urgently. In the above-presented decision file no. III. ÚS 459/03, the opinion of the six-year-old patient was not sought by the court but the Constitutional Court did not find a violation of Article 12(1) of the Convention on the Rights of the Child with the following explanation: (…) according to the aforementioned provision, the right to expression belongs to the child who is able to formulate his own opinions. In the opinion of the Constitutional Court, when interpreting this provision, it is necessary to take into account not only the age of the child (and their mental maturity), but also the nature of the matter in question, as well as other circumstances, such as, for example, the family background and the social environment in which the child grows up. At the time of the court’s decision, the minor D.J. was 6 years old, so it can hardly be assumed that he would have fully understood the complex issues related to his treatment and would have been able to provide a sufficiently autonomous opinion, i.e., an opinion (at least partially) independent of his parents. Under the given situation, hearing the minor would be only a formal act, which would not be able to influence the court’s decision in any way. Analogical conclusions were later confirmed by the Constitutional Court in other decisions. For example, in early 2021, the Constitutional Court resolved a matter of an

of the Child in Medical Research. In ŠTURMA, P. (ed.) Czech Yearbook of Public & Private International Law. Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 11. Česká společnost pro mezinárodní právo, Praha 2020, pp. 417–418.

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