Court/Judicial body:
Republic of Turkey Supreme Court – 2nd Civil Chamber
Date: 4 May 2015
CRC Provisions:
Article 3: Best interests of the child
Other international provisions:
Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine Convention on Human Rights and Biomedicine (Article 6: Protection of persons not able to consent)
Domestic provisions:
Turkish Civil Code (Articles 339, 340) Turkish Juvenile Protection Law ( Article 5)
Case summary
Background:
Two parents (M.A. and I.A.) objected to the vaccination of their child, born in 2013, for protection from Hepatitis B. The vaccination was compulsory according to Ministry of Health regulations, therefore the Provincial Directorate of Family and Social Policies applied to the court of first instance demanding protective measures to be taken under Juvenile Protection Law, Article 5(1). The court rejected the application of such measures, thus the Directorate appealed to the Supreme Court.
Issue and resolution:
Right to health; best interests of the child. The Supreme Court decided that vaccination is in the best interests of the child, and therefore overturned the ruling of the court of first instance.
Court reasoning:
With regard to Article 3 of the CRC, the best interests of the child shall be the primary consideration in all actions regarding the child. Similarly under the Turkish Civil Code, Articles 339(1) and 340(1) provide that parents shall act in accordance with the best interests of the child in their decisions. Article 6 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine provides that the authorisation of the representative of a child is compulsory for a medical intervention.
Vaccination of children is a compulsory medical intervention according to Ministry of Health regulations, for both the personal health of the child and public health. The parents of the child stated before the court of first instance that they do not consent to medical intervention, but they were unable to provide any reason or proof.
When the representatives of a child, without any valid reason, do not consent to a medical intervention after being informed about the purpose, character, consequences and risks, then it must be decided whether such intervention is in the best interests of the child or not. There is no reason or proof that the vaccination is against the best interests of the child. On the contrary, with regard to the personal health of the child and public health, vaccination is in the best interests of the child.
Excerpt citing CRC and other relevant human rights treaties
“United Nations Convention on the Rights of the Child provides that in all actions concerning children, the best interests of the child shall be a primary consideration.”
“According to Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine Article 6, an intervention may only be carried out on a person with his/her consent, and on a person who does not have the capacity to consent, for his or her direct benefit. For minors or other persons who do not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.”
Follow-Up:
The Ministry of Health published a declaration after the decision, claiming that the Supreme Court decided in accordance with the best interests of the child, since vaccination is a reliable method for infant health, and that the number of infant diseases and deaths are decreased as a result of vaccination programs.
Notes:
The Supreme Court did not discuss or refer to Article 24 of the CRC regarding the right of the child to the enjoyment of the highest attainable standard of health, or General Comment No. 15 or the European Convention on Human Rights Article 8 on the right to respect for private and family life. In Solomakhin v. Ukraine, the European Court of Human Rights stated that compulsory vaccination interferes with physical integrity and is covered under Article 8 of the European Convention on Human Rights regarding private life. However, the Court decided that this interference is justified due to public health considerations and is necessary in a democratic society in the interest of public health, and thus did not find a breach of Article 8.
CRIN comments:
CRIN believes this decision is consistent with the CRC. As cited by the Court, Article 3 provides that in all actions concerning children, the best interests of the child shall be a primary consideration. States must ensure that children can enjoy the highest attainable standard of health under Article 24, which includes the provision of necessary medical assistance and health care to all children and the development of preventive health care.
Citation:
Essential No. 2014/22611 Decision No. 2015/9162
Link to full judgement:
http://www.ahef.org.tr/upload/dosya/YARGITAY%20A%C5%9EI%20DAVASI%20SONUCU.docx
This case summary is provided by the Child Rights International Network and Omer Faruk Yalcin, International Children’s Center for educational and informational purposes only and should not be construed as legal advice.