The Status Of Children's Rights in the Field Of Health In Turkish Law

Omur Saylõgõl Elcioglu1 ,Yasemõn Gunay2 , Saõbe Oktay Ozdemir3 , and Aysegul Demõrhan Erdemir4

1-Osmangazi University, Medical Faculty, Department of Deontology, Eskisehir TURKEY

2- Osmangazi University,Medical Faculty,Department of Forensic Medicine, Eskisehir TURKEY

3-Istanbul University, Law School, Department of Civil Law, Istanbul TURKEY

4-Uludağ University, Medical Faculty, Department of Deontology,Bursa TURKEY

Eubios Journal of Asian and International Bioethics 12 (2002), 219-221.
Former Turkish President AtatŸrk said the "The strength of a country depends on the health of its children." The constitutional decrees concerning "the adequate living standards" that children in Turkey must be provided in addition to their physical, intellectual and social development are as follows:

Clause 17 (1): Each person has the right to live, and to safeguard and improve his/her material and spiritual existence.

Clause 42 (2): The state takes the necessary precautions and sets up institutions in order to protect the peace and welfare of a family, especially the mother and the children and to teach and practice family planning.

Clause 59 (1): The state takes precautions to enhance physical and spiritual health of Turkish citizens of all ages.

The health of a mother and a child is very important considering "the medical and health services" that children are provided. Besides to the clauses which have been stated at the beginning, in the third clause of Public Health Law, it reads; "the Ministry of Health renders all the services to protect the health of the child and mother after birth and takes the necessary precautions to protect the health of children and young people ."

According to our law, the "personality" of a child starts the moment a child is born. There are two conditions in order for personality to start. Completion of birth and a child's being alive. The completion of birth is the separation of a child from its mother and to start to live independently out of its mother's uvula. A child's being born alive means the child's living independent of its mother even for a short while.

According to our Civil Law, on condition that a foetus is born alive, it is regarded as "possessing rights" from the moment it is in uterus (C L 27/11). "Possession of rights" of the foetus is a type of possession depending on the preventive condition. As a rule, when a foetus gains personality, it is born. However, the rule goes back to the time when it first precisely appeared in the uterus.

From the point of our Civil Law, children are given the rights at birth as adults to develop themselves both physically and mentally and to preserve their body wholeness (1). "The Right of Health" is one of the significant examples of social rights and includes the tasks that the state must perform. Citizens are to expect positive things from the state and it's included in the "positive status rights" when rights are categorised (2).

The best place to get some idea about what the term "children rights" mean is the definitions in legal texts. When we look at these definitions, we noticed that in Turkish Law, the period which starts from birth and continues till adolescence is called "infancy" or "being small" instead of childhood. Some authors define the childhood period as "being incompetent" (3).The first clause of the "Agreement of Children's Rights" gives the definition of a child. This definition regards every individual who is under 18 is as a child except for being accepted as an adult by the national laws. According to this definition, each individual who is between 0-18 years of age is a child. The fact that we accept the age of adulthood as 18 shows that our laws are in accordance with children's rights. (C.L. 11) (4). A child has the right to have the highest possible health and medical care standards. The State of Turkish Republic accepts the rights of every individual who is born in the state borders to benefit from health services beginning from birth. The State undertakes the responsibility of performing the necessities of this right conforming with the 54th clause of the Constitution.

Firstly, as the primary condition of the conformity of the medical assistance and attempts with the law, it's necessary to get permission from the protector (mother, father) or trustee of a patient. The action of getting permission originates from the great value given to individual, his/her life and health and the right of the individual to give decisions about his/her own health. Medical attempts are closely related to the personal rights (living and health) of the individual. The authority to decide in these matters doesn't belong to a doctor or a governmental official but to the patient. With the 70th clause of the Law No. 1219, it has been agreed that prior to big operations, the permission must be in written form.

Nevertheless, this rule is valid for criminal responsibility. In the Family Planning law No. 2827 (clauses 13 and 14) and the Organ and Tissue Taking and Grafting and Transplantation law No. 2238 (clause 5) it has been agreed on that the permission must be obtained in written form. The patient which is on one side of the agreement must have the right to do legal dealings (C.L. 10). Therefore, the patient must have the ability and maturity to appeal when allowing the operation. For the operation that will be performed on children, permission must be obtained from the parents. (1219 L clause 70).

Therefore, the permission must be firstly obtained from the parents, if there is a conflict, then from the father, and if the father is dead, or not present, from the mother. It has also been stated that children who can know the results of the illness and the help can use this right without the permission of their parents. But in our country, if the situation is too serious and/or too heavy the medical operations start without needing the permission of the parents (5).

We recommend that changes must be made immediately in our laws concerning this subject. Prior to any medical operation to be performed on the child, permission must be obtained from the caretaker or either parent of the child, and physical, mental, social and cultural development of the child must be evaluated. It has been thought that the mixing of the two factors will be quite a suitable approach. (6).

In the international documents, there are opinions about the ability of the child to decide on the permission. In the Strasbourg Declaration decisions, held in 1996 by the Council of Europe, it has been stressed that in order to get permission for the operation prior to it, the opinion of the child must be regarded as a determinative factor in proportion with his/her age and development (7, 8).

It is possible for the children who are under 18 to use their own rights by themselves on condition that they have the ability to appeal. On the other hand, parents of a child who is under age and mentally retarded are responsible for giving the necessary education to him/her. (C.L. clause 264).

"Custody of Children" is a term which describes the fact that parents are naturally responsible for their children and have duties and in order to perform them, they have certain rights. Here the aim is to protect children. According to the Civil Law, the rights of parents on their children are "absolute rights on an individual". This is called "Sovereignty Rights on Children". This definition includes not only looking after children, but also educating them. Educating children means teaching them certain rules of the society, giving advices, warning and sometimes, if necessary, beating them slightly. For actions which exceeds the limits of educating children, judges have rights to interfere, but they gives the slightest punishments, and sometimes even less by forwarding the crimes to the clause numbered 477. While talking about education rights of parents on their children, it must be noted that parents are not to do anything which may damage the physical wholeness of children, to put spiritual pressure on children and parents are to be careful when choosing the means to educate them (9).

Children who are living with their parents will be separated from them and will be accommodated with another family or an institution if their physical and mental health are in danger. If it is not possible for parents to take the necessary precautions due the mental disorders of their children, parents have the right to want the judge to take the necessary precautions and the expenses to be paid by the government (Civil Law clause 273).

If parents neglect their responsibilities seriously, it allows maximum interference with sovereignty on children and in such a case, sovereignty rights of parents will be taken away by the judge (Civil Law, clause 274). Children whose physical, spiritual and moral developments and personal security are in danger are under the protection of Social Services and Children Protection Law numbered 2828. Despite having parents, children who don't have protection against such bad habits as begging, taking alcohol, using drugs are also under the protection of the same law. With this law, children whose physical, spiritual and moral developments and personal security are in danger are secured in institutions or adoptive parents. The expenses are met by the government but donations and contributions are also necessary to render the services.

There are also certain sentences concerning Child Health in Criminal Law. From this respect, a parent who leaves a ailing child belonging him/her is punished (Turkish Criminal Law clause 473). Furthermore, those who cause children under their authority to become sick by misusing their rights on the children or to endanger their lives are punished. (Turkish Criminal Law clause 477). Under the Criminal Law, sexual crimes committed against children are punished more severely, and if these crimes are committed by those who have authority on the children, then those persons are punished much more severely. (Turkish Criminal Law, clauses 415 and 417)

In our country, judicial procedures that are related to children rights are found in Civil Law, Criminal Law, and in Social Services and Children Protection Law, which is a special type of law designed for homeless and needy children. Regulations and Rules about Health Services are in compliance with Children Rights Agreement.

In Turkey 41% of the population are 18 years of age or under. Considering the fact that Turkey has a very young population, it has become even more necessary the improve the conditions of the children. Having accepted the European Agreement as to the practice of Children Rights, Turkey is now responsible for adapting its domestic law in accordance with the requirements of the agreement. For this aim, alterations are being made currently in the laws.

1) …zsunay E.:Gerek Kişilerin Hukuki Durumu.Sulhi Garan Matbaasõ .Istanbul 1977.15-23.
2) Bayraktar K.:Hekimin Tedavi Nedeniyle Cezai Sorumluluğu.Istanbul †ni.Yay No:768;Huk.Fak Yay No:391.Sermet Matbaasõ.İstanbul !972,15-23.
3) Polat O.:TŸrkiye'de ‚ocuğun Durumu.‚ocuk Forum 1 (1): 1-6.1998
4) Polat P.:TŸrkiye'de ‚ocuk Haklarõnõn Durumu. ‚ocuk Forumu 1 (1): Nisan 1998 Eki
5) Aşcõoğlu ‚.: Tõbbi Yardõm ve El Atmalardan Doğan Sorumluluk . Ankara 1993.
6) TŸzŸn B.,Elmas İ.,Akkay E.:‚ocuklara Yšnelik Tõbbi Girişimlerde Etik Bir Sorun :Onam. ‚ocuk Forumu 1(1):17-18 !998
7) Council of Europe.Convention on Human Rights and Biomedicine .Stasbourg,France 1996.
8) La Montagne. L L.:Chõldren's Preoperative Coping:Replication And Extention .Nursing Research 36(3)163-167.1987
9) Polat O .:Adli Tõbbi ve Hukuki Aõdan ‚ocuk İstismarõ ve İhmali Olgularõnda Velayet Hakkõna MŸdahale I.Adli Bilimler Kongresi 12-15 Nisan 1994 Adana 306- 308.
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