Children's Health Rights in Turkey

- Nurdan Kirimlioglu and Omur Elcioglu Ph.D
Osmangazi University School of Medicine, Department of Medical Ethics and History of Medicine, Eskisehir , TURKEY

Email: oelcioglu@ogu.edu.tr

Eubios Journal of Asian and International Bioethics 12 (2002), 221-3.
Abstract The right to health is one of the significant examples of social rights and includes the tasks that the state must perform. Citizens should expect positive things from the state. In Turkey, legally each individual who is between 0-18 years of age is a child. This paper introduces some legal rights of children related to medical ethics. Parents of a child who is under age and mentally retarded are responsible for giving the necessary education to him/her (Civil Law clause 264 ).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 necessary precautions and expenses to be paid by the government (Civil law clause 273).If parents neglect their responsibilities seriously, it allows maximum interference with sovereignty of children and in such a case, sovereignty rights of parents may be taken away by the judge (Civil Law clause 274). There are also certain sentences concerning Child Health in Criminal law. From this respect, a parent who leaves an ailing child belonging to him or her is punised (Turkish Criminal Law clause 473). 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 , than those persons are punished much more severely (Turkish Criminal Law clause 415 and 417).

1. Introduction Child abuse and negligence continues to be one of the most important threats to the healthy and normal development of children all over the world. First of all, negligence, in other words "careless taking care of the children" is a problem or a behavior seen in a family atmosphere. But, this problem grows up gradually in other atmospheres as well. Child abuse is a subject that is evaluated in various disciplines. Medical, legal, psychological and sociological approaches all handle the different dimensions of this subject. Naturally, it is observed that, these approaches, even in the description of the "abuse", are in different dimensions about the subject that includes a lot of perspectives and a lot of variables. How can we describe the behaviours that are directed toward the children and collected under the title of "child abuse" all over the world? The first question that needs to be asked is, which behaviours are included under the title of "harassment of children"?

"Behaviours that prevent the healthy and normal development of a child can be called as "harassment of children". The answer of the question, "how can they be encountered?" is: "Child and teenager abuse can either be in physiological, mental, sexual, emotional or negligence form.Child abuse is a disease that is related with all parts of the society." Because there were a lot of descriptions about child abuse, the World Health Organisation assembled experts of the subject to discuss the matter in 1985 and as a result, the following description was accepted: "The intentional and unintentional behaviours which affect a child's physiological and psycho-social development, towards the children by adults, society and country are called as child abuse. This description also includes actions, which a child doesn't percept and adults don't accept. For a behaviour to be a child abusing subject, this behaviour doesn't need to be percepted by a child and adults as child abusing subject. (2)."

2. Children and their Health Rights In this study, beginning with the descriptions of "child abuse" and "mistreatment of a child", and thinking that negligence of the children's health right is also a child abuse, we targeted to examine children's health rights in our country's legal texts. A child is dependent to his parents in the period from his/her birth to his/her adolescence. This phase is very important because children are weak both physically and mentally in this period (1).

Children can be deceived, directed, formed and are weak. For that reason, their interests must be protected carefully. Separating children's rights from the "human rights" which was recognized for all human beings to not be different, is still a necessity because of the special conditions that children are in as stated above.

The 25/2nd article of Universal Declaration of Human Rights expresses that "Motherhood and childhood are entitled to special care and assistance" and bases the fundamentals of law studies on mother and child, which develops day by day and in international field and affects the nations (4). Children's rights is a concept that cares about the special conditions of children who are accepted as the most desperate. All rights, basically, remind some obligations and responsibilities. These are the obligations and responsibilities of adults to children, obligations and responsibilities of powerful people to weak people (1).

A basic responsibility of a country is to protect "rights of living" of its people (7). providing it depends on protecting the health rights of the people. Health rights are described as the right, which provides protection, and development of an individual's health. Protecting an individual's health, both directly and via the cooperation of private enterprise and local administration, is one of the basic obligations of a country (8).

People are in very different health standards in our world. The most affected people from these different standards are the children. The serious conditions of innocent children, which come into being due to miscare and lack of the good care, are very important for human rights and important unsolved ethical problems. Giving equal opportunity for all people in health is basic element of being human (9). A child's health right begins with the time that she goes into womb. It's related with the mother health in the first degree during the pregnancy of the mother and suckling period. Then, it continues to be related with society's health in different phases (10).

3. Children's Rights in National and International Documents The "Geneva Children's Rights Declaration" which was accepted by United Nations on 26th September 1924, is the source of basics of the current Turkish civilized Children's Bill of Rights and had been accepted and signed by our first president Atatčrk in 1928. In the 4th article of this declaration, it is accepted that children have the right to benefit from health rights beginning with birth, and it still keeps its importance (11).

The strategies, first for children under risquÄ, to protect world children's rights are defined clearly in the frame of the United Nations Children's Rights Proclamation on 20th November 1959 and United Nations Children's Rights Convention on 20th November 1989. Our country signed this on 14th September 1990, the Grand National Assembly of Turkey approved it on 27th January 1995 published it as law code on the official gazette numbered as 4058. It is on the 24th article of this law named as "Beneficing from Health Approaches." (12).

Article 24: Health and Health Services.

Articles of the Convention cannot be separated and they complete each other. The 24th article cannot be thought to be different from other articles.

The principles need to be thought over carefully.

Article 2. Authorized people recognize all of the children's rights without separating them.

Article 33 (1): Child benefit is the basic in the actions related with children.

Article 6: The living right of children is recognized and it is mandatory to provide a child to live as much as possible and to develop.

 Article 12: Necessary attention is shown for a child to express his/her own points of view about every subjects related with him/her. This is the same for the judicial and administrative investigations.

Closely related articles with the 24th article in practice include:

Article 5: Guiding by parents and improvements of child skills

Article 17: the functions of the mass media and reaching necessary information

Article 18: Parent's responsibilities and state's supports

Article 19: Protecting form all kind of mistreatment

Article 23: The rights of disabled children

Article 25: Looking over the medical treatment and the other conditions of children, periodically

Article 27: Rights of reaching sufficient life standards

Article 28: Education right

Article 29: Objectives of Education

Article 32-36: Protection form various forms of exploitation and abuse

Article 39: Recovering of the unjustly treated children and making them part of the society again.

The "Global Health Strategy" which was accepted in 1981, is foreseeing institutional cooperation internationally for the year 2000. In the frame of the action which came to realization in the United Nations' headquarters in 1990, WHO and UNICEF argued that all the world's children should have health rights taken into consideration in a detailed way, in the declaration related with children' survival, projection and developments. The health rights of children in this declaration and action plan:

"Providing healthy environment conditions and giving health education for the children between 0 and 18 years of age (especially for before birth and infant period) are committed and decisions were made about pulling back the infant death ratio to minimum level and national and international cooperation in this field." (11).

1995 Bali Declaration, which is the new looked over form by World Doctor's Unity of Lisbon Patient's Right Declaration, has some regulations for children. In accordance with the 5th article of this declaration, patients who don't have legal rights should have some rights, not only the guardian of the child but also children should have right on health decisions.

In accordance with 5th article of this declaration for patients who doesn't have legal right; states 1) It is necessary for a patient's guardian to decide about patient if the patient is a child or doesn't have legal right. However these kinds of patients should also take part in the decision-making process in accordance with their conditions; 2) If the patient, who doesn't have legal rights, is able to make rational decision, it is necessary to respect to this decision. In this case, patient has the right to refuse inform his/her guardian; and 3) In the case that the guardian or the person who was given authority by the patient, refuses to approve the decision about patient, and if the doctor's decision is on behalf of the patient, decision making should belong to legal authorities (13).

A proclamation about "the right of the children who are hospitalized" published by the world doctors' Unity Day on 22nd October 1996. Health care of the hospitalized children has very close relationship with the processes that affect recovery of the patient such as medical, social, financial conditions. For that reason, special care should be taken in the rights of the hospitalized children. That the evaluating and taking care of the bitterness that the children suffer and insufficiency of the treatment on hospitalized children have been well known. For finding the sources to support these children, it is necessary to emphasize the hospitalized children's rights for doctors and public.  For children these include:

The rights of receiving effective treatment and taking advantages of the present attempts in order to be saved form the sufferings.

The right of receiving necessary health care convenient to his/her age and sex and illnesses, taking advantage of the treatments convenient to the medical science from the health institutions including private ones.

The right to be able to hospitalized on time, to be discharged form the hospital as soon as possible.

The right of receiving treatment with love, convenient to his/her honor and privacy.

The right to be in the recovery process actively, and to take information from the doctors when it is possible about his illnesses.

The right to share the same atmosphere with his age groups and to take the care from the people who got health education for this age group.

The right to see his parents and other family members including children, unless doctors prohibit it.

The right to suck his/her mother when he/she is in the hospital.

To continue his/her education when in the hospital.

All children should have the right to reach sufficient life standards for their physical, mental, psychological, moral, and social developments. According to the studies, the factors that define the health levels of the countries are the criteria related with basic needs. There is no chance for a child to reach the required success level when failed to support him with shelter, nourishment, education, and other environmental factors no matter, how health services a country gives for the children. For that reason, the subjects related with life standards of a society have been the important subjects of health officials. Four important principles, for both children and adults, indispensable in health services are equity, productivity, affectivity, respect for humanity. Taking the subject in this context, it is concluded that, health of the children is indexed, on a large scale, to the life standards.

Constitutional statements related with life standards include:

Article 17(1): Everybody has right to protect and improve his/her material and spiritual life.

Article 41(2): State takes the necessary measurements to protect the welfare and happiness of the family an especially for protecting mother and children and establishes the structure to provide family planning education and practice.

Article 49(2): State takes the necessary measurements to raise the life standards of the workers, to protect the working life for widening it, to support the workings and to prevent the unemployment.

Article 59(1): States takes the necessary measurements to develop the physical and mental health of the Turkish citizens...

The statements related with life standards and children's rights conventions include:

Article 6: The children's right to live, and to have the best health and development conditions.

Article 10: The education (reaching) right.

Article 12: The right to receive health services.

Article 24: the right to take advantage of health and health services.

Article 27: The right of a child to reach the basic life level.

Article 28: The education right of a child (12).

The Turkish Republic as a state receives that everybody, who was born in the border of Turkey, has the right to take advantage of the health services from birth. Carrying out this responsibility is given to State by the 56th article of the constitution. The duty of putting into force of crucial subjects such as planning, presenting, eliminating the deficiencies, adapting the new methods, is given to the Health Ministry by the governmental decree numbered as 181, by Turkish State. When carrying out this duty in the name of State, principles such as equity, attainability, social justice are taken account by Health Ministry (15).

In addition to the aforementioned articles of Turkey's Constitution, in the Hygiene Law:

The statement in the 1st article of subject law, "Improvement of the health condition of the country, struggling against the harmful factors and disease that threats society's health, providing the future generation be healthy, supporting the citizens with medical and social aid are forms the general health services of the state" is expressed.

It is expressed in the 3rd article of the same law that "Health Ministry takes the necessary measurements directly to protect the health of the mother after delivery and to protect the health of the children and adults and to provide the all other services "

In 151st article of the law, it is stated that the "Health Ministry establishes the necessary institutions and mages them to protect the children and to lower the child death ratio, and takes the measurements that will help people to learn the advantageous of protecting their health (15).

The related articles of Patient's Right Regulations dated as 1st August 1998 and numbered as 23420 are:

Article 26: Participation of a child or a person. Even in the situation that the permission of the guardian of a child is required and this permission is enough, children or persons who are under 18 years of age are listened to and their participation is provided to the medical intervention.

Article 35: The situation of children and the persons who are over18 years of age. No medical intervention, which has no use of treatment, can be done to the persons who are under 18 years of age and not adult in any circumstances. It depends on the decision of the guardians of the persons who are under 18 years of age and not adult to do the medical intervention in the case intervention has positive effect on the patient's treatment.

Beside the aforementioned articles of our constitution, the 165th, 163th and 176th articles of General Hygiene Law; the 550, 445, 446, 477, 478, 414, 415, 417, 179, 180th articles of Turkish Criminal Code, and the 267, 273rd articles of Turkish Civil Code are related with protection of children and prevention for child abuse (17).

4. Conclusions For our children to reach the goodness and happiness that they deserve, as in the world in our country, children must take the priority. On one hand, it is necessary to take the health services equally, continuously, sufficiently and in a balanced way to every body and everywhere to protect and make the keep the children alive. On the other hand, it is necessary to make the protective health services prevalent, effective, and continuous (15).

5. References

1) Dogan, I. Intelligent Little, System Publishing, Istanbul 2000.
2) Polat, O. Child and Violence, Der Publishing, Istanbul 2001.
3) Akco, S. Judging the children who are induced to crime and Children Courts, New Turkish Human Rights, special edition, II, July-August 1998:4:22:1164-1179.
4) Onursal, B. Turkey's Situation on Civilized Children's Right, New Turkish Human Rights, special edition, II, July-August, 1998:4:22:1147-1163.
5) Ozsunay, E. Conditions of Individuals in Law, 3rd Edition, Sulhi Garan Printing, Istanbul 1977.
6) Dural, M. Individuals in Turkish Law, Fakulteler Printing, Istanbul 1977.
7) Dural, M. Annual Book of Human Rights, Nonstop Issue, 12:85.
8) Bayraktar, K. Responsibilities of doctors due to treatment, Doctorate Thesis, Sermet Printing, Ankara 1972.
9) Aksit, A., Tekin, N. Children's doctors and ethic, clinical ethics (Ed:Demirhan, A.E., Oguz, Y., Elcioğlu, O., Dogan, H.), Nobel Medical Book Publishing, Istanbul 2001, p.:165-223
10) Varol, N., Ekmekci, O., Nuhoglu, A., Sur, H., Erol, A. Social Security and Report by Sub-comity for Children, 1st Istanbul children Report by Commission for Children (Ed: Say§ta, S.U., Sirin, M.R.), Publishing for Charity Organization for children in Istanbul, June 2000, p.333-344.
11) Tuncer, M., Nuhoglu, A., Aktas, F.,Okan, F. report by sub-comity for new-borns. 1st Istanbul children Report by Commission for Children (Ed: Say§ta, S.U., Sirin, M.R.), Publishing for Charity Organization for children in Istanbul, June 2000, p.:206-229.
12) The Contract on UN children's rights, First National Report, Ministerial Social Services and Institute For Protecting Children , Ankara 1999.
13) Erdemir, A.D., Elcioglu, O. Medical ethic, Ethical Approach to the Child and Adult Patients, I am not a patient, Psycho-Social Side of the Child Health and Diseases. (Ed: Eksi, A.), Nobel Medical Printing, 1999, p.:729-740.
14) Tčmerdem, Y., Nuhoglu, A., Sur, H., Karatekin, G., Erol,A., SÜylemez, D., Yasar, F. Sub committee report on right of gaining life standards and developing life standards, 1st Istanbul children Report by Commission for Children (Ed: Say§ta, S.U., Sirin, M.R.), Publishing for Charity Organization for children in Istanbul, June 2000, p.:346-362.
15) Nuhoglu, A., Sur, H., Erol, A., SÜylemez, D., Yasar,F., Ornek, C. Sub committee report on health and medical services, 1st Istanbul children Report by Commission for Children (Ed: Say§ta, S.U., Sirin, M.R.), Publishing for Charity Organization for children in Istanbul, June 2000, p.:363-379.
16) Regulation about patients' right, article published in a newspaper dated on August the 1st1998 and numbered as 23420.
17) Hanc§, H.: Adolescence and Law, 2nd International Convention for Adults and Their Problems September 2001, Program and summary of Proposals, p.:87-117.
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