18 January 2024
Today, children enjoy special protection guaranteed by many international instruments and national legislation. The most important international instrument is the United Nations Convention on the Rights of the Child[1] (hereinafter: UNCRC), adopted in 1989. The aim of the UNCRC is the promotion, protection, and fulfillment of the rights of all children on a non-discriminatory basis. Article 1 of the UNCRC states that the child is “every human being below the age of eighteen years, unless under the law applicable to that child majority is attained earlier”. The UNCRC establishes a clear upper age limit to define an individual as a ‘child’ and consequently to receive and enjoy rights under its provisions. However, UNCRC does not explicitly specify the minimum age limit for a human being to be considered as a child. The UNCRC is ambiguous. UNCRC allows states to make free decisions on which point in human development a child within their jurisdiction will be protected, starting from conception or with the moment of birth.
Medical ethics is based on four pillars that form a framework for patient medical treatment:
- autonomy enables patients to adopt the decision concerning their medical treatment;
- beneficence guides doctor to act as they believe that is in the patient’s best interest;
- non-maleficence, as a core principle of medical ethics, states that a doctor has a duty to ‘do no harm’ to a patient;
- justice ensures that no one is unfairly disadvantaged regarding healthcare access.
UNCRC (Article 24) provides that “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health…” Also the Constitution of the Republic of Slovenia[2] provides in Article 51 (Article 51 of the CRS – Right to Health Care): “1. Everyone has the right to health care under conditions provided by law… 3.No one may be compelled to undergo medical treatment except in cases provided by law.“ But, patients rights and, therefore also the rights of the child as patient are generally regulated in the Patients’ Rights Act[3] (hereinafter: PRA), adopted in 2008. PRA is the core legal act that regulates 14 patients’ rights and seven patients’ duties. Patients’ rights cover legal and ethical issues in the relationship between a patient and a healthcare professional. Children are a vulnerable group and need to be given extra protection when they are acting as patients.
Children could be considered more vulnerable as patients for several reasons. Usually, they are too immature to understand complicated medical terminology when the doctors are speaking to them. They also have limited communication skills (problems with expressing their pains, symptoms, fears, feelings…). Children are represented by their legal representatives (parents or guardians), and sometimes, it could come to a collision between the parents’ and child’s best interests. Therefore, the medical professional must be the one, who will represent and protect child’s interests and rights also against the parents. As legal representatives, parents can not refuse emergency medical assistance for their child.
The PRA set 15 years as the fundamental starting point for the independent realization of the child’s right to self-determination. However, age is only one of the four requirements that must be met for the child to make their own decisions. In addition to the age requirement, the patient’s maturity, appropriate state of health and other personal circumstances must also be given, which show that the patient is capable of understanding the meaning and consequences of exercising the rights from the PRA (para. 19 of article. 2 of the PRA). The author also pointed in her presentation the distinction between generations – concretely between digital immigrants and digital natives regarding the way of searching for medical information.
In accordance with para. 2 of article 35 of the PRA, a child below the age of 15 is presumed incapable of giving consent unless the doctor, based on the child’s maturity, determines otherwise. The doctor consults with parents or guardians concerning the child’s ability to make decisions about themselves. On the other hand, a child aged 15 and above is presumed capable of giving consent unless the doctor deems them incapable after assessing the child’s maturity. In such instances, the doctor consults with the child’s parents or guardians. The flexibility in the fifteen-year limit allows for individualized treatment of minor patients, emphasizing the doctor’s obligation to respect the child’s right to self-determination when feasible. While this approach offers tailored care, it places a significant responsibility on doctors to assess the decision-making capacity of each approximately 15-year-old child on a case-by-case basis.
The child also has the right to be informed. If the child can understand the medical treatment and its consequences, they could make autonomous decisions, including refusing the medical treatment, their well-being and health. Explanatory duty to the childrenshould be made in direct contact, discreetly, and in an easily understandable manner. Medical professionals can use health models (skeleton, teeth) to make understanding the proposed medical treatment easier for children.
The author also spoke about selected issues, which represent dilemmas between law, medicine and ethics. One of the dillemas related to euthanasia. Euthanasia is the intentional act of ending someone’s life to relieve their suffering, typically in the context of a terminal illness or a condition that causes significant pain and distress. Euthanasia aims to provide a humane and compassionate end to the person’s life. In Belgium (since 2012) and the Netherlands (since 2005), also children (under strict criteria) may apply for euthanasia.
Artificial termination of pregnancy (abortus) also raises many legal, medical and ethical questions. Abortus is a medical intervention that enables free decision-making about children’s birth. Artificial termination of pregnancy is a medical intervention that is performed at the request of a pregnant person if the pregnancy does not last more than ten weeks (Article 17 of the Health Measures in Exercising Freedom of Choice in Childbearing Act[4] (hereafter Childbearing Act). Suppose the pregnancy lasts more than ten weeks. In that case, artificial termination of pregnancy can be performed at the request of the pregnant woman only if the risk of the intervention to the life and health of the pregnant woman and to her future motherhood is lesser than the danger that threatens the pregnant woman or the child due to the continuation of the current pregnancy and due to childbirth (Article 18 of the Childbearing Act). The procedure for artificial termination of pregnancy can also be performed at the request of a minor pregnant person. In this case, as a rule, the medical organization that conducts the artificial termination of pregnancy brings in the intervention of the parent or guardian unless the pregnant woman acquires full business capacity before reaching the age of majority (Article 22 of the Childbearing Act).
The author also polemicized on the following topical issues: posthumous artificial insemination, placentophagy, social freezing, savior sibling, surrogate motherhood, right to say goodbye, artificial wombs, selective feticide, the responsibility of mother for the damage caused to their child during the pregnancy (for example fetal alcohol syndrome or so-called FAS), designer babies… These topics are widely debated by lawyers, medical professionals and ethicists, laypeople and experts alike in different countries. Lastly, culture, the country’s history, demography, religion etc. could also have a significant role in the issues at stake.
Last but not least, cross-border health risks impact children’s health. These risks encompass challenges and threats to health that extend beyond cross-national borders and may affect individuals, communities, or populations in multiple countries. Children, being one of the most vulnerable groups, are not exempt from these circumstances. Cross-border risks can arise due to various factors, including wars, migration (whether voluntary, such as travel, or forced, such as seen in domestic or international conflicts, natural disasters (such as earthquakes, hurricanes, and floods), environmental hazards – such as pollutions and contaminations), human trafficking and exploitation, trade, infectious diseases – such as the COVID-19 pandemic, ZIKA)…. In cross-border risk situations, safeguarding children’s health requires international cooperation and coordinated efforts to ensure their well-being, especially in states or regions affected by such cross-border risk – such as the war in Ukraine and the earthquake in Turkey in 2023).
[1] Convention on the Rights’ of the Child (Slovene Konvencija o otrokovih pravicah) (CRC): Uradni list SFRJ – MP no. 15/90, Uradni list RS – MP, no. 9/92.
[2] Constitution of the Republic of Slovenia (Slovene Ustava Republike Slovenije) (CRS): Uradni list (official gazette) RS, no. 33/91-I, 42/97 – UZS68, 66/00 – UZ80, 24/03 – UZ3a, 47, 68, 69/04 – UZ14, 69/04 – UZ43, 69/04 – UZ50, 68/06 – UZ121,140,143, 47/13 – UZ148, 47/13 – UZ90,97,99, 75/16 – UZ70a, 92/21 – UZ62a.
[3] Patients Rights Act (Slovene Zakon o pacientovih pravicah) (PRA): Uradni list RS, no. 15/08, 55/17, 177/20, 100/22 – ZNUZSZS.
[4] Health Measures in Exercising Freedom of Choice in Childbearing Act (Slovene Zakon o zdravstvenih ukrepih pri uresničevanju pravice do svobodnega odločanja o rojstvu otrok (Childbearing Act): Uradni list SRS, no. 11/77, 42/86; Uradni list RS, no. 70/00 – ZZNPOB.
