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22.07.2019 | Global Legal Matters | 1039

In order for an intervention in body integrity to be considered in accordance with the law, as a rule, consent must be obtained from the patient. The consent of the intervening person is not sought in the cases of medical necessity and written in the law in accordance with Article 17/2 of the Constitution. Also, as stated in Civil Code Article 24 /2, interference with the rights of persons shall not be deemed unlawful if there is a private or public benefit of a superior nature, or if there is a reason for the use of the authority granted by law, except for the consent of the person. In contrast, it is the 22nd Amendment of the Patient Rights Ordinance. and 25. in its articles, it is regulated that the patient has the right to refuse medical intervention. In general, there is no problem for people with full verb capacity to consent to or refuse medical applications for them. But one of the problems we face with rejection of treatment is related to children who do not have full driving licences because of their age. Due to his belief in Jehovah's testimony, blood is forbidden to enter the body. Blood transfusions for therapeutic purposes are also within the scope of this prohibition, and they do not accept blood transfusions even if they are life-threatening because no exception is foreseen. This situation, which can mean denial of treatment, sometimes confronts fundamental rights and freedoms such as the right to life, the right to self-determination and the freedom of religion.



Jehovah's witness belief, 19. it originated in the United States (USA) in the late century. Biblical beliefs are based on all 66 books included in the Old Testament and New Testament, including the Torah, Psalms, and the Bible. Jehovah's witnesses accept the one-God system rather than the triple-God belief system in Christianity. Hz. Although they accept Jesus as the son of God, they do not accept him as God and do not use many symbols, such as the Cross used in Christianity. They are also against wars, killing people, holding weapons, and military service. The beliefs of the hereafter are present and strong, and they believe that only the believers will go to heaven after the apocalypse, and that other evil people will continue to die. That is to say, they are only believers in heaven and accept that the punishment of imperfect persons is absence. The failure of Jehovah's witnesses to accept blood transfusions is a religious issue rather than a medical one. The ingestion of blood and flesh with blood is explicitly forbidden in the Torah, whereas in the Bible it is ordered that blood should be avoided. Because they do not accept the blood that comes out of their bodies, they do not allow their own stored blood to be used. However, the continuous and closed system can allow the use of devices such as dialysis, Heart-Lung circulation, which provides blood circulation.



The high benefit of the child is the 41st amendment of the Constitution. it is regulated in its article. The provision states: "Every child has the right to enjoy protection and care and to establish and maintain a personal and direct relationship with his or her parents, unless it is clearly contrary to his or her best interests. The state shall take measures to protect children against all forms of abuse and violence.". In addition to the regulations regarding the care and protection of children, the concept of high benefit is also expressed in the provision. One of the most important of the general principles of the Convention on the rights of the child (CHDS) is to prioritise the high benefit of the child. 3 of the PRS.substance; "The benefit of the child is fundamental in all activities involving children, whether by public or private outreach agencies, courts, administrative authorities or legislative bodies."Although the concept of the high benefit of the child used in judicial decisions is essentially the subject of much academic debate, it is not defined in either the teaching or the legislation and the criteria to be evaluated in the face of general or special circumstances have not yet been established. This principle should be applied in any case where no precise standard has been set in the contract. The concept of the high benefit of the child and the spirit of the convention in a whole state, the child's own views and feelings as an individual, both short-and long-term benefits should be considered.

The child's right to participate is the 12th amendment of the is regulated in its article. Accordingly, " States Parties recognize the right of the child to express his or her views freely in any matter that concerns himself or herself, in accordance with the age and degree of maturity of the child, with due care."The provision does not impose any age limits. However, the child's age and the degree of maturity in the form of two assessment criteria and he / she emphasizes that his / her opinion should be taken on any subject that concerns him / her. Participation refers to the sharing process of decisions that affect the individual himself or the society in which he or she lives.

Freedom of religion and conscience is directly related to the child's right to participate. 14. article; " states parties respect the right of the child to freedom of thought, conscience and religion. States Parties shall respect the rights and duties of parents and, if necessary, legal guardians to guide the child in the exercise of their rights in accordance with the development of the child's abilities.". The PRC does not support the automatic adoption of children as parents, and has made this right subject to minimum restrictions by ruling in a clear manner that will leave no doubt the freedom of religion and conscience of the child. On the other hand TMK m.In 341, the determination of the religious education of the child was defined as a right that belonged to the mother and father. In addition, freedom to choose religion has been granted to adults. As such, children have no right to choose their own religion and receive education accordingly. However, this arrangement is against the convention. Because, according to the convention, the child has absolute freedom of religion and conscience. The obligation of the mother and father is to guide the child according to their level of maturity and developing abilities.

Although the consent of the child in medical interventions is not specifically stated in the PRC's right to participate in decisions regarding medical practices, the Convention on Biomedicine 6.the article is expressed in accordance with the PRC. Accordingly, " a minor who does not have the ability to consent to an intervention according to the law may intervene only with the permission of his representative or the authority, person or organization determined by the law. The opinion of the minor will be considered as an increasingly decisive factor, commensurate with his age and degree of maturity."Patient Rights Regulation 24. substance; "Medical interventions require the consent of the patient. If the patient is small or embarrassed, permission is taken from his or her guardian. If the patient does not have a guardian or guardian or cannot be present or the patient has no powers of expression, this condition will not be sought. Even if the consent of the legal representative is sufficient, to the extent that they can understand what is being explained, the patient, who is small or restricted, is allowed to participate as much as possible in the information process and in the decisions to be taken regarding his treatment.". However, the Turkish Civil Code 13. while the article held that minors over the age of 15 could be made adult by court order, 16. regarding minors who have the power to distinguish the substance; "minors and restricted persons who have the power to distinguish cannot be in debt through their own proceedings unless they have the consent of their legal representatives. This consent is not required in gratuitous acquisition and in exercising strict rights to the person. arranged in the form of".In this case, the basic requirement for the existence of a consent license in medical applications will be the existence of the power to distinguish, not to be adult.

As a result of the research, no concrete case has been found regarding the rejection of blood transfusions for the children of Jehovah's witness families, as reflected in the Turkish judiciary or the European Court of Human Rights (IHAM). For this reason, the sample cases were taken from the United States, where Jehovah's witnesses lived extensively.

Gabriel Zepeda

The incident took place in children's Hospital of Texas, in May 2012. A congenital heart patient, 2-month-old baby boy Gabriel Zepeda has blood filling his lungs due to holes in his cardiovascular system. Despite the refusal of the Jehovah's Witness parents to have a blood transfusion, a life-saving heart operation was carried out, which included a blood transfusion to the baby, according to the court ruling.

Hospital lawyers appeal against the decision of the parents who did not consent to the blood transfusion. To the court, the cardiologist Dr. They convey Dougles Moodie's view that permanent harm or death will occur if the surgery, which includes the baby's blood transfusion, is not performed. Later Dr. Moodie explains by phone to Judge Michael Gomez that surgical intervention is significantly necessary. On top of that, judge Gomez allows heart surgery, which also involves the baby's blood transfusion, due to the medical requirement.


At the event in Florida in June 2011, Sanozier, a 3-year-old boy with sickle cell anemia, was given several treatment methods due to pneumonia and intra-spleen bleeding, but was unable to be successful and the family was told that the child should be given a blood transfusion because it was a life-threatening condition. Rock and Benjy Sanozier do not consent to blood transfusions since Jehovah Sha hidi and the hospital reports the situation to the prosecutor by telephone, prompting the prosecutor to ask the court for blood transfusions. The prosecution states to the court that the superior benefit of the child must be protected and that death is imminent if not intervened. The family attends the hearing on June 24 by phone and state they did not allow blood transfusions. At Trial, Judge Susan J. Aramony justifies the hospital's request and decides to give the life-threatening child a blood transfusion.

If we look at the decisions in the cases, when the interest of the child is seriously compromised, it is seen that the courts have decided against the right to custody of the family. The legal dispute is against the parents ' right to freedom of religion and custody, and the child's right to life. It is not right to talk about religious freedom in children who do not have the power to distinguish. In the events presented, the parents ' own religious freedom is at the forefront. As a result, Court decisions to protect the child's right to life are also appropriate for our positive law.

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