31
149.
Taking into account that at the moment of her admission to the Humanitarian Clinic and of
the blood transfusion originating at the Azuay Red Cross, TGGL was three years old, the Commission
considers it necessary to incorporate into the analysis of this case, the international corpus juris on the
protection of children.181 This international corpus juris, used by both organs of the Inter-American system
to define the scope and content of States’ obligations towards children, has as central focal points the special
duty of protection and the principle of the best interest of the child.
150.
With regards to these central focal points, the Inter-American Court has indicated that
children are beneficiaries of the rights enshrined in the American Convention, as well as enjoying special
protective measures set out in Article 19, which must be interpreted according to the particular
circumstances of each case at hand.182
151.
In addition, every decision of the State, society or the family which involves any limitation on
the exercise of any rights of children, must taken into account the best interest of the child, which has been
formulated by the Inter-American Court as the core principle of the law on the rights of the child, based on the
dignity of every human-being; in the characteristics of children themselves; and the necessity of fostering
their development, with full appreciation of their potential.183
152.
Specifically relating to health, Article 24 of the Convention on the Rights of the Child sets out
a series of special and reinforced components. With particular relevance to the present case, the Commission
emphasizes that this norm, in paragraph 1, provides: “States Parties recognize the right of the child to the
enjoyment of the highest standard of health and to facilities for the treatment of illness and rehabilitation of
health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health
care services.”
153.
The Committee on the Rights of the Child has formulated two General Comments which are
relevant for the analysis of the special obligations incumbent on the State in the present case with regard to
TGGL.
154.
The Committee on the Rights of the Child has recently issued General Observation No.15 “The
right of the child to the enjoyment of the highest attainable standard of health”, containing important elements
which contribute to determining the special implications involved in the duty of special protection of the right
to physical integrity of children in situations related to health.
155.
Thus, the Committee referred specifically to the makeup of the “quality” element in health
services in children’s cases, and at various points in the Comment, it emphasized the importance of providing
safe treatment and services:
Health-related facilities, goods and services should be scientifically and medically
appropriate and of good quality. Ensuring quality requires, inter alia, that (a) treatments,
interventions and medicines are based on the best available evidence; (b) medical personnel
are skilled and provided with adequate training on maternal and children’s health, and the
principles and provisions of the Convention; (c) hospital equipment is scientifically
approved and appropriate for children; (d) drugs are scientifically approved, have not
expired, are child-specific (when necessary) and are monitored for adverse reactions; and
(e) regular quality of care assessments of health institutions are conducted 184.
I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations and Costs. Judgment of April 27, 2012. Series C No.
242, para. 144; and I/A Court H.R., Case of Furlan and Family v. Argentina. Preliminary Objections, Merits, Reparations and Costs.
Judgment of August 31, 2012. Series C No. 246, para. 125.
181
I/A Court H.R., Case of Fornerón and daughter v. Argentina. Merits, Reparations and Costs. Judgment of April 27, 2012. Series C No.
242, para. 144; Case of Gelman v. Uruguay. Merits and Reparations. Judgment of February 24, 2001 Series C No. 221, para. 121.
182
I/A Court H.R., Case of Furlan and Family v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31,
2012. Series C No. 246, para. 127.
183
184
CRC. General Comment No. 15. On the right of the child to the enjoyment of the highest attainable standard of health, para. 116.