37
community cases Yakye Axa, Sawhoyamaxa and Xákmok Kásek, against Paraguay, where the State had not
taken the necessary measures to provide them with a dignified life, in relation to the provision of water, food,
health and education.188
190.
The Commission considers that the obligations of the State towards the right to humane
treatment and the necessity to provide conditions allowing a dignified life, read in conjunction with the duty
of special protection of children and the principle of the best interest of the child, required the State of
Ecuador to respond effectively which meant the access to the treatment that TGGL required.
191.
Regarding the appropriate response in cases of HIV-infected children, the Committee on the
Rights of the Child indicated that States must
extend to ensuring that children have sustained and equal access to comprehensive
treatment and care, including necessary HIV-related drugs, goods and services on a basis of
non-discrimination. It is now widely recognized that comprehensive treatment and care
includes anti-retroviral and other drugs, diagnostics and related technologies for the care of
HIV/AIDS, related opportunistic infections and other conditions, good nutrition, and social,
spiritual and psychological support, as well as family, community and home-based care.189
192.
This obligation was particularly pressing in the present case due to the multiple
vulnerability factors faced by the victim in her condition as a child who is an HIV carrier and who has very
limited financial resources at her disposal. Given these circumstances, the lack of a response affected TGGL’s
chances to pursue her life goals, her personal integrity and her dignified existence and development. As she
and her mother explained on various occasions, this exposed her to a situation of discrimination at several
levels.
193.
In its General Comment No. 3 “HIV/AIDS and the Rights of the Child”, the Committee on the
Rights of the Child stated that:
[d]iscrimination is responsible for heightening the vulnerability of children to HIV and AIDS,
as well as seriously impacting the lives of children who are affected by HIV/AIDS, or are
themselves HIV infected. Girls and boys of parents living with HIV/AIDS are often victims of
stigma and discrimination as they too are often assumed to be infected. As a result of
discrimination, children are denied access to information, education (see the Committee’s
General Comment No.1 on the aims of education), health or social care services or
community life. At its extreme, discrimination against HIV-infected children has resulted in
their abandonment by their family, community and/or society. Discrimination also fuels the
epidemic by making children in particular those belonging to certain groups like children
living in remote rural areas where services are less accessible, more vulnerable to infection.
These children are thus doubly victimized.190
194.
In its recent General Observation No.15 “The Right of the Child to the Enjoyment of the
highest attainable standard of health”, the Committee on the Rights of the Child emphasized that children’s
health should not be compromised by discrimination, an important factor contributing to their vulnerability.
In these general comments, the Committee explained the special risk of discrimination faced by children due
to their state of health, particularly HIV/AIDS. 191
188 I/A Court H.R. Case of the Yakye Axa Indigenous Comunidad v. Paraguay. Interpretation of Judgment of Merits, Reparations and
Costs. Judgment of February 6, 2006. Series C No. 142, para. 161; I/A Court H.R. Case of the Sawhoyamaxa Indigenous Community v.
Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146; I/A Court H.R. Case of the Xákmok Kásek
Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of August 24, 2010, Series C No. 214, paras. 194 to 217.
189
CRC. General Comment No. 3. HIV/AIDS and the rights of the children. Para. 28.
190
CRC. General Comment No. 3. HIV/AIDS and the rights of the children. Para. 7.
191
CRC. General Comment No. 3. HIV/AIDS and the rights of the children. Para. 8.