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2017 Law Rev. Kyiv U.L. 50 (2017)
The Right to Health of the Child in Prenatal Stage

handle is hein.journals/lrkyivu2017 and id is 1182 raw text is: 

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     Tkachuk I. Correlation of religion and law as forms of regulation of social relations.
     The article analyzes certain aspects of the correlation between religion and law on the example of islam and muslim law, hin-
duism, judaism and the jewish legal system, canon law.
     Key words: religion, law, islam, hinduism, judaism, canon law.

UDK  34.023
                                               0. SHRAMOVA

                                                       Oleksandra   Shramova, PhD student of Taras Shev-
                                                       chenko  National University of Kyiv


     Introduction. Was  it possible to raise an issue of legal capacity of a child before birth one century ago and is
it possible now? What about particular rights, such as right to health? This article is an attempt to answer these ques-
tions, and to unveil some details of what is happening right now, when such right is not legally recognized. The issue
of consequences  of such state of affairs is also touched, and some suggestions of what could be done to improve
current situation are made as well.
     Formulation   of the problem. In a twosome of pregnant woman  and her baby both are subject to influence of
numerous  factors, which affect their health. The difference between those two is that right to health of a woman is
protected and guaranteed, whereas this right of a child is not recognized. Consequently, the child in prenatal stage
is deprived of legal protection of its right to health.
     Easy to say, but more difficult to define, what exactly is meant by the right to health of the child in prenatal
stage, to what kind of violations it is exposed now and their impact on further child's life. Another objective of this
paper is to suggest measures that should be taken in order to not only declare, but also to provide for protection of
health of the child in prenatal stage.
     Dimensions   of the right to health: negative right to health and positive right to healthcare. What is meant
by right to health? Legal science has filled this concept with a specific content. Numerous sources accentuate, - the
right to health should not be equalized with the right to be healthy'. E. Riedel notes: Good health cannot be ensured
by a state, nor can states provide protection against every conceivable cause of human ill health. Thus, genetic fac-
tors, individual susceptibility to ill health or the adoption of unhealthy or risky lifestyles, albeit important, cannot be
attributed to the state2.
     According  to the Article 12 of the International Covenant on Economic, Social and Cultural Rights, everyone
has the right to the enjoyment of the highest attainable standard of physical and mental health. In the General Com-
ment no. 14, the Committee on Economic,  Social and Cultural Rights notes, that right to health, like all other human
rights, imposes three types or levels of state obligations: the obligations to respect, protect and fulfil.
     The  obligation to respect, according to the General Comment No. 14, requires States parties to refrain from
interfering directly or indirectly with the enjoyment of the right to health. This is a negative obligation, which
requires the States to restraint from violations of the person's right.
     Obligations to protect and fulfil, in turn, are considered as positive obligations of the state, as they require
active efforts from the States parties. Obligation to protect requires States to take necessary measures to prevent vio-
lations from the third parties, e.g. private actors. Obligation to fulfil requires States to adopt appropriate legislative,
budgetary, judicial, promotional and other measures toward the full realization of the right to health4.
     The  European Convention  on Human  Rights does not provide for the right to health straight out. However, its
Article 8, which provides for the right to respect for private and family life, encompasses physical and moral integri-
ty of the person.
     As right to health has various dimensions, it can be concluded, that it already has its structure, established by
international and national legal systems. Within this structure the components of the right to health could be clearly
distinguished. In this regard, the freedom of enjoying the right to be healthy is in its nature negative, natural and
absolute, whereas the right to healthcare is positive, legal and relative.

     @  0. Shramova, 2017


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