Following the South African case, Treatment Action Campaign and Others v Minister of Health and Others, the use of 'pilot’ studies to investigate interventions already proven efficacious, offered free of charge to government, but confined by the government to a small part of the population, may violate children’s right to health, and the negative duty on governments not to prevent access to treatment. The applicants challenged a government decision to offer Nevirapine in a few pilot sites when evidence showed Nevirapine significantly reduced HIV transmission rates and despite donor offers of a free supply. The government refused to expand access, arguing they needed to collect more information, and citing concerns about long-term hazards, side effects, resistance and inadequate infrastructure. The court ruled this violated children’s right to health and asked the government to immediately expand access. Cluster randomized trials involving children are increasingly popular, and are often used to reduce 'contamination’: the possibility that members of a cluster adopt behavior of other clusters. However, they raise unique issues insufficiently addressed in literature and ethical guidelines. This case provides additional crucial guidance, based on a common human rights framework, for the Kenyan government and other involved stakeholders. Children possess special rights, often represent a 'captive’ group, and so motivate extra consideration. In a systematic review, we therefore investigated whether cluster trial designs are used to prevent or delay children’s access to treatment in Kenya or otherwise inconsistently with children’s right to health as outlined in the above case. Although we did not find state sponsored cluster trials, most had significant public sector involvement. Core obligations under children’s right to health were inadequately addressed across trials. Few cluster trials reported rationale for cluster randomization, offered post- trial access or planned to implement successful interventions. A small number of trials may have unnecessarily evaluated proven interventions, offered their control arm trial conditions worse than local standards of care or evaluated interventions ostensibly worse than local standards of care. Further research is required to establish if children’s right to health in cluster trials is well understood and to explain why some obligations are unmet.

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