The Rights of the Unvaccinated Child: The Legal Framework
Feb 11, 2014

This is the first post in a five-part series written by guest blogger Dorit Rubinstein Reiss.

Dr. Reiss is a Professor of Law at the University of California Hastings College of  the Law in San Francisco, CA, who often examines the social policies of vaccination in various articles, blogs and law journals.  In this series, she will elaborate on the legal mechanisms that are available to protect children against the risk of non-vaccination.  A detailed explanation of each of the following posts appears at the conclusion of this article.

DoritBlogPost1Right to Health

The Legal Framework

Much of the discussion surrounding the anti-vaccine movement focuses on the decision of parents to not vaccinate their children and the danger that decision poses to others. That danger is undeniably real; parental choice not to vaccinate can directly harm other children and increase the risk of outbreaks.

However, the primary risk of this parental decision is borne by the child.   While living in a first world country with high vaccination rates may offer that child some protection through community immunity, unvaccinated children are at much higher risk of vaccine preventable diseases.  In an op-ed criticizing religious exemptions and suggesting concerns of child abuse and neglect, Dr. Paul Offit explains how a measles outbreak in Pennsylvania killed nine unvaccinated children from two church communities that opposed vaccination.  Parents whose children suffer health consequences as a result of being unvaccinated often have a change of heart about vaccines and acknowledge that their decision not to vaccinate was dangerous.  These stories are easy to find, such as in this story of a Hib infections on Shot by Shot.

These stories run counter to the claim heard from anti-vaccine activists that asking them to vaccinate their children means asking them to risk harm to their children for the greater good of society.  Children are not vaccinated solely for the greater good. Children are vaccinated, first and foremost, to protect the child from dangerous diseases like chicken pox, diphtheria, Hepatitis A and B, Hib, HPV, influenza, measles, meningococcal, mumps, pneumococcal, polio, rotavirus, rubella, tetanus, and whooping cough. Each of these diseases can kill. And some of them kill at high rates. All of these diseases can cause lasting harm or substantial suffering. Fortunately modern scientists have devised a way to protect children against these harms: vaccines.

While vaccines are not 100% risk free, not vaccinating carries its own risks.  It’s important to remember two points. First, extensive data shows that the risks of not vaccinating far outweigh the risks of vaccinating. Second, unintentional harm from a vaccine is not meant to be an acceptable sacrifice for the greater good: it’s a highly undesirable outcome that the scientific community works hard to avoid, as seen by the multiple mechanisms that have been put in place to minimize or avoid such harms.

While the primary purpose of vaccines is to protect an individual who would otherwise be left at risk, we can’t ignore an additional benefit they provide.  If vaccination rates are high enough, the concept of herd immunity offers additional protection to everyone – both vaccinated and unvaccinated.

Regardless of these facts, some parents will choose not to vaccinate their child.  This post explores the tension between the parental choice and the unvaccinated child’s right to be free of preventable diseases. By rejecting the abundant data that proves that the risk of not vaccinating is greater than vaccinating, and by purposely leaving a child at the mercy of vaccine-preventable diseases, parents can legitimately be seen as violating a child’s right to health and life.

While this post is intended to lay the general legal framework of the unvaccinated child, subsequent posts will explore specific legal tools available to protect the child in greater detail.

To be clear: I do not support forcing parents to vaccinate children except in limited, unusual circumstances.  However, it is important that we address the legal mechanisms that may be available to help protect the rights of the child.

Parental Rights and Children’s Rights

We emphasize the effect not vaccinating has on others because, in our individualistic society, it’s easier to support and justify regulation of family conduct that has direct impact on others. As a society, we prefer to give parents substantial freedom to manage their own family affairs. If there is a sphere where freedom should rein, it’s inside the family home. As early as the 1920s, the Supreme Court’s privacy jurisprudence protected parental rights to control things like children’s education. The courts determined that those rights were part of the liberty protected by the Fourteenth Amendment’s due process clause.

While the law once viewed children akin to property that parents could control as they wished, we now recognize that parental authority flows from the parent’s awesome responsibility. Parents are the ones primarily responsible for taking care of their children and fulfilling their physical, mental, and emotional needs. Parents need the authority to teach their children appropriate behaviors and to intervene when children’s immaturity may lead them into danger.  They also need the power to make choices for their children that their children cannot make for themselves.

Since parents are responsible for their child’s welfare, they are also expected to make medical choices because children – especially very young ones – do not have the capacity to do so. The default position is for parents to make the medical decisions, including the decision whether or not to vaccinate their child.  This is reflected in the courts’ unwillingness to intervene in parental medical decisions except in unusual circumstances, such as when a child’s life is clearly at risk. Another reflection of this is that many states still do not allow children to sue parents for damages due to negligent medical decisions.

Two other cultural norms reinforce this approach: first by respecting diversity and second by viewing parents as a child’s best advocates. Our society acknowledges and embraces heterogeneity in culture, religion, and other attributes. Applied to children, we acknowledge that there is more than one right way to raise a child who is sufficiently sound in mind, body and heart. We accept a range of upbringing options, and give parents the leeway to choose between them. Our Courts reflect that view by giving parents dramatic leeway to make educational choices for their children (See Wisconsin v. Yoder, 406 U.S. 205 (1972)).

Our system is also premised on the view that parents are a child’s most zealous advocates. Parents know a child’s situation best.  Parents care for and love the child. While not infallible, parents serve as the first line of defense for that child’s interests. Combined with a culture that mistrusts authority – not without reason – this has prompted the courts’ careful scrutiny and reluctance to intervene in parental rights and choices.

However, there is another side to the equation. Children are not property; parenting is a trust and includes a responsibility to protect the children’s rights. Unfortunately, parents cannot always be trusted to fully protect those rights, particularly in cases of neglect or abuse. Less starkly, parents may simply be wrong as to the right course of action for their child – sometimes, fatally wrong.

Our modern jurisprudence acknowledges that states have parens patriae power.  Literally “parent of the nation”, parens patriae means that the state has the authority and responsibility to step in to protect children if their parents won’t, or can’t, in order to safeguard a child’s physical, emotional or mental wellbeing.

The state can protect children in a variety of ways including the enactment of laws which require parents to behave in certain ways, bringing criminal charges against parents who behave in ways deemed abusive, or through court injunctions requiring specific actions from parents. In extreme cases, courts may even take children away from their parents in order to protect those children.

How does this apply to vaccines? I have no doubt that many parents that choose not to vaccinate believe their decision is the best way to protect their child. Many of them may be swayed by anti-vaccine rhetoric including stories of harm from a vaccine, even when the evidence disproves those stories. Some fall prey to the notion that vaccines contain harmful toxins. Some have a general distrust of the medical establishment.   Fortunately, there is extensive evidence debunking each of the claims.

It is unequivocal that for every child, except the rare few who have true medical contraindications, vaccinating is the safer choice. Neither decision is risk free. But even on a background of high immunization rates, when the chances of contracting a vaccine preventable disease are low, the risks of not vaccinating are higher than the risks of vaccinating. This is because modern vaccines are very, very, very safe. And the diseases we vaccinate against? Not safe at all, as seen in a comparison of risks here.

When a parent leaves a child unprotected against potentially fatal diseases, that child’s health – even that child’s life – remains at risk. There’s certainly an argument that parens patriae applies in this situation, and that state institutions may act to protect a child from the risk imposed by the parental decision to not vaccinate.

However, there are also two counter arguments to explore.  First, since vaccine-preventable diseases are relatively rare, thanks to a large percentage of the population being adequately vaccinated, we need to consider whether the risk of disease is high enough to justify parental coercion and intervention.   The problem is that this is a contingent argument: it only works as long as vaccination rates remain high – not only generally, but in the relevant community. And even then, since vaccines are safer than the diseases, the unvaccinated child is still at higher risk.

The second consideration is that vaccination is not risk free.  No matter how small the risk may be, the questions remains; is it appropriate to require parents to impose risks on their children that they are uncomfortable with on? The problem with this argument, again, is that the choice not to vaccinate also carries risks; and these risks are greater. So the question should be rephrased: is it appropriate to tell parents to choose a smaller risk for their children over a greater risk? We do so in other contexts, for example requiring seat belts, so it can be argued that it’s also appropriate to do with vaccines.

Some may say that respecting the child’s rights means not vaccinating them as a child, but allowing them to make that choice for themselves when they are older. That argument does not work. A child has no choice either way. A two month old infant cannot tell her parents “Mom and dad, I’d like to be vaccinated so I’m protected against HiB disease or whooping cough, thank you.” Likewise, even if a precocious 15 months old can say “no”, it’s obvious that a young child does not have the knowledge or the maturity to decide if she wants the shot or would rather be left exposed to the risk of measles. So it remains the parents’ responsibility to make that choice for the young child; just as they change the newborn’s diaper – over her loud protest, expressing her vehement reluctance – rather than leave her soiled and at risk of diaper rash.

In the legal context courts uniformly acknowledge a state’s right to legislate to protect that child, as in the example of requiring immunizations for school attendance.  In the tension between parental rights and child’s rights, the state’s democratically elected legislature has the clear power to protect a child’s health via statutes that limit parental rights. It’s constitutional to do so and it’s up to the states to determine how far they want to go in enforcing their policies.

On the other hand, courts have been less willing to protect children against the dangers of non-vaccinating absent a clear legislative pronouncement. Courts do not frequently order vaccination of children over parental opposition, though it’s not unheard of, and is most common when there are parental disputes. But to be clear, it’s certainly possible: one court – In Christine M – determined that not vaccinating, in the context of a measles outbreak, was considered neglect. This situation, though rare, will be explored in a future post.   Given the strong science supporting vaccine safety and the real risks of acquiring a vaccine preventable disease, there is a strong argument that courts can, and should, do better.

Now that we have explored the general legal framework that exists in determining the competing rights of the unvaccinated child, the remaining posts in the series will address specific legal mechanisms that are available to protect children against the risk of non-vaccination.  Each of the following posts will attempt to define the scope of the issue, explain the legal limitations and suggest specific legal reforms. 

Summary of “The Rights of the Unvaccinated Child” Blog Series

Part 1: Setting the Legal Framework (see above)

Part 2: Tort Liability: Can an Injured Child Sue a Parent Based on Their Choice Not to Vaccinate? (click here to read)

Part 3: Can Parents Be Criminally Liable in Cases of Injury to an Unvaccinated Child? (click here to read)

Part 4: Under What Circumstances Is It Appropriate to Require Parents To Vaccinate? (click here to read)

Part 5: The Role of School Immunization Requirements in Protecting the Unvaccinated Child


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