Can parents be criminally liable for refusing to vaccinate their child?

REFUSING TO VACCINATE A Child

REFUSING TO VACCINATE A Child

With all the recent controversy about vaccinations, I have been asked a very common question: Should vaccines be mandatory by law and if so, what would the ramifications be if one broke the law?

It’s a perfectly valid question and in fact, one that needs the world (who by the way, hto be addressed sooner rather than later. The potential breakout of measles, a nearly extinct virus in the developed world since the introduction of the vaccine in 1964, is becoming a concern. According to an American Journal of Medical Science article published in 1954, measles infections were so high that it was considered “as inevitable as death and taxes”[1]. Prior to 1954, hundreds of thousands of Americans were infected each year, while 4,000 suffered encephalitis (inflammation of the brain) and 400 to 500 died. When the vaccine was released, confirmed cases in the United States dropped from hundreds of thousands to (at most) a couple of hundred per year.

Another virus, smallpox, was considered one of the most threatening diseases, with the more serious of its two strands having a mortality rate as high as 45%. In fact the Pentagon’s former senior legal adviser on biological warfare issues (and coincidentally a professor of law at Georgetown University!), David Koplow states that Smallpox was responsible for 300-500 million deaths in the 20th century alone[2]. In 1972, Yugoslavia had one unrecognized smallpox case, which within weeks led to a massive vaccination effort, 35 deaths, and 175 confirmed cases as well as border closures. Fortunately, due to vaccination campaigns, smallpox has been certified as eradicated by the WHO and immunizations ended in Canada in 1972. The only remaining risk of exposure to smallpox would be bioterrorism or a catastrophic laboratory incident.

Should Vaccinations be Mandatory?

It is my opinion that some (not all) vaccines should be mandatory. Currently, an unvaccinated child playing or sharing a classroom with a child who has autoimmune deficiencies could end up becoming a very deadly peer. As seen in the recent outbreak in Disneyland, one ill child can spread the virus to dozens of others and therefore extend beyond country borders. For instance, Quebec has recently confirmed 10 cases of measles directly related to the Disneyland outbreak.

Furthermore we as a society require herd-immunity in order to protect ourselves and refusing to be vaccinated enables a virus to potentially grow into “super strains”; mutated versions of the virus that allow it to beat the vaccine The risks of getting vaccinated (if any) are far outweighed by the unequivocally clear science behind the benefits. This article will not dive into the science behind vaccination; the evidence is abundant and getting bogged down in arguments about valid, reputable and scholarly articles over ones that are baseless and formally retracted is unproductive. Suffice to say, a completely unvaccinated world is a scary world.

Consider the following scenario: anti-vaccination advocates grow in numbers and the Smallpox virus returns. Parents refuse to give their children one of the 10 million smallpox vaccines Canada currently has stored in the event of pandemics. Smallpox proceeds to infect a group of people at a widely visited international location (see Disneyland). The virus evolves into a super strain, which shows great resistance to the vaccine. Smallpox makes a comeback in a globalized society that is more connected, condensed, and exponentially more populated than 50 years ago. The super strand has a mortality rate of 30% and an infection rate of about 65%. Earth’s population in 2013 was 7.125 billion people. You do the math.

It would kill hundreds of millions of people, maybe even billions. Mandatory vaccination in some form or another warrants serious consideration.

An Argument Against Mandatory Vaccination

Ironically, the strongest argument I’ve encountered against mandatory vaccination is not from the anti-vaccination Jenny McCarthy’s of the world (who by the way, has since retracted her anti-vaccination statements, which she puzzlingly alleges she never held), it comes from a legal concern for slippery slope legislative policies. While the Measles Mumps Rubella Vaccine (MMR) is vital to herd immunity, what would happen if mandatory injective policies popped up in other areas of our lives? What if the government started making a variety of other invasive mechanisms mandatory, such as the State of Virginia’s attemptedho by the way, has sin introduction of invasive mandatory ultrasound (now repealed), or their newer one (not repealed)?

This is cause for concern. There is an “air of reality” to the idea that if mandatory vaccination laws passed, the government could open the floodgates mandating even further invasive procedures in the future because “it’s in society’s and your own best interest”. That type of language is very Orwellian. Yet other countries have managed to implement mandatory vaccination for one or more viruses with very little complaint. For example, Croatia and Slovenia have mandated vaccinations for children and in fact, the Croatian Constitutional Court ruled “the child’s right to health is more than the rights of parents to the (wrong) choice” (translated using Google Translate).

…the Croatian Constitutional Court ruled “the child’s right to health is more than the rights of parents to the (wrong) choice” (translated using Google Translate).

Civil or Criminal Ramifications for vaccinations and infections:

What I find more intriguing, however, is what legal recourse a family may have if their child were to end up getting a disease from an unvaccinated child. What if that child were to die from measles or rubella? What if they were to become permanently disabled? Would there be civil liability for bodily harm caused to the child? Would criminal liability be out of the question?

At the moment, intentionally infecting someone with a sexually transmitted illness (STI) can be a criminal (and to a lesser extent a civil) offense and willful blindness to or intentionally infecting someone with HIV is a serious criminal offense. Intentional bioterrorism directed at one or more persons with a substance like anthrax is also a very serious international crime. Of course, there is merit to these laws above as more serious infections can have a lifelong impact on those infected.

However, similarities can be drawn from MMR and STIs. The measles can lead to permanent deafness or death; HIV inevitably leads to AIDS and a manageable, but a life long, chronic illness. The willful blindness of someone carrying the HIV who infects another person could be tantamount to recklessness or negligence, giving rise to criminal or civil liability; willful blindness of the science behind vaccines can lead to the infection of a child, putting everyone at risk. It is quite clear these are dramatically different types of illnesses, but the parallels are not as far off as they seem at first blush.

Of course, these are uncharted waters. No one has thought to challenge an infection of diphtheria, whooping cough, measles, mumps, etc. with a criminal action or civil lawsuit. At the moment the thought seems preposterous and outlandish, but willful blindness to unequivocal scientific proof could be interpreted as deliberately putting the rest of society in harm’s way. Such actions would be exposing people to infections that, but for the anti-vaccination advocates’ actions, society would not be subject to in the first place.

In the UK, not less than a year ago, a 4-year-old girl went into anaphylactic shock on an airplane after a passenger began eating peanuts, despite being repeatedly warned not to. While the girl survived, the man was taken into custody. His reckless actions could be construed as “implied intent”. This implied intent coupled with the grievous bodily harm to the child might have culminated in enough to charge the man with an S.20 (Grievous Bodily Harm) under the England and Wales ‘Offences against the Person Act, 1981, a conviction of which carries a maximum sentence of five years in prison. Could be repeated refusals to get vaccinated in the face of scientific evidence be considered the same kind of recklessness demonstrated by the airplane passenger?

Conclusion

Our medical and legal systems are preventative ones; that is to say, they attempt to prevent the danger from happening, rather than treating it once it arrives. We prohibit the sale of gambling, alcohol, and cigarettes to minors so as to prevent the potential for abuse and addiction. We do not punish people for the consumption of illicit substances; we punish them for possession of the illicit substances to get high. When someone has chronic pains, we pre-emptively screen for more unlikely yet serious illnesses so that we can catch them before they develop; we do not wait for them to occur. We encourage safe sex with protection and we punish those who don’t when they knowingly have an infection and withhold that information to their partner.

Is it really that hard to believe we could punish those who choose to remain unvaccinated if they cause serious harm or death to another as a result? Besides, might it be right to punish them anyways?

References and Footnotes

  1. Babbott FL Jr, Gordon JE (1954). "Modern measles". Am J Med Sci 228(3): 334–61
  2. Koplow, David A. (2003). Smallpox: the fight to eradicate a global scourge. Berkeley: University of California Press.
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