Rights of the Unvaccinated Child: Vaccinating Over the Parents’ Will

Mar 04, 2014

This is the fourth post in a five-part series which addresses the legal rights of the unvaccinated child.

This post is written by guest blogger Dorit Rubinstein Reiss who is a Professor of Law at the University of California Hastings College of the Law in San Francisco, CA. She examines the social policies of vaccination in various articles, blogs and law journals and in this series she elaborates on the legal mechanisms that are available to protect children against the risk of non-vaccination. A detailed explanation of each post in the series appears at the conclusion of this article.

The previous two posts in this series examined legal tools that can be used once a child has been harmed or killed by a vaccine-preventable disease and ways for the legal system to react once the harm is done. In contrast, this post focuses on when and whether the legal system can step in and order vaccination to prevent a child from being left at risk of disease.

There is a legal framework in place to order parents to provide medical treatment to children over the parents’ objection. However, for good reasons, courts are very careful (maybe too careful) in using this machinery. After reviewing the relevant factors, I explain why, in most circumstances, in today’s United States, it would be both inappropriate and undesirable to order vaccination against parental will. In some circumstances, though, it is both appropriate and desirable, and I address some examples.

Finally, as a separate topic, I discuss whether in some circumstances it is appropriate to give a child the power to independently consent to vaccination; indeed, some states already allow this (and, arguably, more should).

What Does the Law Say?

Ordering Medical Treatment: The Legal Framework

Today, every state has a statute – usually one addressing abuse and neglect – that allows a court (often a juvenile court) to assume jurisdiction over a child and override parental medical decisions.[1] In essence, the court can declare a child to be neglected and either directly order treatment or appoint a guardian authorized to make medical decisions for the child. These statutes – especially the neglect part – are very vague and give substantial discretion to the court. There is no clear consensus on when courts should intervene, and courts vary dramatically in their decisions. Scholars, too, disagree.[2]

What scholars and courts agree on is that, while not absolute, parental rights should be given substantial weight in deciding whether to intervene. The Constitution has been interpreted to protect parental autonomy, or at least some aspects of it (In re Phillip B., 92 Cal. App. 3d 796 (1979)). Parents are a child’s primary caretaker in most circumstances and are usually first charged with the child’s interests. They therefore need the authority to carry out their responsibility. Normally, they act with the child’s best interests in mind, and the financial responsibility for treatment often rests with them.

In addition, neglect is a harsh term; declaring a loved, cared-for child to be “neglected” and usurping parental authority is bound to be perceived as punitive by the parents, as well as others, and should be limited to unusual situations. For these reasons, parental views need to be respected as much as possible. But they are not absolute: Children have a right to health, and the state has the power, in appropriate circumstances, to intervene to protect that right. (For a more detailed discussion, see the first post in the series.) The question is what those circumstances are and when they might include the requirement of vaccination.

There is no clear yes/no answer, and there is substantial discretion for the courts. The discussion below highlights factors that have been raised in cases and the literature and how they apply to the question whether to impose vaccination. I conclude that, in most circumstances, it is inappropriate to order vaccination against parental will. However, there are factors that could lead others to conclude differently. None of these is determinative by itself; in each case where intervention in medical decisions is required the courts will balance them and decide according to the result of that balance. Different courts may arrive at different conclusions.

Life-threatening versus non-life-threatening situations

Intervening when a child’s life is at risk is much less controversial than when this is not the case. There have been cases where courts ordered treatment even though a child’s life was not in danger. For example, in the case of Kou Xiong, a six-year-old Hmong boy, courts ordered surgery to correct clubfoot over parental opposition – based on their cultural norms – to preserve the child’s quality of life (though at the end of the day, the court withdrew the order). More famously, treatment was ordered for Kevin Sampson (In re Sampson, 317 N.Y.S.2d 641 (Fam. Ct. 1970), aff’d, 323 N.Y.S.2d 253 (App. Div. 1971), aff’d, 278 N.E.2d 918 (N.Y. 1972)). Kevin had extensive neurofibromatosis, or von Recklinghausen disease, which resulted in a deformity to his face but not a disability or risk to his life. His mother, a Jehovah’s Witness, did not oppose surgery but opposed blood transfusion during it – and the surgeon considered operating without that too dangerous. Because the deformity could cause serious psychological harm to Kevin, a court declared him neglected and ordered the surgery, with blood transfusion.

Cases such as these are controversial. While some courts obviously have been willing to intervene in such circumstances, it does not seem to be a general trend. Courts may intervene absent a risk to life, but they are less likely to do so. More usual – but not universal – are decisions to intervene in cases where a child’s life is at risk.

Recently, an Ohio appellate court twice overturned decisions of a lower court and ordered the appointment of a limited medical guardian for young Sarah Hershberger, whose parents decided to stop her chemotherapy despite a high risk of death from this decision (In re Guardianship of S.H., Ohio 9th Dist. Ct. App. No. 13CA0057-M, 2013-Ohio-3708 (see here and here for discussion)), and rejected a further appeal.

Not even a life-threatening condition guarantees intervention if it is outweighed by other factors. For example, in Phillip B., a California court of appeals upheld a lower court’s decision not to intervene because of the risk to the child from the operation (see below), although the expert opinion was that he would die before age 20 without an operation.

Applied to vaccines, on the one hand, with the potential exception of rubella, all the diseases we vaccinate against carry some risk of death to the child. The risk varies – diphtheria has a much higher risk than chicken pox, for example, but any of them can be fatal. In this sense, not vaccinating can be seen as life-threatening. On the other hand, thanks to vaccines, most of these diseases are currently rare. And the cases in which the courts have found a life-threatening condition are usually those where there was a prediction that, because of an existing condition, the child would die within a number of years. This is a risk that is relatively high and already present. It is hard to say the same for a preventive measure; the child doesn’t usually have the disease at the point of decision.

While it can be argued the other way, the decision not to vaccinate is probably not life-threatening in this context – that is, it does not fit the way the term has been used by the courts to determine whether to order vaccination over parental objections for most diseases we vaccinate against in normal circumstances.

This will not be true in some circumstances, such as an outbreak of a potentially fatal disease or with exposure that can be life-threatening – a child born to a hepatitis B positive mother or one who may be at risk of tetanus. Such a decision would be vaccine-specific: not a general requirement to vaccinate, but an order to give a specific vaccine against the background of an existing threat. This was the decision, for example, in In re Christine M., 595 N.Y.S.2d 606, 616 (Fam. Ct. 1992). A family court found that not vaccinating a child during a measles outbreak amounted to neglect:

[A] parent’s knowing failure to have a child immunized against measles in the midst of a measles epidemic or outbreak clearly places that child’s physical condition in imminent danger of becoming impaired.

Similarly, in an outbreak in Philadelphia, a federal judge ordered 8 children vaccinated (the judge later rescinded a more extensive part of his order, but the order to vaccinate was enforced).

Chances of success of the treatment

Courts are less willing to intervene if the treatment is experimental or carries lower chances of success. For example, in Newmark v. Williams, 588 A.2d 1108 (Del. Super. Ct. 1991), a young boy’s chemotherapy regimen offered him, according to expert testimony, a 40% chance of survival. Because of these odds, the Delaware Supreme Court upheld the opposition of the boy’s Christian Scientist parents to the treatment.

By comparison, most childhood vaccines are highly effective – over 95% for several, such as measles and hepatitis B with a complete course, and generally over 70%. The influenza vaccine, by contrast, is less effective but not ineffective, depending on the year (for example, the effectiveness of the 2012-2013 vaccine was estimated to be 64% in children but that of the 2011-2012 vaccine was estimated to be only 47% in all age groups) – the case for that vaccine may be weaker.

Risks of treatment

Courts are less likely to intervene when a treatment has serious risks. In Phillip B., the court upheld a lower court’s decision not to order cardiac surgery on a twelve-year-old boy suffering from a congenital heart defect, because expert reports suggested that his chances of death from the surgery were higher than the usual 5%–10%. This, in turn, was due to substantial pulmonary vascular changes and increased risk of postoperative complications for a child with Down Syndrome. This decision remains controversial (Phillip was later adopted by his foster parents, and the surgery was successfully performed), but the risks of treatment are an obvious part of the calculation.

Because vaccines are given to healthy children, they are held to a very high safety standard.[3] Modern vaccines have risks, but serious risks from them are very rare and dramatically smaller than the risks of the diseases we vaccinate against (see here for Australia: ; here for Canada: ; here for the United States).

Invasiveness of the treatment

At present, vaccines are administered orally, intranasally (e.g. FluMist), or by injection into a muscle or, occasionally, in or just under the skin. Other cases where intervention has been ordered have addressed surgery, chemotherapy, and blood transfusion – much more invasive procedures. While not completely noninvasive, vaccines are low on the scale.

Although the high effectiveness, low risk, and low invasiveness of vaccines might seem to support intervention, the fact that the situation does not comfortably fit into the life-threatening category means, in my view, that in most situations removing parental rights to make medical decisions for their child and mandating vaccination will be inappropriate. In situations where a strong case can be made that not vaccinating would be life-threatening, the countervailing considerations may support intervention.

Unusual Situations

Custody Disputes

Since the risks of vaccinating are substantially smaller than the risks of not vaccinating for all but the small subset of children with acknowledged medical contraindications, if parents disagree, we would expect courts – following the best interests of the child test – to support the provaccine parent. But at least one, a Virginia circuit court, went the other way. Finding that the antivaccine parent was more involved in medical decisions for the child, the court granted her authority to decide, although it found that vaccinating was in the child’s best interests: Grzyb v. Grzyb, 79 Va. Cir. 93 (Va.Cir.Ct. 2009). This result appears problematic – as pointed out by Constitutional scholar Eugene Volokh:

I do think that a parent’s unwillingness to immunize a child, an unwillingness that appears to be against the child’s best interests, should count against the parent.

An argument can be made that when the legislature has offered an exemption, one parent should be able to take advantage of it. However, at least when both parents retain custody, there is still one decision that must be made: to immunize or not. With the medical and scientific consensus supporting vaccines, there is no reason to privilege the parent whose position goes against the best interests of the child over the other parent – quite the contrary. Especially if the exemption is religious, the court’s words in Prince v. Massachusetts, 321 U.S. 158 (1944), are even more powerful when only one parent objects to immunizing the child:

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.

In the absence of an applicable exemption, the case is even stronger.

Loss of Custody

Courts vary over whether, in situations when a parent was found unfit to have custody of a child, the parent may still exercise an applicable exemption from school immunization requirements. Several courts have allowed a parent who lost custody to do so (Diana H. v. Rubin, 217 Ariz. 131 (Ct. App. 2007); Nassau County Dept. of Social Services ex rel. A.Y. v. R.B., 23 Misc. 3d 270 (N.Y. Fam. Ct. 2008).

Other courts have upheld the principle that a parental loss of custody cannot prevent the guardian – a relative, state authorities, or foster parents – from immunizing the child (In re C.R., 257 Ga. App. (2002); Dep’t of Human Services v. S.M., 256 Or. App. 15 (2013)).

Again, absent a valid exemption for the parent, the parent cannot oppose immunization.

Child Consent Laws

Some states allow minors to consent to medical treatments without parental consent, such as Alabama (Ala. Code § 22-8-4 (1975) (any minor 14 years of age or older)). Recently, some states have adopted bills allowing children to consent to specific vaccines (hepatitis B; Minn. Stat. § 144.3441 (2012)) or, more broadly, to those related to reproductive health (by implication, hep B and HPV; Cal. Fam. Code § 6926 (2012)).

Conclusion: How Should the Law Change?

Courts should order intervention when a strong case is made that not vaccinating would be life-threatening. For example, ordering intervention during an outbreak, or if a child may have been exposed to a potentially fatal vaccine-preventable disease and something can be done after the fact, or if the child is otherwise at high risk of exposure. Courts should make the line clear: Vaccination will not be ordered against parental will unless the child is at high risk, but if there is a risk, vaccination will be ordered.

Courts should prefer the pro-immunizing parent in custody disputes. As explained above, if at least one parent agrees, there really is no justification to privilege the parent acting against the best interests of the child – as acknowledged even by the Grzyb court – over the parent that wants to vaccinate.

Courts should not the allow use of exemptions when a parent has lost custody. If a parent was found legally unfit to care for their children, they should not be allowed to withhold vaccines – supported by the medical and scientific community – when they were already violating their responsibilities to that child.

States should allow adolescents above a certain age to consent to being vaccinated generally. After a certain age, a child deserves the right to make some medical decisions about her or his own welfare. There may be good reasons to limit a child’s rights on this in relation to very invasive treatment, where a child’s immaturity can lead her to object – that can be debated. But in relation to vaccines, which offer low invasiveness, high effectiveness and low risk, there is no reason to withhold the right to consent from a child. The converse, however, is also true: If a child is granted the right to consent, a child over that age – probably between 12 and 14 – should also be granted the right to refuse to be vaccinated, and vaccination should not happen without consent.

Mandating vaccination directly over a parent’s will is an extreme step. It involves a high level of coercion, and should be reserved to situations where there is direct, immediate risk to the child or where parental rights to make such a decision are already called into question. But in those circumstances, it is justified to step in. In addition, at a certain age a child should have a right to agree to a protective measure herself. At some point, a child is mature enough to have a choice.

[1] Robert H. Mnookin and D. Kelly Weisberg, Child, Family and State: Problems and Materials on Children and the Law, ch. 4 (7th ed. 2014). [2] Compare Joseph Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L.J. 645, 658–61 (1977) (suggesting that intervention should be very, very restricted) with Wesley Sokolosky, The Sick Child and the Reluctant Parent – A Framework for Judicial Intervention, 20 J. Fam. L. 69 (1981–82). [3] Paul A. Offit and Frank DeStefano, Vaccine Safety, in Vaccines 1464–80 (Stanley A. Plotkin et al. eds., 6th ed. 2012).

Readers are encouraged to pose questions in the comment section below for the author’s review and consideration. The final post in the series will appear next week. The previous posts are linked below.

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

Part 1: Setting the Legal Framework (click here to read)

Part 2: 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?

(see above)

Part 5: The Role of School Immunization Requirements in Protecting the Unvaccinated Child (click here to read)

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