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To vaccinate or not to vaccinate - that is the question

The refusal to participate in Czech mandatory vaccination schemes has become a hot topic. What if two parents differ in their view of this issue?

According to the Act on the Protection of Public Health, all natural persons whose place of permanent residence is in the Czech Republic must submit to regular vaccinations as set out in Decree No. 537/2006 Coll., on pain of a fine of (effective as of 1 July 2017) up to CZK 10,000.

Beyond that, there are indirect, much stronger safeguards in place to ensure that people let themselves be vaccinated – while parents who fail to take their kid to get the shots "merely" face the above-mentioned fine of CZK 10,000, a pre-school, for instance, who enrolls a non-vaccinated child exposes itself to much higher sanctions. In fact, the pediatrician attending to a given child is obliged to ensure that all mandatory vaccinations are being administered, again under the threat of a substantial fine.

However, in spite of the above, having one's child vaccinated is and remains a medical intervention – as such, it requires what is known as informed consent, and this consent is given (in the case of minors) by the parent. Barring this consent, the vaccine principally may not be administered.

In connection with the above, a broad debate has flared up in recent times about the supposed negative impact of vaccinations on children, to the point that certain parents willfully neglect their duty to have their children vaccinated. In this article, we take no side with respect to the medical merits of either argument, but would instead like to cast light on a situation in which one parent wishes their child to receive vaccination, but the other parent does not.

Parents discharge their parental duties and responsibilities (among them the vaccination of their child) "in mutual agreement". However, if only one of the parents acts vis-a-vis a third party in matters concerning the child, and that third party is protected by good faith, then that parent is assumed to have acted with the consent of the other parent. In other words, if a parent appears with their child at the doctor's office for vaccination, the physician is under no obligation to establish whether the other parent does in fact consent with the vaccination, unless he or she has reason to suspect that the other parent has withheld, or would withhold, consent.

Conversely, if the anti-vaccination parent has notified the pediatrician of their refusal to give consent, thus frustrating the medical intervention, the conflict between the parents will have to be resolved in court. Pursuant to Sec. 877 of the Civil Code, if parents cannot agree in a matter of importance for the child, the court shall decide upon the motion of one of the parents who manifestly seeks to replace the other parent's declaration of will by a court ruling. An open question is whether or not vaccination is a "matter of importance" within the meaning of the above-cited statutory provision. After all, the provision gives the example of important matters other than standard medical interventions. However, given that the vaccination of children is a parental duty under the law, imposed on grounds of the public interest in preventing the outbreak and propagation of infectious diseases, and considering further that (save for very specific cases) the vaccination itself is an intervention in the interest of the minor, we conclude that the court would likely in such a case substitute for the non-consenting parent and give consent in lieu of that parent without reviewing whether or not the matter is one "of importance".

The parent who agrees to have the child vaccinated will thus prevail with a likelihood bordering on certainty. The other parent's legal position is incomparably weaker: they do not merely advocate for a certain position with respect to their child's bodily integrity, but they do in fact commit a breach of public-law obligations. As such, they enjoy no legal protection, and if they were to defend themselves in court, they would likely suffer defeat, even though their non-consent does in fact prevent the pediatrician from simply going ahead and vaccinating the child. (Having said that, a reverse line of argument is perfectly conceivable whereby the physician's obligation under the Public Health Act to ensure and administer vaccinations may to a certain degree "replace" the missing informed consent of parents.)

 

Source:
Public Health Act (Act No. 258/2000)