By Nikee van der Gouw, LLM Student in Public International Law and LLM International Human Rights Law, n.f.van.der.gouw@student.rug.nl.

Immunisations prevent disabilities and mortalities resulting from infectious diseases. They are one of the most cost-effective, widespread used public health interventions.[1] However, increasing numbers of parents seek exemptions from vaccinating their children. This leads to lower vaccination rates and, in turn, a higher risk of contracting vaccine-preventable diseases.[2] The debate about children’s vaccination has fed rumours that combat efforts by health officials to promote vaccination. [3] On the one hand, the medical sector quotes numerous scientific data in favour of vaccination, whilst concerned parents wish to protect their children from adverse reactions.[4] Empirical research has proven the relationship between non-vaccination rates and permissive state vaccine exemption policies. This means, that legal policy reforms might promote higher immunisation rates.[5] As such, States adopted new policies aiming to stimulate parents to vaccinate their children. Some States even adopt compulsory vaccination programs, whilst other States ban unvaccinated children from day-care or schools.[6] Compulsory vaccination policies and their implementation mechanisms have led to various legal protests around the world.[7] In Australia, compliance with childhood immunisation schedules is linked to financial benefits, called the ‘no jab, no pay’ policy.[8] The country adopted a policy that suspends subsidies for parents of unvaccinated children.[9] If parents refrain from vaccinating their children – unless medical exemptions apply – the State will not grant financial support. This ‘no jab, no pay’ policy encompasses a high level of coerciveness since serious consequences are linked to non-compliance.[10] The policy can be seen as an encouragement to increase vaccination rates. Yet, it resembles compulsory vaccination, especially for the financially burdened individuals.

 The main human rights conflict is whether achieving herd immunity against infectious diseases, thus the right of the community, justifies human rights infringements on the individual. Legal arguments against vaccination are based on the view that individuals have the right to autonomy and bodily integrity, as enshrined in the universally binding WHO International Health Regulations (2005).[11] Protection of autonomy and bodily integrity includes the human right to exercise informed consent to medical risk-taking.[12] This contemplates the legal right to be fully and accurately informed about the benefits and risks of medical intervention. The patient must be free to make a voluntary decision about whether to accept the risk for oneself (or the child) without coercion or punishment.[13] Since vaccines do not come without the risk of side effects, this can be seen as a violation of human rights without informed consent.[14] The Australian policy proves no exception, as the coercion level is significant, resulting in ‘punishment’ if choosing non-vaccination.

 States have a positive obligation to ensure the populations’ highest attainable standard of health. Thus, they have a duty towards those who cannot be vaccinated, or towards those with poor immune systems. This needs to be taken into account when interpreting Article 12 ICESCR according to CESCR General Comment No. 14. This obligation may lead to the argument that coercive immunisation policies are permitted.[15] Ultimately, the decision to vaccinate a child should be left in the hands of parents. The right to family life and privacy, both enshrined in Article 17 ICCPR, must be viewed in light of the principle of proportionality.[16] The ‘no jab, no pay’ policy justifies restricting the liberty of the individual, mainly referring to the right to the freedom of bodily movement in the narrowest sense.[17] This relates to the freedom of movement and the right to education in the instance where an unvaccinated child is denied access to educational facilities. According to Article 28 CRC, States must ensure the right to education based on equal opportunity. This also includes the obligation to take protective measures that avoid the spreading of contagious diseases within the school setting.[18]

Parental authority weakens the State’s authority to intervene in decisions regarding children’s health care. Nevertheless, in numerous cases, courts authorised vaccination against the wishes of the parents.[19] Common feature in all these cases is the judge’s opinion that the best interests of the child overruled the parent’s objections towards vaccination.[20] The judgements were supported by scientific evidence, usually with risk assessments by medical experts.[21]

 The ‘no jab, no pay’ policy in Australia lacks a legitimate public health purpose for making every vaccine under the National Immunisation Policy mandatory. Keeping the proportionality assessment in mind, the mandatory measure was not proportionate to any outbreaks in Australia.[22] As such, there is no reason to limit or derogate from human rights standards.[23] Mandatory vaccination might seem to be a solution for short-term problems, it is not a long-term solution. The ASSET Project found no clear link between mandatory vaccination and increasing vaccination rates. The report states: “[…] countries where a vaccination is mandatory do not usually reach better coverage than neighbour or similar countries where there is no legal obligation”.[24] Absolute mandates can increase immunisation levels, but eventually might assemble serious backlash. Hence, several factors should be “taken into account: compatibility with constitutional limitations on State power; social values; bioethical principles; political feasibility; cost and efficiency; and effectiveness”.[25] The parental decision is restricted by mandatory vaccination policies. However, respect for individual autonomy and parental decision-making are core principles in international human rights. Instead of punitive systems and intimidation, information and education campaigns should be organised, countering negative information concerning vaccination.[26] Using legal tools can improve immunisation rates and helps to protect the community from infectious preventable diseases. This sparks the debate on whether the rights of the community prevail over individual human rights. Freedom of choice can conflict with the promotion of the general health of a community, particularly the health of those who are vulnerable. There is no one-size-fits-all approach to improving vaccine rates. It is important to convey the message that vaccinations are a vital part of public health. Reform is desirable and practicable in the international health community. However, striking a balance between the individual freedom and the public good is complex and the Australian policy has delivered mixed results, as it punishes the very children in need of protection. The most sustainable path to achieving high vaccination rates is through accessible, informative and lawful programs that enable parents to make their own informed decisions. Carrots rather than sticks need to be used to increase vaccination rates. Essentially, the ‘no jab, no pay’ policy should not be implemented on a global scale, if we want to keep human rights standards at the level we have fought so hard to achieve.

[1] Robert T, Chen & Beth Hibbs, ‘Vaccine Safety: Current and Future Challenges’, Pediatric Annals 27(7) (1998) 445; World Health Organization, ‘Immunization’ <https://www.who.int/topics/immunization/en/> accessed 15 December 2018.

[2] Lois A. Weithorn and Dorit Rubinstein Reiss, ‘Legal approaches to promoting parental compliance with childhood immunization recommendations’, Human Vaccines & Immunotherapeutics 14(7) (2018) 1611.

[3] Lawrence O. Gosten, ‘Law, Ethics, and Public Health in the Vaccination Debates – Politics of the Measles Outbreak’, JAMA Pediatrics 313(11) (2015) 1099; See generally Larson H et al., ‘State of Vaccine Confidence in the EU 2018’ – Report for the European Commission (European Union, Luxembourg 2018); See generally for arguments that are used against vaccination: Sarah Pope, ‘Six Reasons To Say NO to Vaccination’, (the healthy home economist) https://www.thehealthyhomeeconomist.com/six-reasons-to-say-no-to-vaccination/ accessed 9 December 2018.

[4] Jason L Schwartz & Arthur L. Caplan, ‘Vaccination Refusal: Ethics, Individual Rights, and the Common Good’, Primary Care: Clinics in Office Practice 38(4) (2011) 717; Paula Gerber, ‘Bringing a human rights perspective to the debate surrounding the vaccination of children’, (Science Alert 24 May 2013) <https://www.monash.edu/news/opinions/two-wrongs-dont-make-a-right-bringing-a-human-rights-perspective-to-the-debate-surrounding-the-vaccination-of-children> accessed 10 December 2018.

[5] It must, however, be kept in mind that there are also other factors that contribute to the rise of outbreaks and dropping immunization rates; Weithorn and Reiss (n 2) 1611.

[6] E.g. the United States, where school immunization laws are part of the vaccination policies; Douglas J. Opel, ‘Measles, Mandates, and Making Vaccination the Default Option’, JAMA Pediatrics 169(4) (2015) 303.

[7] In Europe, there is no overall vaccination requirement, but each country has its own immunization policy based on the public health care system; Leila Barraza, Cason Schmit and Aila Hoss, ‘The Latest in Vaccine Policies: Selected Issues in School Vaccinations, Healthcare Worker Vaccinations, and Pharmacist Vaccination Authority Laws’, Journal of Law, Medicine & Ethics 45(1) (2017) 17; Andrzej Grzybowski, et al., ‘Vaccination refusal. Autonomy and permitted coercion’, Pathogens Global Health (111(4) (2017) 201.

[8] Gary Finnegan, ‘Mandatory Vaccination: does it work in Europe?’, (Vaccines Today, 27 November 2017) <https://www.vaccinestoday.eu/stories/mandatory-vaccination-work-europe/> accessed 13 December 2018.

[9] Grzybowski (n 7) 200; Frank H Beard, Julie Leask and Peter B. McIntyre, ‘No Jab, No Pay and vaccine refusal in Australia: the jury is out’, Medical Journal Australia 206(9) (2017) 381.

[10] Weithorn and Reis (n 2) 1614.

[11] World Health Organization, International Health Regulations (3rd edn., WHO Press, France 2005) Article 18; David Feldman, Civil Liberties and Human Rights in England and Wales (2nd edn., Oxford University Press 2002) 241; Jonathan Herring and Jesse Wall, ‘The Nature and Significance of the Right to Bodily Integrity’, Cambridge Law Journal, 76(3) (2017) 568; Andraz Zidar, ‘WHO International Health Regulations and Human Rights: From Allusion to Inclusion’, The International Journal of Human Rights 19(4) (2015) 518.

[12] Babara Loe Fisher, ‘Why Is Informed Consent to Vaccination A Human Right?’, (National Vaccine Information Center, 28 June 2017) <https://www.nvic.org/nvic-vaccine-news/june-2017/why-informed-consent-to-vaccination-a-human-right.aspx#_edn3> accessed 14 December 2018.

[13] See generally George J. Annas and Michael A. Grodin, The Nazi Doctors and the Nuremberg Code – Human Rights in Human Experimentation (Oxford University Press 1992); Fisher (n 12).

[14] See generally T.G. Kimman, R.J. Vandebriel and B. Hoebee, ‘Genetic variation in the response to vaccination’, Journal of Community Genetics 10(4) (2007).

[15] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3, Article 12; CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 of the Covenant) (11 August 2000) E/C.12/2000/4, para. 10.

[16] Moreover, Article 12 of the Universal Declaration of Human Rights states that no one ‘shall be subjected to arbitrary interference with his privacy’ and that everyone has ‘the right to the protection of the law against such interference’, similar to Article 17 ICCPR; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Article 17; Health measures must be legitimate, based on the law and proportionate to the intended purpose; Zidar (n 11) 519.

[17] Zidar (n 11) 520.

[18] UN General Assembly, Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 199) 1577 UNTS 3, Article 28 para. 1.

[19] Family Court of Australia 126, Duke-Randall & Randall [2014]; Queensland Supreme Court 427, Re H [2011]; New South Wales Supreme Court 1193, Re Jules [2008]; High Court of Justice Family Division UK 2683, F v F [2013] FamEWHC; Family Court of Australia 889, Re Kingsford and Kingsford [2012]; Rachael Heath Jeffrey, ‘Vaccination and the law’, American Family Physician 44(11) (2015) 850.

[20] Jeffrey (n 19) 850.

[21] ibid.

[22] Beard, Leask and McIntyre (n 9) 382.

[23] Judy Wilyman, ‘The Australian Government’s ‘No Jab No Play’ Social Services Policy’, (2014) <https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=24&Lang=EN> accessed 12 December 2018.

[24] ASSET & EU. GA, ‘Compulsory vaccination and rates of coverage immunization in Europe’ 612236, 4.

[25] Weithorn and Reiss (n 2) 1612.

[26] The Netherlands is a great example of this; Rijksoverheid, ‘Vaccination of children’, <https://www.government.nl/topics/vaccinations/vaccination-of-children> accessed 21 December 2018; Jeffrey (n 19) 851.