The Case for Suing Parents Who Don’t Vaccinate Their Kids. Or Even Criminally Charging them.

The law, lawyers, and the court.
Aug. 13 2013 10:58 AM

Endangering the Herd

The case for suing parents who don’t vaccinate their kids—or criminally charging them.

Families from across the U.S. living with autism take part in a rally calling to eliminate toxins from children's vaccines in Washington June 4, 2008.
Demonstrators with autistic children take part in a rally calling to eliminate toxins from children's vaccines in Washington on June 4, 2008. Government agencies and nongovernment health experts agree there is no evidence that links autism to any kind of vaccine.

Photo by Yuri Gripas/Reuters

What if a mother decided not to vaccinate her daughter for measles, based on rumors that the vaccine causes autism, and her daughter gets the disease at the age of 4 and passes it to a 1-year-old, who is too young for the vaccine, at her day care center. And what if that baby dies?   

That’s the sad scenario, more or less, of a Season 10 episode of Law & Order: Special Victims Unit. And it’s the hypothetical case study in a provocative paper in the Journal of Law, Medicine and Ethics that explores whether there’s a case for holding people legally accountable for the damage they cause by not vaccinating their children. “One can make a legitimate, state-sanctioned choice not to vaccinate,” the bioethicist Arthur L. Caplan and his co-authors write, “but that does not protect the person making that choice against the consequences of that choice for others.” Since epidemiologists today can reliably determine the source of a viral infection, the authors argue, a parent who decides not to vaccinate his kid and thus endangers another child is clearly at fault and could be charged with criminally negligent homicide or sued for damages.

As you’d expect, the growing anti-vaccination movement responded in fury. After Caplan wrote a related post for the Harvard Law Blog, angry comments poured in. “This article is industry propaganda at its worst,” one commenter declared. Another wrote: “Caplan would have familiar company in fascist Germany.” The blog eventually shut down the comments for violations of the site’s policies against “abusive and defamatory language” and the sharing of personal information.  

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Here’s why the anti-vaxxers are wrong and Caplan and his co-authors are right to raise the idea of suing or criminally charging them: Parents who choose not to vaccinate their kids for reasons of personal belief pose a serious danger to the public.

Measles vaccines are about 95 percent effective when given to children. That leaves a 5 percent chance that kids who are vaccinated will contract measles. This means that no matter what, the disease still poses a public health risk, but we rely on others to get vaccinated to hugely reduce the likelihood of outbreaks. That’s the process known as herd immunity.

Unvaccinated children threaten the herd. Take the San Diego measles outbreak of 2008. After unknowingly contracting the disease on a trip to Switzerland, an unvaccinated 7-year-old boy infected 11 other unvaccinated kids, according to the Centers for Disease Control and Prevention. The majority of the cases occurred in kids whose parents had requested personal belief exemptions (or PBEs) through the state of California, one of 17 states to allow them. But three of the infected were either too young or medically unable to be vaccinated. And overall, 48 children too young to be vaccinated were quarantined, at an average cost to the family of $775 per child. The CDC noted that all 11 cases were “linked epidemiologically” to the 7-year-old boy and that the outbreak response cost the public sector $10,376 per case.  

Today, several states blame a rise in preventable diseases on the declining child vaccination rates. In Michigan, less than 72 percent of children have received their state-mandated measles, mumps, and rubella (MMR) vaccines. In New York, as Caplan noted in his blog post, pockets of Brooklyn’s Hasidic Jewish community are experiencing a mini measles epidemic. Thirty cases have been confirmed so far. According to Dr. Yu Shia Lin of Maimonides Medical Center, some members of the community avoid the measles vaccine because they think it causes autism. The most visible proponent of this idea, former Playboy Playmate Jenny McCarthy, will receive a giant new platform for her viewpoints when she joins the daytime gossipfest The View on Sept. 9.

The belief that the MMR vaccine causes autism goes back to a 1998 study published in the Lancet by a British gastroenterologist named Andrew Wakefield. In 2010, after years of criticism, the journal finally retracted Wakefield’s study, announcing that it was “utterly clear, without any ambiguity at all, that the statements in the paper were utterly false.” Britain’s General Medical Council later revoked Wakefield’s medical license, noting that he’d failed to disclose his role as a paid consultant to lawyers representing parents who thought vaccines had harmed their kids. The CDC makes clear there is no connection between vaccines and autism

Yet this dangerous idea persists. Often, it persists among people who are simply doing what they think is best for their kids. Which is why it’s necessary to take extra measures to ensure nonvaccinators understand the risk they pose to other people’s children.  

Dorit Rubinstein Reiss, a professor of law at UC Hastings College of the Law and author of the blog Before Vaccines, argues in support of Caplan and his co-authors that if you fail to take reasonable precautions to prevent your child from transmitting a deadly virus to another child, you should bear the cost of that risk. If the government doesn’t impose liability, it is giving anti-vaxxer parents a free pass for posing a danger.

There should be exceptions, of course. A child may be too young to receive a vaccine or may be undergoing a medical treatment like chemotherapy that prevents vaccines from working. A vaccine shortage or lack of access to a medical facility would legally excuse a parent for not vaccinating.

There are legal obstacles to penalizing parents who don’t vaccinate their kids. Courts are generally less likely to impose liability on someone who fails to act than they are on someone who acts recklessly. Also, proving cause and effect will sometimes be difficult. Then again, to win damages, a plaintiff would only have to prove that it’s “more likely than not” that a nonvaccinated child infected another person.

Parents who don’t vaccinate their kids may have the most heartfelt reason in the world: fear for their own children’s safety. But the basis for that fear is simply unfounded, and their decisions are putting other kids directly at risk. The bottom line is that the government’s interest in protecting children from getting the measles should trump parents’ interest in making medical decisions for their kids. The creators of Law & Order: Special Victims Unit seem to agree. The name of the episode in which a little girl dies as a result of a mother’s refusal to immunize her son? “Selfish.”

Jed Lipinski is a freelancer journalist in New York. Follow him on Twitter.

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