The question of who gets to decide questions around a child's health when vaccines are at play is complicated, and keeps popping up from Italy to Costa Rica to France and the U.S.
It is a parent’s worst nightmare to find out their child needs heart surgery. When it happened to the parents of a two-year-old child in the central Italian city of Modena, there was something extra to worry about: The blood transfusion required for the operation could include traces of the COVID-19 vaccine, which they opposed for religious reasons.
The parents asked the Sant'Orsola clinic in Bologna if they could vet the blood for the transfusion to make sure it hadn’t come from vaccinated donors. When the hospital refused, the parents took it to court, putting their child’s surgery on hold.
The court objected to their decision and temporarily stripped the couple of their parental rights, allowing doctors to go ahead with the transfusion and with the surgery, which took place in early February and was successful.
The court motivated its decision by saying that a parent’s religious belief does not come before a child’s health, reports La Gazzetta di Modena daily. Moreover, there is no scientific proof that the donor’s vaccination status can affect the health of the person receiving the transfusion, added the judge.
Between private rights and public health
The case in Italy is the latest in a series of complicated court decisions regarding parents who are opposed to COVID-19 vaccinations. It is, in some ways, the most complicated anti-vax battle, involving questions over who gets to decide what is in the best interest of a child, who is bound by the law to a parent or legal guardian and cannot decide for themselves.
We’ve seen repeatedly how the pandemic has blurred the sphere between private and public, with courts and medical experts intervening to tell parents the state knows best about a child’s wellbeing. While it is not unprecedented for states and courts to scrutinize what parents do, polarized views about vaccines have been playing out in several court cases involving children.
Several cases have come up of divorced couples who disagreed about the vaccine and ended up in court to decide who should have the final say.
Parents are trying to do what they think is best for their kids
Last year, a judge in Illinois took away a mother’s custody rights because she was unvaccinated, but rescinded the ruling a few weeks later, according to The Chicago Tribune. A New York City judge suspended parental visits for an unvaccinated father unless he got vaccinated or got tested each time he wanted to spend time with his 3-year-old child. Meanwhile, in Los Angeles, a judge ordered a father to get vaccinated or provide a medical statement explaining why he couldn't.
Visiting rights for the unvaccinated
Attorney Patrick Baghdaserians, who represents the mother in the Los Angeles case, said he was surprised by how far the judge had gone. “I’ve never seen a judge take the next step, which is ... if one of the parents is not vaccinated, that potentially exposes the child to harm,” Baghdaserians told The Los Angeles Times.
In two different cases in Canada, unvaccinated fathers have lost their visitation rights or their custody altogether — in the latter case the child in question is immunocompromised and at risk. A court in British Columbia, Canada, asked an unvaccinated father not to discuss or share anti-vax social media posts with his 11-year-old child.
Family courts in Australia and in Spain are also siding with vaccinated parents in divorce cases — except for a couple of exceptions, including one in Tenerife, Canary Islands, where the judge agreed that the low COVID risk among the youngest family members did not outweigh the unknown long-term effects of the vaccines on children, as reports La Vanguardia.
Studies around the world have concluded that the COVID-19 vaccines are safe for children, with the US Center for Disease Control and Prevention recommending them for children ages 5 and older, while trials for children up until the age of five are still ongoing.
Protest against vaccine and mask mandates in Tucson, Arizona
A terrible position
"Parents are in this terrible position, trying to do what they think is best for their kids, and then fighting with their estranged spouse to try to do what's best for their kids," Ric Roane, a family law attorney in Grand Rapids, Michigan, told CNN.
In several other countries provisions have been put in place to avoid this kind of legal trouble to arise.
For example, in France, the authorization from one parent is enough for children to be vaccinated from the age of five onwards. Initially it was only possible for the age group 12 to 15, but then the parliament approved a law that covers every child, using the health emergency to ground the decision, as the Paris-based daily Libération explains.
Costa Rica became the first country in the world to make COVID-19 vaccines mandatory for all minors
Moreover, France allows young people to go ahead and get the vaccine without parental approval from the age of 16 onwards. This is in stark contrast to countries like Italy, where several underage teenagers are trying to get their families to allow them to get the vaccine, and even contacting lawyers and medical personnel to get their help.
Italy’s state-run National Committee for Bioethics also addressed the issue, siding with adolescents. “If the minor's desire to be vaccinated were to conflict with that of the parents, the Committee believes that the adolescent should be heard by medical personnel with pediatric expertise and that his or her wishes should prevail, as they coincide with the best interests of his or her mental and physical health and public health,” it said in a statement.
Last November, Costa Rica became the first country in the world to make COVID-19 vaccines mandatory for all minors from the age of five onwards, except in the case of medical exemptions. If parents refuse, health authorities have the right to allow the vaccination, reports La Nación newspaper. Earlier, in February, a conversation between a father and a doctor resulted in a heated argument and then a fist fight among several people, with the arrest of seven people, reports CNN.
While more than 90% of people between 12 and 19 have received at least one dose of the vaccine, the numbers are much lower for children aged 5-12. Some lawmakers in Costa Rica are calling the mandate a “health dictatorship,” but public health expert Roman Macaya Hayes, who heads the Costa Rican Social Security Institute, declared that "the collective good supersedes the rights of the individual.” For any parent, it’s the hardest pill to swallow.