Compulsory childhood vaccination: analysis of the (interaction between)

legal, moral, and political

arguments in the debate
3850 words1

A.S. (Stef) Groenewoud, 9940332

A dispensary in the East End of London: crowds of local children are being vaccinated
Wood engraving by E Buckman, 1871

Exclusive >550 words of references and appendices

Introduction
During the last two years there have been serious outbreaks of measles in European countries such as
The United Kingdom (BBC 2013), Germany (RKI 2014), The Netherlands (RIVM 2014), but also in
The United States (CDC 2014). Recent data (RIVM 2013) show that these outbreaks are caused by
lower (regional) vaccination rates. These, in their turn, may have to do with the growing antivaccination movement in both Europe and the United States (Tsouvala 2014), which is not only driven
by religious motives, but also by fear for negative side-effects. This fear is further fueled by (dubious)
publications that falsely associate certain vaccines (MMR) with autism, and by highly exceptional
cases of severe side-effects being overemphasized (Wakefield, Murch et al.).
These developments raise the concern for public health authorities; not only because of the
preventable harmful effects for children that become ill, but also because the success of the
vaccination campaign depends on the overall vaccination rate. If the anti-vaccination sentiment leads
to an even greater fall in the vaccination rate, then the protection shield will collapse and it is a matter
of time before epidemics of a smaller or larger scale return (Tsouvala 2014).
These concerns have led to fierce debates about the modalities of implementation of childhood
vaccination programs (see different modalities for several countries in Appendix 1), and more specific,
the question whether childhood vaccination should be compulsory or not.
This paper aims to answer the question: what arguments in the debate on compulsory childhood
vaccination can be given from a legal, moral and political perspective and how do these interact?
I will first look at the national (Dutch) and international legal thresholds and opportunities there are
for the introduction of a mandatory immunisation program. Then I will examine what moral
arguments can be given pro and con compulsory childhood vaccination (CCV), after which I will
discuss the political aspects of a possible future mandatory program. I will come to the conclusion that
though there seem to be legal and moral opportunities, the legal and moral thresholds for a mandatory
vaccination program are stronger. Besides, societys (skeptic) attitude toward public interference in the
private sphere is an important political consideration. This leads to a second conclusion, namely that in
complex cases like these, an analysis of both legal, moral and political aspects is necessary.

Legal aspects of mandatory childhood vaccination

In most Western countries, policy regarding infectious diseases is characterised by the voluntary
participation of the population. This freedom of choice can only be limited if there is a clear legal
basis.

National law
In The Netherlands (see Appendix 2 for the Dutch National Vaccination Program), the Public Health
Law (PHL) (Overheid.nl 2008) enables the limitation of freedom of persons that are (possibly)

infected (quarantine, isolation, medical investigation, prohibition of work), to find out who has been in
contact with the infected person, and for the detection of the source of an infection. There are three
prerequisites for freedom limiting measures to be reasonable:
a) the measure has to be effective,
b) it has to be the least intrusive option, and
c) the measure must be proportionate (Krom 2011), p. 67).
Apart from the vaccine itself, which was proven to be effective a long time ago (Hayden 1979), it is
the effectiveness of the modality (compulsory or voluntarily) that is of our concern here. Given the
high vaccination rates in many Western countries with voluntary programs (see Appendix 1b), and
given the fact that there are also countries with compulsory schemes that show lower rates, it is not
self-evident that CCV programs will be more effective than voluntary ones. There is however evidence
for the opposite. When in the UK, in 1896, a conscientious exemption was created for people who
were honestly opposed, the parents of about 200.000 children opted out of vaccination. However,
the overall effect was an increase in the number of vaccinated children (Salmon, Teret et al. 2006), p.
438).
Secondly, it is doubtful whether forcing parents to have their children vaccinated is the least intrusive
option. Current communication campaigns in countries with voluntary schemes appear to be effective
as well, and are far less intrusive. If these would become less or ineffective in the future, then, in times
of epidemics, the exclusion of non-vaccinated children from public locations such as schools would be
a measure that would infringe less upon the freedom of parents.
Third, there are at least two reasons for doubting that forcing parents to vaccinate their children would
be in proportion to the goal (Krom 2011, p. 69). First, there is a (small but existing) chance that
vaccination of children has unwanted harmful side effects. If parents decide not to vaccinate their
children because of these side effects, their decision cannot be overruled by stating that they neglect
the well being of their child. Second, the PHL does not mention the possibility that parents can be
forced to do so. The Dutch National Health Council (Gezondheidsraad) even stated that the possibility
of limitation of freedom in case of infection, is only applicable to the person who is infected himself,
thus not to the parents of a (not yet or possible) infected child (ibid., p. 70).
Dutch national law offers one last (theoretical) way out toward CCV: the Wet Geneeskundige
Behandelovereenkomst (WGBO) (Overheid.nl 1997) . This law does not make it impossible to limit
the freedom of parents, based on a principle of harm (accepting the risk that their child or others will
be infected) even though they are not infected themselves (Krom 2011, p. 71). Because this is
primarily a moral discussion, I will discuss this point in the next paragraph.

International law
Two issues are of special interest when looking at the international legal realm of CCV. First, there is
the fact that children enjoy rights that are sometimes not identifiable with those of their parents. This is

materialised through the Convention of the Rights of the Child (CRC). Directly relevant here are the
Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates
the details of this right. More specifically, Article 24 stipulates that children are entitled to the
enjoyment of the highest attainable standard of health, they should not be deprived of their right of
access to such health care services, while there are explicit references to preventative health care and
utilisation of technology, in order to promote the right to health. Moreover, we are confronted with
one of these (rare) circumstances when there is a rather objective basis for judging what is at the best
interests of the child. In principle, pluralistic societies with different and often conflicting
understandings of what amounts to good life grant parents with a wide margin of appreciation in the
making of such decisions. However, vaccinations are specific in two interrelated ways. General
Comment 15 obliges the states to decide on Article 24- related issues according to evidence-based
public health standards and good practices, setting therefore a rather objective, scientific standard for
what is at the best interest of the child (Tsouvala 2014).
Moreover, Article 3 1 stipulates that all decision-making should be guided by the best interests of
the child. In its commentary on Article 3 the Committee clarifies that best interests apply both to
individual children and children as a group. This is of importance, since refusal to vaccinate ones
children is in many aspects dissimilar from refusing, for example, blood transfusion on religious
grounds2. In the latter case it is the specific child that is endangered, whereas in the former there are
legitimate general public health concerns. Moreover, this practice endangers these vulnerable children
who due to genuine medical reasons cannot be vaccinated. However, when immunisation levels are
high these childrens health is protected thanks to our herd immunity. They might not be immune to
the disease themselves, but they will probably never face the risk anyway, since everyone else is and
therefore it is highly unlikely for them to be infected (ibid).
Second, there is the human right of private and family life, which is materialised through the European
Convention of Human Rights (ECHR, article 8)3: Everyone has the right to respect for his private and
family life, his home and his correspondence. Qualifications are made for amongst others the
protection of health. In a case about the compulsory vaccination of a 38-year old man, suffering from
diphtheria (Solomakhin v. Ukraine 2012), the ECtHR decided that there was an interference with
Solomakhins private life: the physical integrity of a person is covered by the concept of private
life, and that () the compulsory vaccination -as an involuntary medical treatment- amounts to an
interference with the right to respect for ones private life, which includes a persons physical and
psychological integrity (ibid. 33). However, the Court noted further that such interference was
clearly provided by law and pursued the legitimate aim of the protection of health. It remains to be
examined whether this interference was necessary in a democratic society (ibid. 35). The Court
2

I also searched the HUDOC search page for ECtHR case law on refusing medical treatment on religious grounds (for
example Jehovah Witnesses) but did not find any.
3
Of course, in the discussion on (compulsory) childhood vaccination, the human right of freedom of religion (ECHR, Article
9) may be relevant as well, however, given the limited space in this paper, I focus on Article 8 .

furthers concludes that the interference with the applicants physical integrity could be said to be
justified by the public health considerations and necessity to control the spreading of infectious
diseases in the region (ibid. 36).

Reflection
Based on the analysis made so far, the preliminary conclusion should be that Dutch national law does
not offer direct possibilities for CCV but that, as a last resort the WGBO could function as a legal
basis for the limitation of the freedom of parents. This depends however on a moral deliberation based
on the harm principle, on which I will reflect in the next section. Interestingly, this shows that it needs
the combination of law and morality to come to a well-considered conclusion in this case.
Internationally, both the CRC, Articles 3, 24 and the ECHR, Article 8 seems to offer possibilities.
Case law by the ECtHR has made compulsory vaccination possible, although this concerned only one
single adult and not a complete childhood immunisation program. Besides, the ECtHR raised the
question whether forcing persons to be vaccinated is in accordance with the democratic principles of
our society. Again, this clearly shows the need of moral, and also political reflection on this topic,
which I will do in the next two sections.

Moral aspects of mandatory childhood vaccination

In this section I will focus on two principles that may justify CCV (namely the harm principle and the
free rider problem) and one argument that could be used to defend the contrary (autonomy). Of course,
more arguments can be given, but given the limited space, I will focus on these. Besides, these
arguments must be considered against the background of the three prerequisites I already discussed
above (effectiveness of the chosen modality, its proportionality, and its minimal invasiveness).

Pro: the harm principle

Generally speaking, people have the moral obligation not to harm each other. My freedom ends where
it would otherwise harm others; this is the libertarian rule of thumb: () the only purpose for which
power can be rightfully exercised over any member of a civilized community, against his will, is to
prevent harm to others(Mill 1998, p.14). This is relevant not only in cases where one knows oneself
to be infected, but also when one is not aware of being infected and transmission may be prevented by
taking general preventive measures (van Delden, Ashcroft et al. 2008). With respect to the prevention
of infectious diseases however, there are two different forms of harm that have to be discerned: one
that has to do with the general prevention of harm, and the other one aims to prevent harmful
behavior. (Krom 2011, p.71). Which approach should be preferred? One answer could be that in many
Western countries, (also in The Netherlands) there is a broad consensus on the latter one, offering no
justificatory ground for a CCV program. However, this is a more political answer; I will come back on
that in the next paragraph.

Morally, one would only be satisfied if there would be a convincing moral justification for one
paradigm or the other. Some believe that utilitarianism, given the aggregative nature of utility, is very
well able to account for health effects on a population level, and that therefore, this theory is quite
attractive in public health ethics (Verweij 2005), p. 328). A utilitarian approach of childhood
vaccination would imply that a compulsory modality would be justified if the burdens and the risks of
vaccination would be low, and the benefits high (Van Delden, Ashcroft et al. 2008, p. 5563). A
contractualist approach could be an alternative moral justification. This idea is best accounted for in
Thomas Scanlons contractualist theory (Scanlon 1998). Scanlon argues that there are no prior
principles that justify our actions towards others. His idea is that we can, as it were, construct or find
such principles if we reflect on what we owe to each other. Suppose that we both aim to find moral
principles that regulate our interaction and that can be accepted by both of us. If you then propose a
principle that imposes many risks on me, but none for you, then it would be reasonable if I were to
reject it (especially if there are alternative principles that
would yield much lower risks)(Verweij 2005, p. 332).
According to Verweij, both the utilitarian and the contractualist approach may justify a CCV program.
Moreover; the goal of the limitation of freedom of parents could be the prevention of direct harm for
the child as well as general prevention: A concrete risk for the health of the child is not the only
consideration that may support a compulsory program. Compulsion might also be viewed as a
justifiable means for realising vaccination rates that are sufficient for group immunityhence
compulsion could serve the common good. (Verweij and Dawson 2004), p.3125).

Pro: the free rider problem

Childhood vaccination can be seen as a collectively organised public good with a valuable outcome;
namely herd immunity. A vaccine confers herd immunity if, once a critical proportion of the
population has been immunised, circulation of the organism falls to a point at which it no longer
threatens people who have not been immunised (Anderson and May 1985). However, parents may
decide may decide not to vaccinate their child, but to free ride on the immunity of others, but when
too many individuals choose this action, herd immunity is lost and epidemics occur (Isaacs, Kilham et
al. 2009). Apart from this carving out effect however, free riding is often believed to be morally
wrong in itself: Free riding on the provision of a collective good is often characterized as morally
wrong. H.L.A. Hart says that, if others are cooperating for mutual benefit and I benefit from their
cooperation, then I have an obligation to do my share. John Rawls cites this argument
favorably(Hardin 2013). On the other hand, however, this would entail the possibility that others
could impose an obligation on me merely by their acting cooperatively to provide some good from
which I also benefit. One might conclude that free riding in some instance is wrong, but this cannot
follow merely from the fact that it is free riding (ibid, 6).

Con: Autonomy
Above I mentioned that CCV may form a burden to parents because it drastically limits their autonomy. Respect
for their autonomy would equate with respecting the choices they make on behalf of their children, and not to
interfere with these choices. This conception of autonomy is called autonomy as a right to sovereign authority,
which is a negative form of freedom (Schermer 2002) p. 19). The value of this form of autonomy is instrumental
and lays in the fact that practicing autonomy maximizes well-being (ibid, 26-28). We saw however, that
sometimes this form of autonomy may justifiably be limited; for example if there is a threat of harm to the
autonomous person himself or to others. The question is whether interference (i.e. compulsory vaccination of
children) to prevent harm is also justified if we would conceive of autonomy in a different way, looking at its
intrinsic value. If we use intrinsic value arguments, it becomes clear that autonomy is closely related to concepts
we highly value, such as being a person, having an identity, having ones own life (ibid. p. 30) or even human
dignity (Nordenfelt 2004). As Immanuel Kant said: Autonomy is () the basis of the dignity of both human
nature and of every rational nature (Kant 1997, p 53). From this, Kant claims that every human being should
never be merely used as a means but always as an end in himself (Korsgaard 1996, p. 106-132). This raises a
final question about CCV: to what end should we be willing to infringe upon the autonomy of parents? If it is for
general prevention, the increase of the vaccination rate and for realizing herd immunity; would that be using the
parents as ends in themselves or merely as means?

Reflection
A deeper analysis of the harm principle showed that distinction has to be made between general harm
and harmful behavior. We saw that utilitarian, contractualist and free rider arguments may form a
moral justification for CCV. In my view however, it depends very much on the goal that compulsion
should achieve (increasing vaccination rates or preventing specific harmful behavior) and how one
conceives of autonomy whether these arguments form enough justificatory ground. Increasing group
immunity, cannot outweigh the intrinsic value of autonomy and private life, and compulsion would
reduce parents to merely means instead of ends in themselves. We also saw how political
considerations were interwoven with moral deliberations and we will therefore elaborate on that in the
next section.

Political aspects of mandatory childhood vaccination

We already saw that in most Western countries the policy regarding infectious diseases aims at
prevention of harmful behavior, which is contrary to a harm principle that aims at the general
prevention of harm. Which approach is preferable, is a matter of political color. The first is the
dominant paradigm in societies that hold a communitarian view. Here, the promotion of well-being
and health, is the legitimate responsibility of the public authorities. The second approach conceives of
an individualistic harm principle, and sees public health programs as a limitation of the individual
freedom (Krom 2011, p.71, 72).

Questions of policy efficiency are also of direct concern here. First, the enforcement of CCV might
form a (politically risky) problem. After all; how should the obligation be brought into effect; even if
parents refuse official calls? Secondly, and this relates to the former point, considerable costs will have
to be made for the administration that is need for such a system. In the light of the overall
circumstances a state might choose to initiate an information campaign rather than resort to
criminalisation of parents that refuse to vaccinate their children (Tsouvala 2014).
Societys attitude towards CCV is another politically relevant element the discussion. Some believe
that a shift towards a mandatory system is a move toward totalitarianism (Salmon, Teret et al, 2006
p. 440). Such a change might negatively affect the acceptance of CCV and fuel anti-vaccination
sentiments.
According to Tsouvala (2014) this attitude is attributable to an overall distrust towards the state and a
trend to conceptualise the private sphere exclusively as one of freedom, care and love. This idea is also
described by Poole in his book Morality and Modernity (Poole 2012). He discerns two different
conceptions of morality: one appropriate to public life and the other to private, which he believes- is
also a key component in conceptions of masculinity and femininity. Public (masculine) morality takes
the form of duty. Private (female) morality is, on the other hand, about virtue. It is defined much more
tightly in terms of existing within personal relationships, and carrying out certain associated activities
such as care and love (ibid. p. 48). It seems as if our Western societies have exactly such a conception
of the public and the private. Childhood vaccination might be publicly organized, but the decision to
vaccinate your child belongs to the private realm, to the (feminine) sphere of love and care. The
importance of this becomes even more clear if we look at the consequences of a possible negligence of
masculine duties, resp. withdrawal from feminine activities of love and care. The first may involve
punishment or even guilt(ibid.). The second will involve not just punishment or guilt, but a real
threat to individual identity. () not merely an infringement of the moral law, but a loss of self. In this
sense, the morality of the private realm is part of the identity of those subject to it in a way that the
morality of the public world is not (ibid). If we translate this to CCV, it becomes clear how important
it is that these decisions can be made in the private sphere, no matter what the outcome is. Forcing
parents to renounce their own (conscientious) considerations will have harmful impact on their inner
selves, and on their identities.

Reflection
As we have seen, some arguments in the discussion about CCV are politically driven. An important
aspect is societys attitude towards the role of the state and the public good. Public interference in the
private realm might lead to infringements that even hurt persons identities. Interestingly enough, we
see clear parallels with the moral conception of autonomy (see previous section). This again shows
that political and moral considerations are strongly interwoven.

Conclusion
Two conclusions can be drawn. First, regarding our central question, we have to conclude that though
there seem to be legal and moral opportunities for CCV, there are also important thresholds. Legal
opportunities can be found in international conventions and case law, though these do not concern
forced vaccination of children, let alone large cohorts of children. Morally, the strongest argument in
favor of CCV is the harm that may be done to others if parents decide not to vaccinate. On the other
hand, it can be contested whether the prevention of general harm, or striving for herd immunity,
justifies serious infringements on the private sphere of freedom and autonomy. All in all, I strongly
doubt that in the near future Western countries can legitimately introduce CCV programs. We saw that
this is also importantly a political question. Therefore, secondly, it can be concluded that complex
issues like CCV, a combined analysis of the legal, moral and political considerations is both needed
and valuable.

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Appendix 1a:
Modality of implementation of childhood vaccination programme by country, the European Union countries, Iceland
and Norway, 2010 (Haverkate, D'Ancona et al. 2011).

Countries with dominantly compulsory immunisation program

Appendix 1b:
Vaccination rates against measles for different countries (grey are the countries that were also in the Haverkate
study). Source: WHO Health for all Database: http://data.euro.who.int/hfadb/

Appendix 2: Dutch Immunisation Program

To ensure that children receive maximum protection against these diseases, vaccinations are given in four phases (see below). The Immunisation Programme
is free of charge. While participation is not compulsory, over 95% of parents consent to having their children vaccinated.