Communicable diseases - those that can be caught from another person - are not an individual problem. They are a problem for whole communities, which can be affected by the impact of poor individual decisions.
Intense public debate
Romania is facing a measles epidemic that killed 34 children last year. The epidemic comes amid intense public debate, both in Romania and other EU countries, on the issue of compulsory vaccinations.
Complicating the debate in Romania is the fact that authorities have neglected to regularly supply medical facilities with mandatory vaccines. This further contributed to the drop in the vaccination rate - one of the lowest in Europe, according to a European epidemiology survey from 2016.
Some parents have had to ask relatives or friends traveling abroad to bring back vaccines that should technically be provided by the state, free of charge, through the network of family doctors. Other parents, scared and confused about the debates, have decided not to vaccinate their children "for the time being".
In this context, the Romanian Parliament last autumn started debating a draft law on mandatory vaccinations and sanctioning parents who refuse to vaccinate children for reasons of conscience or religion. This triggered fiery debates and even street protests from groups of parents dissatisfied with compulsory vaccinations.
Liberties member the Association for the Defence of Human Rights in Romania – the Helsinki Committee (APADOR-CH) participated in all parliamentary debates on the draft law and supported the proposal of the authorities, with some improvements, arguing that compulsory vaccination against communicable diseases does not violate fundamental rights and freedoms.
The Romanian human rights group believes that the prevention of the spread of communicable diseases must be continued through compulsory vaccination, as required by the legislation in force (namely, Law 95/2006 and GD 857/2011). The right of the individual to choose whether or not a to receive treatment should be valid only in cases of non-communicable diseases, thus not endangering public health.
Most rights are not absolute
Articles 8 and 9 of the European Convention on Human Rights (ECHR), invoked by those who refuse vaccination, provide for the right to private life and freedom of thought. These are, however, not absolute rights. They can be restricted. Among the reasons for these limitations are the protection of health, be it individual health or public health , and the protection of the rights and freedoms of others.
The exercise of the rights provided for in Articles 8 and 9 does not justify the violation of the right to life, guaranteed in Article 2 of the ECHR, which must be recognised both for the child who remains unvaccinated and for the other children in the community who will come into contact with the unvaccinated child.
APADOR-CH believes that parents' concerns are also justified; the obligation to be vaccinated does not include an obligation to bear medical errors related to the administration of the vaccine or to be a guinea pig of medical experiments. For this reason, the state's obligation to provide vaccines on time, and in sufficient quantity and quality, must be clearly stipulated. The state must also be responsible for the correct administration of the vaccines, mainly by establishing procedures that exclude or minimise the possible secondary effects that may occur in some people.
Once the rights and obligations of each party have been established, it is necessary for the law to provide for clear and predictable penalties, so that to ensure efficient vaccination in practice as well, not only in theory.
Parents should know, for example, that if they refuse vaccination in situations other than those provided under article 22 of the draft law (when the vaccine is medically contraindicated), and the child suffers health damage, serious injury or dies, they will be criminally liable for ill-treatment, abuse or even murder.
For non-communicable diseases, where the only one in danger is to the individual and the community or others cannot be affected, it is true that a person is entitled to decide whether or not to receive medical treatment. However, in cases relevant for public health - that endanger not only the person directly but the whole community as well, this right is replaced by an obligation to accept the measures imposed by the state to prevent and combat communicable diseases.
Communicable diseases are not an individual problem. They are problems for communities who can be affected by the impact of wrong individual decisions.
Abuse of law in the name of human rights
The right to respect for private and family life (in short the right to private life), provided for in Article 8 paragraph (1) of the European Convention on Human Rights, cited by some of those opposed to compulsory vaccination, is not an absolute right that does not allow exceptions or limitations. Furthermore, it doesn’t justify the violation of the right to life guaranteed in Article 2 of the ECHR, which must be recognised for both the child for which vaccination is refused and the other children in the community who will come into contact with the unvaccinated child. This includes not only those in contact with the child in school, but also in parks, cinemas, public transport vehicles or in other public places outside educational establishments. In this respect, Article 8 paragraph (2) of the ECHR recognises that the right to privacy may be restricted in cases provided for by law as measures which are necessary in a democratic society, to inter alia, protect public or private health and the rights and the freedoms of others.
Also, Article 17 of the ECHR, which provides that no one may use the rights guaranteed by the Convention to seek the abolition or limitation of rights guaranteed in the Convention. If the right to privacy is exercised through an arbitrary refusal to vaccinate a child, this may be considered abusive under Article 17 because such an exercise could seriously endanger the right to life (of the unvaccinated child and of the children in the community, for example) guaranteed in Article 2 of the ECHR. Refusal to vaccinate does this because by creating conditions for the establishment and proliferation of deadly diseases that can only be prevented by vaccination.