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The Patient Project is made available for educational purposes only. The website should not be used as a substitute for competent legal advice from a practicing legal professional. The information presented may not necessarily reflect the most current legal developments or judgments. The website materials may be changed, improved, or updated without notice. The author is not responsible for any errors or omissions. All views expressed on the website are the author’s own and do not represent the opinions of any entity with which the author has been, am now or will be affiliated with in the future.

© 2023 Bonnie Venter

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  • Bonnie Venter

Vaccines - a child's right?




Does a child have a right to be vaccinated?


Living in an ever-changing society, we often find ourselves devoting time to stay up to date with what is “trending”. We scroll aimlessly through Twitter to read the latest news and world events. We frantically create Pinterest boards reflecting the top 10 fashion trends, quotes to live by and idyllic holiday destinations. And finally, with the odd spare minute or two, we stimulate our square eyes by catching up with the top Netflix series. There’s no doubt, in some way or another we unwillingly (sometimes willingly) jump on the trend bandwagon. But, today I find myself wondering whether we want to be seen as trendsetters of a top threat to global health?


Earlier this month, the World Health Organisation (WHO) declared vaccine hesitancy as one of the top 10 threats to global health in 2019. This should not have come as a surprise since the tug of war between governments (who want to make vaccines mandatory) vs parents (who are opting not to have their children vaccinated) have been gracing the headlines. In the midst of all of this, reports are surfacing that highly contagious, preventable diseases such as measles are making a comeback in countries which were previously declared free of the disease. Although vaccine hesitancy is not the only factor contributing to this reappearance, it does play an active role in fighting the immunisation gap. In the scientific community, vaccinations are still seen as a proven tool for controlling and eliminating life-threatening diseases such as polio, measles, rubella and other preventable diseases, and it's estimated to prevent between 2 and 3 million deaths each year.



What is vaccine hesitancy?

The WHO defines vaccine hesitancy as the reluctance or refusal to vaccinate, despite the availability of vaccines. Vaccine hesitancy is primarily supported by anti-vaxxers who are not convinced that vaccines are safe or beneficial to children.

What are vaccinations?

*This answer comes with a friendly reminder that I’m not a medical professional, but my explanation is based on information from reliable scientific sites.

Basically, vaccines can be compared to driving lessons. Just like a novice driver takes driving lessons to prepare him for a dreaded driver’s licence test, vaccines serve as a ‘lesson’ to prepare our immune systems for an actual disease. In essence, vaccines teach our bodies to identify diseases as an ‘enemy’ and react to this enemy by providing us with the necessary weapons (antibodies). When the body is eventually attacked by a life-threatening disease, it can immediately defend itself and eliminate the disease. Vaccinations (despite their bad rep) seem to have a giving nature as it also protects unvaccinated people by a method called herd immunity. Herd immunity is based on the fact that if the greater majority of the population is vaccinated, then the unvaccinated are less likely to come in contact with a disease.

[Vaccination Fact: Some people can’t be vaccinated due to being too young or having a compromised immune system due to conditions such as Cancer or HIV.]


Why are anti-vaxxers fuelling the anti-vaccine movement?

There is no single answer as to why anti-vaxxers choose not to vaccinate their children. An anti-vaxxer’s decision is usually based on one of the following reasons:

- their religious beliefs and values;

- autism may be caused by vaccines; or

- the safety and efficacy in general of vaccines.


On the religious front, numerous studies look at which religious groups are for and against vaccines and why. Though I won’t go into detail into the religious stances, it does seem as if most religious authorities reach their final decision by comparing the risks of not vaccinating to the religious concerns of using vaccinations. If the religious debates interests you have a look at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5141457/


The autism and vaccines debate is nothing new. It started way back in 1998 when a study was published by Andrew Wakefield claiming a link between the mumps, measles and rubella (MMR) vaccine and autism. During the years debates seemed to form around this, and in 2010, after a lengthy investigation, Wakefield was struck off the UK medical register for dishonesty and unethical conduct. Incidentally, Wakefield was paid £400 000 for providing expert evidence confirming that parents’ (the plaintiffs) children were harmed by vaccines. Unfortunately, for him, his study was also retracted. Interestingly enough, some scientists have noted that the link between autism and vaccinations might be misconstrued since the first behavioural symptoms suggestive of autism usually manifest at the same stage the MMR-vaccine is first administered.


When it comes to the safety of vaccines, most concerns are based on the low doses of thimerosal (mercury) in vaccines. Science once again argues that thimerosal is safe when used in vaccines and that our bodies easily break down thimerosal. I’m not focusing too much on the health concerns as there seems to be an abundance of evidence supporting both the health concerns of those for and against vaccines.


Is South African law an anti-vaxxer supporter or not?

Vaccines are not legally mandatory in South Africa but if you take a closer look it does the law does strongly recommend vaccines.


To fully understand the South African law perspective, we need to look at the legal views of the Department of Health (DoH) and the Department of Education.


The DoH is definitely not a self-proclaimed anti-vaxxer, in fact, it strongly advises mothers to protect their children from infectious diseases by getting them vaccinated. The DoH actively tries to bridge the immunisation gap by providing vaccinations free of charge for all children in South Africa. Additionally, immunisation campaigns take place, and health care workers are often sent to school and creches to vaccinate children. Even though it is clear as day that the DoH recommends vaccinations, there is no legislation or policy stating that vaccinations are mandatory in South Africa (although the media often reports it as mandatory). All supporting legal instruments like The DoH’s Vaccinator’s Manual or the New Epi Vaccines Guidelines merely use the words “should be” vaccinated and not “must be” which is the term expected if an action is mandatory. The Guidelines briefly mention not to immunise a sick child if the mother seriously objects, but to encourage her to bring the child for immunisation as soon the child recovered. The strategies for immunisation encourage health care workers never to miss a chance to immunise and, but it certainly does not encourage vaccinating a child against the parent’s wishes.


The Department of Education is a bit more dictatorial about vaccinations. The Admissions Policy for Ordinary Public Schools requires parents to submit an immunisation card when applying for admission to a school. This does not mean that a learner may be refused an education if he/she is not vaccinated. If a parent is unable to show proof, the principal must advise the parent on having the learner vaccinated, but the learner must be admitted to the school.


You might be wondering now what about independent schools? Since these schools have some form of right of admission, typically such as admission tests, surely they may refuse entry if the parents can’t provide an immunisation card. The answer here is still no (just the by the way it has not been tested in court yet so it might be open for debate). How is this possible? The short answer to this is because all schools (whether public or independent) still need to respect a learner’s constitutional rights. Easily translated, schools may not unfairly discriminate (this right not only refers to race but also includes other ground like religion, culture and belief). Additional protection is also granted in section 31 of the Constitution which stipulates that persons belonging to a cultural, religious, or linguistic community may not be denied the rights of others in the community. If we take all of the above into consideration, it’s also safe to say that the Department of Education also strongly recommends vaccines but do not make it mandatory.


To me, it feels as if we are somehow so stuck between arguing whether a parent or the government has the right to vaccinate a child that we somehow forget about the actual child involved here. The law urges that we should always use the best interests of the child principle as a guideline to make the best possible health care decision for children. When we consider what is regarded as best interest we must take account of the views of the child, the implications with or overriding his or her wishes and the level of risk to the child. In the constitutional case, S v M (2008) Judge Sachs said:


Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilicaly destined to sink or swim with them.

This case was not based on a health care decision but did require the court to evaluate the constitutional best interest of the child principle. Maybe when deciding whether a child should be vaccinated, we should focus on the rights and dignity of the child involved instead of focusing on parents and governments who want to make their voices heard.



What is your opinion on vaccinations? Should it be mandatory or not? The Patient Project would like to know! Share your thoughts with us in the comments below or on our social media pages:


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