Can parents who refuse to vaccinate their children be prosecuted?

The importance of vaccination is something disseminated by science and encouraged by the main health bodies in the world. There are, however, cases of family members who choose not to immunize their children, whether due to ideological bias or another decision made in relation to minors. In Brazil, cases like these appeared in the media and even became a legal case, raising a debate: can parents who refuse to vaccinate their children be prosecuted?

According to Article 14, paragraph 1, of Law 8069/90 of the ECA (Child and Adolescent Statute), it is mandatory to vaccinate children in cases recommended by the health authority, that is, from the moment the Ministry of Health inserts a vaccine into the National Immunization Calendar. With this, the obligation ceases to be a choice of the parents and becomes a fundamental right of the child, guaranteed by law.

However, vaccination is mandatory, not forced. According to Rogério Scarabel, partner at M3BS Advogados, to CNN Brasil, the STF (Supreme Federal Court) determines that the State cannot lead anyone to take a vaccine, but can induce the attitude through sanctions.

"Public authorities have the right, and the duty, to apply indirect sanctions to those who refuse to be vaccinated. These restrictions include the prohibition of visiting certain places, the requirement for proof of vaccination to issue documents, hold public office or receive Bolsa Família. The understanding is that the right to collective health and the health security of society override the freedom of individual choice not to be immunized", informs the lawyer.

According to the professional, parents also cannot prevent their children from being vaccinated through the courts. He states that the Brazilian Judiciary, aligned with the STJ (Superior Court of Justice), defines that religious, philosophical or ideological convictions of those responsible cannot deprive a child of the right to health and full protection.

"The only exception accepted by the Court is the real and proven medical contraindication (such as a severe allergy to components of the immunizer). Other than that, unjustified refusal can be considered parental negligence. Parents who insist on not vaccinating their children can be notified by the Guardianship Council and are subject to administrative fines, in addition to other protective measures in favor of the minor", adds Scarabel.

Post-pandemic
In relation to the post-Covid-19 pandemic period, Scarabel explains that there was no change in jurisprudence regarding the vaccination of children, but it was consolidated and became stricter.

There are some measures that end up requiring vaccination in a more blatant way, such as the imposition of fines by the STJ, in addition to the STF having prohibited municipalities from dispensing proof of vaccination in schools.

"The post-pandemic understanding has established once and for all that, if the vaccine is in the PNI (National Immunization Program), the legal debate on whether it is mandatory is over", points out the professional.

In short, the intensification of requirements has a legal basis in all spheres. Allana Rocha, lawyer specializing in Health Law and partner at Rocha e Schabatt Advocacia da Saúde, agrees with the thesis.

" The pandemic did not change the central logic of the ECA, because childhood vaccination was already mandatory when recommended by health authorities. But Covid strengthened the jurisprudence: STF and STJ made it clearer that parental freedom does not override the child's right to health or collective protection", he informs.

Application of fines
In December 2024, the Santa Catarina Court sentenced parents who refused to vaccinate their children against Covid-19. Three cases of conviction were identified in the city of Schroeder, which is approximately 300 kilometers from the capital Florianópolis.

According to CNN Brasil, in one of the cases, a fine of R$4,236 was imposed, equivalent to three minimum wages. In two others, the value was R$8,472, an amount corresponding to six minimum wages. At the time, prosecutor Ana Paula Destri Pavan argued that "parents' refusal to vaccinate children constitutes a violation of the fundamental rights to health and life."

According to Rogério Scarabel, the application of this legal thesis is general and serves as a model for any similar case like these in Brazil. He explains that the fines imposed by judges in cases like these may have their amounts increased due to non-compliance with payments.

There are cases in which the fine reached R$500,000. "Although the principle of mandatory vaccination in Brazil is a general rule that applies to every Brazilian citizen, the risk of suffering a financial punishment of this size requires a stance of continuous and prolonged civil disobedience against court orders, which makes the economic dimension of this penalty very particular to this process", he states.

Allana Rocha adds: "Brazilian jurisprudence has stated that parents cannot, without adequate technical justification, prevent the vaccination of children when there is a recommendation from health authorities. This may apply to other cases, because it follows from the ECA, the STF and the STJ."

*With information from Alan Cardoso, from CNN, São Paulo

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Source: CNN