Could Parents Be Sued for Not Vaccinating Their Kids?

If an unvaccinated child makes another child sick, some say parents who decline vaccines could be held accountable.

"Yes" is the provocative conclusion of a recent Slate article, "Endangering the Herd," by Jed Lipinski. Parents who choose not to vaccinate their kids could (in theory) be held legally responsible if their unvaccinated child infects someone else with a vaccine-preventable disease -- say, a baby who isn't old enough to be immunized yet. 

Here’s the argument: When a child isn’t vaccinated, he or she is more susceptible to getting a vaccine-preventable disease -- say, measles from not getting the MMR (measles/mumps/rubella) vaccine, which some people still believe is linked to autism, even though science has shown no such link. If that unvaccinated child then infects another child, who gets very sick (or dies), some say that the family could then sue for the harm caused to their child.

Science now makes it possible to track an infection back to a single child. In 2008, for example, a boy unvaccinated against measles came home with his family from a trip to Switzerland with measles -- and exposed hundreds of people in Washington State with the disease, include 11 children who got infected. One of the children, a baby, was hospitalized for three days with a fever of 106 F.

The Slate piece quotes a 2012 law journal article by NYU Langone Medical School bioethicist Arthur L. Caplan, Ph.D., who argues that the choice to decline vaccines does not protect a person from liability for the effects that choice has on others.

Not surprisingly, members of the anti-vaccine movement disagree. Slate’s Lipinski writes that when Dr. Caplan blogged about the issue in May, 2013 in the Harvard Law Blog, some of the negative comments were so abusive that they were removed. Here’s one that remains: “As far as I can tell, vaccines have never prevented anything, apart from health, sanity and plain common sense.”  The truth is that vaccinations save between two and three million deaths a year across the globe, according to the World Health Organization.

But it's still a complex issue. Let’s say you accept the importance of vaccinations -- not just for your own children but also for the health of our community. Does that mean we should be suing parents who don’t vaccinate their children? The controversy strikes at the heart of an ongoing debate about how our personal actions affect others. If I smoke, for example, the second-hand smoke is endangering my children at home and in the car -- and yours in a car pool or on a play date. Should I be liable for that?

If I decide not to vaccinate my child, am I responsible for the harm I may be causing to your children and society at large? What do you think?

Bob Barnett is a health journalist and editor in New York City. Follow him on Twitter and Google +.

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