A Michigan mother recently spent a week in jail.
She also lost custody rights to her 9-year-old son.
She refused to vaccinate her child as part of a custody agreement with her former husband.
Although this was a contempt of court case, it does put a spotlight on the potential legal pitfalls for parents who oppose vaccinations.
Rebecca Bredow had primary custody of her son, but she was held in contempt of court for failing to live up to the terms of a custody agreement.
That agreement stipulated that she keep her son’s vaccinations up to date.
“I’m a passionate mother who cares deeply about my children, their health and their well-being,” Bredow, who cited religious objections to vaccination, said in court. “If my child was forced to be vaccinated, I couldn’t bring myself to do it.”
However, the judge in the case granted the child’s father temporary custody and ordered the vaccinations to take place.
The Michigan case centered on the custody issue, not vaccination per se — the judge made no formal ruling for or against vaccination.
“[The case] is fundamentally about custody, but I don’t think it’s irrelevant that the dispute between the parents is over vaccination,” attorney Mary Holland, director of the graduate lawyering program at the New York University School of Law, told Healthline.
Holland is also a member of the legal advisory board of the World Mercury Project, which opposes mandatory vaccination.
“The notion that the court would take away primary custody from the custodial parent based solely on the issue of one parent’s decision not to vaccinate in a nonemergency situation — that’s pretty unusual,” Holland said.
But Holland expects that similar cases, pitting pro-vaccination and anti-vaccination parents against each other, are likely to follow.
“As more people question the vaccine schedules established by the states, more people are going to say ‘no, thanks,’ and I think that you’ll see more cases like this,” she said.
What states require
All 50 U.S. states and the District of Columbia require that school-age children be vaccinated against childhood diseases.
However, as of 2016, nearly all the states allow parents an exemption if they oppose vaccination on religious grounds.
In addition, 18 states permit exemptions on moral or philosophical grounds, such as the belief that vaccines contain dangerous ingredients, according to the National Conference of State Legislatures.
California, West Virginia, and Mississippi are the only states that don’t allow such exemptions.
It requires that all children attending school in the state have up-to-date vaccinations for 10 diseases: tetanus, diphtheria, measles, pertussis, mumps, rubella, hepatitis B, influenza B, polio, and chickenpox.
Under the California law, unvaccinated children are barred from attending public or private schools, as well as day care programs. The only permitted exemptions are for medical reasons.
To date, having to choose between vaccination and sending their children to school is the biggest legal consequence facing most “anti-vax” parents.
There haven’t been any liability lawsuits filed against parents who failed to vaccinate their children, said Dorit Rubinstein Reiss, a professor of law at University of California Hastings College of the Law who writes frequently about vaccination policy and law.
“Non-vaccination was pretty rare until the ’80s and ’90s, so we haven’t had enough preventable disease transmission to raise a lot of claims,” Reiss told Healthline.
“If we have more harm caused by this, it’s inevitable that a lawsuit will happen at some point,” added Reiss. “I don’t think lawsuits are a very strong deterrent, but I think it is important to have compensation for the child, who shouldn’t have to pay the price for these decisions.”
Despite the absence of lawsuits, there has been a heated debate in legal circles about the potential liability of parents who don’t vaccinate.
“If you know the dangers of measles or for that matter whooping cough or mumps, and you still choose to put others at risk, should you be exempt from the consequences of that choice?” asked Art Caplan, PhD, head of the Division of Medical Ethics at New York University Langone Medical Center, in a 2013 post on the Harvard Law School’s Bill of Health blog.
However, filing such claims is “hard for a number of different reasons,” said Reiss.
Children who get sick because their parents didn’t vaccinate them could file a negligence or battery lawsuit, but “emotionally it’s very hard to sue your parents,” she noted.
Many states also have parental immunity statues that prevent such lawsuits.
However, Reiss said that such a lawsuit would have a high chance of success if based on the parental duty to provide reasonable care to their children, such as providing the measles vaccine, which has a high efficacy rate.
“It would be very easy to show that if parents did vaccinate, then the child would not have gotten measles,” she said.
In theory, parents of children infected by unvaccinated kids — or even communities — also could sue for liability, but again the law sets up significant roadblocks, said Reiss.
“Normally you don’t have to take action to protect others,” she said.
Bystanders, for example, can’t be sued for failing to help the victims of a car crash.
Reiss said that an exception could be made to this “duty to act” standard if plaintiffs argued that anti-vaccination parents weren’t passive observers but rather took deliberate or negligent actions that caused harm.
Lawmakers also could carve out a legal exception to make such lawsuits easier.
Attorney Teri Dobbins Baxter, writing in the University of Cincinnati Law Review, argued that parents’ rights not to vaccinate does “not absolve them of their duty to exercise ordinary care to prevent causing harm to others.”
Even then, however, proving causation could be a challenge in court, Reiss and Holland agreed.
“Even in the California measles outbreak at Disneyland, investigators never tracked down ‘Patient Zero,’” said Holland. “It’s not always plainly identifiable where the infection came from.”
“There’s been a lot of talk about liability, but I haven’t seen it go very far,” she added.
Liability for the manufacturers of vaccines is somewhat limited.
The National Childhood Vaccine Injury Act of 1986 prohibited liability lawsuits against manufacturers in certain categories such as design defects. Manufacturers, however, can be liable for issues such as manufactoring errors.
The act also set up a compensation fund for victims of vaccine-related injuries. The fund is paid for through excise taxes.
The fund has paid out $3.5 billion in claims since its inception, although only about one in three filed claims gets compensated.