Anti-vaccination movements, children’s’ rights and private power

We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala

Around a month ago the Wall Street Journal published an article entitled ‘The Anti-Vaccination Epidemic’ , which summarises an ongoing and worrying trend: diseases like mumps, measles and whooping cough are reappearing in the Western world. The reason for this is comeback is the growing anti-vaccination movement both in the US and Europe. Fueled by (dubious) publications that falsely associated certain vaccines (MMR) with autism, and by overemphasising highly exceptional cases of severe side-effects, the participants in anti-vaccination movements refuse to vaccinate their children. Apart from a heavy reliance to conspiracy theories, these movements also rely on the undeniable success the very social practice they oppose: we are no longer afraid of smallpox or rubella precisely thanks to being immunized against them at a very young age. The fact is that historically these diseases claimed the lives of millions of children and if the anti-vaccination movement prevails, they will do so again. The only way for parents to keep their children out of the ‘system’ without seriously endangering them is for them to fail politically: a few free-riders will still be safe given the overall eradication of the diseases due to the overall high rates of vaccination. But if the public campaign of these parents succeeds, then this shield will collapse and it is a matter of time before epidemics of smaller or larger scale return.

What is of interest here are the legal justifications provided by parents for their actions. (Un)surprisingly, there is a long history of civil liberties rhetoric in the UK against compulsory immunisation. After vaccination was made compulsory in 1840 the British society was in unrest and in 1878 a member of the Anti-Compulsory Vaccination League argued:

I. It is the bounden duty of parliament to protect all the rights of man.

  1. By the vaccination acts, which trample upon the right of parents to protect their children from disease, parliament has reversed its function.

III. As parliament, instead of guarding the liberty of the subject, has invaded this liberty by rendering good health a crime, punishable by fine or imprisonment, inflicted on dutiful parents, parliament is deserving of public condemnation.’

Given the general distrust towards governmental intervention at the time and importantly, given that the only conceivable rights at play seemed to be those of the parents, the law was amended in 1898. The amended version arguably introduced the concept of ‘conscientious objector’ in British law, allowing parents who ‘did not believe’ in the effectiveness of immunisation to opt out.

Contemporary protesters rely on the same legal and scientific (in the broadest sense of the word) arguments to justify their choice not to vaccinate their children. This post is not concerned with explaining how science has progressed since then rendering any overall challenge to the practice implausible. What is of our concern here is the modification of the legal background since the end of the 19th century. Two things need to be noted here: first, the classical, liberal conceptualisation of rights as shields against state interference is now complemented -to an extent- by an understanding that state intervention is necessary for the meaningful enjoyment of such rights, especially by vulnerable groups. Further, the conviction that children enjoy rights that are not identifiable with those of their parents has entered the legal equation. In the international realm this conviction is materialised through the Convention of the Rights of the Child (CRC hereafter), an instrument that according to UNICEF changed the way we see children from passive objects of care and charity to human beings with a distinct set of rights.

Sadly, any analysis based on the CRC is not applicable in the US, since the state has signed but not ratified the Convention. Nevertheless, it is applicable almost worldwide, and therefore we need to pay close attention to it. Directly relevant here are the Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates the details of the right. Moreover, Article 3 para. 1 stipulating that all decision-making should be guided by the ‘best interests of the child’, Article 12 dictating that children should be provided ‘the opportunity to be heard’ and ‘due weight’ should be given to their opinions and finally, Articles 5 and 14 that guarantee parental rights are significant for this debate.

More specifically, Article 24 stipulates that children are entitled to the enjoyment of the ‘highest attainable standard of health’, they should not be deprived of their right of access to such health care services’, while there are explicit references to preventative health care and utilisation of technology, in order to promote the right to health. Moreover, we are confronted with one of these (rare) circumstances when there is a rather objective basis for judging what is ‘at the best interests of the child’. In principle, pluralistic societies with different and often conflicting understandings of what amounts to ‘good life’ grant parents with a wide margin of appreciation (in the non-Strasbourgian, ordinary sense of the term) in the making of such decisions. However, vaccinations are specific in two interrelated ways. General Comment 15 obliges the states to decide on Article 24- related issues according to ‘evidence-based public health standards and good practices’, setting therefore a rather objective, scientific standard for what is at the best interest of the child. Further, in its commentary on Article 3 the Committee clarifies that ‘best interests’ apply both to individual children and ‘children as a group’. This is of importance, since refusal to vaccinate one’s children is in many aspects dissimilar from refusing, for example, blood transfusion on religious grounds. In the latter case it is the specific child that is endangered (which is bad enough), whereas in the former there are legitimate general public health concerns. Moreover, this practice endangers these vulnerable children who due to genuine medical reasons cannot be vaccinated. Luckily, when immunisation levels are high these children’s health is protected thanks to our ‘herd immunity’. They might not be immune to the disease themselves, but they will probably never face the risk anyway, since everyone else is and therefore it is highly unlikely for them to be infected. Any state policy towards the anti-vaccination movement needs to take into account the rights and best interests of these children as well.

Another legal argument invoked by parents is that compulsory vaccination violates their (and their children’s) right private and family life under Article 8 of the ECHR. This argument does not seem to be legally tenable. In fact, the European Court of Human Rights had the chance to rule on Article 8 and compulsory vaccination in 2012 in Solomakhin v Ukraine. It needs to be stressed that when Solomakhin was subjected to compulsory vaccination he was a full- grown adult. Still, the court found that even though compulsory vaccination evidently interfered with his bodily integrity and therefore fell under Article 8, the interference was justified in a democratic society as it ‘could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region.’ Arguably, if this is the case when it comes to a 35-year-old man, it is highly unlikely that the ECtHR would find a violation of the parents’ rights when it comes to vaccinating children 1 or 5 years old (these are ages the two rounds of MMR vaccination commonly take place), especially if we take into account the children’s rights under the ECHR and the CRC.

This does not necessarily imply that states are under an obligation to introduce compulsory vaccination for children. Questions of policy efficiency are of direct concern here and each state can make to appropriate choices taking into account the rights and interests of all individuals concerned and , of course, the interests of the society as a whole with a special focus on its more vulnerable members who arguably will suffer disproportionally from a disease outbreak. For example, in the light of the overall circumstances a state might choose to initiate an information campaign rather than resort to criminalisation of parents that refuse to vaccinate their children. Nevertheless, it needs to be stressed that the rights- based rhetoric of the anti-vaccination movement does not seem to take into account the actual international human rights documents and courts decisions. Further, this human rights rhetoric draws from an intellectual and political tradition with a very narrow understanding of human rights and, importantly, a very exclusionary conceptualisation of who is actually the bearer of these rights.

One final note: it is very easy and very appealing to dismiss these movements as manifestations of lunacy and poor education. Nevertheless, this attitude does not explain why and how these movements are fuelled periodically and more specifically now that no major publication (however ill-researched) on the topic has come out. My feeling is that- up to an extent- the revival or appearance of such movements is attributable to an overall distrust towards the state and a trend to conceptualise the private sphere exclusively as one of freedom and, in this case, care and love. Arguably, these sentiments are cultivated by states themselves through their turn to a neoliberal agenda that discredits any conception of public good and prioritises a very narrow understanding of what it means to live in a society, and even to be an individual. Interestingly, children’s rights and children’s welfare more broadly is one of the starkest examples of how less state involvement does not necessarily lead to more freedom. Rather it can well lead to an increase of private power, which being private, and in this case accompanied by love and affection, is not easily identifiable.

Anti-vaccination movements, children’s’ rights and private power

The right to health in times of austerity: the Greek example

imagesWe are delighted to welcome this guest post from Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala Since the outbreak of the financial crisis in 2008 and the austerity measures adopted by a significant number of states, especially in Europe, questions about social rights and their role in this changing economic, legal and social landscape have become prominet stearing an interesting debade. The issue seems to be gaining again some momendum after the prominent journal on health issues Lancet published last week an article that seeks to evaluate the impact of the Greek austerity package on public health. Undeniably the account is devastating. According to the authors the public hospital budget was reduced by 26% within two years (2009-2011) and further cuts are to be expected. This was a direct consequence of the objective set by the Troika to reduce public expenditure for public health at 6% of GDP which is the lowest amongst the pre-2004 EU Member States. This reconstructing seems to have direct effects on the citizens’ health care standards. The workload of the staff is increasing and it is estimated that the waiting lists (for surgeries etc) are getting longer. Since co-payments for certain medicines have increased by 10% and a prescription fee (1 euro) was introduced, while incomes are shrinking, a study showed that 70% of the respondents in a rural Greek province (which, importantly, is not amongst the poorest) are struggling to buy their medicines. In 2011 a 5 euros fee was introduced in public hospitals for outpatient visits, with the almost expressed purpose to exclude irregular immigrants who were thought to be “high jacking” the system. Given though the rising levels of poverty and unemployment, Greek nationals were directly affected too; an attempt to introduce a 25 euros fee was withdrawn after significant public outcry. Further, the fact that health insurance is linked to employment status combined with the rising levels of unemployment or informal, illegal employment practices results in an estimated 800,000 people to be left without any kind of health coverage. Further, the decreased number of syringes and condoms distributed to drug users resulted in a significant increase of HIV infections amongst this specifically vulnerable population (from 15 in 2009 to 484 in 2012). The indirect health implications of the current management of the crisis should not be underestimated as well. As Durkheim has pointed out in his research on suicide, rapid socioeconomic downgrade is prone to influencing mental health. Simultaneously, public expenditure on mental health was reduced by 20% between 2010 and 2011 and by a further 55% between 2011 and 2012. Young women and children are of particular vulnerability.

The question naturally arising for lawyers is whether and how the right to health comes into play in such conditions of extreme austerity that directly and indirectly influences the health and the access to health care for a significant proportion of the population. Could a human rights- based rhetoric and litigation provide some protection against the most extreme results of such policies? To begin with, it is worth noticing that despite the Greek Constitution providing that “The State shall care for the health of citizens and shall adopt special measures for the protection of youth, old age, disability and for the relief of the needy”, (for a full text of the Constitution in English see here), Greek Courts have been reluctant in attaching specific legal effects to this provision well before the recession. Secondly, it is worth reflecting on whether international guarantees to the right to health as stipulated in the UN Declaration of Human Rights, the UN Convention of Economic Social and Cultural Rights and the General Comment 14 of the ECOSOC Committee. By now it is received wisdom that the right to the highest attainable standard of health does not equal a right to be healthy. Rather, it creates a nexus of freedoms (for example the right to be free from torture or non-consensual treatment) and entitlements (equal opportunities for health protection) and corresponding state obligations. Availability, accessibility, acceptability and quality are generally considered the four elements that render health care provision compatible with the right to health.

Budgetary and general capacity concerns along with the idea of “gradual realisation” constitute the two broad caveats when it comes to the enjoyment and realisation of social rights and the right to health constitutes no exception in this respect. Here lies the greatest problem in using international human rights’ frameworks to advocate/litigate for a meaningful right to health care in Greece or in any other austerity-bound states. The Troika austerity package is a holistic program of structural readjustments that seeks to transform the backbone of Greek economy. For example, the idea that Greek economy lacks competitiveness and this must be compensated by tax breaks for enterprises’ profits and high personal incomes resulted in a drastic decline of state revenue. It is of relevance here that Greek commercial ship-owners are of significant wealth and influence at an international level, holding for instance key positions in the International Maritime Organisation, but extensive tax breaks before and after the recession result in them contributing to the Greek economy less than irregular immigrants do with the fees paid for semi-permanent residency certificates. Nevertheless, budgetary constraints are perceived by international human rights documents and organs as the objective background against which various semi-technocratic decisions are being made. Further, the Committee has repeatedly abstained from qualifying extensive privatisations as prima facie violations of certain rights (the right to water, rights of persons with disabilities) and the right to health did not constitute an exception. Still, privatisations of such essential services have proved disastrous in most cases, drastically limiting the access to certain fundamental goods and generally increasing the costs of their provision (see here) leading to sharpened  social problems and unrest (see here). If combined with shrinking incomes and rising unemployment, it is difficult to see how privatisations are compatible with accessibility and quality of health care. Given these restraints in the way in which economic and social rights are formulated on an international scale, it would be fair to assert and other legal and political strategies and arguments might be better situated to address the issue. First, the recent agreement between Greece and the WHO for the latter to assist the health sector reforms might be able to address the most pressing issues of this health crisis. Secondly, the persistently high levels of (prolonged) unemployment mean that for the most vulnerable to have access to public health services, employment status should be to a certain extent disassociated from health insurance. Finally, tax law and policy might be a better field to fight this battle than individual human rights litigation.

These thoughts are not to suggest that human rights discourse and litigation are altogether irrelevant when it comes to the management of the Greek health crisis. The case of forced testing for infectious diseases is a domain when a robust human rights strategy is possible and could prove to be affective. During the summer of 2013 the Health Ministry re-introduced the controversial law that stipulates forced testing of immigrants, drug uses and prostitutes under police supervision. The provision is allegedly discriminatory on the basic of ethnicity and personal status and is also in conflict with the rights of personal liberty, privacy and autonomy along with the negative aspect of the right to health that prohibits forced treatment, experimentation and testing. Further, it reinforces stereotypes that it is these marginalised groups that are responsible for the rise of the HIV/AIDS in Greece, while it probably prevents them from voluntarily seeking tests and basic protection inducing a sense of fear and mistrust towards state officials. The Joint UN Programme on HIV/ AIDS has called for the repeal of the law, since it “could serve to justify actions that violate human rights.”  It is also notable that when the law was first introduced, it was accompanied by the publication on the Greek Police site of photos of the women found HIV-positive. Charges were pressed (and later dropped) against the sex workers in a process that the UN Programme in HIV/ AIDS considered “inappropriate application of criminal law”.

To conclude, the Greek health crisis is only now starting to reveal its multiple dimensions and severity. Human rights could undeniably be utilised to address the most extreme instances of the severe implications of this reform process, especially when abusive practices like those described above are introduced. Nevertheless, it could also help us reflect on the human rights discourse and its ability to effectively resolve issues of (re)distribution of goods and services in contexts of aggravated social inequality and exclusion. The alleged neutrality and inevitability of budgetary concerns is embedded in the formulation of socioeconomic rights in international legal documents and the organs responsible for their monitoring have been notoriously reluctant in meaningfully assessing the implications of privatisations upon their enjoyment. Thus, it would be worth asking ourselves whether the present situation is not necessarily a problem of social rights violations but rather the direct reflection of their short-comings.

The right to health in times of austerity: the Greek example