LISTEN | Can parents be sued for not vaccinating their children?

Parents who choose not to vaccinate their children could, under certain circumstances, find themselves facing civil lawsuits if their decision results in serious harm to another person.

Child vaccinations across the country have slowed, with the latest rates showing that they have dropped significantly in Gauteng and the Western Cape.

In Gauteng, the health department reported the rate was roughly 75% for infants under 12 months, down from 83%, while in the Western Cape, infant immunisation rates dropped to 67.4%.

This decline leaves thousands of children vulnerable to outbreaks of preventable diseases such as measles.

While South African law does not make routine childhood immunisation compulsory, Dr Liesl Hager from the University of Pretoria’s department of private law says a parent’s right to refuse vaccination is not without consequences if that decision causes legally recognised harm to others.

“Parents have both the right and the responsibility to make medical decisions on behalf of their minor children,” said Hager. “That falls within the scope of parental autonomy, and parents are entitled to refuse certain or all vaccinations for their child.

“The issue only arises when that decision causes legally recognised harm to another person, whether that is another child or an adult.”

Hager’s research explores whether parents could be held liable under the law of delicts if an unvaccinated child infects another person with a vaccine-preventable disease.

One example, she said, could involve an immunocompromised child who cannot be vaccinated for medical reasons and contracts a disease from a child whose parents chose not to vaccinate.

South African law is silent on whether childhood vaccination is mandatory, and that creates uncertainty

—  Dr Liesl Hager, University of Pretoria’s department of private law

“In theory, if all the requirements for civil liability are present, there could be a civil claim against those parents,” she said.

However, Hager stressed that such a case would face significant legal hurdles, particularly proving causation.

“A claimant would have to present scientific evidence showing that the unvaccinated child was the factual cause of the infection and the resulting harm. South African law is silent on whether childhood vaccination is mandatory, and that creates uncertainty,” she said.

Hager added that South African courts have not yet ruled on a case involving these specific facts.

“Ideally, we do not want these issues to reach the courts before we have legal certainty. It would be better to provide guidance rather than waiting for litigation to arise proactively,” she said.

Child health specialist Dr Lesley Bamford from the national health department said the drop in vaccination coverage increases the risk of outbreaks of preventable diseases.

“In some parts of the country, we are certainly seeing a decline in the proportion of children who are vaccinated, and that is extremely concerning.”

She said unvaccinated children are vulnerable to infection and can also spread diseases to others, particularly babies and people who cannot be vaccinated for medical reasons.

“This is where herd immunity becomes critically important. When vaccination coverage is high, herd immunity helps prevent diseases from circulating within communities.

“When children are not vaccinated, they are at risk of contracting diseases that could otherwise be prevented,” Bamford said. “As vaccination coverage declines, not only does the risk to individual children increase, but diseases are also more likely to spread throughout the community,” she said.

“Because we no longer see large outbreaks of diseases such as polio and other serious childhood illnesses, people become complacent. Vaccination programmes can become victims of their own success.”

Despite the risks, Bamford said the government’s position is not to make vaccination mandatory for several reasons.

“Firstly, mandatory vaccination can be difficult to enforce. Secondly, although every child should theoretically have access to vaccination, we know there are still barriers to access in some communities.

“Another concern is that making vaccination mandatory can give rise to legal challenges and debates that may distract from the primary goal of delivering a comprehensive and effective immunisation programme.”

Sowetan