As I am sure you know, not too long ago there was an outbreak of measles in the US. Measles, as you probably also know, is one of the most contagious diseases in the world (if not the most). Due to the outbreak, there has been a lot of discussion on whether the state could (or should) mandate that children be vaccinated. In California, for example, a bill is making its way through the system that would allow children to opt out of mandatory school vaccinations only if they have a medical condition that justifies an exemption. (NPR has the story here.) Meanwhile, on the other side of the world, Australia has announced plans to halt welfare payments and childcare rebates to families who refuse to have their children vaccinated. (NPR has that story here.)
Some have argued that parents should be forced to vaccinate children, not only to protect the children from the risk of getting the disease, but also from the risk that they could spread it to others. In response, others argue that parents should have the freedom to decide whether to vaccinate their children.
Within this debate, however, I have not heard any discussion on whether parents who decide not to vaccinate should be held liable to anyone who gets injured because of their decision. Should there be a cause of action against parents who decide not to vaccinate their children? It is an interesting question that raises many issues and the answer to which depends on many factors.
The first factor to consider is the identity of the plaintiff. Assume, for example, that the plaintiff is the son or daughter of a parent who decides not to vaccinate. This raises the issue of parental immunity. If the jurisdiction considers decisions about a child's health care within the types of parental decisions for which we should recognize immunity, the child would not have cause of action.
If the plaintiff is another child who gets the disease from exposure to the non vaccinated child, the issue is different. (And, if you are wondering why the plaintiff in such a case was not vaccinated too, remember that there are many groups of children (and adults too) who can't get vaccinated or for whom vaccinations do not make a difference. These include children that are too young, adults who are too old, and people of any age who have immune system deficiencies.)
In these types of cases, the question may revolve around the reason claimed by the parents for not vaccinating. If that reason is based on religious practices, an interesting older case to review is Lundman v McKwon (Minn 1995).
In that case the father of an 11 year old boy sued the child's
mother (who had custody of the child after their divorce) after the
child died because the mother refused to provide medical care for the
child based on her religious beliefs. Finding that parents have a
"special relationship" with their children, the court concluded the
mother had a duty to help the child by providing medical help
notwithstanding her religion. However, to protect parental freedom of
religion and to prevent results like this one, many states have enacted
statutes that provide "religious exemptions" for medical care. (For a discussion on whether these exemptions should be eliminated you can read the five person debate in a recent NY Times "Room for Debate" piece here.)
But my sense is that most claims for the "freedom to decide whether to vaccinate" are not based on religion but on other personal reasons, most famously the misguided and thoroughly discredited position that vaccines can cause Autism.
Given that this is not a religious claim, and, more importantly, that it is not based on credible scientific evidence, can't it be argued that parents who act upon it are being negligent because their conduct is creating an unreasonable risk of harm to others? And, if so, can't it be argued that we should recognize a claim against them if their conduct does in fact cause an injury to another?