UPDATE: The January 2020 case referenced below was overturned after the publishing of this article.
It’s coming. And for parents, it’s not always going to be an easy conversation or an easy decision.
It likely won’t be much longer until the COVID vaccine becomes approved and available to children. When that day comes, what happens if you want your kid to receive the shot, but your ex, or co-parent, doesn’t?
As a collaborative divorce lawyer, I see first-hand how anti-vax and pro-vax disputes erupt into venomous wars between divorced parents. We see these cases with surprising regularity in our Toronto law office.
How have the courts handled parental vaccine disputes in the past?
One of the most recent cases in January 2020, before the pandemic began, offered the following commentary supporting anti-vaxxers in a disagreement over traditional vaccines:
“Choosing not to vaccinate is not illegal, negligent nor immoral. It is a personal choice. I am unable to find any risk to (the children) if they remain unvaccinated. Vaccines may pose additional risks to them.”
In that case, the anti-vaxxer “won” and the kids were not immunized. And by the way, if the pro-vaxxer had gone ahead and got her kids the shot anyways, she would be considered in contempt of a court order and could face large fines or even jail time for going against the judge’s order.
On the other hand, a different case took place that same month, in January 2020, where a judge ruled in favour of the pro-vaxxer, offering the following different viewpoint:
“There are no verifiable scientific studies that have shown vaccinations to be harmful. The control and eradication of certain infectious diseases throughout the world are simply beyond dispute. The rationalization by those against vaccinations that such phenomena would have developed without the use of vaccinations is indefensible and illogical.”
If parents disagree, how will courts decide?
Make no mistake about it: The courts do not want to make this decision for you. They do not want you to abscond from your role as parents and leave it to them.
Further, science is not settled by the courts. Generally speaking, they will not engage in a debate over the medical and scientific data. Their only concern is the emotional, psychological and physical health of the child. The starting point and finishing point is always: “What is in this child’s best interests?” Ultimately, as illustrated by the two cases above, it can really go either way, and depending on your situation, may even come down to the individual judge’s personal perspective on the situation.
What about older kids or teenagers? Do they get a say if their parents disagree?
What if you’re completely against the COVID vaccine, but your teenager wants it? Would a judge force it? What about the other way around: You want your teen to get it, but they’re saying no?
Legally speaking, it’s quite possible the teen will be allowed to decide for him or herself if her doctor thinks the minor is competent to make the choice, even though the teen is still considered a child in the court’s eye. They could be deemed a “mature minor.”
A mature minor is a child under the age of majority whose doctors feels they have the ability to make and understand medical decisions for him or herself. When providing vaccinations to mature minors, doctors must be reasonably confident that the minor understands the nature of the proposed treatment and the anticipated effect. This also includes the consequences of refusing treatment. This means that if your teenage son is wildly against the COVID-19 vaccination, his doctor could legally back him up on that and you may be powerless. Similarly, if your teenage daughter wants the shot but you aren’t comfortable with that, she might be able to get it anyway.
Keep in mind, in my experience, generally speaking, teens seem to favour and trust their doctor’s advice over their parents’ when it comes to immunizations.
The stakes are so high
When it comes to tried and true vaccines—ones that have been around for ages, like measles or polio—it seems the decision is easier for parents to make. We’re not facing a polio outbreak and there’s no imminent threat to the child, or others, without the vaccination. Plus, the side effects and risks of the vaccine are known, for the most part.
But the stakes are much higher during a current outbreak such as COVID-19. If school boards, government and public health make vaccines mandatory for enrolment in classes, it would seem to be in the child’s best interest to be vaccinated.
Very recent COVID-related cases saw the courts give notice that they are not going to second guess the government’s COVID decisions, which they point out are based on extensive consultation with health and other experts.
Where to go from here
Where does this leave co-parents or divorced parents who strongly disagree about what should happen to their kids?
Anti-vaxxers and pro-vaxxers (or even just “vaccine hesitant” parents) may have radically different views, but they all believe they want what is best for their kids. Judges are strangers who don’t know you or your children. They do not want to be responsible for making these important decisions. They will also follow government recommendations, so if the government makes the COVID vaccine mandatory for everyone, your child will need to get the vaccination, regardless of how anyone feels about it.
Anti-vax and pro-vax parents do not have to be on the same page to work collaboratively to reach an agreement. They should speak with their child’s doctor together to discuss the vaccine, while gathering as much reliable and trusted information as they can. If the parents are divorced, with one parent having primary decision-making rights and you have different views, you can work collaboratively with your lawyers and even a social worker to manage the emotions and work through this issue.
Isn’t that far better than leaving it up to chance with a judge who knows next to nothing about you or your kid, and who is basing their decision on the limited knowledge and information and their own beliefs they have about the vaccine?