CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ “INTERFERENCE WITH A MINOR’S PHYSICAL INTEGRITY: CZECH CASES … The other Constitutional Court’s decision 51 on exceptions to mandatory childhood vaccination has acknowledged secular conscientious objections being just as valid a reason for refusing the vaccination as the religious one is, under similar conditions: the complaining party’s claim needs to be relevant from the constitutional point of view (i.e., conflict between the protection of public health and individual health of the minor, parental responsibility respectively). The claim needs to be persuasive, consistent, and with (subjectively) urgent reasons. The acceptance of a secular conscientious objection shall remain the very exception, not become the rule itself. 52 As much as I agree with the idea that there should be the same standard applied for religious and secular conscientious objections to mandatory childhood vaccinations, I heavily regret that the decision per se was based on the very particular facts of the case. The complaining party, the mother of the child, wanted to protect the child’s health by not having her vaccinated. As the mother had been working with children suffering from the autism spectrum disorder for more than 13 years, she could allegedly see the link between the disorder and the vaccination. However, this belief of the complaining party is exclusively based on a study conducted in 1998 by Doctor Andrew Wakefield which has been repeatedly proven to be a fraud. 53 Yet according to the Constitutional Court of the Czech Republic, it obviously still deserves to be protected by the means of Czech constitutional law. Conclusion Unlike in Germany, the courts in the Czech Republic have not been occupied with charges against doctors who performed religious male circumcision on minors, 54 nor has been a law enacted 55 explicitly making the male circumcision on minors for religious reasons (of the minors’ parents) legal in the Czech Republic. Unlike in the US, there have not been Amish parents potentially facing criminal charges in the Czech Republic because they refused an open-heart surgery on their new-born baby (as it is against the tenets of their religion), even though they released the baby after being ordered so. 56 The limited range and diversity of the Czech case law on conflicting cultural or religious values, as described in this paper, reflect clearly the fact that the Czech Republic has never been an example of a melting pot of different cultures and religions. Czech healthcare workers operate in a healthcare system ruled by law which still hesitates to fully acknowledge the concept of patient autonomy. More precisely, that a patient has a right to refuse a life-saving treatment, the lesser so if the reason for such a decision should be arise from a different cultural or religious background. It is more than understandable that healthcare workers may have difficulties with letting a patient die who could otherwise be saved, “only” if being provided with the particular 51 The decision of the Constitutional Court of the Czech Republic, No. I. ÚS 1253/14. 52 As it was reflected in the later decisions of the Constitutional Court when other complaints were declined. 53 GODLEE, F. et al. Wakefield’s article linking MMR vaccine and autism was fraudulent. BMJ 2011;342:c7452. 54 Regional Court of Cologne’s decision No. 151 NS 169/11: criminal matter of defendant Dr K. 55 Gesetz über den Umfang der Personensorge bei einer Beschneidung des männlichen Kindes. In a later decision in August 2013 in family law proceedings in the Higher Regional Court of Hamm, the court held that the parental right established by this law only applies as long as the child cannot make the decision whether he wants to be circumcised himself. 56 The details of the case are available from https://amishamerica.com/amish-baby-heart-surgery/.

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