CYIL vol. 13 (2022)

MARTIN ŠOLC CYIL 13 ȍ2022Ȏ At the constitutional level in the Czech Republic, several relevant rights are embodied in the Charter of Fundamental Rights and Freedoms (Charter). The parents might claim their right to protection against unauthorised intrusion into their private and family life (Article 10(2) of the Charter), the freedom of thought, conscience, and religious conviction (Article 15(1) therein) or the right to freely manifest their religion or faith (Article 16(1) therein). The child (or, de facto, the parents on behalf of the child) may claim the interference with the inviolability of their person (Article 7(1) therein). Similar rights are embodied in the documents within the framework of the Council of Europe system of human rights protection. The European Convention on Human Rights guarantees the right to respect for private and family life (Article 8) as well as freedom of thought, conscience, and religion (Article 9). 20 The Convention on Human Rights and Biomedicine 21 in its Article 6 sets the basic principles for the proxy informed consent with the provision of health care to minors. On the other hand, the child might be harmed by the well-meant decisions of their parents. As a result of the parental discretion and the state’s failure to protect them, the children may suffer from the violation of their right to the protection of health (Article 31 of the Charter) or even the right to life (Article 6 therein). In general, the refusal to vaccinate may be contrary to the child’s best interests. The UNESCO Convention on the Rights of the Child established the best interests of the child as a primary concern for any action concerning children. 22 The term “any action” needs to be understood as including omissions. 23 From this perspective, the vaccination obligation may be justified as a measure the state takes to protect the best interests of children in its jurisdiction. However, whose task is it to judge what actually is in the best interest of the particular child in their particular condition? With rare exceptions, no parent wants for their children anything but the best. If the state forces parents to do something that is, according to their belief, contrary to that standard, it is often perceived by these parents as an insensitive violation of their private and family life. Naturally, there arises a fundamental question: how can such state interference be justified from the perspective of law and ethics? The current Czech legislation’s conformity with the national constitutional order has been repeatedly subjected to the scrutiny of the Constitutional Court. Recently, the European Court of Human Rights (ECtHR) also evaluated its permissibility within the framework of the Council of Europe system of human rights protection. In the next sub-chapters, we will present the relevant caselaw. Last but not least, we will also try to find the deeper ethical and legal-philosophical justification for the interference of the public authorities with the parents children relationship. 20 For a more general analysis of the relation between the children’ right to health care and the right to freedom of thought, conscience and religion, see VAN BEERSEL KREJČÍKOVÁ, H. Minors’ right to healthcare in the perspective of freedom of thought, conscience and religion, in this issue of the Czech Yearbook of Public & Private International Law. 21 Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine. 22 Article 3(1) of the Convention on the Rights of the Child: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 23 See United Nations Committee on the Rights of the Children. General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), point 18.

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