CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMPULSORY VACCINATION OF MINORS IN THE CZECH REPUBLIC should also be seen as encompassing the value of social solidarity, the purpose of the duty being to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination. 27 Czech regulation focuses on the protection of children and the ECtHR considers it consistent with their best interests. It represents an answer of the public authorities “to the pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the rate of vaccination among children”. 28 Perhaps most importantly, the ECtHR deemed the legislation proportionate to the legitimate aim pursued. The ECtHR also considered that Czech system is attended by significant procedural safeguards. The above-outlined Constitutional Court case law was crucial in this respect as it represents a substantive review of the vaccination duty from the perspective of fundamental rights. It was also important that children with a permanent contraindication to vaccination are exempted from the duty. The administrative fine that can be imposed on parents was found not to be excessive. In relation to the prohibition of access to preschool facilities, the Strasbourg court considers it important that there are no repercussions for the education of school-age children. In principle, the matters of health care policy are within the margin of appreciation of the Member States. Furthermore, this margin will usually be wide regarding the balancing of competing private and public interests. Such a wide margin of appreciation was applied to the case of Vavřička and others v the Czech Republic , leading the ECtHR to conclude that Czech regulation remains within it. 2.3 The Ethical Justification of Compulsory Vaccination: An Outline The reasons for the legitimacy of compulsory vaccinations expressed in the above described case law can also be considered valid from the ethical perspective. The protection of public health, ultimately consisting in maintaining health of the greater number of persons, can indeed outweigh the harm sustained by the vaccine-refusing parents. This is true at least from the viewpoint of utilitarianism, arguably the most prevalent theory in contemporary ethics. 29 After all, utilitarianism considers acts (or rules) good as far as they lead to consequences which bring about the greatest amount of good for the most people possible. 30 The long-term effects of vaccination seem to do just that: by securing the health of many, it creates a good outcome that is much broader than physical and emotional harm it inflicts on the few. The test of rationality, as applied by the Czech Constitutional Court, suggests that this social benefit might be attributed to compulsory vaccination. In other words, while voluntary immunisation would bring about a similar amount of good, the excess good of compulsory vaccinations (the people who would otherwise not be vaccinated 27 Vavřička and Others v. the Czech Republic (App. Nos. 47621/13 and others), ECtHR, Grand Chamber, Judgment of 8 April 2021, paragraph 279. 28 Ibid., paragraph 284. 29 See for example ŠOLC, M. Právo, etika a kmenové buňky [Law, Ethics, and Stem Cells]. Wolters Kluwer, Praha 2018, p. 40. 30 The History of Utilitarianism. Stanford Encyclopedia of Philosophy. (22 September 2014.) accessed 26 August 2022.

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