CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ COMPULSORY VACCINATION OF MINORS IN THE CZECH REPUBLIC First, it is necessary to ask whether the vaccination obligation directly supports or threatens the cohesion of the society at the given time. This line of argument might be dangerous since it could suggest the need for the introduction of direct democracy in every decision-making, including that regarding scientific questions. In the end, such an approach could prove very harmful and, in effect, even destroying the social cohesion. Moreover, it might arguably be justified to divide society on a controversial topic if it led to significant benefits which outweigh the risks to the society’s survival. While all of this is true, it is important to know what the distribution of differing opinions on the matter among people is. According to the survey from 2021, 80% of Czechs consider vaccination a guarantee against the spread of several infectious diseases and 73% agree with compulsory vaccination while only 24% disagree. 32 Compulsory vaccination does not threaten to divide the society as a whole. The second, a perhaps more important issue, runs deeper. We need to recall our initial question: how is it ever justified to replace the parents in the decision-making process regarding their children? As a strong rule, parents do not make non-conformist choices on their children’s health care (or education or anything for that matter) out of bad intentions. Quite the contrary: the decisions, however irrational from the viewpoint of the majority, reflect the parents’ genuine persuasions, or at least their troubling fears. To enforce a medical procedure means to impose the majority’s views on them. It means that the law prefers certain factual persuasions (especially those supported by science) over others. It might be argued that such a preference is not suitable in a postmodern society which puts a great emphasis on diversity and personal self-determination. However, social cohesion requires a certain level of consensus on the method used to acquire knowledge of physical reality. Otherwise, it would not be possible to foresee any consequences of actions and judge which actions are harmful; and it would not be possible to prove anything before the court. In contemporary society, the approach we use for exploring the world is the scientific method. When the courts need to make sense of factual circumstances of a certain case, they need to base their reasoning on what the scientific method contributes. The same applies to lawmakers when adopting or revising legislation. The scientific knowledge, no doubt, is not infallible. However, precisely because it incorporates the work with errors into its basic method, science is the most reliable source of factual knowledge. When weighting the risks and benefits of vaccination, the legislature should therefore base their reasoning on the outcomes of scientific research. The scientifically unsubstantiated beliefs of parents regarding the dangerousness or the lack of efficacy of vaccines might be taken into account as their constitutionally protected conviction – definitely nothing less, but also nothing more. For the reasons stated above, such an approach is not only practical, but also justified from the perspective of the aim of law. The same conclusions apply to any situation when the rights of the parents are interfered with for the sake of the protection of children’ rights, should it concern oncological treatment, blood transfusion, 33 or any other medical procedure. In each case, the courts will have to 32 See Czech Public about Vaccination, including Vaccination against COVID-19 – Our Society – Special – February 2021. The Public Opinion Research Centre. (16 March 2021.) < https://cvvm.soc.cas.cz/en/press releases/other/health-leisure-time/5367-czech-public-about-vaccination-including-vaccination-against-covid 19-our-society-special-february-2021> accessed 23 June 2022. 33 For an analysis of the legality of interference with parental rights in cases of Jehovah’s Witnesses refusing provision

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