Sanction for father who denies vaccination can range from fine to loss of custody

What to do when fathers and mothers disagree about the application of the Covid-19 vaccine to their children?

According to medical authorities, with the advancement of the micron, it is essential that children are quickly immunized.

In São Paulo, the beginning of the application of doses for the population from 5 to 11 years old is scheduled for next Monday (17). The immunizer used will be Pfizer, authorized by Anvisa (National Health Surveillance Agency) on December 16, 2021.

The law guarantees children and adolescents the right to health and vaccination.

Article 227 of the Constitution says that “it is the duty of the family, society and the state to ensure children, adolescents and young people, with priority, the right to life, health, food, education, leisure, professional training , to culture, dignity, respect, freedom and family and community life, in addition to protecting them from all forms of negligence, discrimination, exploitation, violence, cruelty and oppression.”

According to Iberê de Castro Dias, head judge of the Vara da Infância e Juventude de Guarulhos, in Greater São Paulo, the ECA (Child and Adolescent Statute) does not allow for this type of disagreement when it makes vaccination of children mandatory in cases recommended by health authorities. And that goes for Covid-19 as well.

The magistrate explains that it is illegitimate to refuse to vaccinate children for philosophical or religious reasons.

Political arguments and disbelief in the vaccine, which is recommended by medical authorities in several countries, cannot be accepted either, he says.

“There is no debate. What may exist is some proven clinical reason, where vaccination would not be recommended because of some health problem in the child. In general terms, fathers and mothers cannot say that religion does not allow vaccination or claim who are vegan, for example”, says Dias.

In December 2020, vegan parents ended up in court after pleading the right not to vaccinate their children because they considered the procedure to be invasive. They appealed the decision of the Court of Justice of São Paulo, which determined the vaccination. In the STF (Supreme Federal Court), they lost unanimously.

“Parents who do not vaccinate their children, in the cases recommended by the health authorities, including against Covid-19, may be penalized with a fine ranging from 3 to 20 minimum wages (doubled in the case of recidivism)”, highlights Dias.

They will still be subject to the application of one or more measures provided for in article 129 of the ECA, including the loss of custody and parental parental authority.

For Dias, if there is disagreement between the parents, the solution will be to take the case to the Judiciary. Thus, it will be up to the judge to analyze the reason for the refusal of vaccination by one of the parties and subsequent decision.

Lawyer Carmem Lilian Calvo Bosquê, a specialist in family law, agrees and adds that all this applies to couples still together as well as to divorced parents.

“In the current conjuncture of family law there is a rule in divorces, which is shared custody. It is not just sharing expenses. All decisions about education, leisure, health of the child must be taken jointly by the parents”, she says. .

If the lack of consensus ends up in court, the tendency is for the resolution to be quick, according to the lawyer. “You file a request for an injunction, ask the judge to precede the effects of the main injunction and he decides through an urgent injunction. Depending on the Court, the decision will come out in 24 hours, 48 ​​hours or in a matter of days, if he understand that the case is part of an urgent measure”, explains Carmem.

The lawyer advises that, before appealing to the courts, there is the possibility of mediating the conflict in the law firm or in an arbitration chamber, through an extrajudicial hearing.

Gabriel Oselka, pediatrician and president of the ethics committee of SBIM (Brazilian Society of Immunizations), goes further. He recommends the solution based on dialogue, mediated or not by the pediatrician or family doctor. Without consensus, the child’s interests prevail.

It is the path chosen by administrative manager Vinicius Santana Gonzalis, 33, and his wife, 31. They are the parents of a six-year-old boy and a two-year-old girl.

Regarding vaccination of adults, there was always agreement. With the children, when the topic knocked on the family’s door, there was disagreement.

“I understand that vaccination should be done, because I am not a specialist in the health area”, says Vinicius. “The people I hear and trust, who have spoken out about this issue, have the same opinion. On the other hand, my wife doesn’t understand it in the same way. She thinks that there aren’t enough studies to put this into practice, that children respond in other ways to vaccines.”

Another reason involves the eldest son. The boy has strong adverse reactions when he receives a vaccine, which is a cause for concern for the couple.

Provisionally, the couple will postpone the decision on whether or not to vaccinate the children. They chose to hear the opinion of their children’s pediatrician. The idea is to make a “decision with more data, background and information”.

In December, when approving the use of Pfizer’s immunizer for the 5 to 11-year-old range, Anvisa reported that the company presented results of studies carried out with about 4,000 children. The studies indicated an efficacy of 90% of the vaccine in this public.

“The safety profile of the vaccine, when compared to the placebo, is very positive. When we observe any reaction [adversa], there is no important difference between placebo and vaccine. And there is no report of any serious adverse event, of concern, there is no report of serious cases or mortality due to vaccination compared to placebo,” said Gustavo Mendes, General Manager of Medicines at Anvisa, at the time.

Late last year, the US Centers for Disease Control and Prevention (CDC) released information about two studies. One concluded that serious problems were rare in children aged 5 to 11 years immunized with the Pfizer product. Another found that hospitalized children with severe disease had not been fully vaccinated.

In Brazil, from the beginning of the pandemic, in 2020, until December 6, 2021, there were 301 deaths of children between 5 and 11 years old by Covid-19, according to the Influenza Epidemiological Surveillance System (SIVEP-Gripe).

Lawyer Carmem Bosquê points out that the federal government, states and municipalities can restrict rights to those who are not vaccinated. “It is precisely there that some parents have doubts about whether to vaccinate or not, since the decision, in theory, would be up to the family. The doubt is understandable because it is an emergency vaccine and with some issues related to adverse effects”, highlights.

“If the vaccine is necessary, it will benefit the child and the community, as it also contributes to herd immunity. If the vaccine is considered safe and effective, as it is, there is no justification for not vaccinating the child. In an extreme case, could even be considered abuse,” says Oselka.

“The vaccine was studied in a reasonable number of children, the efficacy was similar to that found in adults and the adverse events were lower than those found in adolescents. The United States, several European countries, for example, are vaccinating children because they are convinced its effectiveness. It is our obligation to vaccinate and a right of the child to receive the vaccine”, reinforces the pediatrician.