Personal Autonomy, Vaccine Refusal & Insurance
A Reasonable Proposal For Dealing With Disagreements About Vaccines
By Professor James. S. Taylor (The College of New Jersey)
This article is part of The Critique’s September 2015 Issue on Vaccines, Belief & Autonomy.
The debate over the correct policy approach to take towards vaccination is often framed as a conflict between parental liberty, or autonomy, and a concern with public health. In this framework those who favor loosening (or eliminating) the restrictions on who can opt out of receiving vaccinations are portrayed as persons who place a high value on parental autonomy, advocating for parents’ rights to make decisions for their children based on their own values and beliefs. By contrast, those who favor tightening these restrictions—or even eliminating them altogether, unless there are medical reasons that would justify a child’s not being vaccinated_—are portrayed as placing a higher value in public health than on the autonomy of individuals.
Yet while this way of framing the debate is commonplace it is fundamentally mistaken. To frame this debate in terms of a conflict between a respect for parental autonomy and a concern for public health overlooks the fact that respect for parental autonomy does not justify parents being allowed to make decisions that impose uncompensated costs on others. In particular, since a parent’s decision not to vaccinate her child with the MMR vaccine will impose an increased risk of harm on others, she is not ethically entitled to act on this decision unless she is both willing and able to compensate any third parties that are harmed as a result of her decision not to vaccinate. Since this is so, I will argue in this paper that parents who oppose vaccination should be required to take out insurance to cover the costs of any harms to others that result from their decision. If they are either unwilling or unable to do this then they should be required to vaccinate their children with the MMR vaccine.
My argument for this conclusion will proceed in three stages. First, I will outline the two principal ways in which a parents’ refusal to vaccinate her child will subject others to increased risks of harm. Second, I will argue that respect for parental autonomy does not justify allowing parents to inflict uncompensated harm on others. As such, I will argue, while a proper concern for parental autonomy will allow parents to opt out of vaccinating their children if they do so, they should be required to purchase insurance to compensate anyone that their acting on this decision harms. Finally, I will conclude by briefly addressing some possible objections to my position.
How Could a Refusal To Vaccinate Risk Harm to Others?
A parent’s refusal to vaccinate her child with the MMR vaccine will subject other persons to an increased risk of harm in two related ways. First, an unvaccinated child is more likely to contract measles than a child who has been vaccinated. A parent who refuses to vaccinate her child will thus not only put her own child at increased risk of harm, but will also put other persons at increased risk of harm by making it more likely that her child will become infected, and thus more likely that he will in turn infect others. A refusal to vaccinate will thus increase the risk that other persons will be directly infected by an unvaccinated child. (Note that all persons, whether vaccinated or not, will have their risk of infection increased by a parent’s refusal to vaccinate her child. The MMR vaccine is not 100% effective against measles, and so even a person who has been vaccinated will be at risk of infection.) Since this is so, the presence of unvaccinated children within a population is likely to directly increase the numbers of persons (whether vaccinated or not) that are infected by measles. Given this, the greater the number of unvaccinated children within a population that are susceptible to measles, the greater the likelihood that a person will become infected with measles by someone other than the originally infected unvaccinated child (and this is true whether the secondary infector is vaccinated or unvaccinated). Since each additional infected person will make it more likely that others would become infected, the presence of unvaccinated children within a population will thus not only directly but also indirectly increase the risk that others will become infected.
The increased risk of infection from unvaccinated children is not merely theoretical. In 2012 2,000 cases of measles were reported in the UK—a record for recent years—while by May 2013 there were already 1,200 reported cases._ In April 2013 over 30 cases were reported in Brooklyn, NY, causing a miscarriage, a case of pneumonia, and two hospitalizations._ And, of course, the measles outbreak that started in California earlier this year infected at least 100 people. All of these outbreaks were attributed by public health officials to parents’ decisions not to provide their children with the MMR vaccine.
Parents’ refusals to vaccinate their children with the MMR vaccine thus clearly increases third parties’ risk of being infected with measles. And, as indicated above, measles is a serious illness. Measles prodrome can last between 1 – 7 days, characterized by fevers as high as 105 degrees, followed by coryza, coughing, and possibly conjunctivitis. This is followed by a rash that usually lasts 5-6 days. Roughly 30% of measles cases have one or more complications, including diarrhea or pneumonia; death occurs in 0.2% of cases, mainly from measles-induced pneumonia._
Restrictions on the Legitimate Use of Autonomy
Parents’ refusal to vaccinate their children against measles thus increases the risk of serious harm for third parties. Moreover, since the third parties whose risk of contracting measles is thus increased neither consent to this increased risk, nor receive compensation for any harms that might arise from it, it appears that parents do not have the moral right to exercise their autonomy by refusing to vaccinate their children. This initial conclusion directly stems from a (relatively) uncontroversial moral axiom: Persons do not have the moral right to exercise their autonomy in ways that harm others purely to pursue their own interests. However, although this initial conclusion—parents do not have the right to refuse to vaccinate their children—appears plausible, it should be noted that the imposition of a risk of harm is not the same as the imposition of harm itself. If I place a landmine in my driveway I have imposed a risk of harm on the mailman, but if he never knows that it is there and never sets it off he has not been harmed by my act. Thus, since parents who choose not to vaccinate their children do not directly harm others but only place them at risk of harm, the proscription against persons exercising their autonomy in ways that harm others purely to pursue their own self-interest does not apply against parents who wish to refuse to vaccinate their children against measles.
This certainly appears to provide a prima facie case in favor of allowing parents to refuse to vaccinate their children against measles if they so choose. (At least, the refusal to vaccinate is not proscribed by the relatively uncontroversial view concerning the legitimate restriction of persons’ exercise of their autonomy that was outlined above.) But even if persons should prima facie be allowed to impose risks of harm on others, they will still bear the responsibility for any harms that actually befall others as a result of this imposition. If the mailman actually does step on the landmine that I have placed in my driveway, I would be responsible for the harm that he would be subjected to. At a minimum, then, I would be morally required to compensate him for his injuries, or pay restitution to his estate if my landmine had killed him. (Note that I am focusing on the moral aspects of this case, and not on any legal ramifications that might transpire.) Similarly, if a parent decides not to vaccinate her child against measles and so increases the risk that third parties will contract the disease without them agreeing to this, she will be responsible for compensating any third parties that contract it as a result of her refusal to vaccinate. She will thus be responsible for compensating them or their heirs for their suffering, if the person who contracts measles as a result of her decision dies in consequence. Since this is so, before being allowed to refuse vaccination a person must be able to demonstrate that she has the financial means to fully compensate any third parties that could be harmed as a result of her child not being vaccinated. Such a demonstration should not merely be the disclosure of a parent’s ability to pay compensation at the time at which the refusal to vaccinate would be honored. The harm that her decision might impose upon others lies in the future, and her financial situation might change between the time when the refusal to vaccinate is honored and the time when the harm occurs. Moreover, since the expenses that would be required to compensate persons who were actually harmed by her refusal to vaccinate her child are unknown at the time at which the refusal would be honored, requiring her to place a certain amount of money in escrow to cover possible future compensatory pay-outs to third parties might not be sufficient to meet the costs that she would be (morally) required to cover. Given this, a parent who refuses to vaccinate her child is (morally) required to take out insurance that would cover the compensatory costs of any harms that befall third parties as a result of her refusal to vaccinate her child._ And if she could not afford the premiums that such insurance would require—or if she could not secure insurance to cover the possible harms that might befall third parties—then she would not, morally, be able to refuse to vaccinate her child.
Objections and Responses
There are three main objections that can be leveled against this proposal. The first of these objections might be offered by persons who believe that the (moral) mandate —-parents who desire to refuse to vaccinate their children should insure themselves against future claims for compensation—- is overly burdensome. Such persons would charge that to require persons who object to vaccination on religious grounds to insure themselves against claims for compensation would be to place a barrier in front of persons’ ability to practice their religion—a barrier that might in some cases (e.g., when the parents cannot afford insurance, or no insurance is available to them) prove insurmountable. But this objection is not persuasive. While it would be true that to require parents who do not want to vaccinate their children to purchase insurance to compensate any third parties who would be harmed by this decision could impose a barrier in front of some parents’ ability to live in accord with their religious views, this is not a reason to allow them to refuse vaccination without being insured. While respect for persons’ religious autonomy might require that they be accorded religious freedom, this freedom does not extend to requiring that third parties subsidize their religious practices. If a person fails to take out insurance against the harms that her religiously-motivated refusal to vaccinate her children might impose on others she might be unable to cover the costs of these harms if they actually occur. If this is so, and if these harms do occur, then the religiously-motivated non-vaccinator would have shifted (some of) the costs of her observance of her religion (i.e., the refusal to vaccinate her child) onto a third party. Since respecting a person’s religious autonomy does not require third parties to subsidize her personal religious choices, such a shifting of the costs of the nonvaccinators’ religious practice would not be legitimate. Thus, even if a person has religious objections to vaccination she should only be allowed to refuse to vaccinate her children against measles if she is able to secure insurance against the possibility that their nonvaccination would impose costs on unconsenting third parties.
The second objection that could be leveled against this proposal focuses on its practicality. The idea that a parent who refused to vaccinate her child would be liable for compensating any third parties who were harmed as a result of this implicitly assumes that the source of the third party infection would be readily identifiable. But this is unlikely to be the case. For example, a vaccinated child might contract measles as a result of exposure to an infected unvaccinated child at her kindergarten. However, if she was exposed to more than one infected unvaccinated child it would be difficult, if not impossible, to identify which of the unvaccinated children was responsible for her illness. And, of course, it would be even more difficult to identify the source of infection if an unvaccinated child was indirectly the source of infection for a person who had been vaccinated; if, for example, a vaccinated person contracted measles from another vaccinated person who had been infected with the disease by an unvaccinated child. Yet while such difficulties would be real they would not be insurmountable. In situations of direct infection where the actual source could not be readily identified (such as in the first example, above), the parents of the unvaccinated children who could be the infectious sources, could be held jointly liable for the vaccinated child’s illness. Similarly, in cases where a person was indirectly infected by an unvaccinated child, the immediate source of this infection (i.e., the vaccinated but infected vector of the measles that directly infected her) might be able to identify the direct unvaccinated source of her infection, who would then be liable for the indirect cases of infection that she caused. (If there was more than one possible unvaccinated source of her infection then the approach suggested above could be adopted.) Of course, in some cases not only could the source of the infection not be determined, but it would not be possible to determine if the initial source of infection was an unvaccinated child (e.g., a vaccinated person who contracted measles in a public area, such as a street). In such cases the parents of all unvaccinated children in the geographic area(s) in which the vaccinated person could have contracted measles could be held equally liable to compensate her for the harms she was subject to. In recognition of the fact that an unvaccinated child might not have featured in the causal chain that led to the vaccinated person who could not identify the immediate source of her infection, the amount of damages that such a person would receive could be indexed to the likelihood that an unvaccinated child featured in this chain. There is, then, nothing impractical about this proposal, even in those cases where the immediate source of infection could not be readily identified.
Finally, one might object that the proposal that parents who refuse to vaccinate their children against measles should be (morally) required to insure themselves against the possible harms that this could inflict on third parties, would have such unpalatable implications for other areas of public life that it should be rejected. For example, if parents can impose risks on others by refusing to vaccinate their children against measles provided that they are able to internalize the possible costs of the harm to others through taking out insurance, shouldn’t other persons be allowed to impose other risks on third parties provided that they too similarly internalized the costs of their decisions? Thus, for example, should prohibitions on drunk driving be lifted for those would-be drunk drivers who could secure insurance that would cover the costs of any harms that they would inflict on unconsenting third parties while driving drunk? And if so, then if we believe that prohibiting persons from imposing such risks is justified even if they could take out insurance to pay for the costs of any harm that they might inflict on others, then we could similarly mandate that parents vaccinate their children against measles.
Yet it is not clear that this objection to this proposal is actually an objection so much as it is simply an observation that it might have surprising (but not necessary implausible) implications. While a full discussion of the morality of drunk driving is beyond the scope of the paper, it is clear that drunk driving is not in itself immoral. (Consider a person who only drives drunk on his own property when he knows that no one else is around.) The moral problem with drunk driving arises as a result of the risks that this activity imposes on third parties who do not consent to be subject to them. If the costs of these risks could be internalized by the would-be drunk driver in a manner that the potential victims of this activity could agree to, then it seems that the harm-based moral objection to drunk driving would dissipate. Similarly, then, if the harms that might be imposed upon third parties that do not consent to them by parents that refuse to vaccinate their children against measles could be fully compensated for in a way that these third parties could agree to, there should be no harm-based moral objection to allowing parents to refuse to vaccinate their children.
I have argued in this paper that the current debate over whether or not to allow parents to refuse to vaccinate their children, and, if so, what grounds could be offered by parents for their refusals to be respected, should not be framed in terms of a debate between those who are primarily concerned with parental autonomy and those who are primarily concerned with the value of health. Instead it should be recognized that respect for parental autonomy does not justify parents being allowed to make decisions that impose uncompensated costs on others. As such, since a parent’s decision not to vaccinate her child with the MMR vaccine will impose an increased risk of harm on others, she is not ethically entitled to act on this decision unless she is both willing and able to compensate any third parties that are harmed by her refusal. Thus, parents who oppose vaccination should be required to take out insurance to cover the costs of any harms to others that result from their decision. And if they are either unwilling or unable to do this then they should be required to vaccinate their children with the MMR vaccine.