Commentary: by Julie A Auerbach

The following commentary was featured on January 6, 2022 on Law.com

https://www.law.com/thelegalintelligencer/2022/01/06/children-and-covid-19-to-vaccinate-or-not-to-vaccinate/?cmp=share_email

While there has always been some controversy regarding mandatory vaccinations for children, the COVID vaccine has encountered an unprecedented level of skepticism among the public. A significant portion of the population do not want to get the vaccine for either themselves or their children, irrespective of the CDC guidelines and many medical organizations endorsing the vaccine. The decision to vaccinate or not vaccinate often encompasses factors that are not based solely upon medical science. Instead, these decisions may be based upon religion, moral and even political beliefs.

The 50 states and the federal government have not imposed blanket COVID vaccine mandates for all adults and children. Each individual and parent is permitted to make their own determination as to whether or not to get vaccinated and to vaccinate their children.

With no blanket mandates in place, when parents disagree over vaccinating their children, the dispute often lands in the courts. While the vaccination issue extends only to the child at issue in the particular case, family law courts are being called upon to decide whether or not a child can be vaccinated over the objection of a parent when neither the federal or any state government has been willing to impose such a law on parents and children in this country.

Addressing vaccination disputes is not a new role for the family law courts. These courts are routinely called upon to decide medical and mental health issues for children when their parents cannot agree. But what is different here is that we are in the middle of a pandemic, the vaccine has become a hot button issue, there are no vaccine mandates for children, and COVID policies and the development of the vaccine have caused large segments of the population to question the reliability of our government, the CDC and the vaccine itself.

The family court’s main focus by law must always be the best interests of the child. But family courts cannot ignore the skepticism of many regarding the trustworthiness of the COVID vaccine, the CDC, and the federal and state governments. The few reported cases regarding vaccination of children demonstrates that courts are looking for more than just the CDC guidelines to assist them when deciding a parental dispute as to whether or not a child should be vaccinated. Courts may be inclined to require expert testimony from medical professionals. This could be problematic as not many parents can afford to pay a medical expert for reports and testimony to support their position for or against the COVID vaccines for children.

In the matter of A.C.G., a Chester County Orphans Court case decided on Oct. 5, 2021, addressed two parents’ disagreement over whether to vaccinate their adult incapacitated 31-year-old daughter. Though the case involves an adult child, it is still instructive.

In a three-day hearing before Judge Mark Tunnell, both the mother and the father presented medical testimony. The father’s reasons for wanting his daughter to be vaccinated were because she had various health issues and lived in a group setting. If she contracted COVID-19, she would be at significant risk for complications from COVID. Further, she would be putting others in her group home at risk.

The mother argued that she acquired numerous videos, articles by doctors, medicine inserts and other papers raising concerns with the vaccine. She believed that there was not enough data on the vaccine, that the vaccine may cause dangerous side effects and the emergency approval of the vaccine was too fast. The mother had religious objections as well as she is a born-again Christian.

Both the mother and the father introduced medical testimony. Whether or not such testimony was required from by the court is not evident from the opinion. The court found that the testimony of the father’s medical experts was more credible than the testimony of the mother’s medical experts. The mother’s first medical expert opined that giving the vaccine to the daughter would be more harmful than not and that COVID can be treated holistically with diet, supplements and vitamins. The doctor did not wear a mask in court because she did not believe in its efficacy.

The mother’s second medical expert testified that the daughter’s risk from exposure to COVID was very low and that she was really already vaccinated by being exposed in her environment. The doctor testified that the root cause of COVID-19 is not the virus, it is a poor immune function. He was distrustful of the vaccine because there are so many “unclear things from leadership.” As an ironic aside, the mother was unable to attend the hearing as she had COVID at the time, had been hospitalized and was recovering at home.

In deciding in favor of the vaccine, the Judge relied upon the scientific evidence presented to the court by the father’s four experts, including the daughter’s primary care physician, her cardiologist, her neurologist and an infectious disease doctor. Tunnell stated at the end of his opinion “The science is clear and as [the father’s infectious disease expert] has said “this is not a difficult call, vaccination against COVID-19 saves lives. This court agrees and so finds. Yet, the fight goes on.” In stating that the fight goes on, the court was recognizing that large segments of the population do not trust the vaccine, irrespective of the scientific evidence showing the efficacy of it.

In a recent New York case, J.F. v. D.F., 2021 N.Y. Misc. LEXIS 6142, 2021 NY Slip Op 21327, decided Dec. 3, 2021, the mother sought a court order compelling vaccination of an 11-year-old child, which the father opposed. The father, a professor at an elite university, challenged the science behind the CDC recommendations for vaccination, while acknowledging that the child’s pediatrician recommend the vaccination. The father’s arguments against vaccination were as follows: the vaccine has not been subject to long-term trials for side effects, COVID was benign to a child of his daughter’s age, there was no vaccine mandate for children, there was potential for complications and there could be short-term side effects. In essence, he did not trust the safety of the vaccine.

The mother argued that as the father did not dispute the pediatrician’s recommendation there was no need for the pediatrician to testify. However, the court concluded that it should hear from the pediatrician. The pediatrician testified via conference call. The attorney for the child interviewed the child to get her position and the child indicated that she did wish to be vaccinated. The court ultimately ordered that the child could be vaccinated in light of the CDC guidelines, the recommendation of the pediatrician and the child’s wishes.

It may be that federal and state governments never mandate COVID vaccines for all adults and children. As a result, family law courts are authorizing one parent to vaccinate a child over the objection of the other parent.

As we know, this is an issue not only facing American courts. Around the world, to date only three countries have nationwide vaccination mandates—Indonesia, Micronesia and Turkmenistan. Austria is imposing a vaccine mandate in February, and will be the first European country to do so.

The tide of public opinion, not just medical science, continues to determine how effectively the world combats COVID. Given the distrust in medical science by large segments of the population around the world, in the words of Tunnell, “the fight goes on.”

Julie A. Auerbach is a partner at Astor Weiss Kaplan & Mandel. Her practice is focused in the area of family law. She practices in the counties of Philadelphia, Delaware, Chester, Montgomery and Bucks, and has written and lectured extensively on the subject of family law. Contact her at JAuerbach@astorweiss.com.