Tort Liability for Parents Who Choose Not to Vaccinate Their Children and Whose Unvaccinated Children Infect Others

This article explores whether parents can or should be civilly liable for damages when (1) their unvaccinated child contracts a disease that would have been prevented by an available and recommended vaccine, and (2) those children infect others who were either vaccinated (but who failed to develop immunity despite the vaccination) or were unable to be vaccinated because of their age or other medical conditions. In the past, concerns about establishing causation have discouraged discussions about liability. However, in several recent cases public health officials have been able to identify the source of outbreaks. Furthermore, outbreaks of diseases that had been virtually eradicated in the United States have erupted, with some traced to children of parents who, against medical advice, chose not to vaccinate their children. The article focuses on the public policy issues to be considered when deciding whether to impose a duty on parents and the scope of such a duty, particularly if parents cannot be legally compelled to vaccinate their children. The discussion emphasizes the privacy and constitutional rights implicated by a parent’s decision not to vaccinate her or his child, as well as the potential impact that exercising those rights may have on other members of society. The article concludes that courts should find that parents have a duty to ensure that their unvaccinated children do not harm others. That duty ordinarily should not require parents to vaccinate their children, but should require parents to take reasonable steps to avoid spreading diseases and causing injury to others. Such a duty does not unduly infringe on privacy rights and is permissible as part of the state’s right to protect the health and safety of its citizens