Parents could face criminal charges for not vaccinating their children, lawyers say.

Conjur - After Anvisa (National Health Surveillance Agency) authorized the use of the Covid-19 vaccine in children aged 5 to 11, the President of the Republic, Jair Bolsonaro, once again attacked the vaccination of the pediatric public and even said that he would not vaccinate his 11-year-old daughter.

Unfortunately, the president's statement is far from being an isolated opinion. According to research conducted by Fiocruz, 12,8% of parents of children in this age group expressed hesitancy about vaccinating their children against Covid-19.

In this context, experts began to reflect on the responsibility of parents towards their children and the consequences of failing to fulfill this legal duty. In an article published in ConJur, public defender Elisa Costa Cruz explained that, according to paragraph 1 of article 14 of the ECA (Brazilian Statute for Children and Adolescents), vaccination of children is mandatory in cases recommended by health authorities.

In other words, vaccination is not optional in Brazil once a vaccine has been approved by the responsible authority, in this case Anvisa, and included in the vaccination schedule. Failure to vaccinate children can lead to various penalties, ranging in severity. The lightest penalty would be a fine (article 249 of the ECA). 

The Brazilian Supreme Court, in a ruling discussing whether parents can refuse to vaccinate their minor children based on philosophical, religious, moral, and existential convictions, established the following thesis: "The mandatory immunization through a vaccine that is registered with a health surveillance agency is constitutional if (i) it has been included in the National Immunization Program, or (ii) its mandatory application is determined by law, or (iii) it is the subject of a determination by the Union, State, Federal District, or Municipality, based on medical-scientific consensus." "In such cases, there is no violation of the freedom of conscience and philosophical conviction of the parents or guardians, nor of parental authority." 

Having addressed the issue of mandatory childhood vaccination, another question arises: if a child who is not vaccinated by parental choice contracts Covid-19, potentially suffering long-term consequences or even death, would the parents be held criminally liable, given that the Statute of Children and Adolescents (ECA) does not provide for criminal sanctions? Among the experts consulted by Conjur, there is still no consensus.

Daniel Gerber, a criminal lawyer specializing in Economic Criminal Law and holding a master's degree in Criminal Sciences, and partner at Daniel Gerber Advogados, pointed out that without a doubt, vaccines included in the national vaccination plan become mandatory, generating direct responsibility for parents who fail to vaccinate their children, both for the omission itself and for the resulting consequences.

Simple omission will result in the imposition of penalties provided for in the ECA (Statute of the Child and Adolescent), both fines and possible provisional suspension of custody; in cases of harmful results, the parents will be held liable for intentional homicide, according to the general rules stipulated by article 13, paragraph 2 of the Penal Code (that is, if the child or adolescent dies due to lack of specific care, the criminal charge will, in theory, be intentional homicide due to omission).

According to the lawyer, there has long been a softening of this causal line in jurisprudence, admitting that the result can be attributed to those responsible on the basis of negligence. In one way or another, they will be held liable for the harmful event.

However, in Gerber's view, for the Covid-19 vaccine to be mandatory for children, it needs to be included in the national vaccination plan, a step that has not yet been taken. "Therefore, while it is true that mandatory vaccines, when not administered, hold parents responsible for any harmful events that may occur to their children, it is equally true that the Covid vaccine is not yet included in this list," he concluded.

Antonio Carlos de Freitas Júnior, a specialist in Constitutional Law, believes that the mere recommendation of vaccination by the health authority already makes it mandatory for children by virtue of the ECA (Brazilian Statute of Children and Adolescents).

Thus, according to the expert, parental omission in vaccination alone triggers the statute's protection system, which can lead to various sanctions for parents. Criminally, parents may also be held liable under Article 132 of the Penal Code: "Exposing the life or health of another to direct and imminent danger," with imprisonment from three months to one year. In case of death or bodily injury, parents may be held responsible for the negligent form of such crimes, and judicial pardon may or may not be applied depending on the specific case.

Similarly, Leonardo Pantaleão, a specialist in Criminal Law and Procedure, believes that, considering the current pandemic and the real possibility of contagion, parents are responsible for any criminally relevant omission that, as a result, causes harm to the health or life of their minor children. In this sense, the simple failure to vaccinate children (even without major consequences) already places them as potentially liable to the penalties of Article 132 of the Penal Code. If, due to the lack of immunization, the child becomes infected and presents health complications, the negligent parents or guardians will be criminally liable for the result produced as a consequence of the omission, that is, bodily harm or, in the worst-case scenario, death," he reinforced.

Criminal lawyer Beatriz Esteves, from Avelar Advogados, issues a warning. According to her, the discussion must take into account the parameters of minimal intervention in Criminal Law, so that criminal offenses are not applied in an exaggerated and distorted manner. The crime of mistreatment (article 136, CP) requires intent directed towards a specific purpose of the criminal offense, whether for educational, teaching, treatment, or custody purposes, which does not seem to be the case for parents who fail to vaccinate their children based on political, philosophical, and social issues, she emphasized.

Furthermore, the violation of preventive sanitary measures (article 268, CP) is a blank criminal law that requires supplementation through a determination by the Public Authority. Finally, although the elements for the configuration of culpable homicide (article 121, §3, CP) may be present in the case of the child's eventual death, depending on the specific case, the judge may apply judicial pardon, insofar as the consequence of the infraction—the death of the child—is so serious that criminal sanction becomes unnecessary.

Lucie Antabi, a criminal lawyer at Damiani Sociedade de Advogados, pointed out that if parents or guardians refuse to vaccinate their children, they may face administrative sanctions under Article 249 of the ECA (Brazilian Statute of Children and Adolescents). However, since Criminal Law is governed by the constitutional principle of legality, in the absence of a previously established criminal offense, there is no basis for criminal liability. Therefore, parents may be held responsible, but not in the criminal sphere. "This is so much the case that there is even Bill 5.555/2020, which seeks to amend the Penal Code to criminalize the conduct of not submitting to mandatory vaccination," she noted.

According to Gustavo Samuel da Silva Santos, a public defender in São Paulo, parents have a duty of care towards their children. "The vaccines are not experimental and have been approved by Anvisa [Brazilian Health Regulatory Agency]. Therefore, it is the duty of every legal guardian to ensure that the child and adolescent is vaccinated against Covid-19," he argued.

However, regarding potential punishments for negligent parents, the Public Defender's Office of São Paulo believes that it is first necessary to consider raising awareness and educating about the importance of immunization before considering drastic measures such as criminal or civil liability.

"Finally, we reiterate the responsibility of the Public Authorities and federal, state, and municipal managers to convey a clear message about the safety of the vaccine, and any insinuation about the safety of vaccines that contradicts Anvisa's decisions is unacceptable. Similarly, society as a whole has a responsibility to ensure the vaccination of children and adolescents, and it is the duty of the media, doctors, teachers, social workers, etc., to encourage the immunization of all children and adolescents against Covid-19," he concluded.

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