1- VACCINATION AND LEGAL INFRASTRUCTURE
The aim of vaccination activity is not just to protect individuals from diseases one by one, it’s actually to provide community immunity. In this context, the law generally provides for 2 types of vaccination: mandatory and optional. Mandatory vaccination is not available in Turkey, it’s devoid of legal basis. This activity is carried out by obtaining permission from parents, based on mandate and authority are given to the governments by the mandatory and general provisions of law. For example, Article 56 of the Constitution stipulates that “Everyone has the right to live in a healthy and balanced environment.”. From this provision’s aims, Constitution capacitates the legislator to creat this healthy environment with it’s Article 17 “The corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law”.
The Law of Public Hygiene is undoubtedly one of the most important rules that the legislator puts about health. Article 1 of the Law states that it is the duty of the state to struggle what impairs public health and to ensure the healthy growth of future generations. According to Article 3 of the same Law, the Ministry of Health is responsible for reducing child deaths, preventing epidemics fom entering the country and to combat all kinds of epidemics. The Law on Public Hygiene imposes duties on the Ministry of Health but takes mandatory only the smallpox vaccine.The fact that, the Law is legislated in 1930, the Smallpox illness have been eradicated in 70s and the last smallpox vaccination was made in 1980 in Turkey, so there is no applicability. Further more, although it is stated that mandatory vaccination will be made in case of the disease mentioned in Article 57 of the Law, this provision is out of scope due to the fact that it is related to the post-epidemic.
Another law enacted by the legislator on public health is the Child Protection Law. This regulation goes no further than making general definitions and loading tasks. The execution of these duties can only be carried out in cases of epidemics due to legal loophole and constitutional rights.
International conventions, which Turkey is a party, on health don’t go beyond the Turkish national legislations. These are just authorise governments and identify the duties. According to Article 12 of the International Covenant on Economic, Social and Cultural Rights, parties recognize the right of everyone to have highest attainable standard of physical and mental health and article 6 of Convention on Human Rights and Biomedicine in the context of vaccination for children stipulates that a person who is not capable of giving consent can only be made for his direct benefit.
2- PROCEDURE AND CURRENT APPROACHES IN BABY AND CHILD VACCINATION
Medical intervention is not considered as an interference with corporeal integrity only under certain legal compliance requirements. Vaccination also constitutes an interference with corporeal integrity, so the reasons for compliance with this law will also be applied. While the reasons for compliance with the law, such as public interest also apply here. Reasons such as the authority on medival intervene of the intervener and the consent of the enlightened patient can be considered as reasons for compliance in health law.
The general procedure for vaccination is to notify the family doctor to whom the newborn babies are registered upon admission; family medicine also calls for families to get vaccination. If the family refuses the vaccination, a record is kept if they cannot be convinced by the health personnel. In this case, the Ministry of Family, Labor and Social Services can file a lawsuit against the family at the Family Court. There are precedent decisions in this procedure. For example, in the case filed by the Provincial Directorate of Family Labor and Social Services, the Constitutional Court decided on the individual application of the family as “In the case of an interference with right or freedom, the first thing to be determined is whether there is a legal provision authorizing the intervention, that is, the legal basis of the intervention (…). In order to accept that an interference under Article 17 of the Constitution meets the legal requirement, it is essential that the interference has a legal basis. However, the formal existence of laws on the restriction of fundamental rights and freedoms is not sufficient. The lawfulness criterion also requires a material content and the quality of the law becomes important at this point. ”(Halime Sare Aysal Application). Supreme Court has also decided in same way (Second Civil Chamber, App N. 2015/16500, Judg N. 2015/23449).
It is clear that children cannot consent to medical intervention and that the family does so as a care obligation under the right to custody. In Patient Rights Regulation Article 24/1.2, this situation is clearly stated that if the patient is minor or deprived, permission is obtained from his or her guardian. Likewise, the Law numbered 1219 Article 70 states that “the doctors and dentists shall obtain the consent of the guardian if the patient is minor. The doctrine has two more opinions on this issue, but the provisions still valid. When granting this permission, the family will put the child's best interests out of his own will. If the child's opinion requires the highest benefit in his / her body and moral development, it may be decided by the court (Supreme Court, Second Civil Chamber App.N. 2015 / 16656, Judg. N. 2015 / 1789.). This requirement is the inevitable consequence of the obligation of custody and supervision under the right to custody.
Any behavior that is in the best interest of the minor as a partial disabled must be objectively assessed by the family. Failure to do so would harm the child, which would undoubtedly constitute a crime in the Turkish Penal Code. Indeed, Article 233, paragraph 1 of the TPC defines the Violation of the Obligation to Care, Training and Support as a crime and imposes a prison sentence. Likewise, it can be said that if the child gets sick as a result of not being vaccinated and even transmits it to his / her environment, the conditions of Battery crime will be realized about the family. In the event of death, the provisions of Murder shall apply. It is clear that the responsibility to face the family will be greater since the provisions of “conceptual aggregation” are not applied in the Crimes of Murder and Battery.
The legislator is required to make regulations in line with the duties and authority granted to the state by national and international conventions. Although the public interest and the benefit of the child is considered superior, it should be kept in mind that corporeal integrity is a fundamental right, and it should be remembered that the basic rights can only be limited to the reasons specified in the relevant articles of the Constitution and only by law without touching the essence. Therefore, the provisions of Article 17 and 56 of the Constitution are brought to the agenda again. The state has the authority to struggle what puts public health at risk, but it is undoubtedly the responsibility of the state that the state does not take any steps in this direction while the legislation imposes an obligation on the state to take precautionary measures. This is because “health service, which requires regularity and continuity, which is one of the compulsory requirements of social life, is also public service due to its characteristics” (Constitutional Court, Judgement N. 2007/85) and in this direction, the administration's flawless responsibility can be achieved.
Türk Hukukunda Zorunlu Aşılama ve Ailelerin Hukuki Sorumluluğu
Mandatory Vaccination and Parents Legal Liability in Turkish Law
Av. M. Burak KÜÇÜKİSLAMOĞLU
Aras COŞKUN