Vaccine Refusal Divorce

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Can A Child Refuse A Vaccine In Illinois?

Vaccine Refusal Divorce

At the time of this writing of this article, Covid-19 vaccines have just been made available to Illinois residents under the age or 18. Typically, parents discuss amongst themselves as to whether a vaccine is a good option for their child…and then the child just takes the shot. But, without various news and/or rumors about vaccines, the child may object to getting a vaccine.

What rights to children have to their own bodies in Illinois in regards to health care? Well, it depends on the kind of health care and the kind of child.

How Health Care Decisions Are Usually Made For Children In Illinois

In Illinois, parents and children are governed by an Allocation of Parental Responsibilities and Parenting Time. “The court shall allocate to one or both of the parents the significant decision-making responsibility for each significant issue affecting the child.” 750 ILCS 5/602.5(b)

One of those decision-making responsibilities is the issue of the child’s health.

One or both Illinois parents will be entrusted with making the decisions for the child’s “[h]ealth, including all decisions relating to the medical, dental, and psychological needs of the child and to the treatments arising or resulting from those needs.” 750 ILCS 5/602.5(b)(2)

“The court shall allocate decision-making responsibilities according to the child’s best interests.” 750 ILCS 5/602.5

The parents have the authority to make medical decisions for the child in Illinois (with several exceptions). So, if a child is refusing a vaccine or any other kind of treatment, there’s usually a parent with decision-making authority, allowing that child to make the objection.

To get the other parent’s cooperation, a motion must be filed asking that the parent act within the best interests of the child or be stripped of their decision-making ability.

Sometimes, a child will be so willful that they will object to a vaccine or other health care whether their parent agrees with them or not.

When Can A Child Object To Getting A Vaccine In Illinois

In Illinois, adults can make almost any health care decision they want, no matter how ill-advised.

“The right of a competent adult to refuse medical treatment is anchored in the common law doctrine which requires the patient’s informed consent to the administration of medical care.” In re Estate of Longeway, 133 Ill. 2d 33, 57 (Ill. 1989)

This right to refuse treatment is not absolute. It’s tempered by some common-sense rules.

“The right [to refuse medical care] must be balanced against four State interests: (1) the preservation of life; (2) protecting the interests of third parties; (3) prevention of suicide; and (4) maintaining the ethical integrity of the medical profession.” In re E.G, 133 Ill. 2d 98, 111 (Ill. 1989)

Illinois residents under the age of 18 can invoke their right to refuse medical treatment if they are deemed “mature” by a court of law.

“[M]ature minors may possess and exercise rights regarding medical care that are rooted in this State’s common law.” In re E.G, 133 Ill. 2d 98, 109 (Ill. 1989)

A judge must determine maturity in the context of a child making their own medical decisions.

“The trial judge must determine whether a minor is mature enough to make health care choices on her own” In re E.G, 133 Ill. 2d 98, 109 (Ill. 1989)

Even if the child is deemed mature, the child may still be ordered to accept a vaccination based on the same test adults must pass in order to refuse medical treatment.

Vaccines clearly encourage the “(1) the preservation of life”; and help in “(2) protecting the interests of third parties” by reducing transmission of a virus. A judge’s politics and scientific acumen may be the basis for an order to accept a vaccine no matter what a mature child says or does.

Furthermore, an Illinois court may invoke the Parens Patriae doctrine which allows a court to make decisions for the young or otherwise confused. “It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patriae, to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of themselves.” In re CE, 641 NE 2d 345 – Ill: Supreme Court 1994 (quoting County of McLean v. Humphreys (1882), 104 Ill. 378, 383)

Some Minors In Illinois Can Make Their Own Medical Decisions

The Illinois statute allows some minors to be presumptively mature due to conditions like being married or being a parent.

“[A] married person who is a minor, a parent who is a minor, a pregnant woman who is a minor, or any person 18 years of age or older, is deemed to have the same legal capacity to act and has the same powers and obligations as has a person of legal age.” 410 ILCS 210/1

There are other conditions where a minor can request health care without a parents permission. However, It is not clear that the right to request health care without a parent’s permission implies a right the to refuse health care when a parent is forcing health care upon the child.

In reality, if your child is refusing to get a vaccine there is absolutely no way they could do so without the support of one parent. The issue is always with the parent and never the child. That being said, educating a child about vaccines is much cheaper than going to court. I strongly sharing this episode of “This American Life” with anyone who is nervous about being vaccinated.

Failing that, contact my Illinois family law firm to learn more about your rights and your child’s rights regarding medical treatment.