By Larry Harris at http://www.gval.com/legal.htm
“The decision whether or not to vaccinate is an important one. No matter where you stand on the issue, there are undeniably risks involved on both sides: on one side is the risk of your child contracting a disease if you decide not to vaccinate; on the other side is the risk of injury or death if you do vaccinate. The crux of the matter is of course the likelihood of such a tragedy, which is subject to debate.
What cannot be debated is that your right as a parent not to vaccinate your child if you so choose is not widely known, and exercising such rights is not encouraged.
Furthermore, the remedies available to those whose children have suffered injury or death from vaccines are limited by law, are expensive and time-consuming to obtain, and are generally unknown to the public. It is the mission of GVAL to publicize this potentially tragic situation and to work for reform. Only when people know their rights can they make an informed choice – this is a fundamental tenet of a free society. Therefore, it is essential to those concerned about the vaccination decision to know what the law provides.
A majority of states have enacted into law some kind of exemption from mandatory childhood vaccinations, based either upon personal or religious belief or for medical reasons. In California, state law provides for mandatory vaccinations for diphtheria, hepatitis, influenza, measles, mumps, pertussis, poliomyelitis, rubella and tetanus, and any other diseases designated by the Department of Health Services in consultation with the Center for Disease Control and the American Academy of Pediatrics. This requirement is waived if the person “files with the governing authority a letter or affidavit stating that the immunization is contrary to his or her beliefs.” If the exemption is exercised, the student may be temporarily excluded from school if “there is good cause to believe that the person has been exposed” to one of the enumerated diseases “until the local health officer is satisfied that the person is no longer at risk of developing the disease.” (California Health and Safety Code Section 120365). This is the “personal beliefs” exemption in California law.
The exemption is fairly easy to exercise. Each student in California is required to submit a “California School Immunization Record” to be admitted to school (California Health and Safety Code Section 12-375).
On the reverse of the form is the following statement: “I hereby request exemption of the child, named in the front, from the immunization requirements for school/child care center entry because these immunizations are contrary to my beliefs. I understand that in case of an outbreak of any of these diseases, the child may be temporarily excluded from school for his/her protection.” To exercise the exemption, you simply sign the immunization record under this statement.
There is another exemption which is available, although it is more difficult to exercise because a medical opinion is necessary. If immunization is “contraindicated”, that is, considered to be potentially harmful to the child for medical reasons, an exemption is granted upon the filing with of “a written statement by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances that contraindicate immunization…” (California Health and Safety Code Section 120370).
As anyone who has attempted to exercise their rights under these provisions can testify, the school authorities generally take a dim view of deciding against vaccination, especially on the grounds of personal belief. It does not take a rocket scientist to understand why. A student who claims the exemption makes the job of the authorities more difficult; from the prospective of these authorities, a 100% vaccination rate would certainly be administratively more convenient and would make it easier to perform their duties.
These difficulties could increase if the right to the exemption became widely known or exercised. Therefore it is not in the interest of the school health officials to promote the exercise of the waiver, and they may in fact discourage the exercise or even conceal the existence of this legal right. The fact that the law does not require parents to be notified of the right to the exemption or for the school to certify that these rights have been explained to the parent places the burden of exercising the exemption on the individual. If you do not know of this right, the school or the state is certainly not going to make you aware of it. It therefore falls upon private foundations and organizations such as GVAL to make these rights known.
While the difficulties with exercising the waiver may be the result of mere bureaucratic indifference, more substantial obstacles are presented when you seek legal redress in the form of compensation for injury or death due to a vaccine. It is not as simple as filing a lawsuit against those alleged to be responsible. This was possible before October 1988, the effective date of federal legislation creating theNational Vaccine Injury Compensation Program (the “Program”). Since the creation of the Program, you cannot file such a lawsuit until you file a claim under the Program and that claim is adjudicated by the US Court of Federal Claims, the court given jurisdiction over the Program.
The Program is a “no-fault” system of claims adjudication similar to workers compensation, meant to provide a means of providing speedy compensation to victims while protecting vaccine manufacturers and health providers from excessive liability and litigation costs. Prior to creation of the Program, several vaccine manufacturers were making overt plans to withdraw from production because of the rising costs of litigation. There was also a concern that the continuing litigation and public outcry over the possible harmful effects of mandated vaccinations would undermine public confidence in vaccines in general. The Program is the result of a compromise – streamlining the process for obtaining compensation and limiting damage awards in the interest of restoring public confidence in the policy of mandatory vaccinations. Another purpose of the Program was to induce vaccine manufacturers not to withdraw from production of vaccines.”
The Program is a “no-fault” system of claims adjudication similar to workers compensation, meant to provide a means of providing speedy compensation to victims while protecting vaccine manufacturers and health providers from excessive liability and litigation costs.
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