Brazil, Rio de Janeiro Judiciary Section - 26th Federal Court of Rio de Janeiro, 3 February 2022, No. 5006181-88.2022.4.02.5101/RJ
Case overview
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Link to the full text of the decision
General Summary
The Court heard a preventive habeas corpus action filed by the mother of an 11-year-old girl, who claimed her daughter's right to education was infringed upon, following a communication from the management of Campus Realengo, a public school in Rio de Janeiro, Brazil. The communication was sent to parents and guardians informing them that students who did not present proof of vaccination against Covid-19 would not be allowed to enter the school for the corresponding classes. The mother argued in her claim that requiring proof of vaccination was against the minor's right to education. The Court determined that there was nothing illegal about the school requiring proof of vaccination against Covid-19 from its students to attend classes. The Court ordered the Guardianship Council and the Public Ministry Office to guarantee the girl's right to vaccination. The Court based its decision on the Health Agency (Anvisa), the Federal Supreme Court decisions, and the legislation on protecting children and adolescents. In cases of omission such as these, state intervention for the protection of the children is justified.
Facts of the case
On January 26, 2022, the management of Campus Realengo, a public school in Rio de Janeiro, Brazil, sent an email to parents and guardians that students who did not present proof of vaccination against Covid-19 would not be allowed to enter the school for the corresponding classes. Faced with the prohibition, the mother of an unvaccinated eleven-year-old student enrolled in the 6th year of fundamental education at the institution filed a preventive habeas corpus action. The mother argued that requiring proof of vaccination was against the minor's right to education. In addition, the mother stated that she would not allow her daughter to participate in the Covid-19 vaccine experiment to protect her from future problems since the experiment did not yet present any guarantees or the safety of those vaccinated.
Type of measure challenged
Measures, actions, remedies claimed
- To allow the minor to attend classes in person without showing proof of vaccination against Covid-19.
- To guarantee the child's right to health.
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Conclusions of the deciding body
The Court denied the preventive habeas corpus action. The Court determined that there was no illegality in the fact that a school required proof of vaccination against Covid-19 from its students in order for them to attend classes. The illegality then was committed by parents who refused to vaccinate their children. The mother harmed the child's right to health according to the Court. In addition, it determined that the Guardianship Council and the Public Ministry Office be notified to guarantee the girl's right to be vaccinated.
Reasoning of the deciding body
The Court based its ruling on decisions of the Health Regulation Agency (ANVISA), of the Federal Supreme Court (STF), and some sections of rules for protecting children and adolescents. The Court highlighted mandatory vaccination as a constitutional, legal, and scientifically based measure based on normative analysis. For the Court, indirect measures of coercion, such as restriction of access to places and establishments, including educational establishments, are also protected by the legal system. The authority that parents exercise over their minor children is a duty of power, exercised based on the limits of the law and always in observance with the rights of minors. The violation of a child 's rights is even cause for suspension or the loss of family power. Thus, in exercising family power, parents must ensure their children's access to health and, therefore, to the vaccinations recommended by the health authorities. In other words, according to the Court, parents do not have the right to prevent their children from being vaccinated.
Finally, in cases of omission such as these, state intervention to protect children is justified. The vaccination of children requires special care from the Public Power and society since childhood, as developing persons cannot personally and directly exercise their right to vaccination.
Fundamental Right(s) involved
- Right to education
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health, Art. 6, Brazilian Federal Constitution of 1988
- Right to education, Art. 6, 23 V, 205, 208, Brazilian Federal Constitution of 1988
- Right to education, Art. 4, 11, 22, Act 9.394/96
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health (public) v. access to health services
- Health v. right to education
