Mexico, First Collegiate Court on Civil and Administrative Matters of the 9th Circuit, 7 December 2021, Queja en materia administrativa 411/2021
Case overview
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General Summary
The plaintiff filed an appeal (through the mechanism of queja) against the decision of a lower court, which denied the protection of the fundamental right to health of her son (11 years old). The plaintiff had originally filed a protective action (Amparo) against the President of Mexico, his Ministers of Health, and other public authorities, requesting that the lower court order the vaccination of his son against Covid-19 with the Pfizer vaccine. For the plaintiff, since the US (both through the FDA and through the CDC) had authorized vaccination for children under 12 years old with Pfizer, it was reasonable for her son to be vaccinated as well. However, she was denied the protection because there was no explicit authorization in Mexico to vaccinate children under 12 years old (aside from a recommendation by the Federal Commission for the Protection against Sanitary Risks to lower the age for children eligible for vaccination).
The higher Court revoked this decision, granting the protection and ordering authorities to administer the Pfizer vaccine (with the prior informed consent of the parents and a medical assessment to determine the dose). The Court considered that the authorities had failed to comply with the principle of the best interests of the child by disregarding the studies that proved the vaccine’s efficacy and safety for children under 12.
Facts of the case
The Mexican Federal Commission for the Protection against Sanitary Risks authorized the administration of the Covid-19 Pfizer vaccine for children 12 years old or older in Communication 23/2021.
On November 4, 2021, The US FDA and CDC authorized and recommended the administration of the Covid-19 Pfizer vaccine for children from 5 to 11 years old, after recognizing its efficacy and safety in several clinical trials.
On November 19, 2021, the plaintiff filed a protective action (Amparo) on behalf of her son (a 11 year old) against the President of Mexico and other government authorities alleging a violation to fundamental rights. The challenged measure concerned the omission of authorities to vaccinate her son against Covid-19.
On the same day, the lower court denied the protection, stating that there was no authorization for administering the vaccine for children under 12 in Mexico.
On November 24, 2021, the plaintiff appealed the decision (through Queja).
On December 7, 2021, the higher Court granted the protection to the child and ordered authorities to administer the vaccine.
Type of measure challenged
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Individual / collective enforcement
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Private individualDefendant(s)
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Reasoning of the deciding body
The Court argued that, considering the different studies that had been published and verified by US authorities, Mexican authorities failed to comply with the principle of the best interests of the child, which provided that the rights of children and teenagers must be prioritized. In the case in question, not administering the vaccine put the child at an unnecessary risk of contagion according to the Court, affecting his right to life and health, as studies had shown that the benefits of the vaccine outweighed its risks to children of that age. The lack of national authorization, for the Court, did not justify the failure of public authorities to administer the vaccine, as there were already studies proving its safety and efficacy for children under 12.
Conclusions of the deciding body
Since authorities had failed to comply with the principle of the best interests of the child, his fundamental rights had been violated. Hence, it revoked the decision of the lower Court, granted the protection, and ordered authorities to vaccinate the child.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Mexican Constitution: Art. 4. Right to health, best interests of the child
- UN Convention on the rights of the child: Art. 3.1. Best interests of the child must be a state priority
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Reasonableness: According to the Court, public authorities had failed to follow an equitable standard when denying the vaccination of the plaintiff’s son (an 11 year old). Despite the lack of authorization in Mexico, there were already studies and authorizations in other countries like the US for administering the Pfizer vaccine to children under 12. Moreover, according to the Court, since the Constitution and international treaties provided the principle of the best interests of the child, public authorities had to ensure (in a prioritized way) that the health and life of the minor was guaranteed. Hence,following the Mexican regulations related to vaccination of children against Covid-19 was not implicitly reasonable, as, pursuant to the Court’s reasoning, authorities had a special duty of care that required more research before making such decisions.
