The plaintiff requested the interim suspension of executive decree No. 43364 of 13 December 2021, which imposed compulsory COVID-19 vaccination on children of pediatric age.
Among others, the plaintiff claimed that the measure is not valid because the vaccine has not yet been approved in its country of origin (the United States) by the Food and Drug Administration (FDA) and it is still in a study phase, a situation that is also accredited by the so-called BLA APPROVAL, issued by the FDA on 23 August. Furthermore, the plaintiff submitted that studies to demonstrate the possible adverse effects of inoculation in a population as vulnerable as children are currently pending, thus suggesting the need for the interim suspension of the measures.
By decision no. 439-2022-I, the Administrative Court of San José upheld the claim. In particular, the Court first considered that children have a reinforced protection, not only by the national legal system (best interests of the child, article 5 of the Childhood and Adolescence Code), but also internationally (Convention on the Rights of the Child, Law 7184), due to their vulnerability. Hence, it is of utmost importance to assess whether the mandatory nature of the vaccine could imply a potential harm to them.
In this regard, it must be considered that children vaccine has only received an emergency authorization in its country of origin and the administrative process that will lead to its full authorization is still pending. The evidence submitted by the plaintiff, namely the so-called "COVID-19 and compulsory vaccination. Ethical Considerations and Warnings. Policy Summary", issued by the World Health Organization (WHO) on 13 April 2021, also suggests that the WHO itself does not ethically recommend that the vaccine should be compulsory for children due to the lack of data on the safety and efficacy of vaccines in this population. Furthermore, imposing mandatory vaccination on children appears to be disproportionate at present since most countries have lifted various restrictions, including compulsory vaccination on other vulnerable categories, as well as external restrictions, such as vaccination requirements for foreigners entering the country.
Based on the above, the Court concluded that, given the legal interest protected, since the possibility of serious effects on children's health has not been scientifically ruled out yet, it is appropriate to suspend the measure imposing mandatory vaccination on children.