A claimant brought an action against the Ministry of Health for failure to design a vaccination campaign for children below 3 years of age, requesting his daughter to be administered COVID-19 vaccine.
In particular, the claimant submitted that the Emergency Committee for the Evaluation of Medicines and Vaccines of the Institute of Public Health (ISP) had explicitly recommended that three foreign COVID-19 vaccines be approved by the Ministry of Health in order to start the vaccination campaign of children between 6 months and 3 years of age. Yet, despite such approval, the Ministry did not take any appropriate step despite the ongoing state of emergency. The claimant further added that scientific evidence shows that children under 3 years of age are not immune to the virus and that they constitute a vulnerable group, since there have been even deaths among them as a consequence of COVID-19.
During the previous instances, the Ministry had rebutted that, despite being the authority responsible for controlling the quality of pharmaceutical products, ISP does not bear any influence in the formulation of policies, nor the Ministry is bound by the former’s evaluations. Indeed, the immunization campaign is a health measure based on technical public health criteria, appropriateness, and effectiveness of which must be evaluated by the health authority. The Ministry further submitted that mRNA vaccines have a different dosage and composition to those found in our country, so accessing them would involve a purchasing process that involves resources, vaccine stock at international suppliers and a period of time for delivery. Finally, it added that the Undersecretariat of Public Health was reviewing the scientific information available to submit its observations on the possible immunization of persons under 3 years of age against SARS-CoV-2, and that the Ministry is taking the necessary steps for the eventual entry into Chile of the shipment of vaccines intended to cover this age group.
By decision no. 102533-2022 of 24 January 2023, the Court of Santiago upheld the claim. The Court first emphasized that, in light of Article 38 of Law No. 21.430, on Guarantees and Integral Protection of Children's Rights, in accordance with applicable international conventions on the rights of children, all children and adolescents have the right to immunization against preventable diseases and that the State must provide free compulsory vaccination programs. The Court further added that the above is coherent with the best interests of children, namely full respect for their fundamental rights guaranteed by the Convention on the Rights of the Child and the Political Constitution of the State.
The Court further found that, based on the evidence submitted and the approval by the ISP, proceeding with the administration of vaccines to children below three years of age appears to be the most effective choice to safeguard children’s interests. In this regard, any argument having mere procedural or administrative substance – such that submitted by Ministry with regard to the supply of mRNA vaccines – risks placing the rights of children in a position of inequality and danger.
Conclusively, the Court found that the respondent Ministry has incurred in an arbitrary and illegal omission and that the exclusion of children below three years of age from the National Vaccination plan violates their right to life, physical integrity, and equality.
