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Vaccinating Children in State Care: What
Happens to the Rights of Biological Parents
to Consent?
Elisa Reiter and Daniel Pollack ｜ October 8, 2021
An uproar was recently triggered in New York regarding whether the
state may vaccinate teenagers in state custody without their parents’ or
guardians’ consent. Historically, minors were not legally permitted to
make medical decisions simply because of their age and presumed
immaturity. Consent resided with the parent or guardian. Considerable
constitutional case law has endorsed this position. Yet, this presumption
has gradually been revisited and revised. In today’s COVID-19
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environment, under what circumstances can the state preempt the
parent or guardian’s medical decision-making authority regarding
children regarding getting vaccinated? Does a state’s interest in the
general welfare of its citizens allow it to supplant the authority of the
child’s parent or guardian or even the wishes of the children themselves?
Even if the law allows older teenagers some ability to consent in certain
situations, conclusive evidence must clearly demonstrate that they have
the ability to discern and appreciate the short- and long-term risks of
receiving or foregoing specific medical treatments, that they understand
the alternatives, and that they are not feeling or being coerced.
In September 2021, in the Bronx, a new policy generated by the
Administration for Children’s Services (ACS) informed sister nonprofit
agencies that such groups were authorized to have 16- and 17-year-old
children in their care vaccinated against COVID-19, whether or not a
parent could be located, and whether or not a parent objected to the
vaccine being administered to the child in the agency’s care. What is
routine medical care to ACS, and how promptly must a child in the
agency’s care be presented for treatment?
When children in the custody of the Administration for Children’s
Services need medical treatment, ACS and provider agency staff must act
expeditiously to obtain consent for such treatment from the appropriate
individual(s). This policy sets forth conditions under which parents,
provider agencies, ACS, or youth may provide consent for medical,
dental, and hospital services; and identifies special situations or
exceptions in which a provider agency may not provide consent.
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New York does not stand alone. In May 2021, the North Carolina
Department of Health and Human Services promulgated practice
guidelines for youth in care and how to proceed with vaccinating those
between 12 and 18. The guidelines alluded to the need for informed
consent, acknowledging that informed consent must be obtained prior to
anyone being presented for a COVID-19 vaccine. Leeway was given to
allow for consent orally or in written form. The rationale was that NC
General Statute 90-21.5 gives minors who have the ability to make
decisions the right to consent to prevention, diagnosis and treatment of
reportable communicable disease. COVID-19 was characterized as a
reportable disease under NC General Statute 130A-135 pursuant to rules
of the Public Health Commission (10A NCAC 41A .0101 and .0107). Logic
then provided that NC General Statute 90-21.5 allows a minor—who has
decisional capacity—to grant permission for a COVID-19 vaccine.
In North Carolina, “decisional capacity is a person’s ability to understand
their health and health care needs and options, and to make decisions
about them. As part of normal development most youth are able to make
these kinds of decisions like an adult at some point before the age of
18. There is no one age at which this always occurs; it varies from
adolescent to adolescent.”
In Texas:
As of May 12, 2021, every Texan aged 12 and older is eligible to receive a
COVID-19 vaccine, including youth in conservatorship. Only the Pfizer
vaccine is authorized for people ages 12 to 17.
Perhaps in keeping with the governor lifting the mask
mandate, Texas does not mandate that youth in care be presented for
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treatment. Instead, the process is voluntary. Verbal communication with
a child in care’s parent is deemed adequate. TDFPS recommends that
social workers attempt three calls to parents of children in the
department’s care to obtain the parents’ consent to the child being
inoculated. Pursuant to Texas Family Code Section 266.004, medical care
cannot be provided to a child in foster care unless an authorized
individual provides consents. Who has the ability to consent? A person
designated in a court order, the child’s foster parent, and/or the child’s
parent provided that the child’s parental rights have not been
terminated. An agent of TDFPS can also consent to treatment in
appropriate circumstances. Physicians may rely on individuals who
appear to present in good faith seeking treatment.
Does a teenager have sufficient capacity to consent to the vaccine?
Would herd immunity be expedited if there were state mandates that
children between 12 and 17 be inoculated? Is this an instance where we
can learn from children?
Elisa Reiter is Board Certified in Family Law and in Child Welfare Law by
the Texas Board of Legal Specialization. She is a Senior Attorney with
Underwood Perkins, P.C. Contact: ereiter@uplawtx.com.
Daniel Pollack is a professor and attorney at Yeshiva University’s School
of Social Work. Contact: dpollack@yu.edu.