The VVD proposal: is mandatory vaccination allowed?

Martin Buijsen

So far this year, four babies have died from whooping cough. Compared to previous years, this is a concerning number. Previously, an average of one baby died from whooping cough each year. The increasing number of babies dying from whooping cough can be attributed to the significant drop in vaccination rates over the past year. The vaccination rate is below 90 per cent for the first time in years. This declining vaccination rate is prompting the VVD to resurrect an old bill. The VVD wants vaccinations mandatory in daycare centres with low vaccination rates and a high risk of an outbreak. Currently, there is no majority support for the bill in politics. Martin Buijsen, professor of Health Law at Erasmus School of Law, discusses the so-called "vaccination mandate" proposed by the VVD. 

Buijsen tells the Trouw newspaper that mandatory vaccinations in daycare centres are already permitted. He points out that mandatory vaccination is quite common in many other European countries. Buijsen says that the basis for a vaccination mandate can be found in European legislation. However, Dutch legislation overseeing this is currently lacking: "The Dutch Constitution requires that limitations on the exercise of rights to bodily integrity and respect for personal privacy are only permitted by or under the law. Mandatory vaccination cannot be implemented without a legal basis. We do not currently have legislation providing for such limitations. Therefore, it would need to be enacted." 

What about bodily integrity? 

In the Netherlands, various opinions are expressed regarding the VVD's proposal. A common argument against the proposal from opponents is that it constitutes an infringement on bodily integrity. 

The Netherlands is a party to the European Convention on Human Rights (ECHR). Buijsen explains that the European Court of Human Rights ruled in 2021 that mandatory vaccination infringes on the right to respect for private life protected by Article 8(1) of the ECHR. However, an infringement on the right to respect for private life due to mandatory vaccination can be justified under Article 8(2) of the ECHR, which contains exceptions to the rule. Buijsen explains that 'private life' is an 'autonomous concept' that can only be defined by the ECHR. The ECHR has determined in numerous cases that bodily integrity falls under the right to private life. Buijsen states, "If the Netherlands were to introduce a vaccination mandate, which is highly unlikely, it would constitute an infringement on bodily integrity but not a violation." 

The morality of a vaccination mandate 

The introduction of a vaccination requirement in the Netherlands does not face legal objections as long as the conditions of Article 8(2) of the ECHR are met. Buijsen says, "But just because the introduction is not legally objectionable does not mean it is not morally objectionable, epidemiologically desirable, or politically feasible." For example, some people do not vaccinate their children because of their religious beliefs. How are these interests balanced against public health when implementing a vaccination mandate? "These interests need to be weighed by the legislature, and to date, Dutch politics have shown no interest in introducing mandatory vaccination. Such policies have never been seriously considered. However, it is a fact that vaccination rates for diseases like measles and whooping cough have alarmingly declined, leading to deaths. Politics will not quickly opt for a vaccination mandate for children needing daycare, but daycare organizations are entirely free to refuse unvaccinated children at this time. The law does not hinder such organizations from prioritizing public health." 

Right to education 

In addition to daycare organizations, primary schools also deal with the vaccination mandate. For example, several primary schools in the province of Noord-Holland ask parents of new students if their child has been vaccinated. Buijsen tells the Reformatorisch Dagblad that primary schools are free to ask that question. "I also understand if a school board chooses to do it this way, as long as no consequences are attached to the answer. Then it is not legally objectionable." There is, thus, a fundamental difference between a vaccination requirement for daycare organizations and primary schools. While daycare organizations may refuse unvaccinated children, primary schools may not. Buijsen explains that this difference arises from the right to education. In the Netherlands, this right has taken the form of compulsory education. Buijsen says, "This compulsory education opposes the refusal of unvaccinated children by primary schools." 

Assistant professor
More information

Read the article from Trouw here (in Dutch).

Read the article from the Reformatorisch Dagblad here (in Dutch).

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Martin Buijsen, Professor of Health Law, responds to the statement ‘compulsory vaccination is not a good measure against declining child vaccination rates’.
Meisje dat gevaccineerd wordt.
According to Martin Buijsen, Professor of Health Law at Erasmus School of Law, introducing compulsory vaccination is possible, but probably unnecessary.
Foto van Martin Buijsen

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