Fundamental Right to Health:

private Autonomy in Vaccine Refusal Versus Collective Health Protection in Brazil

Abstract

Nowadays, vaccine refusal has become a growing challenge for public health, favoring the return of previously controlled diseases. The present scientific investigation aims to discuss the relevance of vaccination from the perspective of the collective right to health, in contrast to private autonomy and the citizen’s right to refuse vaccination. A critical legal-theoretical approach was carried out, along with comparative, interpretative, and systematic analyses of legal doctrine, constitutional provisions, infraconstitutional legislation, and case law. The importance of vaccination as a public health measure for both individual and collective protection, ensuring the realization of the fundamental right to health, was analyzed as well as the legal (im)possibility of vaccine refusal as an expression of private autonomy. In this context, the use of measures to encourage vaccination does not interfere with the citizen’s individual freedom provided that the principles of legality, necessity, proportionality, and respect for human dignity are observed.