Induced Autism: The Legal and Ethical Implications of Inoculating Vaccine Manufacturers from Liability

• Author: Helia Garrido Hull
• Position: Assistant Professor of Law, Barry University Dwayne O. Andreas School of Law
• Pages: 1-50

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"As to diseases, make a habit of two things- to help, or at least to do no harm."¹

Introduction

Matthew's birth represented the single most important moment in his young parents' lives. He was a beautiful, perfectly formed, eight-pound, ten-ounce boy with black hair and slate blue eyes. During his first few months, he was playful and affectionate. He learned to sit up, walk, utter simple words, and count. A glimpse of his toothless smile and rosy cheeks warmed the hearts of everyone involved in his care. By eighteen months, Matthew's medical evaluations indicated that he met every important developmental milestone and exhibited signs of normal development. Nobody noticed that the little angel was quickly slipping into the darkness of his own deteriorating ability to communicate his simplest needs or desires.

Matthew became fascinated with lining up blocks and cars, spinning the wheels of his mother's vacuum cleaner, and turning light switches on and off. Once he began an activity, he would repeat the process over and over again with such persistence and concentration that he often failed to respond when his parents called for him. When forced to stop an activity, Matthew threw tantrums-kicking and biting anyone within reach. Increasingly, Matthew's parents found him sitting in the same spot for hours, staring motionless at something in the distance that only he could see. Over time, Matthew became more withdrawn and eventually stopped responding to his parents, no longer willing to look into their eyes or otherwise acknowledge their presence. Heartbroken and scared,Page 2 Matthew's parents sought treatment for their son's unexplained behaviors. They soon learned that treatment was expensive and intervention programs were hard to find. Matthew's parents used the equity obtained from the sale of their large home to fund his care. Eventually, Matthew's father resigned from his job so he could provide Matthew with constant supervision.

Attempts to work on Matthew's motor skills had limited success and frequently resulted in tear-filled responses similar to panic attacks. Despite nearly three years of intervention, Matthew remained incapable of communicating at an age-appropriate level. He often screamed in pain and frustration, throwing objects around the room in an emotional tirade. When overwhelmed by noise and confusion, he often bit himself or picked at his nails until they bled. Matthew's behavior improved in the carefully structured environment of his school for special needs children, but once he was home, amid the unpredictable and noisy hubbub of a large family, he acted out of control.

Now six, Matthew shows no sign of improvement and may actually be regressing. His parents desperately cling to the hope that Matthew will one day return from the world only he fully comprehends. Yet, they are emotionally and financially exhausted from their long journey in search of their son. Moreover, they are worried that they have neglected the needs of their other children and of each other. Forlorn, Matthew's parents now face the most difficult decision of their lives-whether to place Matthew in a residential program where he can receive the constant supervision and care he requires.

Welcome to the world of an autistic child, and to the heartache and sacrifice experienced by those who love him.²

For many parents of autistic children, the pain and heartbreak experienced in learning that their child is afflicted with an incurablePage 3 disorder would likely be eclipsed only by the horror of knowing that it may have been prevented. A growing body of evidence suggests that many children may have developed autism from exposure to toxic concentrations of mercury contained in vaccines routinely administered as part of the government's mandatory vaccination program.³ More disturbing, perhaps, is the fact that mercury is an unnecessary component that does not contribute to the efficacy of a vaccine; it is added only as a means to prolong a vaccine's shelf life and to maximize profit for vaccine manufacturers⁴

This Article considers the link between compulsory childhood vaccination and the prevalence of autism in the United States, and comments on the current legal and regulatory framework that shields vaccine manufacturers from liability for vaccine-induced injuries. Part I provides an overview of the etiology of autism and its dramatic increase in the United States. Part II considers the history of compulsory vaccination and its benefits to society. Part III provides an overview of mercury and its known harm to humans, and includes a summary of the actions taken by the federal government to limit human exposure to mercury. Part IV discusses mercury and vaccines and considers the link between mercury in vaccines and the development of childhood autism. Part V provides an overview of the National Vaccine Injury Compensation Program and the unique problems faced by claimants seeking relief for mercury-induced autism. Part VI discusses the federal government's response to the proposed link between mercury exposure and autism. Finally, Part VII provides analysis and recommendations.

I Autism

A Background

The term autism first appeared in scientific literature in 1943 when psychiatrist Leo Kanner recorded his observations of children between two and eight years old,⁵ whom he described as being excessively withdrawn and self-preoccupied.⁶ Since then, autism has been the subject of countless studies designed to identify its cause.

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While the exact cause remains unknown,⁷ studies indicate that autism is a lifelong neurological disorder having many etiologies possibly involving the interaction of genetics, environmental triggers, and other factors.⁸ Most experts generally agree that autism results from neurological abnormalities within the central nervous system.⁹

Observations of autistic and non-autistic children show that they have significant differences in brain structure and function.¹⁰ Most autistic children suffer from mild to severe brain dysfunction,¹¹ manifesting in mild to severe disabilities that impair verbal and nonverbal communication, as well as social skills.¹² Studies have indicated that less than 30% of autistic individuals have normal-range intelligence.¹³ Males are four times more likely than females to suffer from autism, which suggests that genes play some role in its development.¹⁴

B Prevalence

The incidence of autism is consistent around the world, and is not affected by racial, ethnic, or social boundaries.¹⁵ Currently, no cure exists¹⁶ for the approximately 1.5 million Americans diagnosed with autism,¹⁷ but new research suggests that some children may experiencePage 5 limited improvement with timely intervention.¹⁸ Recent reports suggest that the incidence of autism in the United States continues to rise. According to statistics compiled by the Department of Education, between 1992 and 2001 the number of autistic children aged six to twenty-one who were provided with special education services under the Individuals with Disabilities Education Act (IDEA) increased by an average of 544% per state.¹⁹ Studies indicate that the incidence of autism continues to increase at a rate of 10-17% per year nationally,²⁰ affecting upwards of one of every 250 children.²¹ Some researchers estimate that by the end of the next decade, autism may affect nearly four million Americans.²² Although a part of this increase may be attributed to increased awareness and diagnosis,²³ the dramatic rise seems to suggest that other factors must be involved.

Individuals afflicted with regressive autism (characterized by normal development from birth through the first eighteen to twenty-four months) and late-onset autism (characterized by normal development from birth to three years of age)²⁴ have shown the most significant prevalence increases in autism. Prior to 1990, roughly two-thirds of children diagnosed with autism were autistic from birth and one-third developed autism sometimePage 6 after their first birthday.²⁵ From the 1990s to present, this trend reversed as less than one-third of autistic children are now diagnosed as such at birth, and more than two-thirds are diagnosed sometime after their second birthday.²⁶ This indicates that regressive and late-onset forms of autism are most likely caused by exposure to environmental toxins rather than genetic factors.²⁷

C Research Funding

Currently, the annual cost of autism on the United States economy is approximately $90 billion.²⁸ Based on the number of children diagnosed with autism, and its current projected rate of increase, in five years this cost is expected to approach $400 billion annually.²⁹ Despite the meteoric rise in the number of children diagnosed with autism, federal funding for autism continues to lag far behind...