Immunity passports: Ethical conflict and opportunity
According to the Chair in Law and the Human Genome at the University of the Basque Country (UPV/EHU), immunity passports may be valid, depending on how they are used
Immunity passports are a means of registering whether an individual has developed immunity to COVID-19 and is therefore unlikely to either catch or spread the disease. They may take the form of certificates, bracelets, mobile phone apps or other types of document. However, their use has generated many doubts from both a scientific and an ethical standpoint. Science mistrusts them because it is as yet unclear whether having had and recovered from the disease automatically confers immunity, and even if it does, no one really knows how long said immunity lasts. Indeed, there have been some cases of reinfection, although this phenomenon seems to be fairly rare. These science-related doubts will gradually be clarified as more data is gathered.
The ethical problems linked to immunity passports, however, will not be so easy to resolve. ‘If we accept that, as their detractors argue, immunity passports are unacceptable because they could prompt people to catch the disease on purpose, or because they would increase state surveillance, particularly of vulnerable groups, or because they would create a new black market, then we should obviously reject them,’ says Iñigo de Miguel Beriain, Dr of Law and Philosophy and an Ikerbasque Research Professor working at the UPV/EHU who has recently published an article on the issue. ‘However, it is not as simple as that,’ he explains. ‘To understand why, it is important to put yourself in the shoes of someone who is immune.’
The rights of immune people
‘If you cannot spread the virus, then it is extremely hard to justify the curtailment of some of your rights, particularly the fundamental right to freedom of movement. Both the Spanish Constitution and the European Convention on Human Rights clearly limit any curtailment of this right,’ he adds. ‘It is difficult to defend the limitation of our freedom of movement on the basis of avoiding reckless behaviour by third parties.’
In the opinion of the researcher from the Department of Public Law, the issue will become even more pressing when vaccines become available and governments start vaccinating large segments of the population. Vaccination certificates will de facto generate a sort of immunity passport. According to de Miguel Beriain, in the next phases of the pandemic, different immunity statuses will be at stake, ‘because the need to identify who can spread COVID-19 is unavoidable. If a person does not pose a threat to public health because they cannot spread the infection, then their right to freedom of movement should be respected, regardless of how they acquired that immunity. However, if there are not enough vaccines for everyone at that time, what we will be doing is recognising the validity and moral admissibility of immunity passports, at least in terms of fundamental rights.’
The research group working with the Chair in Law and the Human Genome, at the UPV/EHU Department of Public Law, focuses on studying and developing ‘Biolaw’, understood as the combination of all legal issues linked to living beings in general, their ecosystems and evolution, and in particular to humans in terms of health, genetics and biotechnologies. On their website they have set up a research and dissemination space on the COVID-19 pandemic.
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