Immunity passports to vaccination certificates for COVID-19: Equitable and legal challenges

Writing in The Lancet, Alexandra L. Phelan, SJD, LLM, LLB, an assistant professor at Georgetown University Medical Center and a faculty member of its Center for Global Health Science and Security, writes that immunity passports "create an artificial restriction on who can and cannot participate in social and economic activities," warning that this creates "a perverse incentive for individuals to seek out infection."

"Immunity passports would be ripe for both corruption and implicit bias" and would "exacerbate the harm inflicted by COVID-19 on already vulnerable populations," Phelan argues. And she adds that the people "most incentivised to seek out infection might also be those unable or understandably hesitant to seek medical care due to cost and discriminatory access."

Immunity passports would also face legal challenges, argues Phelan, who is also an adjunct professor at Georgetown Law and a member of its O'Neill Institute for National and Global Health Law. While the International Health Regulations prohibit health measures that are discriminatory and impede international travel, at present, she explains, countries may not have laws to expressly address discrimination experienced by those without "immunoprivilege."

"Immunity passports would risk enshrining such discrimination in law and undermine the right to health of individuals and the population through the perverse incentives they create," she writes.

In contrast, if and when a vaccine is developed, "vaccination certificates" may be an important tool to incentivize vaccination, evidence protection, and resume international trade and travel. Unlike immunity passports, vaccination certificates are expressly permissible under the International Health Regulations, which govern when countries can use them. Phelan sets out the legal steps required to be able to use vaccination certificates in the COVID-19 response.

"Until a COVID-19 vaccine is available, and accessible, which is not guaranteed, the way out of this crisis will be built on established public health practices of testing, contact tracing, quarantine of contacts, and isolation of cases," Phelan concludes. "The success of these practices is largely dependent on public trust, solidarity and addressing -- not entrenching -- the inequities and injustices that contributed to this outbreak becoming a pandemic."