Colleen M. Flood is University Research Chair & Director of the Centre for Health Law, Policy and Ethics, University of Ottawa.
Bryan Thomas is Senior Research Associate and Adjunct Professor with the Centre for Health Law, Policy and Ethics, University of Ottawa.
With the rollout of COVID-19 vaccines in many countries, there is discussion of issuing vaccination certificates to those who have been immunized. Assuming that some of the vaccines reduce transmission of SARS-Cov-2— a question on which scientific evidence is still being gathered—the idea is that checking vaccine certificates at point of entry could help with the safe reopening of concert venues, restaurant dining and other activities, and to loosen some of the controls for isolation at border crossing. Vaccine certificates for COVID-19 have been roundly condemned by some, who allege they will promote disease stigmatization, threaten privacy rights, and perhaps in some contexts give rise to a black market in certificates. In our view, these concerns are overstated, and fail to appropriately account for the costs on the other side of ledger.
As a starting point, it bears emphasizing that rights are not absolute. It is true that competent adults have a right to refuse medical treatment, including COVID-19 vaccination, but it does not follow that their rights are violated by the imposition of any costs whatsoever. Under a vaccine certification regime, those who can’t present a certificate might be denied access to air travel, in-door restaurant dining, or work opportunities in high-risk settings. These are costs, to be sure, but not of a severity that engages basic rights and freedoms—the Supreme Court of Canada has found that the Charter right to ‘life, liberty and security of the person’ does not protect economic rights and consumer choices.
While the costs associated with a certification regime may affect unvaccinated individuals, they would collectively be minimized by facilitating safe gatherings. As things stand now, many airlines and governments are requiring COVID tests or imposing costly hotel isolation rules. Beyond that, lockdowns have imposed huge costs to society in the form of job losses, mental health effects, and so on. The choice is between a world where everyone remains cycling in and out of lockdowns, versus a world where lockdowns are limited to gatherings that risk disease spread. To prefer universal lockdowns is to pursue a perverse ‘levelling-down’ vision of equality.
To be clear, the legal and ethical defensibility of vaccination certificates is contingent on our ensuring equitable access to the vaccine. One can imagine dystopian scenarios where well-positioned members of society secure early access to vaccines and put the pandemic out of mind as they bubble in VIP sections cordoned by vaccine certification requirements. Yet there is little reason to believe that Canada—at least in its internal disbursement of vaccines—is headed in this direction. True, there have been a few examples of well-to-do people seeking to buy their way to the front of the line, but these stories are so isolated and reviled as to be the exception that proves a general rule of more or less equitable allocation.
Critics sometimes misrepresent vaccine certificates as a weapon of ‘disease stigmatization’, drawing ominous analogies to past injustices where, for example, HIV-positive populations were denied access to air travel, accommodations, and employment. The analogy is strained and alarmist: as a society, we already require certification of MMR vaccination for school pupils and EMT staff, and to our knowledge this has not led to widespread stigmatization. This is thanks in part to the fact that accommodations are made for individuals who cannot be vaccinated for medical, religious, or (real) conscientious reasons. Similar accommodations must be built into a COVID-19 vaccination certification regime so that people who genuinely can’t be vaccinated are able to participate fully in society.
Concerns have also been raised about the privacy implications of a vaccine certification regime. But to our knowledge, there is no technological or public health reason why vaccine certificates should need to track anything more than minimal information about the bearer’s vaccination status. Travellers to some countries have long been required to carry paper-based certification of Yellow Fever vaccination, and this regime has, to our knowledge, not raised any privacy issues—though of course the risks will heightened with the proposed digitization and ubiquitous use of COVID-19 vaccination certificates. Privacy and public health concerns can be balanced in the design of the certification system and in the rules governing its use, such as by prohibiting location tracking technologies or the logging by establishments of information pertaining to certificate-bearers. Data security are also a concern as any data system can be breached, so tight security apparatus is essential to ensure the integrity of personal data.
There is much to be debated and decided around the design and use of vaccine certification. It seems certain, however, that vaccine certifications are in our future – whether implemented in a cohesive, democratic, and well-regulated manner by government, or through ad hoc and piecemeal implementation by private actors. In our view, Canadians’ rights and freedoms are best served by moving past the alarmism, and for our governments to develop a legally and ethically sound, and technologically robust system of vaccine certification.