Immunity-Based Licenses and the Politics of the Body

Blog by Insa Marie Schmidt, MD, MPH

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As COVID-19 continues to ravage the globe, several countries have now proposed to issue certifications proving that a person has developed immunity against the disease, either through recovery from infection or through a potential vaccine. These so-called “immunity passports” or “immunity-based licenses” would allow those who have antibodies and thus presumed immunity against COVID-19 to end social distancing, to return to work, and to travel.

Despite the World Health Organization (WHO)’s call for caution, on April 24, Germany, Italy, and Chile, among other countries, sought to implement these certifications as part of their exit strategies from state-wide lock downs put into effect in response to the rapid spread of the pandemic. While the WHO’s major concerns relate to more practical issues such as reliabilities of serological antibody tests, limited testing capacities, and the lack of understanding the complex immune responses involved in COVID-19 immunity which includes the still unknown duration of antibody-mediated protection against (re-)infection, the ethical implications of regulating social participation based on immunity-based licenses, and in this sense, a form of biological difference, may loom particularly large.

Bioethicists Govind Persad and Ezekiel Emmanuel have recently provided an ethical framework for the implementation of immunity-based licenses. Aiming to illustrate how these licenses—if implemented ethically—could benefit the individual as much as society, the authors conclude that “immunity-based licenses do not violate equal treatment because the factors used to grant a license are not discriminatory, like race or religion, but instead grounded in relevant evidence.” While this conclusion may carry theoretical value if it had been formulated as an ethical imperative, it still seems precarious if seen in the socio-historical context.

I argue that social exclusion on the basis of presence or absence of certain antibodies is indeed discriminatory. Furthermore, I aim to illustrate that the unintended consequences of immunity-based licenses outweigh their benefits by far and will eventually transform them into a dangerous tool that can be used to marginalize, discriminate, and stigmatize individuals based on the presence or absence of immunity against a disease.

The Foucauldian lens may help here to put things in socio-historical perspective. Foucault’s concept of biopower and biopolitics does not only illustrate how the state exercises its power within the human body but also how individuals and groups are marginalized by constructing them as biologically different from the main body of society. This process of marginalizing people, which historians have also observed in past epidemics, ties directly into questions of immunity. As shown by history scholar Kathryn Olivarius, the early nineteenth century’s yellow fever epidemic divided people in New Orleans, Lousiana into “acclimated citizens” (survivors) and “unacclimated strangers” (poor immigrants). Immunity, Olivarius argues, dictated where people were allowed to live and to work, and in the case of black slaves, what white owners defined as their economic value.

If one takes the lessons history has taught seriously, one can foresee the division of society into “weak” and “strong,” and the stigmatization and marginalization of those perceived or even proved as not being immune against the disease. Economic reasoning and value-based thinking have always been at the core of all capitalist societies. In light of this, immunity-based licenses will not only provide a legal permission to restrict individual freedom based on biological difference but will also reinforce the neoliberal paradigm by assigning an “economic value” to a person based on a blood test that regulates social participation and may grant access to the labor market. This could even be thought of as an extension of the “human capital” discourse that emerged in the 1970s in Chicago School neoliberalism and that strongly promoted economic imperialism.

As we do not yet have a vaccine against COVID-19, immunity-based licenses will disadvantage those who are older or who suffer severe underlying health conditions and may not be able to develop antibodies against viral infections. While antibody tests might be worthwhile to inform an individual about the risk she or he may pose on others when engaging in social interactions, we should only carefully consider the large-scale implementation of immunity-based licenses that will further disadvantage those who already live their lives at the margin of society.


Insa Marie Schmidt, MD, MPH is a postdoctoral researcher at Boston University Medical Center and holds a Daland Fellowship in Clinical Investigation at the American Philosophical Society.

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