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Arguments abound regarding the moral importance of receiving the COVID-19 vaccine. Beyond the obvious health benefits for the vaccinated individual, herd immunity remains the most effective way to stop the spread of the virus, limit the development of more deadly variants, and – most importantly – save lives. In fact, it may very well be the case that these reasons go so far as to provide us with a moral duty to get vaccinated so as not to treat others unfairly and, therefore, immorally. Given all of this, it would seem then that the morality of receiving a third ‘booster’ dose of the vaccine is simple. Unfortunately, ethics is rarely that straight-forward.

Currently, 7.54 billion doses of the COVID-19 vaccine have been administered globally, with 52.2% of the world’s population having now received at least one dose. In the U.S., close to 60% of the population have been fortunate enough to receive two doses of the vaccine, with the CDC now recommending a third dose for certain vulnerable portions of the population. Colorado, California, New Mexico, New York, and Arkansas have gone further than this by approving booster doses for all residents over the age of 18.

Yet, at the same time, only 4.6% of people in low-income countries have received their first dose of the vaccine, with this number dropping to less than one percent in countries such as Chad and Haiti. The reasons for this are many, but one of the largest contributing factors has been affluent countries pre-ordering more doses than they require to fully vaccinate their population. The U.S., for example, has pre-ordered twice as many vaccines as they need, the U.K. has purchased four times as many, and Canada has secured a whopping five times as many doses as would be required to provide a double dose of the vaccine to every one of their residents. These orders are still being filled, and – until they are – many poorer nations are left to wait to receive even their first dose of the vaccine. As a result, the World Health Organization has called on countries to issue a moratorium on providing COVID-19 booster shots until every country is able to vaccinate at least 10% of its population.

Essentially, this matter boils down to the unjust distribution of limited resources – with some countries taking far more than their ‘fair share’ of the vaccine, and leaving others without nearly enough. This has become a fairly common moral issue lately – underpinning problems surrounding everything from toilet paper, to gasoline, to carbon emissions.

There are many reasons why it’s wrong to take more than your fair share of a limited resource. On top of these more general concerns with just allocations, there are ethical issues specific to the case of vaccines. For one, we might claim that we have strong moral reasons to maximize the good. While an initial vaccine dose will grant around 90% immunity to the recipient, using that same dose as a booster will instead grant only a 10% increase in protection. Put simply, a single COVID-19 vaccine dose will do far more good given to an unvaccinated individual than to someone who has already received two previous doses. There are pragmatic concerns too. Unvaccinated populations provide opportunities for the virus to mutate into more virulent strains – strains that undercut vaccination efforts everywhere else in the world.

So let’s suppose that there’s a good case to be made for the fact that countries have done something wrong by taking far more than their fair share of the COVID-19 vaccine, and that the vaccine stock used by affluent nations to provide third booster shots is what we might call an “ill-gotten gain.” What does this mean for us, as individuals? Do we have a moral obligation to refrain from receiving a booster shot until more people – especially those in poorer nations – have managed to at least receive their first dose?

If we think that our resources should go where they’ll do the most good, then the answer may very well be “yes.” This approach is precisely the same as a very famous argument for our moral obligation to donate money to the poor. While buying that Starbucks Double Chocolaty Chip Crème Frappuccino might bring me a modicum of joy, donating that same amount of money could do far more for someone living in absolute destitution. In the same way, while an additional COVID-19 vaccine – used as a booster – will bring me a small benefit, it could do far more for someone else if used as an initial vaccine.

Of course, this argument assumes that by refusing a booster shot, my vaccine dose will instead be sent where it’s more needed. But it turns out it’s notoriously difficult to donate unused COVID vaccines, with some U.S. states already throwing away tens of thousands of unused doses. Suppose, then, that these booster shots are bought-and-paid-for, and that refusing these boosters will not see them go to those who are more in need. What, then, are our obligations regarding these ill-gotten gains?

A thought experiment may help in this situation. Suppose that we were currently suffering through a severe water shortage, and that the government sent out a limited supply of water tankers to alleviate people’s suffering. Your town’s tanker arrives, and everyone receives a reasonable allowance of water. In a shockingly unscrupulous turn of events, however, your town’s local officials hijack and claim the tanker destined for the next town over, parking it on the main street and telling residents to come and help themselves. Whatever water isn’t taken, they claim, will merely be dumped. What should you do? You don’t agree with how this water was obtained, but you also know that if you don’t use it, it’ll only go to waste anyway. You already have enough water to survive, but your plants are looking a little brown and your car could really use a good wash. It seems that, in a circumstance like this, you have every reason to make use of this ill-gotten gain. We have an obligation to maximize the good, and since the harm (depriving others of this vital resource) has already been done, some good might as well come of it, no?

Perhaps. But it is in cases like this that it becomes important to distinguish between maximizing the good in a particular case, and maximizing the good over the long run. While I may have everything to gain from enjoying this stolen water, I don’t stand to benefit from a society in which one town steals vital resources from another. And the same may be true of vaccine booster shots. A global society in which affluent nations overbuy and hoard life-saving resources is one that, in the long-run, will create more harm than good – particularly where this kind of behavior only serves to prolong and worsen a crisis (like the pandemic) for the entire global population. By refraining from taking the COVID-19 booster – at least until those in poorer nations have had the opportunity to receive their initial vaccine – we send a clear message to our governments that we will not partake in ill-gotten gains.

Ever since the United States came out in support of waiving intellectual property protections for the COVID vaccines, we have seen renewed interest in the ethics of intellectual property over life-saving medication.

Currently, member nations of the World Trade Organization are bound by the TRIPS agreement to respect and enforce international medical patents. If a U.S. company develops a new drug and gets a patent for that drug approved by the United States, then other nations are bound by international law to also respect intellectual property rights to that invention.

There are numerous flexibilities built into the TRIPS agreement to try and ensure international access to medicine. For example, countries can issue compulsory licenses for intellectual property. These licenses allow a country to legally compel a company to make its patent available to domestic producers for a fee set by the government. For example, Canada could, under the TRIPS agreement, issue a compulsory license for the Johnson & Johnson vaccine, and force Johnson & Johnson to provide their patent to Canadian vaccine producers.

However, many have argued these flexibilities are insufficient to deal with the current pandemic and so have called for an international waiver to TRIPS protections for COVID-related medications. Such a waiver would allow anyone to produce COVID vaccines or medications without violating international property law.

There are legitimate worries about such a waiver. Critics argue that current production bottlenecks are not the result of intellectual property protection, that there are better and safer ways to increase vaccine production, and that such a waiver creates a precedent that could discourage future research and development.

This back and forth has been covered in a previous Prindle post, and so I won’t tackle the ethics of a COVID waiver here. Rather, I want to take a step back and look more broadly at intellectual property rights over life-saving medications. In particular, I want to consider such property rights in light of the ethical ‘right of necessity.’

Introducing The Right of Necessity

Most agree that it is permissible for a starving man to ‘steal’ a loaf of bread in order to save his own life. However, there are two very different explanations that one can give of that permissibility.

On the one hand, you might think that while taking the bread is indeed an act of theft, that act of theft can be justified since it is necessary for the man to save his own life. On this view, the starving man violates the property rights of the baker, but such right violations are justified in order to save a life.

On the other hand, you might think that the man is justified in taking the bread because, to use Aquinas’s language, it is not even “properly speaking theft.” According to this view, it is not that you are justified in violating someone’s property rights. Rather, the other person does not have a property right over the bread in the first place. If the baker has a surplus and there are others in true need, then the baker does not have a property right against them. Philosophers who take this second view, including Thomas Aquinas, Hugo Grotius, Samuel Puffendorf, and Alejandra Mancilla, believe in a right of necessity, a right to that which is necessary to survive.

There are many different arguments that one can give for a right of necessity. One argument, inspired by Puffendorf, is that you cannot justify to everyone a system of property that allows some to starve. What justification could you give to the starving man for why they should consent to, or accept, a system of property in which they die? Being dead, they will not receive any benefits of the system.

Another argument, this one inspired by Aquinas, is that we create systems of private property so that everyone can more efficiently acquire those goods necessary for their well-being. Nature originally belongs equally to everyone, and we divide it up into private property because it enables everyone to secure their well-being more easily. However, since private property is created to enable everyone to more easily secure that natural right, private property cannot contradict the natural right of people to that which they need to survive.

The Right of Necessity and Intellectual Property

If there is a right of necessity, what implication would that have for intellectual property rights over life-saving medication?

Life-saving medication, almost by definition, is often necessary for survival. Thus, if the right to necessity justifies stealing bread from those who have extra, so too it would seem to justify stealing a vial of unaffordable medication. Similarly, if I can steal an unaffordable vial of life-saving medication to save a life, then it would be strange to think I cannot violate an international patent to create that life-saving vial.

It seems, then, that if we accept the old doctrine that there exists a right of necessity, it would have profound implications for the justice of intellectual property law. Nations, according to such reasoning, possess a natural right to break patents if it is necessary to produce life-saving medication for those who could otherwise not afford them.

(The affordability qualification is an important one. Just as it would be theft for me, who can afford to buy food, to steal a loaf of bread. So too it would be unjust to violate international patents for patients who can otherwise afford to buy the medication.)

But even with the affordability qualification in place, there is currently a huge problem of access to life-saving medications by the global poor. As such, the right of necessity suggests a standing right to break many international medical patents.

A Looming Market Problem

There is a problem, however, with using the right of necessity to break patents on life-saving medications. If we can violate patent rights for life-saving medications, but not for relatively unimportant patents, it creates a systematic market incentive for firms to invest in relatively trivial research.

Let’s first consider this worry in the context of ordinary property. A starving man can take bread if he cannot afford to pay for it. But I cannot take a Rolex just because I cannot afford to pay for it. While the starving man needs bread, I do not need a watch, and so the right of necessity only applies in the starving man’s case.

But this raises a worry. If we, as a society, recognized a right to steal necessities, then that would seem to incentivize people to only produce luxuries. If you bake bread, then your wares can sometimes be taken without payment. But if you make luxury watches, then your property rights are totally safe. So why become a baker?

We can extend the worry to the pharmaceutical case. If a drug company invents a new life-saving medication, then, the company’s intellectual property rights will be systematically limited. There will be a standing right for others to violate their intellectual property protections if it is necessary to save lives. In contrast, if a drug company invents a non-life-saving medication, say a new form of Viagra, then there are no similar limitations on intellectual property protections. Since no one needs Viagra, companies can be secure in their property rights.

But the whole point of IP protections is to encourage innovation. We give companies patents in order to encourage them to invest in research and development of new, useful goods. If the patent protections on life-saving medications are systematically weaker, then it creates a perverse incentive for companies to divert R&D funding towards relatively unimportant medical research.

A Possible Solution

If we accept the right of necessity, it suggests a broad moral power to redistribute goods to those in need. However, we’ve also seen that the straightforward application of that moral power could have harmful long-term consequences.

One possibility is just that there is a conflict between justice and market efficiency. And indeed, I think defenders of the right of necessity must admit that it would justify inefficient market behavior. A starving man can steal bread, even if that creates a market disincentive to go into baking, which in turn drives up the price of bread even more.

However, I think there is another way we might try and reconcile these two.

The right of necessity is often illustrated with the permissibility of a starving man stealing bread. But, in principle, there is no reason why what’s taken must be directly related to the need. Suppose that the man was unable to steal a loaf of bread but could steal an expensive watch. Just as the man has a right to steal bread, so too he seems to have a right to steal the watch if it is required to be able to buy a loaf of bread.

This suggests a possible solution to the problem we have identified. While the right of necessity would justify a country in breaking international patents over life-saving medications. It would also, for instance, justify them in breaking other patents in order to raise the funds to purchase life-saving medications.

If this is right, then as long as there are any who remain in desperate and undeserved need, it provides a wide-ranging potential justification for breaking apparent property rights. Put another way, certain types of injustice, such as life-threatening poverty, might be so unjust as to render most of the property claims of our entire international system of justice merely provisional.

global poor

Fair Shares and COVID-19 Booster Shots

Intellectual Property and the Right of Necessity