By Ana Santos Rutschman
What can the New York City Marathon experience teach those reflecting on ways to increase equity in the transnational allocation of scarce vaccine doses?
Quite a lot, it turns out. I explore this analogy in a recently published article in the Journal of Law, Medicine and Ethics (JLME), Increasing Equity in the Transnational Allocation of Vaccines Against Emerging Pathogens: A Multi-Modal Approach.
Vaccines are pharmaceutical products, a critical tool in public and global health. At the same time, they are regularly treated as commodities, often in ways that are completely divorced from their public health value. The most extreme embodiment of this phenomenon, vaccine nationalism, happens when perfectly lawful tools — contracts known as advance purchase agreements — are used to skew the allocation of vaccine doses to wealthier governments and their populations whenever there is a surge in transnational demand for a given vaccine. How may we convince these actors — governments, private-sector companies, funders — to agree to a more equitable allocative framework?
I have argued elsewhere that at least part of the answer to this question entails a shift in the bargaining timeline. Historically, decisions about pandemic vaccine allocation have been made reactively — after a public health crisis is underway, and both geopolitics and market-driven dynamics dictate vaccine allocation. To lessen some of these effects, we need to extract binding commitments to equitable vaccine allocation before market-based competition for vaccine doses becomes the rule, and before the fear factor settles in. In the JLME article, I suggest that ex ante negotiations and commitments are more likely to succeed if we adopt an allocative framework that reconciles the competing interests typically at the root of contract bilateralism and vaccine nationalism. This, in turn, might entail accommodating some interests that do not strictly reflect global health precepts — such as economic interests and geopolitics.
In imagining how such a reconciliation might work, the article looks at a current embodiment of such a reconciliatory scheme: the allocation of participation slots at a highly subscribed event, the New York City Marathon. Yes, the analogy has an apples-and-oranges quality to it. However, at its core, it offers translatable lessons about concurrent pathways for resource allocation that reflect competing, often irreconcilable values and interests.
While the article goes into greater details on how the implementation of the proposed multi-modal system for transnational vaccines allocations — as well as the limitations of the analogy and shortcomings of the proposal — this post highlights the translatable features of the analogy: first, it surveys the plurality of allocative criteria used by the organizers of the New York City Marathon; and second, it illustrates how a system that similarly incorporates a multi-modal approach to allocative decision-making could be structured in vaccine-specific domains.
The NYC Marathon Allocative Scheme, in Brief
The number of registered runners for the New York City Marathon has increased enormously over time, from 127 in the inaugural edition in 1970 to 50,000 in recent years (except for a COVID-19 hiatus). So has the number of people interested in a participation slot: for the 2022 drawing, there were 185,000 applications for an estimated 4,200 slots. Disproportionate demand has prompted the organizers to develop a number of concurrent pathways for allocating slots. These pathways, summarized below, illustrate two interrelated features of the decisionmaking process: the multi-modal component of the allocative scheme; and the way the New York City Marathon’s particular combination of allocative criteria responds to both to sports-related considerations (the direct object of the event) as well as considerations extraneous to the sport (geography, community, nationality, altruism and economic contributions) that are nonetheless relevant to the communal event that the New York City Marathon has become.
In a nutshell, there are four cumulative “entry methods” currently employed by the organizers of the New York City Marathon to allocate participation slots:
1) Aspiring participants may earn a slot through performance, by completing certified pre-New York City Marathon race under certain time thresholds. There are different thresholds for women, men and non-binary participants, with each category further divided according to age;
2) Aspiring participants may also earn a slot through performance even if they do not meet the time required under the first entry method: the “9+1 program” allows runner to complete nine qualifying races in the NYC area and volunteer at a qualifying event (e.g. working a fluid station at a race). Performance times are not taken into account. Rather, the primary goal here is to reward commitment to the sport (or to the New York City Marathon itself as the ultimate target). Secondarily, it rewards voluntarism and also some measure of geographical connection to the NYC area.
3) Aspiring participants may also enter a lottery. Last year, the lottery pathway was divided into three drawings: one for residents of the NYC metropolitan area (anyone living up to 60 miles from NYC); U.S. applicants residing outside the NYC metropolitan area; and international applicants. This method thus combines an element of randomness with domestic and international geographic criteria.
4) Aspiring participants may also pay their way into the New York City Marathon. The first type of monetary contribution accepted by the Marathon is through fundraising for a qualifying charity. Minimum fundraising amounts vary by charity. For example, the fundraising minimum for the Innocence Project — one of the more than 550 charities selected for the upcoming 2023 New York City Marathon — is $3,500 per person. The second type of monetary contribution accepted by the Marathon is available to international participants: those residing abroad have the option of buying an official travel package, which includes a guaranteed participation slot and a mandatory travel item (flights, hotel, or both). Therefore, while there is a price component attached to the non-travel portion of the package, the participation slot itself cannot be sold on its own.
Allocative Multi-Modality in Practice: Envisioning a Transnational Vaccine Allocation Scheme
As seen above, the concurrent allocative approaches employed by the New York City Marathon reflect heterogenous values and concerns: there are sports-centric criteria and criteria unrelated to sports; qualification based on merit (time) and pay-to-run methods for getting a slot; and geography-related criteria, responding to local, regional, and international interests.
How could multi-modality translate into the case of transnational allocation of scarce vaccine doses during periods of heightened market demand, such as pandemics and epidemics? The goal of such a scheme would be to create a framework that is capacious enough to accommodate the competing (often, antagonistic) interests that recurringly emerge when there is concurrent transnational demand for scarce vaccine doses — those that are presently addressed through contract bilateralism.
Accordingly, the article proposes the creation and adoption of the following concurrent categories:
1) a category based on public health need for a given vaccine;
2) a category for lower-income regions or countries;
3) a category in which qualification is achieved through a monetary contribution (funding);
4) potentially, a subsidiary category embodying a modified system.
The Public Health Category
This category would establish a percentage to be applied to the existing supply of vaccine at a determinable point in time (e.g., an either agreed-upon or to be agreed-upon date after a transnational epidemic or pandemic is declared by a reference institution, such as the World Health Organization). Doses assigned to this category would be allocated to the countries or regions with the highest public health need during the relevant public health crisis — e.g., those where the burden of a given vaccine-preventable disease is the highest.
Operative criteria of “burden” and related considerations (e.g., is the relevant criterion the mortality rate? the infection rate? something else?) can be discussed at a greater level of generality prior to the onset of a pandemic or epidemic, and then fine-tuned and agreed upon at the beginning of the event, in a way that takes into account the specific pathogen and how it presents under specific circumstances. The point here is to force ex ante bargaining of the basic traits of this most important of allocative categories, the one based on public health criteria — and to engage in those negotiations before demand for a given vaccine spikes, with all the realpolitik consequences that such a moment usually entails.
The Lower-Income Country Category
This category would establish a percentage of vaccine doses to be allocated to lower-income countries. Whereas the first category responds to public health concerns, this one responds to the allocative inequities embedded in present approaches rooted in vaccine nationalism and contract bilateralism.
Since it is expectable that higher-income countries will still pursue parallel pathways to acquire vaccine doses, this category would allocate vaccine doses to qualifying countries or regions (to be established ex ante, possibly according to already-in-use categorizations) irrespective of public health need. If, during a given outbreak, it were determined that some or all of these countries were not affected by the epidemic or pandemic (or that their need for vaccine doses did not extend beyond certain stockpiling levels) unallocated doses within the set percentage could be reassigned to the first category — or, for that matter, to any other categories.
The Funding Category
This category would establish a percentage of vaccine doses that would be allocated to countries that had funded the development of one or more vaccines being distributed under these multi-modal rules during a specific outbreak.
This category caters to the market-driven nature of current allocative modes, recognizing that countries that support vaccine R&D (many of them, higher-income countries) will likely be more amenable to opting into a multi-modal scheme if at least some part of that scheme reflects their national interests. Because it is conditioned on public funding, this category also functions partially as a reward to public-sector investment in domestic and global health R&D.
The Lottery Category
This category is optional. It would establish a percentage of vaccine doses that would be allocated randomly within the universe of countries affected by a pandemic or epidemic. It could be set in a way that would assign all affected countries the same weight; or in a way that would give certain countries (e.g., those that qualify under the second category as lower-income countries) a greater weight.
The article notes that other possible embodiments of the proposal are possible: the main goal of the piece is to showcase the possibility of formalizing and operationalizing a system that caters to disparate interests of disparate players across the geopolitical spectrum — even if those particular interests change over time or require progressive fine-tuning within the proposed allocative system.
Ana Santos Rutschman is a Professor of Law at Villanova University School of Law.
