Emerging ethical issues in the use of pathogen genomics in legal contexts
Pathogen genomic data are increasingly used in clinical practice, research, and public health (“molecular surveillance”) worldwide. However, infectious diseases are often moralised and stigmatised, and their transmission can be criminalised—dynamics that may be intensified by the use or misuse of genomic data, including phylogenetic analysis.
HIV remains the primary focus of such criminalisation, with prosecutions—often for unintentional transmission—more common in high-income countries despite higher prevalence in low-income settings. Existing ethical debates have therefore centred on HIV, but the expansion of molecular surveillance to multiple pathogens raises broader concerns about privacy, individual rights, and the role of genomic evidence in legal contexts.
Recent cases highlight these challenges. In Austria, genomic data were used in a COVID-19 prosecution, while in Zimbabwe phylogenetic evidence is used in HIV cases despite its limits in proving transmission pathways. Such examples reveal inconsistent and sometimes problematic uses of genomic data in criminal law.
These concerns are further complicated in contexts where disease transmission intersects with drug use. Practices such as “bluetoothing” could enable genomic data to be repurposed to map transmission networks among people who inject drugs. In settings like the United States, these risks are amplified by broad prosecutorial discretion and the disproportionate targeting of marginalised groups, raising concerns about stigma, and discrimination.
Research Questions
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How is the transmission of infectious diseases criminalised under the laws of different countries and regions (e.g. the EU—Germany, Austria, the UK; Latin America—Argentina; and sub-Saharan Africa—Zimbabwe and neighbouring countries)?
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How are pathogen genomic data used in criminal law procedures and legal reasoning in cases involving disease transmission?
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What ethical tensions arise from the use of pathogen genomic data in the criminalisation of disease transmission?
Summary of approach
Legal component
We will conduct a descriptive and comparative legal mapping of how infectious disease transmission is criminalised. This will include analysis of legislation, case law, and secondary legal literature. In selected cases, we will also apply the “justice stories” methodology, which de-centres courts as the sole site of legal meaning-making and incorporates narratives from media, public commentary, and other relevant sources.
Ethics component
Ethical issues will be examined through empirically informed bioethical case studies and conceptual analysis. This will be followed by the method of reflective equilibrium to assess coherence between ethical principles, legal principles, and intuitions about justice. This approach will help identify the conditions under which the use of pathogen genomic data in criminal transmission cases may be ethically justified, if any.
The geographical scope of the project reflects both its research relevance and the locations of the research team. It includes Germany, Austria, the UK, Zimbabwe and neighbouring countries, Argentina, and the United States. This selection enables comparison across different legal traditions, historical experiences with HIV criminalisation, and emerging uses of pathogen genomics in judicial contexts.
Project team
Romina Rekers, Goethe University Frankfurt (Germany), University of Graz (Austria) & FLACSO (Argentina)
Lena Marinova, CEPS, University of Minho (Portugal)
Farirai Mutenherwa, Johns Hopkins University (USA)
Euzebiusz Jamrozik, University of Oxford (UK)