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Medical Tourism, Access to Health
Care, and Global Justice
I Glenn Cohen*
Medical tourism – the travel of patients from one (the “home”) country to another
(the “destination”) country for medical treatment – represents a growing business. A
number of authors have raised the concern that medical tourism reduces access to health
care for the destination country’s poor and suggested that home country governments or
international bodies have obligations to curb medical tourism or mitigate its negative
effects when they occur.
This article is the first to comprehensively examine both the question of whether this
negative effect on access to health care occurs for the destination country’s poor, and
the normative question of the home country and international bodies’ obligations if
it does occur. I draw on the work of leading theorists from the Statist, Cosmopolitan,
and Intermediate camps on Global Justice and apply it to medical tourism. I also show
how the application of these theories to medical tourism highlights areas in which these
theories are underspecified and suggests diverging paths for filling in lacunae. Finally,
I discuss the kinds of home country, destination country, and multilateral forms of
regulation this analysis would support and reject.
*
Professor and Director, Petrie-Flom Center for Health Law Policy,
Biotechnology, and Bioethics, Harvard Law School. JD, Harvard Law
School. igcohen@law.harvard.edu. Thanks to Maria Banda, Gabriella
Blum, John Blum, Rachel Brewster, Nathan Cortez, Nir Eyal, Larry
Gostin, Tim Greaney, Holly Fernandez Lynch, Michelle Meyer, Frank
Michelman, Martha Minow, Kevin Outterson, Mike Raavin, Mathias
Risse, Ben Roin, Ben Sachs, Brendan Salonger, Jed Shugerman, Jeremy
Snyder, Matt Stephenson, Jeannie Suk, Talha Syed, Nick Terry, Leigh
162
Cohen, Medical Tourism, Access to Health Care, and Global Justice
I.
Preface
II.
Introduction
III.
Kinds of Medical Tourism, Kinds of Ethical Concerns
IV.
The Empirical Claim
V.
The Normative Question
A.
Self-Interest
B.
Cosmopolitan Theories
C.
Statist Theories
D.
Intermediate Theories
1.
Cohen, Sabel & Daniels
2.
Pogge
VI.
Convergence, Divergence & Policy Prescriptions
VII.
Conclusion: From Medical Tourism to Health Care Globalization
I.
Preface
W
hen the editors of the Canadian Journal of Comparative and
Contemporary Law approached me about republishing my article
Medical Tourism, Access to Health Care, and Global Justice to share with a
Canadian audience, I welcomed the opportunity to add this short preface
that would allow me to focus on developments since I published the
original text.
Turner, and Mark Wu for comments on earlier drafts. For their
comments, I also thank participants at the Harvard Law School/Program
on Ethics and Health Population-Level Bioethics Reading Group on
January 6, 2011, the International Conference on Ethical Issues in
Medical Tourism at Simon Fraser University on June 25, 2010, and at
the Health Law Scholars Workshop of the American Society for Law,
Medicine & Ethics and the St. Louis University School of Law Center for
Health Law Studies on September 12, 2009. Excellent research assistance
was provided by Russell Kornblith, Katherine Kraschel, and Teel Lidow.
Originally published in the Virginia Journal of International Law: Glenn
Cohen, “Medical Tourism, Access to Health Care, and Global Justice”
(2011) 52:1 Va J Int’l L 1. Reproduced with permission. Copyright ©
2011 Virginia Journal of International Law Association; I Glenn Cohen.
(2015) 1 CJCCL
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The first development is conceptual, and relates to dialogue about
my work led by excellent colleagues in Canada. I will focus on three.
First, in their thoughtful paper in the Journal of Law, Medicine, and
Ethics, commenting on my own prior work on this subject, YY Brandon
Chen and Colleen Flood (of the University of Toronto) suggest that in
this paper, I have been wrong in the questions that I focus on:
[W]e argue that there is an a priori bias embedded in how Cohen (and
other commentators) has framed the problématique of medical tourism …
[In Cohen and other commentators’ writing,] the burden appears to rest on
opponents of medical tourism to prove its negative consequences on LMICs’
[low- and middle-income countries’] health care access before regulatory
actions may be considered. In contrast, we argue in this paper that the
evidentiary burden should be reversed. We contend that even when access to
health care in LMICs is not adversely affected by medical tourism, there are
still equity-related concerns that in and of themselves render medical tourism
normatively problematic. As we discuss further below, this inequity can (and
often does) arise, for example, when access to primary and preventive health
services for the general LMIC populations maintains the inadequate status quo
while medical tourists from well-resourced developed countries are afforded
cutting-edge secondary and tertiary care. If equity is considered a relevant goal
for health care systems and one accepts our conclusion that medical tourism
in LMICs will likely have deleterious equity impacts, then the burden should
be borne by medical tourism’s proponents to demonstrate its benefits on
health care access and to justify why some degree of government regulation is
inappropriate.1
Though I am not sure I completely agree with their read of my work,
Flood and Chen usefully press me to be clearer that there are three
distinct versions of the empirical question that will tie into various
potential approaches to global justice: (1) Are there disparities in access
to health care for the general population between destination countries
in the developing world and home countries in the developed world (call
this the equity question)?; (2) Do we have evidence that medical tourism
causes deficits or worsens inequities, or, at the very least, is it associated
with deficits or worsening inequities in access by home country citizens
to health care (call this the causation question)?; (3) Irrespective of what
1.
YY Brandon Chen & Colleen M Flood, “Medical Tourism’s Impact on
Health Care Equity and Access in Low-and Middle-Income Countries:
Making the Case for Regulation” (2013) 41:1 JL Med & Ethics 286 at
287-88.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
caused the deficits, would regulation of medical tourism reduce these
deficits or inequities (call this the redressability question)?
Chen and Flood assert that “even when access to health care in LMICs
is not adversely affected by medical tourism, there are still equity-related
concerns that in and of themselves render medical tourism normatively
problematic,”2 suggesting a focus on only the equity question. But later,
they say: “[i]f equity is considered a relevant goal for health care systems
and one accepts our conclusion that medical tourism in LMICs will
likely have deleterious equity impacts.”3 Those last words suggest that the
causation question, or at least the redressability question, is what matters
to them after all.
In any event, Chen and Flood helpfully press me to say what I think
the empirical evidence, they and others have produced, can and cannot
do. The equity question, as such, is not my concern in this article or
my larger project. The empirical answer to that question is easy: it is
beyond cavil that there are deep disparities in health care access between
developed and developing countries, as there are to accessing many
good things that make a life go well. For those whom the existence of
such disparity, whatever its cause and whether or not regulating medical
tourism will ameliorate matters, is enough to motivate an obligation to
render aid, empirical evidence is largely beside the point.
By contrast, I am interested in the causation question. To the extent
medical tourism causes (or at least is associated with) these diminutions
in health care access and thus worsens inequities, then it is easier to build
a moral case for intervention.4 And, even if medical tourism does not
2.
3.
4.
Chen & Flood, ibid at 287.
Ibid at 288 [emphasis added].
What if medical tourism did not worsen the health care for the
destination country poor, or in fact improved it, but also increased
disparities since the wealthy benefitted even more? That is, both the
worse and best off are made better off, but not equivalently. For true pure
egalitarians, who believe inequality is bad, that would be a problem, but
of course that view has some well-accepted problems relating to leveling
down. For prioritarians, the pertinent question is whether the worseoff are made better off, and whether they are made as better-off as they
might be compared to other feasible regulatory re-arrangements. I am
more drawn to the latter view, and so I focus on whether medical tourism
“causes deficits” or “fails to improve” the health care of the destination
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cause the negative effects, for some theories of global justice, it may still
be important that regulations of the industry can redress health inequities.
Thus, in this article, I review empirical data suggesting that medical
tourism causes (or is at least associated with) diminutions in health care
access, as well as data suggesting regulation of the sector might ameliorate
health inequities. I do not focus on the existence of general health
inequities that are unconnected to medical tourism.
The second development is just to note that there has been additional
empirical evidence offered about some of the negative effects of medical
tourism.5 I discuss some of this new evidence in greater depth in my new
book Patients With Passports: Medical Tourism, Law, and Ethics.6 That said,
as I suggest in my article, the evidence is still patchy and any assessment
can only be made country-by-country and indeed practice-by-practice.
The third thing I want to add is to emphasize some aspects of the
Canadian context in the analysis. In Canada we have two separate potential
pools of medical tourists – those who are traveling out of country with
the support of the Canadian health care system, and those paying outof-pocket to go. The latter group is well covered in the original article.
The former group is worth further attention. In accord with the Canada
Health Act,7 each of the Canadian provincial and territorial health care
5.
6.
7.
country poor, not on whether it worsens inequality per se. For those who
are more attracted to purer egalitarian views, much of what I say in this
chapter can be re-analyzed under that standard.
See Chen & Flood, supra note 1; Matthias Helble, “The Movements
of Patients Across Borders: Challenges and Opportunities for Public
Health” (2011) 89:1 Bulletin of the World Health Organization 68,
online: World Health Organization ; Jeremy Snyder et al, “Caring for
Non-Residents in Barbados: Examining the Implications of Inbound
Transnational Medical Care for Public and Private Health Care” in David
Boterrill, Guido Pennings & Tomas Mainil, eds, Medical Tourism and
Transnational Health Care (Hampshire: Palgrave Macmillan, 2013) 48
at 51; Jeremy Snyder et al, “Beyond Sun, Sand, and Stitches: Assigning
Responsibility for the Harms of Medical Tourism” (2013) 27:5 Bioethics
233 at 234; Zahra Meghani, “A Robust, Particularist Ethical Assessment
of Medical Tourism” (2011) 11:1 Developing World Bioethics 16 at 28.
I Glenn Cohen, Patients With Passports: Medical Tourism, Law, and Ethics
(New York: Oxford University Press, 2014).
RSC 1985, c C-6.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
plans must reimburse for out-of-country care in emergency situations.8
Strictly speaking, this is not medical tourism as I defined it, but medical
care coincident with tourism or other travel. However, the Canadian
provinces also all fund patients who travel abroad for health care and are
sent there by the provincial health plans.
As Runnels and Packer note:
Depending on the patient’s specific situation and the province/territory, some
or all of the costs of OOCC will be covered under provincial/territorial health
insurance plans, determined by a process designed to ascertain that the patient
meets the conditions for OOCC. These criteria for eligibility are generally
similar in all provinces and territories, and are as follows:
•
•
•
•
•
the treatment or care must be medically required;
the medical or hospital service must be demonstrated to be
unavailable in the province/territory and/or elsewhere in Canada;
that is, “if all Canadian medical resources have been exhausted”;
the delay in the provision of medical care available in the province/
territory or elsewhere in Canada must be considered to be
immediately life threatening or may result in medically significant
irreversible tissue damage;
the treatment must fall under insured medical, oral surgeries and/
or hospital services; and,
the applicant must be a resident of the province/territory.9
There are also some variations between the provinces, for example,
Manitoba will cover some transportation costs while most of the other
8.
9.
See Vivien Runnels & Corinne Packer, “Travelling for Healthcare from
Canada: An Overview of Out-of-Country Care Funded by Provincial/
Territorial Health Insurance Plans” in Ronald Labonté et al, eds, Travelling
Well: Essays in Medical Tourism (2013) 4:1 Transdisciplinary Studies in
Population Health Series 133 at 135-37, online: University of Ottawa
; Canadian Institute
for Health Information, Have Health Card, Will Travel: Out-of-Province/Territory Patients (Canada: CIHI, 2010) online: Analysis in Brief .
Runnels & Packer, ibid at 136-37, citing Manitoba Health, Out-ofProvince Medical Referrals, online: Province of Manitoba ; British Columbia Medical Services
Commission, Out of Province and Out of Country Medical Care Guidelines
(Canada: Medical Services Commission, 2011) online: Government
of British Columbia .
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provinces do not.10 Each of the provinces has a process for review of
requests, approval or disapproval, and ultimately appeal. To take the
example of Ontario:
[A] family physician (general practitioner) must take the first steps towards
determining need with the patient. The family physician initiates the request
for approval, and is required to refer a patient to a specialist physician or an
assessment centre within Ontario for assessment. Only after the specialist
physician has seen the patient and judged that the care needed cannot be
obtained within the province does the specialist write an application for
funding for out-of-country health services to the provincial health authority.
The referring physician and a specialist must both complete and sign the
application form, along with the patient or his/her representative who has
power of attorney. The form must be accompanied by relevant documentation,
such as clinical reports and lab test results …
Information must be provided on the case and explanations given as to why
OOCC is needed. The Ministry of Health reviews the application, and must
approve it before treatment is obtained abroad, otherwise costs will not be
reimbursed. In other words, not only must eligibility be established, but a
patient must be pre-approved for OOCC by the provincial ministry of health
if the costs of the healthcare are to be borne by the province. This process adds
to the waiting time as the patient waits to be seen by a specialist who may refer
the patient to yet another specialist within the province who is either able to
offer the treatment or surgery or will recommend OOCC.
Health services and treatments which have been approved by out-of-country
prior approval programs in different provinces and territories have included
cancer treatment, diagnostic testing, high-risk bariatric surgery, residential
treatment (such as for psychiatric disorders, eating disorders or substance
abuse), neurosurgery, spinal surgery, and pregnancy complications.11
When an application is denied, the patient may appeal that denial directly
to the Ministry or to the province’s Health Services Appeal and Review
Board, a quasi-independent tribunal that holds public hearings as part of
its adjudication.12
While this form of reimbursed medical tourism was not designed
specifically to deal with waiting lists in Canadian provinces, it has been
used for that purpose.13
10.
11.
12.
13.
Runnels & Packer, ibid.
Ibid at 138.
Runnels & Packer, supra note 8 at 139.
Ibid at 140.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
These facts are relevant for my analysis, as I argue below that home
countries have particularly strong moral obligations for governmentprompted medical tourism. Especially where, as it appears, Canada
does not merely passively support its citizens going abroad through
reimbursing their care, but may also cause their need to go abroad in the
first place based on funding decisions relating to health care availability
domestically, its duties may be higher. These duties may entail sending
Canadian patients only to foreign facilities that have taken steps to
mitigate and/or ameliorate the negative impacts of medical tourism
on health care for their domestic poor, paying subsidies to the local
communities whose interests they may be stymieing.
II.
Introduction
Medical tourism – the travel of patients who are residents of one country
(the “home country”) to another country for medical treatment (the
“destination country”) – represents a growing and important business.
For example, by one estimate, in 2004, more than 150,000 foreigners
sought medical treatment in India, a number that is projected to increase
by fifteen percent annually for the next several years.14 Malaysia saw
130,000 foreign patients in the same year.15 In 2005, Bumrungrad
International Hospital in Bangkok, Thailand, alone saw 400,000 foreign
patients, 55,000 of whom were American (although these numbers
are contested).16 By offering surgeries such as hip and heart valve
replacements at savings of more than eighty percent from that which
one would pay out-of-pocket in the United States, medical tourism has
enabled underinsured and uninsured Americans to secure otherwise
unaffordable health care.17 The title of a recent Senate hearing – “The
14.
15.
16.
17.
Glenn Cohen, “Protecting Patients with Passports: Medical Tourism and
the Patient-Protective Argument” (2010) 95:5 Iowa L Rev 1467 at 1472
[Cohen, “Protecting Patients”].
Ibid.
Ibid.
See e.g. ibid at 1476-88, citing Arnold Milstein & Mark Smith, “Will
the Surgical World Become Flat?” (2007) 26:1 Health Affairs 137 at
137, 139-40; US, The Globalization of Health Care: Can Medical Tourism
Reduce Health Care Costs?: Hearing Before the Special Committee on Aging,
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Globalization of Health Care: Can Medical Tourism Reduce Health Care
Costs?” – captures the promise of medical tourism.18 US insurers and
self-insured businesses have also made attempts to build medical tourism
into health insurance plans offered in the United States, and states like
West Virginia have considered incentivizing their public employees to use
medical tourism.19 There have even been calls for Medicaid and Medicare
to incentivize medical tourism for their covered populations.20
Although hardly new, in recent years, the dramatic increase in the
scope of the industry and the increasing involvement of US citizens as
medical tourists to developing countries have made pressing a number
of legal and ethical issues.21 While the growth of medical tourism has
18.
19.
20.
21.
109th Cong (Washington, DC: United States Government Printing
Office, 2006) at 18 (Dr Arnold Milstein), online: US Government
Information [The Globalization of Health Care]; Devon M
Herrick, “Medical Tourism: Global Competition in Health Care” (2007)
NCPA Pol’y Rep 304 (November 2007) at 11 table 1, online: National
Center for Policy Analysis , relying
on data from Unmesh Kher, “Outsourcing Your Heart”, Time (21 May
2006) 44.
The Globalization of Health Care, ibid at 1.
See Cohen, “Protecting Patients”, supra note 14 at 1473, citing US, HB
4359, 77th Leg, 2d Spec Sess, W Va, 2006; Joe Cochrane, “Medical
Meccas”, Newsweek (30 October 2006) 1; Mark Roth, “Surgery Abroad
an Option for Those with Minimal Health Coverage”, Post Gazette (10
September 2006) online: Post Gazette .
See Cohen, “Protecting Patients”, ibid at 1473-74; Dean Baker & Hye Jin
Rho, “Free Trade in Health Care: The Gains from Globalized Medicare
and Medicaid” (2009) online: Center for Economic Policy and Research
.
In some senses, medical tourism is a very old phenomenon. Ancient
Greeks traveled to spas known as asklepia in the Mediterranean for
purification and spiritual healing, and for over two thousand years,
foreign patients have traveled to the Aquae Sulis reservoir built by the
Romans in what is now the British town of Bath. See Kerrie S Howze,
“Note, Medical Tourism: Symptom or Cure?” (2007) 41:3 Ga L Rev
1013 at 1015-16; Anne Cearley & Penni Crabtree, “Alternative-Medicine
Clinics in Baja Have History of Controversy”, San Diego Union Tribune (1
February 2006) A8. Moreover, in the United States, our most outstanding
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
represented a boon (although not an unqualified one)22 for US patients,
what about the interests of those in the destination countries? From their
perspective, medical tourism presents a host of cruel ironies. Vast medicoindustrial complexes, replete with the newest expensive technologies
to provide comparatively wealthy medical tourists hip replacements
and facelifts, coexist with large swaths of the population dying from
malaria, AIDS, and lack of basic sanitation and clean water. A recent
New York Times article entitled “Royal Care for Some of India’s Patients,
Neglect for Others,” for example, begins by describing the care given
at Wockhardt Hospital in India to “Mr. Steeles, 60, a car dealer from
Daphne, Ala., [who] had flown halfway around the world last month to
save his heart [through a mitral valve repair] at a price he could pay.”23
The article describes in great detail the dietician who selects Mr. Steeles’
meals, the dermatologist who comes as soon as he mentions an itch, and
Mr. Steeles’ “Royal Suite” with “cable TV, a computer, [and] a minirefrigerator, where an attendant that afternoon stashed some ice cream,
for when he felt hungry later.”24 This treatment contrasts with the care
given to a group of “day laborers who laid bricks and mixed cement for
Bangalore’s construction boom,” many of whom “fell ill after drinking
illegally brewed whisky; 150 died that day.”25 “Not for them [was] the care
of India’s best private hospitals,” writes the article’s author; “[t]hey had
been wheeled in by wives and brothers to the overstretched government-
22.
23.
24.
25.
facilities like the Mayo Clinic have long attracted medical tourists, and
Middle Eastern patients, for example, have also sought care in other
developed-world medical hubs, such as London.
As I have discussed elsewhere, medical tourism presents concerns
regarding disparities in quality of care and medical malpractice recovery.
See generally Cohen, “Protecting Patients”, supra note 14 (reviewing
the risks of malpractice and care quality created by medical tourism and
proposing regulations to protect patients). It is also uncertain whether the
recently enacted health care reform, if fully implemented, will blunt some
of the motivation to go abroad of US medical tourists currently paying
out of pocket (since more will be insured), as well as whether it will result
in more insurer-prompted medical tourism. See Howze, ibid at 1525-26,
1542-43.
Somini Sengupta, “Royal Care for Some of India’s Patients, Neglect for
Others”, New York Times (1 June 2008) K3.
Ibid.
Ibid.
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run Bowring Hospital, on the other side of town,” a hospital with “no
intensive care unit, no ventilators, no dialysis machine,” where “[d]inner
was a stack of white bread, on which a healthy cockroach crawled.”26
These kinds of stark disparities have prompted intuitive discomfort
and critiques in the academic and policy literatures. For example, David
Benavides, a Senior Economic Affairs Officer working on trade for the
United Nations, has noted that developed and developing countries’
attempts at exporting health services sometimes come “at the expense of
the national health system, and the local population has suffered instead
of benefiting from those exports.”27 Rupa Chanda, an Indian professor of
business, writes in the World Health Organization Bulletin that medical
tourism threatens to “result in a dual market structure, by creating a
higher-quality, expensive segment that caters to wealthy nationals and
foreigners, and a much lower-quality, resource-constrained segment
catering to the poor.”28 While the “[a]vailability of services, including
physicians and other trained personnel, as well as the availability
of beds may rise in the higher-standard centres,” it may come “at the
expense of the public sector, resulting in a crowding out of the local
population.”29 Similarly, Professor Leigh Turner suggests that “the greatest
risk for inhabitants of destination countries is that increased volume
26.
27.
28.
29.
Ibid.
David Diaz Benavides, “Trade Policies and Export of Health Services: A
Development Perspective” in Nick Drager & Cesar Vieira, eds, Trade in
Health Services: Global, Regional, and Country Perspectives (Washington,
DC: Pan American Health Organization Program on Public Policy and
Health, 2002) 35 at 39, online: World Health Organization .
Rupa Chanda, “Trade in Health Services” in Nick Drager & Cesar Vieira,
eds, Trade in Health Services: Global, Regional, and Country Perspectives
(Washington, DC: Pan American Health Organization Program on Public
Policy and Health, 2002) 158 at 160, online: World Health Organization
.
Ibid; see also Milica Z Bookman & Karla K Bookman, Medical Tourism in
Developing Countries (New York: Palgrave MacMillan, 2007) (“[m]edical
Tourism can thus create a dual market structure in which one segment is
of higher quality and caters to the wealthy foreigners (and local highincome patients) while a lower quality segment caters to the poor ... [such
that] health for the local population is crowded out as the best doctors,
machines, beds, and hospitals are lured away from the local poor” at 176).
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
of international patients will have adverse effects upon local patients,
health care facilities and economies.”30 He explains that the kinds of
investments destination-country governments must make to compete are
in “specialized medical centres and advanced biotechnologies” unlikely
to be accessed by “most citizens of a country [who] lack access to basic
health care and social services.”31 Furthermore, higher wages for health
care professionals resulting from medical tourism may crowd out access
by the domestic poor.32 Thus, “[i]nstead of contributing to broad social
and economic development, the provision of care to patients from other
countries might exacerbate existing inequalities and further polarize the
richest and poorest members” of the destination country.33
The same point has also been made in several regional discussions:
Janjaroen and Supakankunti argue that in Thailand, medical tourism
threatens to both disrupt the ratio of health personnel to the domestic
population and “create a two-tier system with the better quality services
reserved for foreign clients with a higher ability to pay.”34 Similarly, the
Bookmans claim that in Cuba, “only one-fourth of the beds in CIREN
(the International Center for Neurological Restoration in Havana) are
filled by Cubans, and ... so-called dollar pharmacies provide a broader
range of medicines to Westerners who pay in foreign currency.”35 They
describe a medical system so distorted by the effects of medical tourism
as “medical apartheid, because it makes health care available to foreigners
that is not available to locals.”36 Numerous authors have made similar
30.
31.
32.
33.
34.
35.
36.
Leigh Turner, “‘First World Health Care at Third World Prices’:
Globalization, Bioethics and Medical Tourism” (2007) 2 Biosocieties 303
at 320.
Ibid.
Ibid.
Ibid at 321.
Watatana S Janjaroen & Siripen Supakankunti, “International Trade
in Health Services in the Millennium: The Case of Thailand” in Nick
Drager & Cesar Vieira, eds, Trade in Health Services: Global, Regional,
and Country Perspectives (Washington, DC: Pan American Health
Organization Program on Public Policy and Health, 2002) 87 at 98,
online: World Health Organization .
Bookman & Bookman, supra note 29 at 177.
Ibid.
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173
claims about medical tourism in India.37 Similar concerns have even
been raised as to medical tourism in developed countries. For example,
an investigation by the Israeli newspaper Haaretz concluded, “medical
tourists enjoy conditions Israelis can only dream of, including very short
waiting times for procedures, the right to choose their own doctor and
private rooms ... [a]nd these benefits may well be coming at the expense
of Israeli patients’ care.” The investigation also suggested that allowing
medical tourists to move to the front of the line on waiting lists for services
meant that “waiting times for ordinary Israelis will inevitably lengthen –
especially in the departments most frequented by medical tourists, which
include the cancer, cardiac and in vitro fertilization units.”38
Behind all of these claims – scholarly and popular – are some
significant and interesting fundamental questions. How likely is medical
tourism to produce negative consequences on health care access in Less
Developed Countries?39 If those effects occur, does the United States
(or other Western countries or international bodies) have an obligation
to discourage or regulate medical tourism to try to prevent such
37.
38.
39.
See e.g. Ami Sen Gupta, “Medical Tourism in India: Winners and Losers”
(2008) 5:1 Indian Journal of Medical Ethics 4-5; Laura Hopkins et al,
“Medical Tourism Today: What is the State of Existing Knowledge?”
(2010) 31:2 Journal of Public Health Policy 185 at 194; Rory Johnston et
al, “What is Known About the Effects of Medical Tourism in Destination
and Departure Countries? A Scoping Review” (2010) 9:24 International
Journal for Equity in Health 1.
Dan Even & Maya Zinshtein, “Haaretz Probe: Israel Gives Medical
Tourists Perks Denied to Citizens”, Haaretz (18 November 2010) online:
Haaretz.com .
Of course, as a growing literature emphasizes, it is a mistake to fetishize
health care in normative analysis instead of health, which may depend
more on sanitation, housing, and social determinants than on medical
services. See Norman Daniels, Just Health (New York: Cambridge
University Press, 2008) at 79-102; Michael Marmot et al, “Contributions
of Psychosocial Factors to Socioeconomic Differences in Health” (1998)
76:3 Milbank Quarterly 403 at 434. Although conscious of this issue, I
will for the most part focus on health care access because this is the main
margin in which medical tourism has been predicted to have negative
effects, while acknowledging that it is the negative effects on health
stemming from these diminutions in health care access that motivate the
concern.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
consequences? How might governments do so?
I examine those questions in this article, the first in-depth treatment
focusing on the normative question of home countries’ obligations.40 In
so doing, I draw on international development work on health systems
and globalization, political philosophy work on international justice,
and a more embryonic applied literature on the normative aspects of
drug access and pricing in the developing world. While my focus is on
medical tourism, this article also aims to further flesh out the intersection
of health inequalities, trade, and Global Justice obligations.
I hope the analysis developed here will serve as a template for discussion
of similar problems in the globalization of health care, including medical
migration (that is, “brain drain”). Indeed, I see this work as a dialogue
between the theory and its application. On the one hand, political
theories on Global Justice can help us better understand our obligations
regarding medical tourism. On the other hand, while our intuitions
might suggest that some of these theories lead to predictable positions on
medical tourism, their actual application to the case of medical tourism
yields surprising results and unforeseen complexities, highlights areas in
which the theories are underspecified, and suggests diverging paths for
filling in lacunae. Thus, these theories of Global Justice cannot only teach
us something about the concrete case of medical tourism, but medical
tourism can also teach us something about these theories as applied to
globalization.
More specifically, I begin in Part III by describing and distinguishing
medical tourism by individuals purchasing care out-of-pocket from those
whose use is prompted by insurers and governments. I then distinguish
concerns about medical tourism’s effect on health care access in the
destination country – the focus of this article – from other concerns with
40.
My focus in this article is on the obligations of home country
governments and international bodies. Some of what I say may have
implications for the obligations of two other groups: individual tourist
patients and corporations involved in (or who incentive their covered
populations to use) medical tourism, and I noted the instances where
I see that relevance (e.g. in Nussbaum and Daniels’ work). Translating
ideas from political philosophy into the realms of moral philosophy or
corporate social responsibility, however, is no easy task, and I make no
pretension of fully doing so here.
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medical tourism that I and others have discussed elsewhere. I unpack
this concern as encompassing an empirical claim and a normative claim,
which I examine in turn.
I begin with the empirical claim in Part IV, where I show that
despite the expressions of concern of several prominent scholars and
policymakers, there currently exists little empirical evidence that suggests
medical tourism has adverse effects on health care access in destination
countries. Nevertheless, both as a grounding for what follows and as an
attempt to help formulate an empirical research project, I discuss six
possible triggering conditions through which we would expect medical
tourism to reduce access for the poor in destination countries.
In Part V, the heart of the paper, I turn to the normative claim and
ask: assuming arguendo that medical tourism reduces health care access in
destination countries for local populations (the empirical claim), under
what conditions should such a reduction trigger obligations on the part
of home countries and international bodies to regulate medical tourism
or mitigate its negative effects? I demonstrate why arguments appealing
to national self-interest in order to restrict medical tourism fail. I then
examine three broad camps of Global Justice theory (Cosmopolitan,
Statist, and Intermediate) and analyze whether they can be applied to
medical tourism as grounds for these obligations.
Part VI examines how much of an overlapping consensus and
divergence exists between the prescriptions of the theories in these rival
camps, drawing some distinctions between kinds of medical tourism. I also
discuss ways in which policymakers can use domestic and international
law to translate ethical theory into reality.
A conclusion summarizes and charts some implications of my
analysis for health care globalization more generally.
III.
Kinds of Medical Tourism, Kinds of
Ethical Concerns
Medical tourism is one part of a larger move toward the globalization of
health care, a globalization that encompasses, among other things, medical
migration (the brain drain), medical outsourcing (such as teleradiology),
research tourism (where US-based pharmaceutical companies perform
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
clinical trials abroad), and the parallel trade in approved pharmaceuticals
(such as purchasing drugs from Canada). At a high level, medical tourism
falls into three types, each of which raises ethical questions I have outlined
elsewhere: (1) medical tourism for services that are illegal in both the
patient’s home and destination countries (such as organ purchase in
the Philippines); (2) medical tourism for services that are illegal or
unapproved in the patient’s home country but legal in the destination
country (such as fertility, euthanasia, experimental drug, and stem cell
tourism); and (3) medical tourism for services legal in both the home and
destination countries.41
In this article, I focus on the last category. I divide such medical
tourism by patient population into three types, each relevant for the
normative analysis that follows. The first is patients paying out-of-pocket.
In the United States, this typically refers to uninsured or underinsured
patients using medical tourism to achieve substantial cost savings for
procedures like hip replacements.42 A second group consists of privateinsurer-prompted medical tourism. In its weakest form, insurers simply
cover the service abroad without any incentive, but in a more common
form, Tourism-Incentivized plans offer individuals rebates, waived
deductibles, or other payment incentives for receiving treatment abroad.43
For example, a plan proposed by Hannaford Brothers Supermarkets in the
northeastern United States gives employees incentives to seek treatment
in Singapore at Joint Commission International (JCI)-accredited
hospitals.44 A final form is government-prompted medical tourism. For
example, there have been recent proposals to give US Medicare and
Medicaid patients incentives to use medical tourism (with estimates of
USD $18 billion in annual savings based on ten percent of the populace
taking advantage of the incentives). Another version is already in place
41.
42.
43.
44.
I Glenn Cohen, “Medical Tourism: The View from Ten Thousand Feet”
(2010) Hastings Center Report 11 at 11-12 [Cohen, “Medical Tourism”].
Cohen, “Protecting Patients”, supra note 14 at 1479-81.
Ibid at 1486-88, (discussing Tourism-Incentivized, Tourism-Mandatory,
and Domestic-Extra possible configurations).
Ibid at 1486, citing Bruce Einhorn, “Hannaford’s Medical-Tourism
Experiment”, Businessweek (9 November 2008) online: Businessweek
.
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in the European Union, where member states face some obligations to
reimburse their citizens for treatments received in other member states.45
Medical tourism of any of these types raises a large number of ethical
and legal concerns – concerns about protecting the tourist patient from
poor quality of care; the de facto waiver of rights to medical malpractice
compensation for any resulting medical error; the dynamic effects on
health care provided at home (including the possibility of regulatory
races to the bottom); and the structuring of fair health insurance plans.46
In this article, I focus on a very different set of concerns: those pertaining
to potential negative effects of medical tourism on health care access for
the poor in the destination country.
IV.
The Empirical Claim
While concerns about effects on health care access abroad are raised
by academics and policymakers discussing medical tourism, they have
thus far been under-theorized. These concerns are best thought of as
consisting of an empirical claim – that medical tourism diminishes health
care access in the destination country, usually with a focus on its effects
on the poorest residents – and a normative one – that such diminished
access creates obligations on the United States and other tourist patient
home countries (or international bodies, or possibly corporations) to do
something about medical tourism.47
45.
46.
47.
See ibid at 1488, citing Watts v Bedford Primary Care Trust, C-372/04
[2006] ECR I-04325; Nicolas P Terry, “Under-Regulated Health Care
Phenomena in a Flat World: Medical Tourism and Outsourcing” (2007)
29:2 W New Eng L Rev 421 at 437. In 2011, the EU adopted a new
directive on cross-border health care codifying some of this case law and
altering and adding other elements. See e.g. Sophie Petjean, “Council
Approves Compromise with Parliament”, Europolitics (10 February 2011)
online: Europolitics .
See generally Cohen, “Medical Tourism”, supra note 41 discussing these
issues; Cohen, “Protecting Patients”, supra note 14 discussing similar
issues; Nathan Cortez, “Recalibrating the Legal Risks of Cross-Border
Health Care” (2010) 10:1 Yale Journal of Health Policy, Law, and Ethics
1.
This should be contrasted with a different claim that although medical
tourism does not harm the interests of people in the destination country,
in the sense that these individuals are just as or more well-off, all things
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
Although, as discussed, there have been a number of more anecdotal
statements and analyses offered in favor of the empirical claim, there
is very little in the way of statistical evidence supporting the empirical
claim. As such, this is an area where more developmental economic work
would be very helpful. That said, I think it useful to identify six triggering
conditions, which, when combined with substantial amounts of medical
tourism, may lead to reduced access to health care for local populations
and thus satisfy the empirical claim:
(1) The health care services consumed by medical tourists come
from those that would otherwise have been available to the destination
country poor. When medical tourists seek travel abroad for cardiac care,
hip replacements, and other forms of surgery used by the destination
country poor, the siphoning effect is straightforward. By contrast, the
destination country poor are already unlikely to be able to access some
boutique forms of treatment, such as cosmetic surgery and stem cell and
fertility therapies. Thus, while medical tourism by American patients for
these services would diminish access by, for example, Indian patients, it
would not necessarily diminish access for poor Indian patients (which
would remain steady at virtually none). Instead, it would cut into access
by upper-class patients. Thus, one triggering condition focuses on
whether medical tourism is for services currently accessed by destination
country poor. That said, as discussed below, over time, the salience of the
distinction is likely to break down, and even medical tourism for services
currently inaccessible to destination country poor may siphon resources
away from the poor because increased demand for services like cosmetic
surgery may redirect the professional choices of graduating or practicing
physicians who currently provide health care to India’s poor into these
niche markets. Whether that dynamic obtains would depend in part on
the extent to which the destination country regulates specialty choice
being considered, it could be designed in a way that could make them
even better off or have fewer negative effects along with its positive ones.
C.f. Seana Valentine Shiffrin, “Wrongful Life, Procreative Responsibility,
and the Significance of Harm” (1999) 5:1 Legal Theory 117 (proposing
a non-comparative model where “harm” and “benefit” are two separate
things, and it is wrong to impose harm without consent in order to confer
an even larger benefit).
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versus the extent to which health care workers can pursue the specialties
most desirable to them.
(2) Health care providers are “captured” by the medical tourist
patient population, rather than serving some tourist clientele and some
of the existing population. Absent regulation, the introduction of a
higher-paying market will likely cause health care providers to shift away
from treating patients in the lower-paying market.48 Thus, for example,
Hopkins and her co-authors argue that this dynamic has taken place in
Thailand, where “[a]lmost 6000 positions for medical practitioners in
Thailand’s public system remained unfilled in 2005, as an increasing
number of physicians followed the higher wages and more attractive
settings available in private care,” and that due to medical tourism, “the
addition of internal ‘brain drain’ from public to private health care may be
especially damaging” for “countries such as Ghana, Pakistan, and South
Africa, which lose approximately half of their medical graduates every
year to external migration.”49 This has also been the dynamic when private
options are introduced into public systems, even in the developed world,
although a number of jurisdictions, such as Canada and France, have
tried by regulation to prevent flight to the private system.50 Regulations
that require providers to spend time in both systems are also more likely
to produce positive externalities from the private to public health care
48.
49.
50.
See Johnston et al, supra note 37 at 11.
Hopkins et al, supra note 37 at 194; see also Rupa Chinai & Rahul
Goswami, “Medical Visas Mark Growth of Indian Medical Tourism”
(2007) 85:3 Bulletin of the World Health Organization 164 (quoting
Dr. Manuel Dayrit, Director, WHO’s Human Resources for Health
Department, as saying, “[a]lthough there are no ready figures that can
be cited from studies, initial observations suggest that medical tourism
dampens external migration but worsens internal migration” at 165).
See Colleen M Flood, “Chaoulli’s Legacy for the Future of Canadian
Health Care Policy” (2006) 44:2 Osgoode Hall LJ 273 (discussing
evidence that “to the extent that prices are higher in the private sector
and where specialists are free to do so, they will devote an increasing
proportion of their time to private patients who are likely to have less
acute or serious needs than those patients left behind in the public
system” at 289); Colleen M Flood & Amanda Haugan, “Is Canada
Odd? A Comparison of European and Canadian Approaches to Choice
and Regulation of the Public/Private Divide in Health Care” (2005) 5:3
Health Economics, Policy and Law 319 at 320.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
systems; for example, a physician who receives extra training as part of
her duties in the medical tourism sector may be able to carry that training
over to her time spent treating poor patients, if regulation forces her
facility to treat poor patients. I discuss such possible regulation more in
depth in Part VI, but it is worth noting that in medical tourism havens
like India, even when such regulations are in place, many observers have
been skeptical that they have been or will be enforced.51
(3) The supply of health care professionals, facilities, and technologies
in the destination country is inelastic. Theoretically, if medical tourism
causes increased demand for health care providers and facilities in the
destination country, the country could meet such demand by increasing
the supply of these things. In reality, however, even Western nations have
had difficulty increasing this supply when necessary.52 As discussed, the
need to match increased demand for the right specialties poses additional
problems. In any event, investments in building capacity always entail an
adjustment period. Thus, even countries that are unusually successful in
increasing the size of their health care workforce to meet the demands of
medical tourism will face interim shortages.
(4) The positive effects of medical tourism in counteracting the brain
drain of health care practitioners to foreign countries are outweighed by
the negative effects of medical tourism on the availability of health care
resources. Medical migration, or brain drain, represents a significant threat
51.
52.
See e.g. Gupta, supra note 37 (“[t]he government would have us believe
that revenues earned by the industry will strengthen health care in the
country. But we do not see any mechanism by which this can happen.
On the contrary, corporate hospitals have repeatedly dishonoured the
conditions for receiving government subsidies by refusing to treat poor
patients free of cost – and they have got away without punishment.
Moreover, reserving a few beds for the poor in elite institutions does not
address the necessity to increase public investment in health to three to
five times the present level” at 4-5); Johnston et al, supra note 37 at 5.
See Greg L Stoddart & Morris L Barer, “Will Increasing Medical School
Enrollment Solve Canada’s Physician Supply Problems?” (1999) 161:8
Canadian Medical Associaton Journal 983; Abhaya Kamalakanthan
& Sukhan Jackson, “The Supply of Doctors in Australia: Is There a
Shortage?” University of Queensland, Discussion Paper No. 341 (2006)
online: University of Queensland .
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181
to health care access abroad. For example, 61 percent of all graduates
from the Ghana Medical School between 1986 and 1995 left Ghana
for employment elsewhere (of those, 54.9 percent worked in the United
Kingdom and 35.4 percent worked in the United States), and a 2005
study found that 25 percent of doctors in the United States are graduates
of foreign medical schools.53 A recent study of nurses in five countries
found that 41 percent reported dissatisfaction with their jobs and onethird of those under age thirty planned on leaving to work elsewhere.54 As
Larry Gostin has put it, in the ordinary course of globalization, “[h]ealth
care workers are ‘pushed’ from developing countries by the impoverished
conditions: low remuneration, lack of equipment and drugs, and poor
infrastructure and management,” and “[t]hey are ‘pulled’ to developed
countries by the allure of a brighter future: better wages, working
conditions, training, and career opportunities, as well as safer and more
stable social and political environments.”55 It is possible that for health care
professionals tempted to leave their country of origin to practice in other
markets, the availability of higher-paying jobs with better technology and
more time with patients in the medical tourist sector of their country of
origin will counteract this incentive.56 Medical tourism may also enable
the destination country to “recapture” some health care providers who left
53.
54.
55.
56.
Fitzhugh Mullan, “The Metrics of The Physician Brain Drain” (2005)
353:17 New Eng Journal of Medicine 1810 at 1811; David Sanders et
al, “Public Health in Africa” in Robert Beaglehole, ed, Global Public
Health: A New Era (New York: Oxford University Press, 2003) 172. The
cost to less developed countries and the benefit to the United States and
other countries caused by the brain drain are staggering. A recent report
suggested that it would have cost on average USD $184,000 to treat each
of the three million health care professionals who had migrated, such that
richer nations saved $552 billion, whereas poor nations lost $500 million
in training costs. Bookman & Bookman, supra note 29 at 106.
Linda H Aiken et al, “Nurses’ Reports on Hospital Care in Five
Countries” (2001) 20:3 Health Affairs 43 at 45-46.
Lawrence O Gostin, “The International Migration and Recruitment of
Nurses: Human Rights and Global Justice” (2008) 299:15 Journal of the
American Medical Association 1827 at 1828.
See Matthias Helble, “The Movements of Patients Across Borders:
Challenges and Opportunities for Public Health” (2011) 89:1 Bulletin of
the World Health Organization 68 at 70 (discussing as-yet-unpublished
data supporting this claim in Thailand).
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years earlier, or to change brain drain into “brain circulation,” wherein
home country providers leave for training abroad and return home ready
to use and impart their skills to other providers in the home country.57
But while some countries that experience medical brain drain are also
developing strong medical tourism industries, many are only sources of
medical brain drain and not destinations for medical tourism.58 Thus, the
creation of medical tourism hubs may actually exacerbate intra-regional
medical migration.
(5) Medical tourism prompts destination country governments to
redirect resources away from basic health care services in a way that
outweighs positive health care spillovers. In order to compete for patients
on quality and price against both the patient’s home country and other
medical tourism hubs, destination countries will need to invest in their
nascent medical tourism industry through, for example, direct funding,
tax subsidies, and land grants.59 Unfortunately, such funding often comes
from money devoted to other health programs, including basic health care
and social services,60 and those effects are likely to be felt most strongly
by the destination country poor. In other words, we need some sense
of whether governments actually invest in health care services accessible
by the poor (or at least do not take them away) in a counterfactual
world where medical tourism is restricted. We also need to examine this
dynamic as against a potential countervailing dynamic wherein medical
tourism leads to a diffusion of Western medical technology or standards
of practice or other health care spillovers that are beneficial to the entire
57.
58.
59.
60.
For discussions of these possibilities in other contexts, see e.g. Ayelet
Shachar, “The Race for Talent: Highly Skilled Migrants and Competitive
Immigration Regimes” (2006) 81:1 NYUL Rev 148 at 168.
Bookman & Bookman, supra note 29 at 105-09.
Ibid at 65-82; Turner, supra note 30 at 314-15, 320.
See Benavides, supra note 27 at 55; Johnston et al, supra note 37 (“the
hiring of physicians trained in public education systems by private
medical tourism facilities is another example of a potentially inequitable
use of public resources. Furthermore, physicians in [low and middle
income countries] who might normally practice in resource-poor
environments can instead treat high-paying international patients, thereby
gaining access to advanced technologies and superior facilities while
receiving a higher wage” at 5-6); Turner, supra note 30 at 320.
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patient population.61 Which dynamic wins out can only be answered on a
country-by-country basis, but in India, for example, some commentators
have suggested that the product of these countervailing forces has
ultimately been a net negative for the destination country poor.62
(6) Profits from the medical tourism industry are unlikely to “trickle
down.” Successful medical tourism industries promise an infusion of
wealth into the destination country, and the possibility that all boats will
rise.63 In practice, however, that possibility may not be realized. The reason
for this might be something insidious like rampant corruption, or it may
be something more benign, such as a tax system that is not particularly
redistributive, or a largely foreign-owned medical sector.64 Thus, the fact
that a destination country gains economically from medical tourism (for
example, in GDP terms) does not necessarily mean that those gains are
shared in a way that promotes health care access (or health) among the
destination poor.
Notice, as it will become relevant in the normative analysis, that
many of these triggering conditions are themselves in the control of the
destination country government to some extent.
As I have said before, data on the effects of medical tourism on
health care access in the destination country are scarce – in many cases,
they rest on anecdote and speculation – and the analysis can only be done
on a country-by-country basis, which is impossible, given the current
paucity of data. In countries where the triggering conditions all obtain,
one would expect medical tourism to cause some diminution in access to
61.
62.
63.
64.
Nathan Cortez, “International Health Care Convergence: The Benefits
and Burdens of Market-Driven Standardization” (2009) 26:3 Wis Int’l LJ
646.
See e.g. Hopkins et al, supra note 37 (“[i]n India, medical professionals
are trained in highly subsidized public facilities. The annual value of these
public training subsidies to the private sector where many physicians
eventually work is estimated at more than USD $100 million, at least
some of which accrues to the medical tourism industry. This diverts public
funds that might otherwise have gone into improving public health care
for the poor – to private care for more affluent individuals” at 194).
Cortez, supra note 61 at 693-94, citing Alain Enthoven, “On the Ideal
Market Structure for Third-Party Purchasing of Health Care” (1994)
39:10 Social Science & Medicine 1413 at 1420.
Helble, supra note 56 at 70.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
health care for the destination country’s poorest due to medical tourism;
as fewer factors obtain, this becomes less likely. This list of factors is
certainly not exhaustive, and there may be additional factors in particular
countries that push in the other direction. While I cannot prove that
this result obtains in any country, and some readers will no doubt be
skeptical, the claim seems at least plausible enough to merit a normative
analysis.
In the following analysis, I will merely assume we have a homedestination country pairing where the empirical claim obtains. For
purposes of illustration, I will use US medical tourists traveling to India
as my example.65 From this point on, my analysis thus adopts a sort
of disciplinary division of labour: I leave to development economists
attempts to corroborate and further specify these triggering conditions
and to show where they are satisfied. I instead focus on the normative
questions about the obligations that flow from potential diminutions,
and the legal and institutional design questions about how to satisfy
those obligations.
V.
The Normative Question
Suppose that US medical tourism to India really does reduce health
care access for India’s poorest residents. Does the United States (or an
international body) have an obligation to do something about it? For
example, does it have an obligation to try to curb medical tourism use
by US citizens? In this section, I try to determine how much of an
overlapping consensus there is among several rival comprehensive moral
theories.
In terms of priors, I think it useful to begin with some skepticism
toward the claim that there is something morally wrong with medical
tourism because of its negative effects on health care access by the
destination country poor. After all, medical tourism appears to involve
willing providers of services (destination country physicians and facilities)
65.
While I focus on US medical tourists, much of what I say can be
transposed to medical tourists from other countries; the exceptions relate
to some elements of US health insurance and the regulatory tools available
to deal with US insurer-prompted medical tourism.
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and willing consumers (home country patients, insurers, governments)
pursuing an ordinarily morally unproblematic activity (providing medical
services). Moreover, unlike cases such as organ sale or clinical trials in
sub-Saharan Africa of drugs that will not be readily available there when
approved,66 there is no plausible claim that the (in one sense) “voluntary”
seller (or buyer) is being exploited. Instead, the harm occurs from the
negative externalities of reduced access to care for third parties produced
from these voluntarily nonexploitive transactions. I examine four types
of theories that nonetheless purport to find fault with this arrangement.
A.
Self-Interest
In making the case for curbing medical tourism to policymakers, it would
be most desirable to appeal to national self-interest directly and claim that
restrictions on medical tourism would serve the interests of US citizens
(or the home country of other tourists, but from this point forward I will
merely say “US” for simplicity). Such an argument would not require
subscription to any theory of global justice, nor even a particularly
strong commitment to distributive justice domestically. While many
philosophers might chafe at the invocation of such an egoistic theory,67
this argumentative strategy has been employed in parallel settings:
to urge, among other things, action by developed countries to reduce
medical migration from developing countries (especially “poaching”
practices) and the loosening of intellectual property rights to vaccines in
the developing world, in attempts to increase access to essential medicines
at price points within the grasp of developing world populations.68 Might
66.
67.
68.
See e.g. Jennifer S Hawkins, “Research Ethics, Developing Countries, and
Exploitation: A Primer” in Jennifer S Hawkins & Ezekiel J Emmanuel,
eds, Exploitation and Developing Countries: The Ethics of Clinical Research
(New Jersey: Princeton University Press, 2008) 21 at 21-55.
That this kind of argument may not appeal to most Global Justice
theorists does not mean they should not consider it in attempting to
persuade policy-makers. As I stress repeatedly in this article, to achieve
that goal, it is desirable to achieve as much of an overlapping consensus as
possible between rival views.
See William W Fisher & Talha Syed, “Global Justice in Health:
Developing Drugs for the Developing World” (2007) 40:3 UC Davis L
Rev 581 at 588-91; Lawrence O Gostin, “Meeting Basic Survival Needs
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
the same kinds of arguments have purchase in this context?
I can think of at least four types of arguments along these lines.
First, one might press patient-protective concerns or concerns about
externalities borne by our domestic health care system when medical
tourist patients experience poor care abroad and need additional health
care here in the United States. For example, because the Emergency Medical
Treatment and Active Labor Act69 requires that US hospitals provide
emergency services regardless of patients’ insurance status or ability to
pay, US hospitals will face the costs associated with meeting additional
emergency health care needs due to medical tourism that harms US
patients, and will pass these costs on to other paying patients.70 Even
assuming these are valid concerns regarding medical tourism (a matter
itself subject to doubt),71 the larger problem is that the cases where this
particular self-interest argument might push us to curb medical tourism
will map on only by coincidence, if at all, to cases posing concerns
about the destination country poor’s health care access. That is, there
can be cases where this particular self-interest concern would urge action
but there are no health care access concerns, and cases where there are
health care access concerns but this particular self-interest argument is
not operative. The same response applies regarding concerns about the
importation of diseases (especially antibiotic-resistant strains or “superbugs”) back to developed countries due to medical tourism, as has been
69.
70.
71.
of the World’s Least Healthy People: Toward a Framework Convention on
Global Health” (2008) 96 Geo LJ 331 at 352-63.
42 USC §§1395dd(a)-(d) (2010) [EMTALA].
Ibid. To put the point another way, some health care may be iatrogenic.
That is, it may cause harm and thus present new health care needs that
did not exist before the care was provided.
See Cohen, “Protecting Patients”, supra note 14 at 1523-42 (discussing
patient protection). To unpack this point, even if some medical tourism is
iatrogenic, it seems possible (indeed, even plausible) that on net, medical
tourism saves hospitals in terms of EMTALA costs; that is, the number
of patients with new medical needs covered by EMTALA and caused by
medical tourism may be dwarfed by the number of patients who now
avoid the need for care covered by EMTALA, because they instead get
care through medical tourism, preventing or forestalling the need for an
emergency admission. This is, of course, an empirical question, and one
that would be quite difficult to definitively answer, but it seems plausible
to me that this is the case.
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reported in a few case studies.72
One might instead adapt to medical tourism other arguments made
in the health care literature for the claim that the United States (or other
countries) should care about the impact of US policies or US citizens’
behavior on the health of those abroad. First, given the frequency of travel
by Americans (and others who visit the United States) to India, medical
tourism that results in decreased access to treatment for infectious diseases
might increase the risk of transmission of those diseases to Americans.73
Second, because Indians are valuable to the United States as producerexporters of cheap goods and consumer-importers of our goods,
improving Indian citizens’ basic health care will improve that country’s
development and ensure more productive trading partners and affluent
markets in which to sell US-made goods.74 Finally, one might make the
more attenuated argument that improving health care access abroad may
reduce immigration pressures to the United States or increase national
security by reducing global terrorism.75
Unfortunately, these arguments are not very persuasive in this
context. For the infection-transmission and consumer arguments, we
should arguably be more concerned about the health of the higher-SocioEconomic-Status strata of Indian society, who are more likely to travel to
our shores and be better able to buy our goods. While diminishing health
care access to India’s poorest, medical tourism services may actually
improve the health care of the wealthier strata, at least those who are
able to buy into these better facilities or take advantage of the diffusion
of knowledge and technology. This is not to say there are no infection
72.
73.
74.
75.
See E Yoko Furuya et al, “Outbreak of Mxobacterium Absessus Wound
Infections Among ‘Lipotourists’ from the United States Who Underwent
Abdominoplasty in the Dominican Republic” (2008) 46:8 Clinical
Infectious Diseases 1181; Centre for Disease Control, “Brief Report:
Nontuberculous Mycobacterial Infections After Cosmetic Surgery – Santo
Domingo, Dominican Republic, 2003-2004” (2004) 53:23 Morbidity
and Mortality Weekly Report 509.
C.f. Fisher & Syed, supra note 68 at 588; Gostin, supra note 68 at 353-55.
Ibid.
C.f. Fisher & Syed, ibid at 590; Gostin, ibid at 358-61. To be clear, Fisher,
Syed, and Gostin are also not particularly impressed by these arguments,
even in the health care globalization contexts about which they write.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
concerns – Americans traveling to India for pleasure tourism may bring
diseases back with them – but that they are less salient than in other
contexts.
A more serious and general objection to deploying these self-interest
arguments here is that even if it is in the American self-interest to help
India’s poor access health care for these reasons, it will frequently be even
more in its self-interest to help its own poor citizens in this regard. As I
have discussed here and elsewhere, and as the Senate recognized in its
own hearing, medical tourism promises to improve the health care of
poor Americans even while it (by hypothesis) reduces health care access
to poor Indians, and the former effect might be thought to dominate
in terms of US self-interest.76 This objection is particularly salient for
medical tourism by those paying out-of-pocket or for governmentprompted medical tourism. It is less forceful an objection with respect
to insurer-prompted medical tourism, because if medical tourism were
restricted, many of the users would continue to have access to health care;
they would just pay more for it. That said, at the margins, there may be
populations whose access to health care will depend on the availability
of lower-priced health insurance plans with some amount of medical
tourism covered or incentivized, and particular services may be excluded
from insurance coverage at a given price if medical tourism is curbed.77
For similar reasons (discussed more fully below), this objection to the selfinterest argument may be less forceful for certain sub-types of medical
tourism, like cosmetic surgery. I return to these two distinctions (as to
insurer-prompted medical tourism and certain sub-types of procedures)
repeatedly in this paper.
In sum, for most types of medical tourism, we need to go beyond
76.
77.
Cohen, “Protecting Patients”, supra note 14 at 1523-28; Cohen, “Medical
Tourism”, supra note 41 at 11-12.
Cohen, “Protecting Patients”, ibid at 1546. That said, if these insured
patients are paying more for their health insurance because medical
tourism is excluded, their welfare will be negatively impacted (they are
losing disposable income they could spend on other items) even if their
access to health insurance and therefore health care is less likely to be
negatively impacted. Whether that distinction matters may depend on
whether one adopts the view that health has special moral importance (a
separate spheres kind of view) or not. See Daniels, supra note 39 at 29-78.
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pure national self-interest to mount a cogent defense for why one should
be concerned about medical tourism’s negative effects on health care
access in the destination country.78 I consider three families of political
philosophy theories that seek to do that: Cosmopolitan, Statist, and
Intermediate.
B.
Cosmopolitan Theories
Cosmopolitan theories share a commitment to ignoring geographic
boundaries in the application of moral theory. I consider what three
cosmopolitan theory types – Utilitarian, Prioritarian, and the Nussbaum/
Sen Functioning/Capabilities approach (which is in some senses
Sufficientarian) – would say about medical tourism. This discussion
should be understood as being at the level of ideal types, because there
are many variants of these theories.
Utilitarians are committed to maximizing aggregated social welfare.
Cosmopolitan Utilitarians take the Millian and Benthamite slogan “each
to count for one, and none for more than one,”79 and ignore national
boundaries in determining who is the “each” to be counted.80 Bracketing
complicated questions about what it is that welfare consists of,81 there
78.
79.
80.
81.
John Stuart Mill, “Utilitarianism” (1863) reprinted in Alan Ryan, ed,
Utilitarianism And Other Essays (New York: Penguin Books, 1987) 272 at
336.
This discussion has been premised on the current volume of medical
tourism or a volume one might estimate as realistic in the next decade.
If, for example, a third of the American populace started using medical
tourism, that effect on lost revenue for the US domestic health care
system and the dynamic effects on the US health care market would pose
a quite separate set of self-interest concerns. I do not investigate those
hypothetical concerns here, both because the volume of medical tourism
needed to make them relevant seems extremely unrealistic and because, as
with the EMTALA cost-related concerns discussed above, the concern is
quite orthogonal to diminutions in health care access by the destination
country poor.
See Peter Singer, “Famine, Affluence, and Morality” (1972) 1:1
Philosophy & Public Affairs 229 at 231; Peter Singer, “The Tanner
Lectures on Human Values, A Response to Martha Nussbaum” (13
November 2002) Utilitarianism, online: Utilitarian Philosophers .
See generally LW Sumner, Welfare, Happiness, and Ethics (New York:
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
is a prima facie case that Cosmopolitan Utilitarians would find medical
tourism normatively problematic. As William W Fisher and Talha
Syed have suggested in the context of pharmaceutical R&D spending
on diseases that predominantly affect the poorest countries, the fact of
diminishing marginal utility from health care gives a good prima facie
argument on Utilitarian grounds to favor interventions for the worst-off
over the better-off, even if each group is a similarly sized population.
Increasing health care access is more likely to raise the welfare of the
poor than it is that of comparably richer individuals.82 This is true even
if we grant the possibility that individual utility curves vary and we lack
sufficient knowledge for interpersonal comparisons of utility; as long
as one makes the minimal assumption that individual utility curves are
distributed randomly, moving to a more equal distribution will maximize
utility as a statistical matter because there is an equal chance that a person
with a given curve will lose or gain the good from the equalizing transfer.
In other words, “the harm of a loss (to a well-off person with that utility
function) will be outweighed by the benefit (to a worse-off person with
that curve).”83 A similar case can be made for interventions to curb
medical tourism – for example, to invoke one of the possible triggering
conditions discussed above, if medical tourism causes fewer physicians to
treat the poor and produces higher infant mortality.
This case is only a prima facie one, and more complicated than
the R&D spending case for several reasons. First, many Cosmopolitan
Utilitarians are concerned with welfare, not health per se, so increases
in wealth (and thus welfare) to all the Indian populace from medical
tourism, even if accompanied by decreases to the health of the poorest,
have to be factored in, as do wealth increases to Americans based on
savings from medical tourism, which might muddy the waters.84 That
said, if the wealth gains are also concentrated in the most well-off, the
82.
83.
84.
Clarendon Press Oxford University Press, 1996) (exploring rival
definitions).
Fisher & Syed, supra note 68 at 602-05.
Ibid at 605.
I say “many Cosmopolitan Utilitarians” because there could also be
utilitarian views that attached a special importance to health, to which
this particular objection might not apply.
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same diminishing marginal utility principle will tend to reduce the value
of these gains. Second, out-of-pocket or government-prompted medical
tourism usually improves health care access for poor Americans85 and
for middle-class Indians who can use these facilities. Thus, in fact, the
relevant trade-off is not rich American versus poor Indian, but poor
American and middle-class Indian versus poor Indian. If the utility
curves of the poor American and poor Indian are close enough in terms
of diminishing marginal utility,86 the addition of benefits to middle-class
Indians may make up the weight. For reasons similar to those discussed
above, this will be less of a problem with curbs on insurer-prompted
medical tourism. Third, the discussion so far has assumed we are trading
off one (stylized and hypothetical) increment of health care between the
domestic citizen and the medical tourist, but there is no reason to think
the world will actually be so neat. It could be true that in a world with
medical tourism the Indian patient loses on net only one increment of
85.
86.
As I have noted elsewhere, we lack specific demographic information on
medical tourists, but the existing evidence suggests that in the US they
are largely uninsured and underinsured patients who lack better options
for getting necessary health care. Cohen, “Protecting Patients”, supra note
14 at 1480. In part because of the funding of and strict eligibility criteria
for Medicaid in the United States, many of the uninsured who are not
Medicaid recipients are themselves quite poor. A 2010 Kaiser Family
Foundation Report estimated that 40 percent of uninsured individuals
(i.e. not receiving either Medicaid or private insurance) fell below the
US poverty level, which was USD $22,050 for a family of four in 2010,
and 90 percent of all uninsured in America were below 400 percent of
the poverty level. Henry J Kaiser Family Foundation, “The Uninsured:
A Primer - Key Facts About Americans Without Health Insurance”
(Washington, DC: Kaiser Family Foundation, 2010) at 5.
That is, of course, a big “if.” To many, it may seem plausible that even
a poor American who would make use of medical tourism is quite far
away from the poor Indian in terms of diminishing marginal utility.
That said, as I have discussed elsewhere in greater depth, see Cohen,
“Protecting Patients”, supra note 14 at 1472-74, 1479-81, many of the
current developed-world users of medical tourism are seeking heart bypass
surgeries, heart valve replacement surgeries, spinal surgeries, and cancer
treatments they cannot afford to have at home. These are serious – in
many cases, life-or-death – surgeries, and the inability to access them will
have very large utility consequences. Thus, we ought to be careful before
too quickly dismissing this issue, even if one’s prior intuitions go the other
way.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
health care while the American tourist gains three – for example, medical
tourism might have offsetting benefits in terms of improving medical
technology and practice by Indian physicians who serve the domestic
population. In such a world, while medical tourism makes Indians worse
off, it does so less than it makes Americans better off. Of course, the
opposite could be true, in which case the argument for banning medical
tourism is stronger. None of this is to argue that the Cosmopolitan
Utilitarian could not oppose medical tourism, but just that there are
some indeterminacies here.
Many of those indeterminacies become less pressing under
Cosmopolitan Prioritarianism. Unlike Utilitarians, Prioritarians do “not
give equal weight to equal benefits, whoever receives them,” but instead
give more weight to “[b]enefits to the worse off.”87 Take, for example,
John Rawls’s extremely Prioritarian Difference Principle: inequalities in
“primary goods” (income, wealth, positions of authority or responsibility,
the social bases of self-respect, and, after prompting from Norman
Daniels, health) should be allowed to persist only if they work to the
greatest benefit of the least-advantaged group.88
While, as we will see shortly, Rawls cabined the principle’s application
to within the nation-state, Charles Beitz, among others, has extended it
to the international sphere. Beitz identifies two attractions in doing so:
(1) the desire to avoid moral arbitrariness in the distribution of primary
goods – that is, “we should not view national boundaries as having
fundamental moral significance”89 – and (2) that a limitation of Rawlsian
redistribution to the domestic sphere is only justifiable on an account
of nations as self-sufficient cooperative schemes, a position he views as
untenable in today’s world of international interdependence, where those
regulating trade (World Trade Organization) and capital (International
Monetary Fund and World Bank) “[impose] burdens on poor and
87.
88.
89.
Derek Parfit, “Equality or Priority?” (1997) 10:3 Ratio 202 at 213.
See John Rawls, A Theory of Justice (Cambridge, Mass: Harvard University
Press, 1971) § 46 at 300-01, § 11 at 60-61 [Rawls, “Theory”]; John Rawls,
Justice as Fairness: A Restatement (Cambridge, Mass: Harvard University
Press, 2001) § 51.5 at 172; Daniels, supra note 39 at 44.
Charles R Beitz, Political Theory and International Relations (Princeton,
NJ: Princeton University Press, 1979) at 151.
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economically weak countries that they cannot practically avoid.”90
Beitz offers a strong and weak version of his Cosmopolitan
Prioritarian thesis. The strong version is that we should apply the Rawlsian
redistributive principle internationally.91 This version clearly grounds a
90.
91.
Charles R Beitz, “Justice and International Relations” (1975) 4:4
Philosophy & Public Affairs 360 at 374.
Rawls is careful in A Theory of Justice to limit the ambit of his Difference
Principle to the “basic structure” of society: “the way in which the
major social institutions distribute the fundamental rights and duties
and determine the division of advantages from social cooperation,” the
sources of “deep inequalities.” Rawls, “Theory”, supra note 88, § 2 at 6-7,
§ 41 at 229. One pertinent question in constructing a Rawlsian-style
Cosmopolitan Prioritarian perspective on medical tourism is whether
the concept of “basic structure” is expansive enough to reach these
kinds of meso- (if not micro-) level policy decisions. To crystallize the
point, one might resist the application of a Rawlsian-style Cosmopolitan
Prioritarianism to the medical tourism case not because one disagrees with
it as the appropriate political theory to govern the international arena,
but because one believes that in global context it should be limited to
issues equivalent to those “basic structure” issues to which the Difference
Principle applies in the domestic context, and that setting policy on
medical tourism exceeds that “basic structure.” Beitz, the most notable
advocate of expanding Rawls’ domestic Prioritarianism internationally,
does not discuss the “basic structure” limitation in any depth in his book
and takes as the possible target of a Global Difference Principle some
quite specific policies. For example, he observes that “one might argue
on the grounds of distributive justice for such policies as a generalized
system of preferential tariffs for poor countries and the removal of
nontariff barriers for trade, or for the use of Special Drawing Rights in
the International Monetary Fund as a form of development assistance.”
See Beitz, supra note 89 at 174. In the health setting, others have followed
suit, treating an issue like the pricing of pharmaceuticals in the developing
world as the possible target of a Rawlsian-style Cosmopolitan Prioritarian
argument. See e.g. Fisher & Syed, supra note 68 at 652-59. I think it is
an open question whether these policies are ones that are properly within
the ambit of Rawls’ own conception of the “basic structure,” or whether
these authors are instead embracing a Rawlsian-style Cosmpolitan
Prioritarianism that relaxes the basic structure constraint or adopts
an expansive version of that concept. In any event, in developing a
Cosmopolitan Prioritarian approach to medical tourism, I will follow
Beitz and others in allowing a version of the Difference Principle to apply
to somewhat less grand policy decisions, such as whether to regulate
medical tourism, while noting some doubts about whether this is fully
consistent with Rawls’ own vision as to the ambit of the basic structure.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
normative problem in medical tourism while avoiding a potential problem
faced by the Utilitarian approach – the possibility of welfare gains to
Americans or middle-class Indians counterbalancing welfare losses to
poor Indians – because of the extreme priority given to the worst-off,
who are likely to be India’s poor in this context.92 By contrast, the weaker
version of Beitz’s approach instructs us to apply internationally whatever
distributive justice policy one adopts domestically.93 Its implication
for medical tourism is less clear and depends on the degree of priority
given to the worst off, although it would seem to more clearly promote
interventions restricting medical tourism than the Utilitarian approach.
A third Cosmopolitan approach is Sufficientarianism, according to
which justice is not concerned with improving the lot of the least well-off
(Prioritarianism) or achieving equality per se (Egalitarianism), but instead
with ensuring that individuals do not fall below a particular threshold
of whatever is the “currency” of distribution.94 Although emanating
from a more Aristotelian starting point, we can understand Amartya
Sen and Martha Nussbaum’s approach as roughly fitting this category.
In a nutshell, their approach is to discern the “functionings” central to
a flourishing human life, determine the “capabilities” needed to attain
those functionings, and then identify and fix natural and social disparities
to raise people to threshold in those capabilities.95 In her latest work
92.
93.
94.
95.
I say “likely” because it would depend in part on how “worst-off” was
defined; most welfarists would define it in terms of total welfare, but
a welfarist focused on health in particular might press for a focus on
“sickest” rather than total welfare. Either way, I think it plausible that the
poor Indian would qualify.
Beitz, supra note 89 at 174.
See Roger Crisp, “Equality, Priority, and Compassion” (2003) 113:4
Ethics 745 at 756-63; Harry G Frankfurt, “Equality as a Moral Ideal”
(1987) 98:1 Ethics 21 at 21-25; Alexander Rosenberg, “Equality,
Sufficiency, and Opportunity in the Just Society” (1995) 12:2 Social
Philosophy & Policy 54.
See generally Martha Nussbaum, Frontiers of Justice (Cambridge, Mass:
Harvard University Press, 2006) at 155-216, 273-315 [Nussbaum,
“Frontiers”] (setting out the Capabilities approach); Martha Nussbaum,
Women and Human Development: The Capabilities Approach (Cambridge:
Cambridge University Press, 2002) at 4-14 (describing the Capabilities
approach similarly); Amartya Sen, Inequality Reexamined (New York:
Harvard University Press, 1992) at 39-53 (describing the Capabilities
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on the subject, Frontiers of Justice, which speaks directly to the issue of
international justice, Nussbaum delineates ten capabilities, two of which
are central for our purposes: “Life [– b]eing able to live to the end of the
human life of normal length; not dying prematurely, or before one’s life is
so reduced as to be not worth living” and “Bodily Health [– b]eing able to
have good health, including reproductive health.”96 Nussbaum indicates
that the responsibility to achieve the threshold on these capabilities falls
at all levels: on national governments, on international bodies, and even
on corporations, and the failure of one institution to meet its obligations
does not reduce the obligation of the others.97 She also makes clear
that the thresholds are non-relativistic. For example, the threshold for
adequate “life” or “bodily health” is the same if the citizen is American
or Indian.98
This approach offers powerful reasons why the effects of medical
tourism on health care access in destination countries ought to be a matter
of substantial concern. While she does not attempt to operationalise
where the health or life capability threshold should be set, Nussbaum’s
description of these thresholds plausibly suggests that the Indian poor fall
below the thresholds due to poor health care access (among other reasons,
such as lack of adequate sanitation). On her theory, it would then be the
responsibility of the United States, India, international bodies, and even
the hospitals, insurers, and intermediaries involved in medical tourism to
try to rectify that result.
That said, in applying the Sufficientarian approach to medical
tourism, some problems latent in the theory become manifest. For outof-pocket or government-prompted medical tourism, many American
users are poor and may themselves be below the threshold on life and
bodily health. Consider, for example, a 1990 study suggesting that an
African-American man living in Harlem was less likely to live until age
sixty-five than a Bangladeshi man, and tracing this in part to lack of
96.
97.
98.
approach similarly).
Nussbaum, “Frontiers”, ibid at 76-78.
Ibid at 171, 313-19.
Ibid at 78-81. For an application of Nussbaum’s approach to global health
specifically, see Gostin, supra note 68 at 343-47.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
health care access.99 We may thus face a situation where we cannot raise
everyone to the capability threshold, that is, a case of below-threshold
tradeoffs. A number of authors have criticized Nussbaum for failing to
provide guidance in such cases.100 Again, this is less of a problem for
insurer-prompted medical tourism, whose users will usually lie above the
threshold. It may also not be a problem for restricting medical tourism
for certain subcategories of treatments by Western patients that are not
“health” related – cosmetic surgery and fertility tourism, for example
(although whether the latter counts as “health” is a contested question),101
because these treatments are less important for promoting the capabilities.
This is an important divergence from the Utilitarian approach, which
treats all inputs into welfare equally, whether classified as health or not.
A second problem with this theory has to do with Nussbaum’s refusal
to allow tradeoffs between capabilities. We may face conflicts between
raising individuals to threshold on the Life/Health capabilities and raising
99.
Colin McCord & Harold P Freeman, “Excess Mortality in Harlem”
(1990) 322:3 New England Journal of Medicine 173.
100. See e.g. Anita Silvers & Michael Ashley Stein, “Disability and the Social
Contract” (2007) 74:4 U Chicago L Rev 1615 at 1638; Singer, supra
note 80; Mark Stein, “Nussbaum: A Utilitarian Critique” (2009) 50:2
BCL Rev 489 at 504-14. This may mean that a modified version of the
Capabilities approach that breaks from Nussbaum in this regard will
do better as a Cosmopolitan theory that can ground duties relating to
medical tourism.
101. See e.g. I Glenn Cohen & Daniel Chen, “Trading-Off Reproductive
Technology and Adoption: Does Subsidizing IVF Decrease Adoption
Rates and Should It Matter?” (2010) 95:1 Minn L Rev 485 at 500-05;
Daniels, supra note 39 (offering a theory of health tied to whether a deficit
causes a “departure from normal functioning that reduces an individual’s
fair share of the normal opportunity range and gives rise to claims for
assistance” and finding infertility to count because it interferes with
“basic functions of free and equal citizens, such as reproducing themselves
biologically, an aspect of plans of life that reasonable people commonly
pursue” at 59); Nussbaum, “Frontiers”, supra note 95 at 76 (including
reproductive health within the “bodily health” capability). Fleshing out
what is and is not penumbral to “health” and on what theory is not my
focus in this article. I will, however, note that even discussing categories
like “cosmetic surgery” may be too crude in the final analysis; to the
extent the category encompasses both sex change operations and breast
augmentation, each may call for a quite different analysis.
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them to threshold on one or more of the eight other coequal capabilities
we have thus far not discussed – for example “Play [– b]eing able to
laugh, to play, to enjoy recreational activities” and “Senses, Imagination,
and Thought, [– b]eing able to use the senses to imagine, think, and
reason – and to do these things in a ‘truly human’ way, a way informed
and cultivated by an adequate education.”102 If medical tourism improves
recreational or educational opportunities (by increasing Indian GDP), it
is unclear whether these increases to threshold in other capabilities could
outweigh medical tourism’s negative effects on the “Bodily Health” and
“Life Capabilities.”103 These questions somewhat mirror those discussed
as to the Cosmopolitan Utilitarian approach. One could try to alter the
theory to adopt one of a series of methods of dealing with below-threshold
cases: help the person who will make the biggest capability gain, help the
person lowest down on the capabilities level, or maximize the number
of people who are above threshold,104 each of which would somewhat
strengthen the case against medical tourism. Such alterations would still,
however, leave open the problem of across-capability tradeoffs.
While clearly aware of these problems, Nussbaum appears resistant
to altering her theory much in this regard. She makes clear that “all ten
of these plural and diverse ends are minimum requirements of justice,
at least up to the threshold level,”105 that “the capabilities are radically
102. Nussbaum, “Frontiers”, supra note 95 at 76-77.
103. There is a separate set of issues relating to thresholds and timeframes.
For example, medical tourism may in the short-term make it harder to
achieve the threshold for currently existing Indian populations on these
capabilities, but the development of India’s health sector and trickle-down
may in the long-term raise more Indians (including not-yet-existing ones)
to threshold. In part because of their complexity, see generally Louis
Kaplow, “Discounting Dollars, Discounting Lives: Intergenerational
Distributive Justice and Efficiency” (2007) 74:1 U Chicago L Rev 79
(discussing complications involved with intergenerational discounting);
John Broome, “Should We Value Population?” (2005) 13:4 Journal of
Political Philosophy 399 (discussing complications in reasoning about
the interests of future generations, and in part because these are domaingeneral questions that almost all theories face in almost all contexts
rather than specific problems for the Capabilities approach as to medical
tourism, I note but largely bracket these issues here).
104. Stein, supra note 100 at 509-20.
105. Nussbaum, “Frontiers”, supra note 95 at 175.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
non-fungible: deficiencies in one area cannot be made up simply by
giving people a larger amount of another capability.”106 Her “theory does
not countenance intuitionistic balancing or tradeoffs among them,” but
instead “demands that they all be secured to each and every citizen, up to
some appropriate threshold level.”107 She recognizes that “[i]n desperate
circumstances, it may not be possible for a nation to secure them all up to
the threshold level, but then it becomes a purely practical question what
to do next, not a question of justice,” because “[t]he question of justice is
already answered: justice has not been fully done here.”108 That posture,
however, makes her theory less useful as a tool for normative analysis of
medical tourism.
With the possible exception of Beitz’s strong Cosmopolitan
Prioritarian thesis, perhaps surprisingly, the other Cosmopolitan theories
also face some indeterminacies and problems when faced with the case
study of medical tourism. That said, I think it is fair to say that they offer
a strong prima facie case (if not a completely certain one) for condemning
some forms of it.
There are, however, two more pressing and related problems with
relying too heavily on the Cosmopolitan theories to urge restrictions on
medical tourism – one theoretical and one pragmatic.
The theoretical problem is that what these theories offer us is not
a theory of when we are responsible for harms stemming from medical
tourism, but when we ought to improve the lives of the badly-off
simpliciter. In one sense, causation matters: only if restricting medical
tourism causes an improvement in welfare for the worst off, the raising
of health capabilities, etc., are we required to take the action. In another
sense, however, causation in the historical and responsibility senses is
irrelevant because it is the mere fact of the destination country’s citizens’
needs that imposes upon us the obligation to help them in whatever
way we can, and not anything about medical tourism specifically. Thus,
in one direction, the duties may persist even when medical tourism is
eliminated or its harms are remedied in that the source of the obligation
106. Ibid at 166-67.
107. Ibid at 175.
108. Ibid.
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is not anything we have done, but instead the destitute state of those
abroad. In the other direction, once the theories’ goals are met (for
example, they reach the sufficient level on the capabilities, to use one
variant), we do not bear an obligation (at least under distributive justice
principles) to prevent medical tourism or remedy its ill-effects, even if
medical tourism continues to produce significant health care deficits for
the destination country poor that would not occur if it were curbed.
Moreover, it is possible that other forms of aid or assistance might “cancel
out” whatever negative effects medical tourism has in terms of the global
cosmopolitan calculus.
To put the point another way, the problem is that the Cosmopolitan
theory tells us to help those in the destination country who are badlyoff by curbing medical tourism, whether or not medical tourism caused
them to be badly-off; this is to be contrasted with a different kind of
theory (more corrective justice in spirit) that would urge us to curb
medical tourism because it causes people in the destination country to
be worse off.
Further, these approaches also face what I will call a “self-inflicted
wounds problem,” a problem that I will return to several times in this
article. These theories imply (subject to a qualification) that it is not
relevant to the scope of the home country’s obligation that some of the
factors (discussed above) that cause medical tourism to negatively impact
health care access in the destination country are within the destination
country’s government’s control, i.e. that the destination country is partially
responsible. The qualification is that, to the extent that we could induce
the destination country to alter these facts about its self-governance, such
influence would be one tool to meet our obligations under these theories.
But to the extent we are unable to prompt these alterations, under the
Cosmopolitan approach, our responsibility to improve the welfare and
capabilities of the poor in the destination country attaches even for the
elements for which their own sovereign is actually responsible.109
109. Nussbaum is the most explicit of the theorists in suggesting that the
responsibility to achieve the threshold on these capabilities falls at all levels
– on national governments, on international bodies, even on corporations
– and that the failure of one institution to meet its obligations does not
reduce the obligation of the others. See Nussbaum, “Frontiers”, supra
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
To some, these implications may seem problematic; from others, the
reply will be, “It is just not that kind of theory.” More troubling, though,
may be a pragmatic corollary: if we need to rely on these theories to
convince public policymakers to take action on medical tourism, they
threaten to prove too much. To borrow a phrase that Charles Fried has
used in discussing Utilitarianism generally, all of these approaches threaten
to become “oppressive in the totality of the claim they make on the moral
agent”;110 addressing the harms caused by medical tourism is a small drop
in the bucket in terms of what these theories would call upon us to do
to right the balance between developed and developing countries. For
starters, they would further demand that we radically increase taxes for all
strata in our nation to fund large-scale water purification, housing, and
other interventions in Less Developed Countries (LDCs). As Thomas
Pogge has stressed, unless a theory of Global Justice is politically feasible,
it is “destined to remain a philosopher’s pipe dream.”111 It seems hard to
believe that a principle as broad and demanding as the one espoused by
Cosmopolitans of this sort would be compelling to US policymakers.
Again, some philosophers might chafe at this approach and say
that if the Cosmopolitan approach is “right,” it matters not a lick that
US political elites would never accept it. Even if we think that within
the ambit of philosophy that response is correct,112 Pogge is also surely
note 95 at 313-19. There are some complicated dynamic elements I gloss
over here. For example, if it turned out that, because of moral hazard
issues, a theory of moral obligation that did hold the destination country
responsible for its own role in these health care access deficits in the long
run actually improved the welfare/capabilities of the population more
than one that did not – because the destination country sovereign would
then have a greater incentive to clean its own house – then we might in
fact adopt a system that apportioned responsibility even on these theories;
however, that apportioning of responsibility would be pragmatic and
instrumental, not because these theories suggests that the responsibility of
the destination country diminishes that of the patients’ home country.
110. Charles Fried, Right and Wrong (Cambridge, Mass: Harvard University
Press, 1978) at 13.
111. Thomas W Pogge, “Human Rights and Global Health: A Research
Program” (2005) 36:1-2 Metaphilosophy 182 at 185.
112. C.f. David Estlund, “Human Nature and the Limits (if Any) of Political
Philosophy” (2011) 39:3 Philosophy & Public Affairs 207 (discussing
whether the fact that human nature is such that we will never do
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correct that, when it comes to trying to shift public policy, these kinds of
considerations are king. In any event, to find common ground with both
those who would reject Cosmopolitanism as a philosophical matter and
those who would reject it as a pragmatic matter, it would be desirable
to show a normative obligation to correct health care access diminution
from medical tourism on less demanding theories as well. I consider two
sets of such theories next, Statist and Intermediate.113
C.
Statist Theories
Unlike Cosmopolitans, Statists reach the conclusion that the obligations
of distributive justice apply only within the nation-state and not to
citizens of other nations. I discuss the arguments of two of the bestknown expositors of this view, John Rawls and Thomas Nagel, before
applying those arguments to medical tourism. As one might expect,
justifying duties to curb medical tourism is difficult for Statist approaches.
However, what one might not expect, and as I show, is that even these
approaches might mandate some limited regulatory interventions
grounded in the Rawlsian duty to aid burdened states and the Nagelian
duty of humanitarian aid. That said, I also express some misgivings about
these ways out of the problem.
Statists limit justice-based duties of redistribution to the nation-state
because “[w]hat lets citizens make redistributive claims on each other
is not so much the fact that they share a cooperative structure,” but that
societal rules establishing a sovereign state’s basic structure are “coercively
imposed.”114 Nagel clarifies that this is because for Rawls (and contra the
that which is called for by a political philosophy should matter for its
evaluation).
113. A different response is that we need not be so philosophically pure: we
can endorse Cosmopolitanism in this limited domain while rejecting it
elsewhere. That is, of course, an option, but then one bears the burden of
justifying why, if one accepts the principle, one should adopt it here but
not elsewhere. It is not clear to me that those espousing Cosmopolitanism
only for medical tourism have a good answer to this question.
114. Mathias Risse, “What We Owe to the Global Poor” (2005) 9:1-2 Journal
of Ethics 81 at 99-100 [emphasis in original]; see also John Rawls, The
Law of Peoples (Cambridge, Mass: Harvard University Press, 1999) at 16
[Rawls, “Peoples”] (making a similar argument for the Statist approach);
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
Cosmopolitans), the “moral presumption against arbitrary inequalities is
not a principle of universal application”’; rather “[w]hat is objectionable
is that we should be fellow participants in a collective enterprise of coercively
imposed legal and political institutions that generates such arbitrary
inequalities.”115 It is the “complex fact” that in societal rules establishing
a sovereign state’s basic structure “we are both putative joint authors of
the coercively imposed system, and subject to its norms, i.e., expected to
accept their authority even when the collective decision diverges from
our personal preferences – that creates the special presumption against
arbitrary inequalities in our treatment by the system.”116
Increasing globalization does not change the picture, say Nagel and
Rawls, because “it is not enough that a number of individuals or groups
be engaged in collective activity that serves their mutual advantage”; that
is, “mere economic interaction does not trigger the heightened standards
of socioeconomic justice.”117 Nor does the existence of international
institutions such as the United Nations or World Trade Organization
(WTO) trigger those obligations, according to Nagel, because their
edicts “are not collectively enacted or coercively imposed in the name of
all the individuals whose lives they affect.”118 That is, “[n]o matter how
substantive the links of trade, diplomacy, or international agreement, the
institutions present at the international level do not engage in the same
kinds of coercive practices against individual agents”; it is “[c]oercion,
not cooperation, [that] is the sine qua non of distributive justice.”119
115.
116.
117.
118.
119.
Michael Blake, “Distributive Justice, State Coercion, and Autonomy”
(2001) 30:3 Philosophy & Public Affairs 257 at 285-89 (making a similar
argument for the Statist approach).
Thomas Nagel, “The Problem of Global Justice” (2005) 33:2 Philosophy
& Public Affairs 113 at 127-28 [emphasis added].
Ibid at 128-29; see Blake, supra note 114 at 265, 289.
Nagel, supra note 115 at 138; see also Rawls, “Peoples”, supra note 114 at
115-19 (making a similar point).
Nagel, ibid.
Blake, supra note 114 at 265, 289. Blake goes on to qualify this somewhat
by indicating that this is “not to say that coercion does not exist in
forms other than state coercion. Indeed, international practices can
indeed be coercive – we might understand certain sorts of exploitative
trade relationships under this heading, and so a theory concerned with
autonomy must condemn such relationships or seek to justify them …
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All of this seems to construct a dead end for Statist support for
distributive justice-based duties in the medical tourism sector, as can be
gleaned by comparing the medical tourism case to Nagel’s similar analysis
of immigration. Nagel argues that, while “[t]he immigration policies of
one country may impose large effects on the lives of those living in other
countries,” this is not sufficient to “imply that such policies should be
determined in a way that gives the interests and opportunities of those
others equal consideration.”120 This is because “immigration policies are
simply enforced against the nationals of other states; the laws are not
imposed in their name, nor are they asked to accept and uphold those
laws” and it is a “sufficient justification” of these polices that they “do
not violate [the immigrants’] prepolitical human rights.”121 In a similar
vein, the medical tourism policies of home countries – whether merely
permitting their citizens to purchase medical tourism out-of-pocket,
permitting insurer-prompted medical tourism, or, in the extreme case
of government-prompted medical tourism, creating state incentives to
use medical tourism – are not being imposed in the name of destination
country citizens, nor are those citizens or their governments being forced
to open themselves up to medical tourism.122
Nevertheless, I believe there exist in Statist theories at least two open
avenues for grounding some limited obligations of home countries and
international bodies to regulate medical tourism or mitigate its negative
effects on health care access in destination countries.
The first avenue stems from Rawls’ recognition of a duty (separate
from those relating to distributive justice) to assist “burdened societies”
– those whose “historical, social, and economic circumstances make their
achieving a well-ordered regime, whether liberal or decent, difficult if
not impossible” – to “manage their own affairs reasonably and rationally”
[But] … only the relationship of common citizenship is a relationship
potentially justifiable through a concern for equality in distributive
shares.” Ibid at 265.
120. Nagel, supra note 115 at 129.
121. Ibid at 129-30.
122. See below notes 132-48 and accompanying text for a discussion of one
complication related to the General Agreement on Trade in Services.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
in order to become “well-ordered societies.”123 These societies “lack the
political and cultural traditions, the human capital and know-how,
and, often, the material and technological resources needed to be wellordered” but, with assistance, can over time come to “manage their own
affairs reasonably and rationally and eventually to become members
of the Society of well-ordered Peoples.”124 Being a well-ordered society
requires having a “decent system of social cooperation,” meaning that the
state secures “a special class of urgent [human] rights, such as freedom
from slavery and serfdom, liberty (but not equal liberty) of conscience,
... security of ethnic groups from mass murder and genocide” and formal
equality, that citizens view their law as imposing duties and obligations
“fitting with their common good idea of justice” and not “as mere
commands imposed by force,” and that officials believe that “the law is
indeed guided by a common good idea of justice,” not “supported merely
by force.”125
Can regulation of medical tourism by patients’ home countries or
international bodies be justified on this rationale? Grounding medical
tourism-related obligations in this kind of duty presents four challenges.
First, there is a question of coverage. Many of the destination
countries in question may not be burdened societies; India, Mexico,
Thailand and Singapore, for example, may have poor populations facing
deficits in health care access, but they seem to meet Rawls’ more minimal
criteria for being well-ordered. Thus, these obligations will apply, at most,
only to medical tourism to a subset of destination countries. That itself
is not fatal – the United States (or perhaps an international body) could
theoretically prevent, tax, or allow incentives for medical tourism only to
some destination countries in a manner akin to the “channeling” regimes
I have elsewhere discussed126 and return to in Part VI below – but it does
complicate the picture, and it may be that the same factors that make
these states burdened may make them unlikely to develop robust medical
tourism industries.
123.
124.
125.
126.
Rawls, “Peoples”, supra note 114 at 90, 111.
Ibid at 106, 111.
Ibid at 66-68, 79.
Cohen, “Protecting Patients”, supra note 14 at 1515-23, 1559-61.
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Second, there is a problem as to the kind of aid envisioned by this
duty. Rawls seems focused on institution building, and Mathias Risse
suggests the duty’s targets as building things like “stable property rights,
rule of law, bureaucratic capacity, appropriate regulatory structures to
curtail at least the worst forms of fraud, anti-competitive behavior,
and graft, quality and independence of courts, but also cohesiveness of
society, existence of trust and social cooperation, and thus overall quality
of civil society.”127 Foreign aid by home countries to help the destination
countries improve their ability to produce more medical providers, or
policy aid in designing health care system regulations designed to control
how much time doctors spend in the public or private system – both
factors likely to contribute to diminutions in access, as discussed above
– seem to fit nicely into this category and are well-supported by this
approach. It is less clear that the same is true of regulation aimed at trying
to prevent or make it more expensive for home country patients to travel
to the destination country for medical tourism.
Third and relatedly, Rawls cautions that “well-ordered societies
giving assistance must not act paternalistically, but in measured ways that
do not conflict with the final aim of assistance: freedom and equality
for the formerly burdened societies.”128 Again, economic aid for those
abroad does not seem unduly paternalistic (unless perhaps conditioned
on certain ways of spending or meeting certain conditions), but attempts
by home countries or international bodies to limit the use of medical
tourism by their populations (out-of-pocket, insurer-prompted, or
government-prompted) when the destination country is ready to take allcomers may run afoul of this limitation. Thus, this approach may limit
the type of intervention a home state government can enact regarding
medical tourism.
Fourth, it is also at least possible that the Rawlsian duty to aid
burdened states might actually support leaving medical tourism
unregulated (or even encouraging it). Because the duty does not aim to
address diminutions in health care access caused by medical tourism (nor
health needs at all per se), but instead fostering institution building, it is
127. Risse, supra note 114 at 85.
128. Rawls, “Peoples”, supra note 114 at 111.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
possible that medical tourism may actually help build institutions in the
destination country aiding the burdened state while diminishing health
care access for the destination country poor. For example, the rise in
GDP and the need for corporate accountability to support a medical
tourism industry attractive to Westerners might carry with it benefits to
the destination country in terms of establishing the rule of law or property
rights. If so, medical tourism might itself represent aid to burdened states
even while it diminishes health care access to the destination country’s
poor.
Thus, the Rawlsian duty to aid burdened states seems to support
only duties to help build up the health care capacity of the destination
country and foreign aid more generally, and then only for the sub-set
of states that qualify as burdened states. Further, those duties attach
only so long as the burdened state has not transitioned to a well-ordered
society; once it has made that transition, these duties are satisfied even
if medical tourism continues to significantly diminish health care access
in the destination countries. Finally, the duty to aid burdened states is
also not a perfect fit for the argument because it is at least possible for
medical tourism that diminishes health care access to the poor to itself
serve in building institutions and aiding burdened states, in which case
it ought to be encouraged or left alone rather than prohibited. Thus, the
approach justifies only a much smaller sub-set of possible interventions
regarding medical tourism, but does not rule out a duty of home state
action entirely.
The other avenue is Nagel’s separate conception of humanitarian
duties of aid. Nagel suggests that “there is some minimal concern we owe
to fellow human beings threatened with starvation or severe malnutrition
and early death from easily preventable diseases, as all these people in
dire poverty are,” such that “some form of humane assistance from the
well-off to those in extremis is clearly called for quite apart from any
demand of justice, if we are not simply ethical egoists.”129 Although he
is self-admittedly vague, he thinks “the normative force of the most
basic human rights against violence, enslavement, and coercion, and of
the most basic humanitarian duties of rescue from immediate danger,
129. Nagel, supra note 115 at 118.
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depends only on our capacity to put ourselves in other people’s shoes,”
and speaks of obligations to relieve others, whatever their nation, “from
extreme threats and obstacles to [the freedom to pursue their own
ends] if we can do so without serious sacrifice of our own ends.”130 In a
similar vein, Michael Blake suggests a duty to provide “access to goods
and circumstances” enabling people “to live as rationally autonomous
agents, capable of selecting and pursuing plans of life in accordance
with individual conceptions of the good” and singles out “famine,
extreme poverty, [and] crippling social norms such as caste hierarchies,”
as the kinds of things against which we have obligations to intervene
notwithstanding the citizenship of the victim.131
Can this approach ground duties relating to medical tourism? Fisher
and Syed suggest that a duty of Western countries to expand access to
drugs in LDCs can be grounded in these humanitarian duties because
there “is little question that millions of people are suffering and dying
from contagious diseases in developing countries and that the residents
of developed countries could alleviate that suffering with relative ease.”132
A parallel argument, however, seems somewhat harder to make in
the context of medical tourism interventions. For one thing, while we
lack good empirical data on the ill effects of medical tourism on health
care access abroad, it is unlikely at present that it is causing “millions of
people” to die in destination countries – its effects are more marginal.
Of course, the millions of deaths in the drug development case are not
the sine qua non for humanitarian duties; there may be “early death
from easily preventable diseases” that curbing medical tourism might
prevent. Lack of access to care is as sure a killer as is famine or lack
of needed pharmaceuticals, and, over a longer time horizon, its effects
may be more significant. Still, we should be cautious when specifying
the level of deprivation needed to trigger these humanitarian duties
since the resulting duties are not medical-tourism-specific; that is, if we
decide a particular kind of deprivation is enough to trigger our duty to
intervene here, we will bear a comparable duty to all citizens of that
130. Ibid at 131.
131. Blake, supra note 114 at 271.
132. Fisher & Syed, supra note 68 at 649.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
foreign country in comparable conditions. Too expansive a conception
of the humanitarian duty will result in few meaningful differences
between obligations of humanitarian and distributive justice and may
have significant implications for issues like our general immigration
policy that Nagel (and other Statists) have rejected.133 That is, if the
health care deficits experienced due to medical tourism are enough to
ground humanitarian duties regarding medical tourism, should we not
also open our immigration doors to those suffering comparable deficits
in their home countries?134 Too expansive a conception would raise the
very pragmatic and political concerns about the scope of the demands
placed upon us that we aimed to avoid by seeking a non-Cosmopolitan
approach.
Second, the question of whether we “could alleviate that suffering
with relative ease” or “without serious sacrifice of our own ends” (to use
Nagel’s terms) is more difficult in this context in ways that mirror our
discussion of Cosmopolitan theories. At least for medical tourism by
those paying out-of-pocket and, to a lesser extent, for some forms of
government-prompted medical tourism, trying to satisfy humanitarian
duties to the global poor by curbing medical tourism is more likely to
come at the expense of our own poor than in the pharmaceutical case.
Thus, in the exceptional case, we may face tradeoffs not only between
satisfying our humanitarian duties to our own poor versus those to the
poor abroad, but also between our distributive justice duties to our poor
and our humanitarian duties to the destination country poor. Neglecting
our duties to our own poor patients would seem to count as “serious
sacrifice of our own ends,” suggesting the obligations may more clearly
attach to some forms of medical tourism, including insurer-prompted
medical tourism, where paying more for health insurance is less clearly
a “serious sacrifice of our own ends.” Similarly, the humanitarian duty
133. Nagel, supra note 115 at 129-30.
134. The “without serious sacrifice of our own ends” constraint discussed in
the next section might be thought to distinguish the immigration case,
although Nagel at least wants to dispose of the immigration case on the
threshold question of whether humanitarian duties attach (ibid). In any
event, as I discuss in the next paragraph, there are problems with that
constraint as to medical tourism as well.
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approach might more easily justify curbing medical tourism for services
like cosmetic surgeries that are more penumbral to health. This restriction
may also limit us to interventions that do not restrict access to health
care via medical tourism for our citizens but instead aid the destination
country in building capacity; even that is tricky, though, for dollars
spent on foreign aid could always be reallocated to improving Medicaid
coverage for America’s poor, to give but one example.135
Finally, notice that, like the Cosmopolitan theories, the duty towards
humanitarian aid is actually somewhat divorced from medical tourism
– if we have satisfied the duty of humanitarian aid, then even if medical
tourism continues to have harmful effects on the destination country we
have no obligation to restrict it; if foreign citizens still remain below the
135. A different way forward, at least in the US case, would be to get at the
presumptive “root” of the problem prompting much of the medical
tourism trade: that too many Americans are uninsured or underinsured or
lack affordable care options, and turn to medical tourism as a solution. See
Cohen, “Protecting Patients”, supra note 14 at 1479-81. In principle, that
would be a very desirable solution, but the Obama Health Care Reform,
the most ambitious move in this direction in the last fifty years, has been
estimated by the most recent Congressional Budget Office (CBO) scoring
to leave twenty-three million nonelderly residents uninsured if and when
it is fully implemented in 2019, and countless more underinsured; Letter
from Douglas W Elmendorf, Dir, Cong Budget Office, to Nancy Pelosi,
Speaker, US House of Representatives (18 March 2010) table 2, online:
Congressional Budget Office .
That reform is now under significant attack in the courts, the Congress,
and in US public opinion, but even if it withstands the barrage, the
bill as passed would still leave many US users of out-of-pocket medical
tourism, and it is hard to conceive that there will be political will to
make the necessary investments to further reduce the number of un-and
underinsured in the foreseeable future. Here again is a place where it
seems plausible to me that the philosophical and policy discourse split
– it may be that the United States ought to deal with medical tourism
by cleaning its own house first, but if we concede (as I think we should)
that this is not within the political feasibility set, then we are back in
a philosophically second-best world where we must ask what steps the
United States should take regarding medical tourism directly. Another
way of putting this point is that in a world of ideal justice, there would be
no uninsured medical tourists, and these comments should be understood
as speaking to the non-ideal world. C.f. Rawls, “Theory”, supra note 88 §
39 at 244-46.
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humanitarian level after medical tourism is eliminated or its harms are
remedied, we still must aid more. To the extent that one was convinced
that this aspect of Cosmopolitan theories was undesirable as a ground
for duties as to medical tourism, one should also be wary of the Statist
humanitarian duties approach.
While, as expected, the Statist theories reject grounding duties as to
medical tourism in the distributive justice obligations to those abroad,
there may be some room for obligations grounded in duties to aid
burdened states or provide humanitarian aid. While the former may
create obligations to help build institutional capacity to deliver health
care abroad or foreign aid, it will not be appropriate for many destination
countries. The latter may be more promising, but if the threshold for
humanitarian need is kept relatively high, as I believe it should be, home
countries will owe humanitarian duties relating to medical tourism only
when acting will prevent grave humanitarian disasters and when the
burden on home country citizens will not be serious. As I have argued,
such duties will most likely affect only cases of insurer-prompted medical
tourism and medical tourism for less-essential service and may be limited
to providing aid rather than curbing the home countries’ citizens’ medical
tourism use. Further, as with the Cosmopolitan theories, I have expressed
concern that these approaches generate theories about satisfying health
needs, rather than about obligations stemming from medical tourism.
D.
Intermediate Theories
A final set of theories seeks to position itself between the Statist and
Cosmopolitan camps. I consider two such intermediate theories and
their application to medical tourism: the first is put forth by Joshua
Cohen and Charles Sabel, and applied to health care by Norman Daniels,
and the second is put forth by Thomas Pogge. I think these are the
most fertile grounds for a Global Justice-based theory of obligations to
regulate medical tourism because they generate a kind of theory more
appropriate for the task: one that focuses on the harms and institutions
stemming from particular existing practices rather than one that focuses
on the relative holdings of particular individuals at the current moment
and counsels a more general reallocation of primary goods. That said, as
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applied to this specific problem, the theories run into some problems.
1.
Cohen, Sabel & Daniels
The Cohen, Sabel, and Daniels approach suggests the Statists are too
demanding in requiring coercion as the touchstone of distributive justice
principles and also too “all-or-nothing” in the deployment of those
principles. Instead, these authors propose lesser duties of “inclusion”
internationally, which fall short of full-blown distributive justice but are
greater than the minimal humanitarian duties endorsed by Statists: the
state should treat those outside of the coercive structure of the nationstate as individuals whose good “counts for something” (not nothing)
even if it falls short of the full consideration a state would give its own
citizens.136
Cohen and Sabel suggest these duties of inclusion may be triggered
inter alia by the “coercion-lite” (my term) actions of international bodies
such as the WTO; that is, “[e]ven when rule-making and applying
bodies lack their own independent power to impose sanctions through
coercion,” they still shape conduct “by providing incentives and
permitting the imposition of sanctions” and “withdrawing from them
may be costly to members (if only because of the sometimes considerable
loss of benefits),” such that “[i]n an attenuated but significant way, our
wills – the wills of all subject to the rule making-authority – have been
implicated, sufficiently such that rules of this type can only be imposed
with a special justification.”137
They offer the example of the WTO, suggesting that “[o]pting out
is not a real option” because no country in the developed or developing
world could really survive without participation in the WTO, and once
one is in for a penny, one is in for a pound; a member country cannot
pick and choose which parts of the WTO’s demands to comply with,
such that “there is a direct rule-making relationship between the global
136. See Joshua Cohen & Charles Sabel, “Extra Rempublicam Nulla Justitia?”
(2006) 34:2 Philosophy & Public Affairs 147 at 154-55; Daniels, supra
note 39 at 351.
137. Cohen & Sabel, ibid at 165.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
bodies and the citizens of different states.”138 They argue that for the
WTO, duties of inclusion would mean that the rulemakers are “obligated
to give some weight to the reasonable concern of the rule takers (who
are themselves assumed to have responsibility to show concern for the
interests of their own citizens).”139
The authors also suggest consequential rulemaking by international
bodies “with distinct responsibilities,” such as the International Labor
Organization (ILO), might require those bodies to adopt duties of
inclusion.140 More specifically, they claim that this obligation follows
from three facets of the ILO: that the ILO has taken on the responsibility
for formulating labour standards (geared towards eliminating child and
forced labour, ending employment discrimination, promoting collective
bargaining, etc.); that the ILO claims that its rulemakings have significant
consequences; and that the ILO believes that, if it were to disappear, no
comparable entity would emerge.141
Daniels adds that certain kinds of international independencies
may also give rise to duties of inclusion, giving the example of medical
migration (brain drain). He argues that the International Monetary Fund
(IMF)’s historical requirement that countries like Cameroon make severe
cutbacks in their publicly-funded health care systems in order to reduce
deficits that result in poorer working conditions for medical personnel
(a “push” factor), combined with the attempt by the United Kingdom
and other OECD countries to recruit medical personnel from developing
countries (a “pull” factor), gives rise to a duty on the part of Western
countries and the IMF to address the ill effects of this migration.142
Among the methods to satisfy that obligation, he urges altering “the terms
of employment in receiving countries of health workers from vulnerable
countries,” compensating for “the lost training costs of these workers,”
“prohibit[ing] recruitment from vulnerable countries,” and “giv[ing] aid
to contributing countries in order to reduce the push factor.”143
138.
139.
140.
141.
142.
143.
Ibid at 168.
Ibid at 172.
Ibid at 170-71.
See ibid.
See Daniels, supra note 39 at 337-39.
Ibid.
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Can this approach be readily applied to medical tourism? One might
be tempted to draw three analogies, but each of them faces problems that
make the medical tourism case harder than the ones these authors have
taken on.
First, one might suggest that intermediaries, and particularly medical
tourism accreditors like the Joint Commission International (JCI), bear
some duties to build consideration of the effects of medical tourism to a
particular facility on health care access for destination country poor into
their accreditation processes, in analogy to the ILO example. One might
argue that the JCI is like the ILO in that it has taken on responsibility for
formulating standards, it claims its rules have significant consequences
(determining who gets accredited, causing facilities to alter their
procedures), and perhaps if it disappeared no other institution would
take its place.144
On reflection, though, the analogy is problematic. The JCI’s role
is to accredit foreign hospitals, specifically to examine their procedures
and determine whether those procedures meet relevant standards
of practice.145 While this might be loosely thought of as a kind of
“rulemaking,” the JCI does not purport to regulate the medical tourism
market, let alone to weigh the advantages or disadvantages of a particular
country or particular hospital opening itself up to medical tourism. The
same points apply even more strongly to intermediaries who are largely
for-profit entities.
Second, we might analogize to the medical migration example and
say that, for patients paying out-of-pocket, the lack of affordable health
144. This last point of comparison seems dubious. Even with the JCI in place,
it faces competition in accreditation, including from the International
Organization for Standardization (ISO). The ISO has a less popular
certification program that has been used to certify some hospitals in
Mexico, India, Thailand, Lebanon, and Pakistan. See Arnold Milstein
& Mark Smith, “America’s New Refugees – Seeking Affordable Surgery
Offshore” (2006) 355:16 New England Journal of Medicine 1637 at
1639. Thus, if the JCI were to disappear, there is every reason to believe
others would take its place. That said, while Daniels describes the ILO as
having these three characteristics, it may be that meeting the first two is
sufficient to ground the duties he has in mind.
145. See Cohen, “Protecting Patients”, supra note 14 at 1485; Cortez, supra
note 46 at 83-84.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
insurance in the US system, and its failure to prevent insurer-prompted
medical tourism, drives medical tourism, much like the United Kingdom’s
recruitment of foreign nurses drives migration. Accepting that analogy,
however, would cause the intermediate theory to lose much of its appeal.
In medical tourism by patients paying out-of-pocket, we do not have
the US government or international bodies directly creating push and
pull factors. True, the US government has not taken steps to prevent
travel to India for medical procedures – for example, by criminalizing
consumption in the way it does child sex tourism abroad under the
PROTECT Act of 2003146 – but if merely not acting and following a
background norm of permitting travel to consume goods and services
abroad is sufficient under Daniels’ intermediate theory, the theory loses
much of its attraction as a middle ground between the Cosmopolitan and
Statist poles because so much of the day-to-day workings of international
trade will trigger obligations under the theory.
That said, it seems to me that government-sponsored medical tourism
initiatives such as that considered by West Virginia and that proposed for
Medicare and Medicaid would fit the medical migration analogy quite
well and might create US obligations to destination countries, at least
insofar as tourism is incentivized and not merely covered in a way that
is cost-neutral from the point of view of the patient. Medical tourism
in universal health care countries prompted by long wait times might
also better fit the analogy – the failure to produce sufficient medical
practitioners in the patient’s home country might prompt attempts
either to recruit foreign providers (brain drain) or to incentivize medical
tourism. However, the propriety of that last potential analogy seems
to be a closer question, and it is unclear where the stopping point is
from that analogy to the (problematic) conclusion that the fundamental
organization of one’s domestic health care system might trigger duties of
inclusion internationally based on home country patients’ reactions to
it.147
146. 18 USC § 2423(c), (f ) (2006); see also Cohen, “Protecting Patients”,
supra note 14 at 1511-16 (discussing this as a possible intervention for
regulating medical tourism).
147. To put the point in an exaggerated way: suppose that the underlying
principle advocated by these authors was “for any domestic policy choice
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Third, one might focus on the obligations some destination countries
have undertaken to open up their health care sectors to medical tourism
under the General Agreement on Trade in Services (GATS)148 and argue
that it plays a “coercion-lite” role analogous to the obligations of WTO
membership discussed by these authors.149 While GATS imposes general
obligations that apply to all WTO members, it imposes obligations
relating to “market access”150 and “national treatment”151 on countries
that have explicitly elected to be bound by them. These obligations –
called “specific commitments” – are made as to particular service sectors
and particular modes of service (consumption abroad, cross-border
supply, etc.).152 Violations of these obligations are subject to trade
sanctions. Medical tourism might be implicated by a country’s specific
commitment to open up its “Hospital Services” sector, which includes
inter alia surgical, medical, ob-gyn, nursing, laboratory, radiological,
anesthesiological, and rehabilitation services.153
148.
149.
150.
151.
152.
153.
our country makes, be it health, education, transportation, etc., we are
responsible for remediating any effects that follow, whether the conduit
is changes in trade, consumption, or travel by our populace.” That would
make it mysterious why they paid such careful attention to particular
institutional relations, such as the ILO, TRIPS, or poaching of doctors.
On this principle that analysis was superfluous, the answer was much,
much simpler. I thus have serious doubts that this is what these authors
had in mind. Of course, that is a matter of interpretation. Perhaps more
pointedly, if this is the principle that underlies the intermediate approach,
it ceases to be a distinctive middle ground between the Cosmopolitan and
Statist theories that can focus on particular institutional arrangements,
coercion, and interdependency. Further, such a broad principle
reintroduces the pragmatic policy-oriented worry I discussed above that
the intermediate approach advantageously seemed poised to avoid.
15 April 1994, 33 ILM 1167 (entered into force 1 January 1995)
[GATS].
See Patricia J Arnold & Terrie C Reeves, “International Trade and Health
Policy: Implications of the GATS for US Healthcare Reform” (2006)
63:4 Journal of Business Ethics Reform 313 at 315; Cohen, “Protecting
Patients”, supra note 14 at 1521, n 213.
GATS, supra note 148 at art XVI.
Ibid, art XVII.
Ibid.
Ibid, art III; see also Arnold & Reeves, supra note 149 at 316-18
(discussing the relationship between GATS and trade in health services);
Cohen, “Protecting Patients”, supra note 14 at 1521, n 213 (discussing
216
Cohen, Medical Tourism, Access to Health Care, and Global Justice
To be sure, the analogy (and thus, duties of inclusion) will only
apply to countries that have undertaken obligations under GATS to
open up their health care systems. Even as to these countries, though, the
theory faces the self-inflicted wounds problem. The decision to become a
signatory of GATS and open up one’s medical system to medical tourism
is itself within the control of the destination country, so how could it
give rise to duties of inclusion on the part of the other signatories? In
responding to a similar objection to their WTO example, Cohen and
Sable suggest the point “seems almost facetious” because “[o]pting out
is not a real option (the WTO is a ‘take it or leave it’ arrangement,
without even the formal option of picking and choosing the parts to
comply with), and given that it is not, and that everyone knows it is not,
there is a direct rule-making relationship between the global bodies and
the citizens of different states.”154 This same response, however, is much
less persuasive in the GATS/medical tourism context because unlike
the all-or-nothing WTO agreements, the GATS specific commitment
obligations are incredibly versatile, with individual states making
individual commitments as to individual modes for individual sectors.155
The proof is to some extent in the pudding: as WTO officials Rudolf
Adlung and Antonia Carzaniga recently observed, across the board there
is a “generally shallow level of [GATS-specific] commitments on health
services” with “no service sector[s] other than that of education [having]
drawn fewer bindings among WTO Members than the health sector.”156
Indeed, in 2001 across all GATS modes only forty-four members made
commitments as to hospital services and only twenty-nine to services
provided by nurses, midwives, etc.; and, while there are generally more
commitments in LDCs, the pattern is far from uniform.157 Thus, the
take-it-or-leave-it, offer-you-can’t-refuse type of argument relied on by
Cohen, Sable, and Daniels in their discussion seems to have less traction
the relationship between GATS and medical tourism).
154. Cohen & Sabel, supra note 136 at 168.
155. Ibid.
156. Rudolf Adlung & Antonia Carzaniga, “Health Services Under the General
Agreement on Trade in Services” (2001) 79:4 Bulletin of the World
Health Organization 352 at 356-58.
157. Ibid.
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here.
This difficulty may not be fatal, and one way out might be to borrow
two ideas from the philosophical work done by Gopal Sreenivasan on the
effect of GATS rules on national choices and how those rules restrict efforts
to expand public health care. In responding to a similar self-inflicted
wounds problem, Sreenivasan first suggests (though he does not fully
embrace the idea) that while “[v]olunteering for treaty obligations is an
exercise of sovereign authority ... sovereignty and democratic legitimacy
are not the same thing,” and the issue of democratic legitimacy turns on
the “kind of popular mandate [that] existed for various decisions taken
in relation to the GATS.”158
This would obviously rule out the validity of GATS restrictions for
dictator states, but also, he suggests, call into question the validity of other
less-than-democratic forms of mandate: he contrasts the way GATS was
subject to the possibility of a popular referendum in Switzerland before
approval with the way the US Congress ratified the agreement not as a
treaty, but as ordinary legislation, and did so via approval of the Uruguay
Round, in which all the terms of the agreement had to be accepted or
rejected at once.159 By analogy, one could argue that because some of the
destination countries also ratified GATS in these less-than-democratic
ways, the fact that they chose to enter GATS should not stand in the way
of establishing obligations to these countries on Daniels’ intermediate
theory (i.e. compliance with GATS should not be considered a “selfinflicted wound”). Sreenivasan himself seems understandably ambivalent
about how far to take this response, and wonders whether we should
instead presume a popular mandate as to ordinary legislation.160
Second, and I think more confidently, Sreenivasan argues that
because GATS imposes obligations in an intergenerational sense and
the penalties for exiting GATS are so large, GATS should be thought
of as more akin to constitutional obligations, like a Bill of Rights, than
ordinary legislation. Sreenivasan’s conclusion is not that “nothing can
158. Gopal Sreenivasan, “Does the GATS Undermine Democratic Control
Over Health?” (2005) 9:1-2 Journal of Ethics 269 at 274-75.
159. Ibid at 275.
160. Ibid at 275-76.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
confer democratic legitimacy on effectively compulsory obligations that
span generations,” which “would certainly be going too far”; instead,
his claim is that these kinds of obligations “require special measures of
democratic scrutiny in order to gain legitimacy,” such as the supermajority
and dedicated referendums that are commonly required for constitutional
amendments.161
I do not attempt to fully assess the merits of Sreenivasan’s argument
here. Instead, my more limited goal is to show that, although Sreenivasan’s
work is on democratic legitimacy and not international justice obligations,
it is possible that Cohen, Sable, and Daniels might graft his approach (or
a variant of it) onto their own theory to offer a different kind of response
to the self-inflicted wounds problem in the medical tourism context;
indeed, this solution, suggested by the application to this case, may be
a more generalized direction in which their theory might be extended.
Doing so might mean that duties of inclusion arise as to medical tourism,
but only as to the subset of destination countries who have made GATS
commitments impinging on their ability to resist medical tourism, that
(1) are dictatorships (or perhaps without a popular mandate) or (2)
have ratified GATS in ways that do not meet specified requirements for
democratic legitimacy of “effectively compulsory obligations that span
generations.”162
While this may adequately deal with the “self-inflicted” wounds
problem relating to GATS, several of the triggering conditions for
medical tourism’s negative effects on health care access in the destination
country – the supply of health care professionals, whether the system
is regulated in such a way that requires professionals to spend time in
both the public and private systems – are, as I stressed above, also at
161. Ibid at 277-79.
162. I say “might” because one might counter that the self-inflicted wounds
problem is “turtles, turtles all the way down.” If these features of the
destination country’s political system led to deficits in ratifying GATS,
one might counter that those features are themselves “self-inflicted
wounds,” within the control of the destination country. On such an
argument, it would not only be the GATS-ratifying decision itself,
but also the constitutional or other political structure that sets up this
mechanism for ratifying treaties that would itself have to have contain the
features Sreenivasan suggests are necessary for democratic legitimacy.
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least partially within the control of the destination country governments.
These decisions represent ordinary legislation, not the extraordinary kind
relating to GATS and, in most cases, will enjoy a popular mandate of
some sort.163
Do these kinds of self-inflicted wounds not blunt the claim that
home country governments or international bodies bear responsibility
for deficits associated with medical tourism? Yes and no. As Daniels
has persuasively argued, even countries with similar domestic policies
experience significant differences in population health, such that “[e]ven
if primary responsibility for population health rests with each state, this
does not mean that the state has [the] sole responsibility.”164 In order to
clarify home countries’ obligations, we ought to try to factor out the
elements of destination countries’ population health deficits caused by
medical tourism that are a result of the domestic policy decisions165 and
then apply the Cohen, Sable, and Daniels duties of inclusion only to the
remaining deficits that meet the theories’ requirements.
This ability to apportion responsibility between the destination and
home countries seems like a major theoretical advantage of this approach
as against the prior ones discussed. Of course, while conceptually simple
to state, actually doing such apportioning would be extremely difficult
in practice, and the absolute best we can practicably hope for is a rough
approximation. Thus, only in instances of medical tourism where a
plausible case of “coercion-lite” or other pressure can be said to give
rise to a duty of inclusion will such duties attach, and only then as to
the proportion of the deficits caused by medical tourism to health care
access by the destination country poor that is outside the control of the
destination country.
163. Again, it remains open to press the stronger version of the argument
about which Sreenivasan is ambivalent – that even ordinary legislation
requires a form of direct democratic or supermajoritarian check to “count”
as the will of the people for international justice purposes and create
a self-inflicted wound. I feel ambivalent enough about this claim (as I
think Sreenivasan does) that I would not want to press this as a way of
avoiding the self-inflicted wounds problem, but others may find it a more
appealing approach to the issue.
164. Daniels, supra note 39 at 345.
165. See ibid at 341-45.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
Even if one of these routes validly triggers a duty of inclusion on
some home countries or international bodies for some sets of medical
tourism, there is the further question of what that duty entails. The
authors are self-admittedly somewhat vague about the contours of these
kinds of duties, telling us that it is not a duty of “equal concern” or
redistributive justice on the one hand, but that it requires more than mere
humanitarian duties on the other, and that it requires treating individuals
abroad as individuals whose good “counts for something” (not nothing)
while making decisions that will impact their life.166
That leaves a fair amount of room to maneuver. One could imagine
the duties mandating something like “notice and comment rulemaking”
in administrative law – which would merely require acknowledging
that these interests were considered, but found to be outweighed167 –
to something approaching a weighting formula in which the welfare of
those abroad is counted as .8 while those in the nation state are counted
as 1 (to use purely fictional discounting factors).
In discussing the brain drain example, Daniels seems to suggest
duties of inclusion should have significant bite, arguing that they might
prohibit recruitment from vulnerable countries, force recruiting countries
to restrict the terms they offer foreign health workers, compensate for
losses suffered when health care workers are lost, or give aid to help
reduce push factors.168 By analogy, in the context of medical tourism,
such duties could perhaps require the United States to prevent its citizens
from traveling abroad, channel its patients to medical tourism facilities or
countries with programs to ameliorate health care deficits that result, tax
medical tourists, intermediaries, or insurers, and use that revenue as aid
aimed at amelioration, or provide more general aid to build institutional
health care capacity in the destination country or, more appropriately,
regulate its health care sector. I return to regulatory design options in
greater depth in the next Part.
166. Cohen & Sabel, supra note 136 at 154-55; see also Daniels, supra note 39
at 351 (making a similar point in the health context).
167. See Administrative Procedure Act, 5 USC § 553 (2000); John F Manning
& Matthew C Stephenson, Legislation and Regulation (New York:
Foundation Press, 2010) at 604-40.
168. Daniels, supra note 39 at 353-54.
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221
Pogge
A quite different intermediate theory, to which it will be difficult to give
justice in this short space, is suggested by Thomas Pogge. Pogge begins
with the idea that all people have rights to a “minimally worthwhile life”
and therefore require a share of minimum levels of basic goods, including
health care, that are essential to a decent life – he terms such goods
“human rights.”169 According to Pogge’s theory, citizens of one state have
an obligation to avoid “harming” citizens of another state by imposing
“deficits” on their access to these human rights; that is, he argues that
“[w]e are harming the global poor if and insofar as we collaborate in
imposing” a “global institutional order ... [that] foreseeably perpetuates
large-scale human rights deficits that would be reasonably avoided
through foreseeable institutional modifications.”170
Pogge applies his approach to many examples, but the closest to
ours is his claim that wealthy countries have an obligation to loosen
their enforcement of the intellectual property rights of pharmaceutical
companies to drugs that LDCs desperately need. In this application
of his approach, Pogge suggests that “[m]illions would be saved from
disease and death if generic producers could freely manufacture and
market life-saving drugs” in those countries.171 Part of his ire is focused
on the Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Agreement, membership in which was made a condition of joining the
WTO and requires members to grant twenty-year product patents on
new medicines. Pogge suggests that the TRIPS Agreement, which he
claims was disastrous for LDCs, “foreseeably excludes the global poor
from access to vital medicines for the sake of enhancing the incentives
to develop new medicines for the sake of the affluent,” and asks, “[h]ow
can the imposition of such a regime be justified to the global poor?”172
169. Thomas Pogge, World Poverty and Human Rights (Cambridge, Mass:
Polity, 2002) at 48-49; see also Fisher & Syed, supra note 68 at 644-45
(discussing Pogge’s account).
170. Thomas Pogge, “World Poverty and Human Rights” (2005) 19:1 Ethics
& International Affairs 1 at 5; see also Daniels, supra note 39 at 337-39
(discussing Pogge’s account).
171. Pogge, ibid at 6; Pogge, supra note 169 at 74.
172. Thomas Pogge, “Access to Medicines” (2008) 1:2 Public Health Ethics 73
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
Pogge instead proposes a tax-based fund that operates as a prize system
rewarding drug companies for their products’ contribution to reductions
in the global burden of disease.173
In a second example paralleling one used by Cohen, Sable, and
Daniels, he claims that many WTO policies cause human rights deficits
because they permit the affluent countries’ “continued and asymmetrical
protections of their markets through tariffs, quotas, anti-dumping
duties, export credits and huge subsidies to domestic producers,” and
thereby “greatly [impair] export opportunities for the very poorest.”174
In response, Pogge suggests that the rich countries have an obligation to
“[scrap] their protectionist barriers against imports from poor countries,”
which he claims would lower unemployment and increase wage levels in
those countries.175
Might the same claims hold as to medical tourism? One might say
it also “foreseeably excludes the global poor from access to” health care
“for the sake of enhancing” the health care access and cost savings in the
West. Further, like Pogge’s own examples, one could say that medical
tourism is supported by the existing institutional order insofar as that
order facilitates things like international travel; standard setting; the
accreditation of foreign hospitals; the training and credentialing of
foreign doctors in the United States and other developed countries; etc.176
However, there are a few problems (or at least open questions) that
become manifest through this application to medical tourism. First, what
is the content of a human right to health? Or, to put it otherwise, how
at 75.
173. Ibid at 76-78.
174. Pogge, supra note 170 at 6.
175. Ibid. As a descriptive matter, Pogge’s account of the negative effects of
TRIPS is not without dissenting view. See e.g. Rachel Brewster, “The
Surprising Benefits to Developing Countries of Linking International
Trade and Intellectual Property” (2011) 12 Chicago J Int’l L 1.
176. See generally Cortez, supra note 46 (discussing the way these things
facilitate medical tourism); Aaditya Mattoo & Randeep Rathindran,
“How Health Insurance Inhibits Trade in Health Care” (2006) 25:2
Health Affairs 358 (presenting a similar discussion); Graham T
McMahon, “Coming to America – International Medical Graduates in
the United States” (2014) 350:24 New England Journal of Medicine 2435
(discussing the reliance on foreign doctors in the US health care system).
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much health care must one have before one’s human rights are being
violated?177 In answering this question, the theory faces a problem that
parallels one we discussed for Nussbaum and Sen – if the threshold is set
too low, the negative effects of medical tourism may not cause a “deficit”
to the human right; if the threshold is set too high, then it will cause a
deficit, but so will not allowing that tourism to go forward (given the
needs of the American patients using medical tourism). Pogge has offered
a response to a somewhat similar criticism by suggesting the proviso to
his theory that “these human rights deficits must be reasonably avoidable
in the sense that a feasible alternative design of the relevant institutional
order would not produce comparable human rights deficits or other ills
of comparable magnitude.”178 But, as in our discussion of a somewhat
similar proviso by Nagel, one might wonder what “reasonably avoidable”
really means and how much of the institutional order we should feel free
to redesign in a given moment. Once again, this problem seems least
acute for insurer-prompted medical tourism and medical tourism for
services like cosmetic surgery.
Second, Pogge has tried to avoid some of the pragmatic and
political feasibility problems of the Cosmopolitan theories by trying
to use a kind of act-omission distinction, with the ideas of “harm” and
“imposing ... deficits.” But, as Daniels has remarked, “[i]nternational
harming is complex in several ways. The harms are often not deliberate;
sometimes benefits were arguably intended.” Daniels has also argued
that “harms are often mixed with benefits” such that “great care must
be taken to describe the baseline in measuring harm,” and the “complex
story about motivations, intentions, and effects might seem to weaken
the straightforward appeal of ” Pogge’s theory.179 To illustrate: as in
Pogge’s examples (by hypothesis), the existence of the phenomenon of
medical tourism leads to a “deficit” in one human right – health care
– and one might say that medical tourism is supported by the existing
177. C.f. Daniels, supra note 39 (asking whether Pogge’s human right to health
is frustrated “[w]henever a country fails to meet the levels of health
provided, say, by Japan, which has the highest life expectancy” at 337).
178. Thomas Pogge, World Poverty and Human Rights: Cosmopolitan
Responsibilities and Reforms (Cambridge, Mass: Polity, 2008) at 26.
179. Daniels, supra note 39 at 340.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
institutional order insofar as that order facilitates things like international
travel, standard setting, and accreditation of foreign hospitals. But do
these institutional elements “harm” the human right to health care of
destination country citizens in our case?180
In Pogge’s examples, we have identifiable state and international
actors, chief culprits if you will, at whom he can point the finger as actors
who caused the deficit in question: the WTO, the TRIPS Agreement,
and those who support them.181 For medical tourism, by contrast, we
180. In discussing Pogge’s proposal to create a prize system to spur innovation
in drugs targeting the global burden of disease, Daniels critiques whether
what is going on is really “harming” versus “not optimally helping?”
Daniels, supra note 39 at 337. A similar worry seems less apposite as to
medical tourism where it is the actions of home country citizens that are
setting back the interests of those abroad, assuming arguendo that medical
tourism makes the Indian poor worse off than they would otherwise be.
181. Others writing in much the same vein as Pogge on access to essential
pharmaceuticals in LDCs have emphasized similar facts about this context
that strain the analogy to medical tourism and suggest the case for Global
Justice obligations may be much stronger in the pharmaceutical context.
For example, Outterson and Light, working on an analogy to duties to
engage in easy rescue when there are special relationships, suggest several
specific reasons why that analogy is applicable in the drug context: the
fact that “the patent-based drug companies created the global intellectual
property system and are actively preventing rescue by others” with the
explicit goal of prohibiting “free trade of low-priced generics from the
emerging pharmaceutical industries in developing countries” thereby
having created the danger, the fact that the drug companies receive public
monies and are able to block development through the patent system,
and (according to these authors) the fact that that innovation rewards
could be set up in such a way to make this a case of “easy rescue” wherein
pharmaceutical companies would not lose much if anything from their
bottom line. Kevin Outterson & David W Light, “Global Pharmaceutical
Markets” in Helga Kuhse & Peter Singer, eds, A Companion To Bioethics,
2d ed (Malden, Mass: Wiley-Blackwell, 2009) 417 at 417-29. None of
these points seems true as to the United States’ or other home countries’
involvement in medical tourism by those individuals paying out of
pocket. That said, some elements (such as the use of public funds) are
more analogous to government-prompted medical tourism, and some
of these points (pursuit of profit-maximizing strategies that may run
counter to destination-country health care access) may in appropriate
cases provide reasons for subjecting medical tourism intermediaries to
the same approbation these authors foist on drug companies. This latter
point on corporate social responsibility raises questions beyond the scope
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225
have a much more complex web of acts and omissions that together form
the system. We have the private decisions of individual citizens in the
home country to satisfy health care needs in a foreign country, which
seems like causing harm, but that need may be itself caused by a statelevel failure to secure universal health care, or even more indirectly by the
failure to adopt more redistributive taxation approaches. What about the
role played by US health insurance companies in pricing their plans that
in part determines how many Americans are uninsured (which, in turn,
is partially a function of the wage demands of health care workers)? We
also have the background international law and trade principles allowing
for free travel by citizens to foreign states and the consumption of goods
and services abroad, but are those causes of deficits?182 To put the point
another way, the baseline against which Pogge’s concept of harm is drawn
is extremely slippery as to medical tourism – a problem that legal realism
has emphasized in legal discourse.183
of this article, which is focused on governmental and intergovernmental
obligations.
182. Larry Gostin has made a similar point as to these kinds of theories more
generally: “National policies and globalization have benefited the rich and
contributed to global health disparities, but so have many other factors.
Blame for harms in the Third World, however, is hard to assess. States
usually do not intend to cause harm to poor countries, and political
leaders may believe they are doing good. International policies, moreover,
often have mixed benefits and harms that defy any simple assignment of
blame. Finally, countries themselves may have contributed to the harms
due to inadequate attention to population health, excessive militarization,
or simple incompetence or corruption. At bottom, reasonable people
disagree as to who bears the responsibility for health inequalities and who
owes a duty to right the perceived wrongs.” Gostin, supra note 68 at 34546.
183. It is also worth emphasizing that not every “harm” in the sense that Pogge
uses the term may morally obligate us to compensate the victim. If I open
up a flower shop next door to yours, and my shop siphons off your best
florists by offering higher wages that causes a diminution in your business,
we do not ordinarily think that I have wrongfully harmed you or that I
owe you recompense for the setback to your interest. This is true even if I
open my shop with the intention of driving you out of business. If this is
the mechanism by which medical tourism reduces access to health care for
the destination country poor (one of several of the possible mechanisms I
sketched above) – that doctors who served the destination country poor
instead move over to the medical tourism facility to treat their patients
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
All that said, I do not want to overstate the point. The subset of
government-sponsored medical tourism seems to nicely parallel Pogge’s
own examples: this form of medical tourism has both a clear causal
pathway of “harm” and easy-to-specify institutional rearrangements,
such that under Pogge’s view, it should give rise to obligations on home
countries. How well the theory extends into medical tourism by patients
purchasing out-of-pocket (or even insurer-prompted medical tourism),
however, is less clear.
VI.
Convergence, Divergence & Policy Prescriptions
In this article, I have tried to tackle head-on the pressing question of
medical tourism and access to health care abroad. While I hope to have
made some progress, part of the point has been to show how complex the
issue is and how, on the philosophical side, it identifies lacunae and poses
hard questions for many major theories.
I began by identifying the biggest unknown in the question – what
effect medical tourism is actually having on health care access in the
destination country – and have sought to assist the empirical project
of answering that question by specifying several plausible triggering
conditions through which we would expect medical tourism to reduce
access to medical services for the poor in the destination country.
Assuming arguendo that the empirical claim that medical tourism
impairs health care access by the destination country poor in some cases is
satisfied, I then examined the normative question: under what conditions
would a diminution in health care access by the destination country poor
due to medical tourism trigger obligations on the part of home countries
and international bodies? I rejected the simplest argument appealing
to national self-interest in restricting medical tourism because it is
implausible. I then examined three broad camps of Global Justice theory
(Cosmopolitan, Statist, and Intermediate) as grounds for obligations, but
– it seems that the facility should similarly not owe recompense or
remediation; if the medical tourism facility does not owe the destination
country poor for this action, why should the home country whose causal
role in the harm is still more attenuated? I am indebted to Nir Eyal for
this suggestion.
(2015) 1 CJCCL
227
that examination has not pointed in one clear direction. I have expressed
a preference for the approach of the Intermediate theories because they
try to offer us a theory of obligations stemming from medical tourism,
rather than a more general theory of what we owe to those abroad quite
divorced from medical tourism. In particular, the institutional-focused
approach of Cohen, Sable, and Daniels seems to me an extremely
fertile way forward in this area, though I have suggested reasons why
its actual application to this case study might suggest a more restricted
set of obligations than that championed by many of the commentators
(academic and popular) discussed in the introduction.
Taking a step back, what can we say about the larger landscape of
Global Justice theories, access to health care, and medical tourism? While
I think a true overlapping consensus or incompletely theorized agreement
between these different theories eludes us in this area, I do think it is
fair to say we can identify two “central tendencies” among the group of
theories: insurer-prompted medical tourism and government-prompted
medical tourism are the areas where the argument that states and
international bodies have a moral obligation to intervene is the strongest,
for two different (but on some theories also overlapping) reasons. The
case for curbing insurer-prompted medical tourism is stronger because
preventing these services is less likely to expose the state’s own citizens to
deficits in health care access,184 which would be in tension with the same
concerns regarding those abroad. Similar reasoning suggests that there
is a greater obligation to restrict medical tourism for inessential services
or services that are more penumbral to the concept of health (such as
cosmetic surgery and, on some accounts, fertility tourism). The case for
intervening in government-prompted medical tourism is stronger because
there is a fairly direct causal tie between the state’s action and the deficits
caused by medical tourism (which matter on the intermediate theories).
Claims of an obligation on the part of the home country government or
international bodies to do something about medical tourism by those
184. To be sure, as I cautioned above, even restricting insurer-prompted
medical tourism poses some risk of diminution in access domestically;
it is just that it appears to pose less of that risk such that the case for
intervention is concomitantly stronger.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
purchasing essential services out-of-pocket seem concomitantly weaker.
Beyond these central tendencies, however, there is a fair amount
of divergence among the theories in picking out which circumstances
give rise to obligations (e.g., only medical tourism to “burdened states”?
Only medical tourism to states whose method of ratifying GATS seems
suspect?) and whether there are limits on the means by which those
obligations can be met (only foreign aid, targeted or otherwise, or more
paternalistic attempts to control the flow of home countries’ patients as
well?). The Nagelian conception of humanitarian aid might be thought
of as a floor on which these other theories can add, but, as I have shown
above, its demands are somewhat independent of medical tourism and
instead stem from the existence of desperate need, regardless of its causal
relation to medical tourism.
In any event, my ambition here has been to lay out the terrain of
Global Justice theories, their application to medical tourism, and the
problems that arise from that application.185 Going further and deciding
the exact content of those obligations requires choosing between these
rival theories and filling many of the lacunae I have identified in their
application. Although I have made some tentative suggestions here and
there, I have not attempted that task in this paper. Instead, my goal has
been to open a dialogue between moral and political theorists and those
making on-the-ground policy prescriptions relating to medical tourism’s
negative effects on the health of the poor in the destination country.
My own tentative conclusion is that there is a more persuasive case
for restricting insurer-and government-prompted medical tourism, and
medical tourism for services that are inessential or more in the penumbra
of “health.” By contrast, due to concerns about health care access in the
home country, I find less convincing the case for restricting medical
tourism for those purchasing essential health services out-of-pocket,
especially when this represents these individuals’ best way of getting these
services.186
185. While my own theoretical preferences lean towards the Cohen, Sable, and
Daniels approach as the most useful approach in this area, I have tried to
maintain a relatively Catholic attitude towards the different contenders so
as to pave the way for those more drawn to one of the rival accounts.
186. One lingering concern with that conclusion is that it seems to “reward”
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Interestingly, that ordering mirrors my conclusions on the policy
side as to the ease by which home states can implement policies to curb
medical tourism of different varieties, as I have suggested in other work
on medical tourism.187
For government-prompted medical tourism, the United States could,
by regulation or legislation, restrict facilities or countries to which it
sends patients to those with health care access guarantees or amelioration
plans. It could also leave the market unregulated but dedicate foreign
aid to destination countries based on the volume of medical tourism
to particular regions. Of course, in so doing, it would have to rely on
foreign sovereigns to spend aid appropriately or devise a system whereby
nongovernmental organizations (NGOs) are given the aid or monitor its
spending. As long as such policies did not result in significantly longer
waiting times or fewer procedures covered, the effect on health care access
for the US poor would be small.
For insurer-prompted medical tourism, the United States could by
state or federal insurance regulation prevent sending patients to facilities
or countries without health access amelioration plans.188 The United
the “bad” countries that have not secured universal health care in their
home state, and thus have given more of their domestic poor the incentive
to go abroad. Of course, it is beyond cavil that countries like the United
States that have failed to secure truly universal health care have not failed
to do so in order to be able to send their poor abroad for medical tourism
without acting unjustly, but that does not seem an adequate response.
Here are two that may be more (if not entirely) satisfying. First of all, to
repeat something I said earlier, supra note 135, in a world of ideal justice,
the United States would have achieved universal health care, but we are
faced with a very different world and are asking what obligations we can
realistically impose upon it under the circumstances. Second, while we
may be “rewarding” the “bad” states, we also want to avoid “punishing”
their poor citizens who lack better options than medical tourism.
187. See Cohen, “Protecting Patients”, supra note 14 at 1506-17, 1544-46.
For a more in-depth discussion of the tools and drawbacks for regulating
medical tourism, including extensive discussion of home country,
destination country, and multilateral possibilities for regulations, see
I Glenn Cohen, “How To Regulate Medical Tourism” [unpublished,
archived at Virginia Journal of International Law Association] [Cohen,
“How to Regulate”].
188. C.f. ibid at 1544-46. But see supra note 51 and sources cited therein
for skepticism as to how well such regulation is actually enforced in a
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
States could also (in addition or separately) tax insurers by their volume
of medical tourism and redistribute those sums towards health care access
amelioration in the destination country. This would mirror to some
extent the UNITAID scheme; UNITAID is an NGO aimed at scaling up
access to treatment for HIV/AIDS, malaria, and tuberculosis, primarily
for people in low-income countries. A large share of its funding (72
percent) stems from twenty-nine supporting countries (including France
and Chile) that have voluntarily chosen to impose on airlines departing
from their countries a tax on departing passenger tickets collected by the
airlines set by the country – for example, France imposes a €1 and €10 tax
on domestic economy, and a €4 and €40 tax on departing international
flights, respectively.189 One might also think about this in analogy to the
use of taxes on tobacco products to offset some of the costs those products
impose on the health care system.
It is much harder to regulate the behavior of US medical tourists
paying out-of-pocket. Even here, though, we do have some options. The
United States could hypothetically render illegal some forms of medical
tourism (compare the PROTECT Act, making it a crime to engage in
child sex while abroad), or render less attractive some forms of medical
tourism (for example, by exempting them from the tax deduction
available for qualifying medical expenses), but as I have said before, I
worry that these regulatory interventions are either too draconian or
not terribly effective.190 The United States could also tax intermediaries
and use the revenue to support health care access in LDCs (in a way
similar to that discussed above) or try to force JCI to build health care
access into accreditation standards. Less paternalistically, the United
States or international bodies could create a separate third-party labeling
or accreditation standard that audits facilities and informs tourists of
how attentive a facility is to health care access concerns regarding the
local population, as Nir Eyal has proposed under the moniker “Global
Health Impact Labels” in analogy to Fairtrade Coffee.191 I have some
destination country such as India.
189. About UNITAID online: UNITAID .
190. Cohen, “Protecting Patients”, supra note 14 at 1511-15.
191. Nir Eyal, “Global Health Impact Labels” in Ezekiel Emanuel & Joseph
Millum, eds, Global Justice in Bioethics (Oxford: Oxford University Press,
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doubts about how effective these labels are likely to be, since medical
tourism patients are likely to choose facilities based on quite different and
much more important priorities (for example, location of service, quality
of doctor, and price) than coffee drinkers, though to be fair, this is an
empirical question. Finally, foreign aid is always a possibility.
These are, for the most part, unilateral strategies focused on what
steps medical tourist patients’ home states could take. Destination
country and multilateral strategies are also possible, but for reasons I have
discussed in greater depth elsewhere, these seem less feasible.192
Destination country governments can tax medical tourism providers
and redistribute the proceeds to pay for health care access for the poor,
regulate the behavior of their physicians and impose requirements
that they spend certain amounts of their time serving domestic rather
than foreign patients, require a uniform reimbursement rate or limit
the disparities, etc. In destination countries where certificates or other
licensure is required in order to build a new hospital or expand an
existing one, the government can limit the number of entrants into the
medical tourism market that exist or extract commitments (such as those
pertaining to providing care for indigents) from the facilities. There are
many other possible interventions, and the exact details will vary country
by country, depending on their existing domestic health care regulation.
However, to the extent medical tourism offers an influx of
foreign capital to the destination country and its costs occur mostly
to the destination country poor (many of whom may be somewhat
disenfranchised in the political system), there is a clear conflict of
interests between those who regulate and those who are burdened by
medical tourism. Even when these regulations are formally put in place,
there is no guarantee destination country governments will enforce them
or that the regulations will be much more than a paper tiger, as several
commentators have suggested regarding medical tourism in India.193
2012) 241.
192. Cohen, “How to Regulate”, supra note 187.
193. See e.g. Johnston et al, supra note 37 at 1; Gupta, supra note 37; see
also Chinai & Goswami, supra note 49 (discussing the Confederation
of Indian Industry certification system for medical tourist facilities that
requires hospitals “to limit the charges to foreigners as part of a dual
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
Turning to the multilateral approach, we have thus far not seen
multilateral trade agreements pertaining to trade in health services, even
in the places where such agreements would seem most natural. While
the United States has pushed for more harmonization of the health care
systems covered by the North American Free Trade Act (NAFTA), those
calls have thus far been resisted by Canada and Mexico.194 While the
European Union has the most comprehensive regulatory regime for
trading health services in the world – requiring inter alia national health
insurance systems in member states to cover treatments in other member
states, and mutual recognition of the credentials of doctors, nurses, and
pharmacists – the World Health Organization (WHO) has concluded
that “there has been little progress in developing a common regulatory
framework for health services or in establishing common standards of
training and practice,” and stated that “[r]egulation of professional practice
in health care remains very different across the member countries.”195
Although it is in theory possible for the WHO to make rules
governing medical tourism through the powers granted to it by the
International Health Regulations, I share with others skepticism that this
is a likely way forward – importantly, it would mean straying a fair amount
from the International Health Regulations’ origins and its purpose, the
prevention of disease migration.196 Similarly, the multiple references to
a human right to health in the UN Charter, International Covenant
on Economic, Social, and Cultural Rights, WHO constitution, and
elsewhere have thus far resulted in remarkably little international health
care regulation,197 and given the various powerful pro-medical tourism
194.
195.
196.
197.
pricing system that offers domestic patients lower prices,” but noting that
“even these lower prices are too high for the vast majority of India’s 1.1
billion population” at 164-65).
Nathan Cortez, “Patients Without Borders: The Emerging Global Market
for Patients and the Evolution of Modern Health Care” (2008) 83:1 Ind
LJ 71 at 128.
Ibid, quoting Rupa Chanda, “Trade in Health Services”, WHO
Communication on Macroeconomics and Health, (2001) Working Paper
Series, 1, 73, Paper No WG 4:5.
See Gostin, supra note 68 at 375-81.
See Universal Declaration of Human Rights, GA Res 217A(III),
UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810, (1948) 71;
International Covenant on Economic, Social, & Cultural Rights, 16
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constituencies, regulation restraining the medical tourism industry seems
unlikely as a starting place for such an approach. Gostin has proposed
a Framework Convention on Global Health, of which medical tourism
could certainly play a part, but as he recognizes, there are formidable
obstacles to achieving this goal, such that middle-or short-term action of
this sort seems unlikely.198
VII. Conclusion: From Medical Tourism to Health
Care Globalization
A number of authors in both the popular and academic literature have
expressed concern about the effects of medical tourism on access to
health care for the poor of the destination country and have claimed that
this is a normative problem calling for regulatory intervention. In this
article, I have broken down this claim into its empirical and normative
components and put pressure on both. On the empirical side, I have
noted the current absence of evidence for diminutions in health care
access by the destination country poor due to medical tourism, and
tried to specify triggering conditions that could be further studied by
developmental economists under which this diminution would be
most likely. Assuming arguendo that such negative effects occur, I then
examined the normative question of destination country governments
and international bodies’ obligations as to medical tourism having such
effect. I canvassed Cosmopolitan, Statist, and Intermediate theories, and
suggested ways in which application of these theories to medical tourism
highlights gaps and indeterminacies, as well as reasons why some of these
theories may not be good fits for this kind of applied ethics inquiry,
and built on existing discussions of pharmaceutical pricing and medical
migration. I have tried to map divergences and convergences between
these theories, and tentatively conclude that the claim for Global Justice
obligations stemming from medical tourism is strongest (but not without
problems) for insurer-and government-prompted medical tourism and
December 1966, 999 UNTS 302, S Exec Doc D 95-2 1978; Constitution
of the World Health Organization preamble, 22 July 1946, 14 UNTS 185,
art 1, 62 Stat 2679; Gostin, supra note 68 at 381.
198. Gostin, supra note 68 at 383-91.
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
for tourism for inessential services, such as cosmetic surgeries, while it
is quite weak for medical tourism by those paying out-of-pocket for
essential services. Finally, I have outlined the types of regulatory policy
levers available to developed countries and international bodies to seek to
remedy deficits in destination country health care access due to medical
tourism.
While my focus has been on medical tourism, as I suggested above,
I think the discussion here has some important implications for analysis
of other manifestations of the globalization of health care, and indeed,
perhaps, for globalization more generally. Here are six tentative lessons
I think the work I have done in this article might teach us in shaping
future analyses.
First, at the highest level, while it is somewhat philosophically
“impure,” I think the method of analysis provided here is useful, especially
for work aimed at policymakers. The empirical and normative approaches
are jointly necessary in establishing the need for action. More subtly,
within the normative sphere, it is useful to consider both more and less
demanding theories of Global Justice and to map their convergences and
divergences; even if one thinks some of these theories are “too stingy”
or “get it wrong,” they are useful for persuading policymakers and other
audiences that one need not be a full-blown Cosmopolitan (with all the
implications that would mean) in order to justify some actions. Thus,
in medical migration (the medical brain drain), it is helpful to show,
for example, that even on the narrower Statist approaches, the duty to
aid burdened states may establish obligations to engage in institutionbuilding so as to educate providers and increase capacities; on the Cohen,
Sabel, and Daniels Intermediate approach, the existence of rulemaking
bodies with some claim of dominion over the field (the ILO, according
to Daniels) and the international interdependence fostered by push
and pull factors may ground the need for action; and on the Poggean
approach, the more that migration is thought of as the unjust “taking”
of doctors, the more easily obligations to avoid or mitigate that activity
can be understood as flowing from an obligation to avoid “harming” a
“human right” to health.
Second, I think that the national self-interest arguments for
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Western governments intervening in medical tourism are also weak in
other instances of health care globalization. For example, I think such
arguments suffer similar deficits as to medical migration. To adapt
those arguments: even assuming dubitante that patients in the country
where migrating doctors go (the “receiving country”) suffer indirectly
because these new physicians provide lower quality care – or there is
an increase in disease transmission to the receiving countries because
of the depletion of providers in the sending country (the country from
which the doctors migrate), or the sending country’s citizens are less able
to purchase our goods due to their poorer health caused by migration,
or migration increases immigration pressure from sending countries or
national security threats to receiving countries – these negative effects
are likely outweighed by the self-interested benefits of migration for the
receiving country. Thus, just as with medical tourism, it seems as though
we will need some form of Global Justice theory to ground obligations
to intervene.
Third, the cleavage I have introduced between types of Global
Justice theories has broader application to other instances of health
care globalization and globalization more generally. The Cosmopolitan
theories and the duty of humanitarian aid under Statist theories do not
offer us a theory of when we are responsible for harms stemming from
medical tourism, medical migration, or other forms of globalization, but
instead a theory of when we ought to improve the lives of the badly-off
simpliciter. Let me illustrate with medical migration. Again, in one sense,
causation matters: only if restricting migration causes an improvement
in the well-being of those in the sending country (up to a capability
threshold, up to the threshold of humanitarian needs, or in the interest
of increasing welfare, depending on the theory) are we required to take
the action. In another sense, however, causation in the historical and
responsibility senses is irrelevant because it is the mere fact of the other
country’s citizens’ needs that imposes upon us the obligation to help them
in whatever way we can, and not anything about migration and its effects
specifically. Thus, in one direction, the duties may persist even when
migration is halted or its harms are remedied in that the source of the
obligation is not anything we have done, but instead the destitute state of
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
those abroad. In the other direction, once the theories’ goals are met, we
do not bear an obligation (at least under distributive justice principles) to
prevent migration or remedy its ill effects, even if migration continues to
produce significant health care deficits for the destination country poor
that would not occur if it were curbed. Moreover, it is possible that other
forms of aid or assistance might “cancel out” whatever negative effects
migration has in terms of the global Cosmopolitan calculus.
In effect, these theories tell us to help those in the sending country
who are badly-off by curbing or mitigating the effects of medical
migration, regardless of whether that migration caused them to be badly
off; this is to be contrasted with a different group of theories (such as
several variants of the Intermediate approach) that would urge us to curb
medical migration because it causes people in the sending country to
become worse off. This distinction does not make the latter group of
theories “better” than the former, but it does suggest they may be better
suited at answering questions about the Global Justice implications of
a particular manifestation of globalization (such as medical tourism or
migration) as opposed to questions of redistribution between nations at
the highest level of generality.
Fourth, my analysis here draws attention to the “self-inflicted
wounds” problem that is endemic in attempts to address Global Justice
concerns regarding negative impacts of globalization as well as ways to
deal very directly with this concern. Again, to use medical migration as an
example, there are ways in which some sending countries might increase
the supply of health care providers to mitigate migration’s negative effects
but do not do so because of the lobbying efforts of members of the
profession seeking to protect their wages by reducing supply. Moreover,
there are ways in which some of these sending countries might implement
programs that help them retain more providers in the face of the pull
of recruiting countries, not only by improving employment conditions
(easy to recommend, hard to implement), but through mechanisms like
conditional scholarships that require a number of years of in-country
service as a condition for forgiving student loans for medical school.199
199. See e.g. Delanyo Dovlo & Frank Nyonator, “Migration by Graduates of
the University of Ghana Medical School: A Preliminary Rapid Appraisal”
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237
Especially on the Intermediate theories of Global Justice, the fact that
a sending country in principle has these interventions available but in
practice does not use them ought not to completely immunize receiving
countries from Global Justice obligations, but it should also not be
completely ignored in the calculus. Rather, we ought to try to factor out
the elements of the sending country’s population health deficits caused
by medical migration that are a result of the domestic policy decisions
and then apply the obligations of Global Justice to only the remainder
of deficits.
As to one more specific variant of the “self-inflicted wounds” problem
relating to obligations to open up one’s service sector to medical tourism
undertaken as a GATS signatory, I have offered an analysis that could
equally be employed as to other kinds of treaty obligations relating to
trade – a recurring problem as to Global Justice analysis of globalization.
To the extent the obligations under these treaties span generations and are
effectively compulsory due to their penalties for defection or exit, I have
suggested that they might count as self-inflicted wounds reducing other
countries’ Global Justice obligations only insofar as these treaties meet
heightened requirements for democratic legitimacy such as referenda
rather than the standards of ordinary legislation.
Fifth, the analysis here has emphasized that medical tourism
is a heterogeneous practice and that its different constituent forms
(government-prompted, insurer-prompted, out-of-pocket, etc.) may
lead to different Global Justice analyses. I have also suggested we need
to pay careful attention to who benefits in the home country from
medical tourism, and their counterfactual care and welfare if the practice
is stymied. The same seems true as to other manifestations of health
care globalization. Again, let me use medical migration to illustrate. Just
as I have suggested that there is a greater obligation to restrict medical
tourism for inessential services or services that are more penumbral to the
concept of health (such as cosmetic surgery), it seems to me that medical
(1999) 3:1 Human Resources For Health Development Journal 40; Nir
Eyal & Till Bärnighausen, “Conditioning Medical Scholarships on Long,
Future Service: A Defense” [unpublished, archived at Virginia Journal of
International Law Association].
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Cohen, Medical Tourism, Access to Health Care, and Global Justice
migration is most problematic when it would recruit sending country
physicians to provide services that are inessential or penumbral to health
in the receiving country. This might, for example, serve as a basis for
limiting the recruiting of less developed sending country physicians for
US (or Canadian or other) cosmetic surgery (or other) medical residency
programs, but not residencies in other specialties. It might also lead us to
allow recruiting of foreign physicians only for underserved areas in the
receiving country and not more generally.
I have also argued that the case for intervening in governmentprompted medical tourism is stronger because there is a fairly direct causal
tie between the state’s action and the deficits caused by medical tourism
(which matter on the Intermediate theories). Similarly, there may be a
stronger argument for intervention in medical migration in cases where a
receiving country’s governmental health care system – such as the National
Health Service (NHS) in Britain, or the individual provinces in Canada
– are the ones directly recruiting physicians from places like Ghana, as
opposed to cases involving recruitment by individual private hospitals.200
To be sure, there are many ways in which this analogy is inexact. Unlike
individual patients traveling abroad for health care, with hospitals
recruiting foreign physicians, we are still dealing with institutions, and
thus the Intermediate theories are better-poised to impose duties upon
them. Moreover, since governmental health care systems tend to achieve
better domestic distributive justice by ensuring universal coverage, there
may be something worrying about penalizing them in terms of Global
Justice in the analysis as compared to more privatized systems, although
perhaps not if that universal coverage is attained through improper
200. The Canadian provinces are single-payers, but the doctors are individual
contractors, not employees of the provinces, and hospitals may be publicly
or privately owned. In the British National Health Service, by contrast,
physicians in general practice are capitated employees, while specialty
physicians are salaried employees of the National Health Service (NHS),
and hospitals are primarily publicly owned. See e.g. Deborah J Chollett,
“Health Financing in Selected Industrialized Nations: Comparative
Analysis and Comment” excerpted in Mark A Hall et al, Health Care Law
and Ethics, 7th ed (New York: Aspen Publishers, 2007). I leave it to other
work to consider whether these differences between the two systems may
be relevant in the analysis.
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physician recruitment from less developed countries.
Again, I do not aim for what I have said here to provide a final analysis
of Global Justice issues in medical migration, let alone other forms of
health care globalization or globalization more generally. Instead, I have
aimed to show how my analysis of these issues in regards to medical
tourism helps us identify the right questions to ask as to the larger field
of health care globalization, and perhaps globalization generally.