VJIL Symposium: Introducing Medical Tourism, Access to Health Care, and Global Justice

[I. Glenn Cohen is an Assistant Professor of Law and the Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

First, I would like to thank Opinio Juris for hosting this discussion on my recent Article in the Virginia Journal of International Law.

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 begin in Part I 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 medical tourism that I and others have discussed elsewhere

In Part II I discuss the empirical claim and 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: (1) The health care services consumed by medical tourists come from those that would otherwise have been available to the destination country poor; (2) Health care providers are “captured” by the medical tourist patient population, rather than serving some tourist clientele and some of the existing population; (3) The supply of health care professionals, facilities, and technologies in the destination country is inelastic; (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; (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; (6) Profits from the medical tourism industry are unlikely to “trickle down.”

In Part III, 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 show 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. I also give reasons why I favor the Intermediate approaches.

Part IV 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.

This paper is part of a trilogy of law review articles I have done medical tourism, comprising Protecting Patients with Passports: Medical Tourism and the Patient Protective-Argument, 95 IOWA L. REV. 1467 (2010), available at http://ssrn.com/abstract=1523701, and Circumvention Tourism, 97 CORNELL L. REV. (forthcoming, 2012), available at http://ssrn.com/abstract=1965504.