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VJIL Symposium: The Importance of Equity – A Response to Glenn Cohen

[Colleen M. Flood is the Canada Research Chair in Health Law and Policy at the University of Toronto Faculty of Law; Y.Y. Brandon Chen is a doctoral candidate at the University of Toronto.] 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. In this thought-provoking article, Cohen proposes a six-prong framework to assess whether medical tourism diminishes health care access in destination countries. This kind of theoretical contribution is extremely important to frame public debates, and ultimately inform legal and policy responses. In what follows, we outline four challenges to Cohen's framework and argue that equity in the distribution of health resources should be fulsomely considered in any discussion of medical tourism. First, medical tourism engenders concerns about both health access and health equity, particularly when occurring in developing countries; Cohen's framework addresses the former but neglects the latter. For instance, even assuming that health services provided to medical tourists originate from fresh investments that were not previously available, and therefore health access for local patients would have theoretically stayed the same, there remains the question of why patients from well-resourced developed countries – however sympathetic their personal circumstances may be – should be the primary beneficiaries of these resources rather than patients in the developing world. The inequity between foreign and local patients is further accentuated if a substantial amount of these fresh resources is devoted to providing medical tourists with perquisites above and beyond usual standard of care that are unavailable to most destination country residents. We argue that such equity considerations per se render medical tourism problematic. Second, there is an inherent bias in Cohen's framework in that the burden seemingly rests on opponents of medical tourism to establish its adverse effects rather than vice versa. Due to lack of significant statistical evidence to-date confirming medical tourism's threat to health access in destination countries, those with concerns about medical tourism will inevitably fail to satisfy Cohen's test. However, we could arguably start instead with the assumption that medical tourism will likely have adverse equity impacts. In this case, if the evidentiary burden was upon supporters of medical tourism to dispel equity concerns, they too would face difficulties with a sparse evidentiary base.

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.”