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.

Third, we are unconvinced that all six conditions laid out by Cohen must be satisfied to conclude that medical tourism undermines health access in destination countries. Let’s consider as an example his third condition, i.e. health care supply in destination countries must be inelastic to render diminished health resources vis-à-vis local patients immitigable. Arguably, some destination countries may be capable of expanding their supply of medical resources, and may well do so over time with appropriate local political pressures. Indeed, as countries develop, one would expect that they gradually lay down the foundations for and expand their public health care systems. However, if any new or liberalized medical resources are consistently dedicated to meeting the ever increasing demand of foreign patients, destination countries may not see their public health care systems develop at the pace normally commensurate with economic growth.

Finally, Cohen argues that even assuming medical tourism indeed reduces health access in destination countries, there is still a normative question concerning whether home countries have responsibilities to intervene. We reiterate that evidence of diminished access is not the only concern regarding medical tourism but also evidence of diminished equity. Further, we suggest that, aside from moral arguments considered by Cohen, the international community has legal duties to assist destination countries, particularly those in the developing world, with responding to the impact of medical tourism. For instance, art. 12 of the International Covenant on Economic, Social and Cultural Rights requires states to actively fulfill the right to health by facilitating and supporting access to essential health services in other countries. Therefore, under international law, problems concerning health equity and access relating to medical tourism demand global attention and responses.