Medical Tourism, Access to Health Care, and Global Justice

• Author: I Glenn Cohen
• Position: Professor and Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard Law School
• Pages: 161-239

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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

e ects when they occur.

  is article is the  rst to comprehensively examine both the question of whether this

negative e ect 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 underspeci ed and suggests diverging paths for  lling 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.  anks 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

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Cohen, Medical Tourism, Access to Health Care, and Global Justice

I. P

II. I

III. K  M T, K  E C

IV. T E C

V. T N Q

A. Self-Interest

B. Cosmopolitan  eories

C. Statist  eories

D. Intermediate  eories

1. Cohen, Sabel & Daniels

2. Pogge

VI. C, D  P P

VII. C: F M T  H C G

I. Preface

When 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.

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 e  rst 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 a ected 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 a orded

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 bene ts on

health care access and to justify why some degree of government regulation is

inappropriate.1

 ough 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 de cits or worsens inequities, or, at the very least, is it associated

with de cits 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.