Book Reviews

Glenn Cohen, Patients with Passports: Medical Tourism, Law, and Ethics, Oxford University Press, 2014

Glenn Cohen’s Patients with Passports: Medical Tourism, Law, and Ethics offers a thorough examination of the growing practice of medical tourism, the legal regulations governing it, and the many ethical issues it raises for policy-makers, health care providers, and prospective medical tourists. Demonstrating mastery of the relevant literatures in the social sciences, law, ethics, and political philosophy, Cohen provides a comprehensive overview of the current practice of medical tourism, and offers well-argued, sensible policy advice to guide its reform. Cohen’s book is a significant achievement of interdisciplinary scholarship and is essential reading for scholars and policy-makers.

Medical tourists, Cohen claims, are people who travel to a foreign country for the primary purpose of getting health care. While the popular image of medical tourism in the U.S. context involves patients from high-income countries such as the U.S. traveling to low-income countries such as Mexico, India, or Thailand to access less costly health care or services that are illegal in their home country, Cohen notes that a good deal of medical tourism does not fit this image. Medical tourism also occurs between high-income countries—e.g., Canadian patients seeking care in the U.S.; between low- and middle-income countries—e.g., Cuba is a major destination for patients from many Caribbean and Central American countries; and from low-and middle-income to high-income countries as wealthy patients in the former seek what they presume to be better care in the latter. Although Cohen’s book touches on the legal and ethical issues raised by all of these different flows of medical tourists, the focus of his analysis largely concerns high-income patients—i.e., patients from high-income countries or high-income patients from low- and middle-income countries—seeking care in low-income countries.

Cohen’s book is divided into two parts: (1) medical tourism for services that are legal in the patient’s home country—e.g., hip replacements or cosmetic surgeries; and (2) medical tourism for services that are illegal in the patient’s home country—e.g., transplant tourism and tourism for assisted suicide. I discuss each part in turn before offering some critical remarks.

Regarding medical tourism for services legal in the patient’s home country, Cohen first focuses on medical tourists paying out-of-pocket for health care. These patients may be uninsured or underinsured and so see medical tourism as an affordable way to get care. Cohen explains first that these patients face a lack of information regarding the quality of care that many foreign hospitals and clinics offer—e.g., information regarding clinical outcomes and the risk of disease transmission—which makes informed decision-making difficult. Cohen also explores the question of the regulations home countries and international bodies should put in place to address this lack of information. Is it sufficient to require hospitals and clinics to disclose materially relevant information to prospective patients, for example, by making third-party accreditation conditional on such disclosure? Or, should home governments take steps to restrict patient choice, for example, by making patients who seek medical care from certain foreign providers ineligible for government provided health care such as Medicare or Medicaid? Cohen, quite sensibly, opts for a middle position, one that does not involve restricting patients’ choices but also goes beyond simply mandating the disclosure of information. Cohen suggests that regulators implement a “channeling regime,” a set of regulations that nudge or incentivize patients to make good choices. For example, regulators could create a list of “approved” and “unapproved” providers and services.

Medical tourists paying out of pocket also face the problem of legal liability. Focusing on U.S. medical tourists, Cohen explains that they face a substantial reduction in the likelihood and amount of financial recovery for medical malpractice compared to U.S. patients who do not travel abroad. Here too Cohen recommends that U.S. regulators introduce a channeling regime rather than simply providing patients with information regarding medical malpractice law in destination countries or restricting patient choice. Such a regime could involve incentivizing foreign facilities to make themselves subject to litigation under U.S. law. Cohen also examines the liabilities that home country physicians may face with respect to patients who become medical tourists. He argues that while such physicians likely face a low risk of being held liable for advising patients on medical tourism options, they could be sued and held liable for the malpractice of a foreign physician if they decide to offer follow-up care. Cohen offers a number of regulatory suggestions to ensure that the risk of such liability does not incentivize home-country physicians to deny medical tourists follow-up care.

Cohen turns next to medical tourists who pay for services through private or public insurance programs. Focusing first on U.S. medical tourists with private insurance, Cohen notes that many private insurers in the U.S. are currently experimenting with medical tourism pilot projects. These programs aim to cut costs by offering patients incentives to receive nonemergency care in places such as India, Thailand, or Costa Rica. Cohen offers a comprehensive discussion of the legal and ethical implications of these programs, as well as other possible insurance plans that would not merely incentivize medical tourism, but mandate it as a condition of coverage. Here too, Cohen supports the use of a channeling regime to address the problems of quality and liability that arise in this context, for example, restricting—by quality considerations—the foreign facilities to which insurance companies may direct patients, specifying the types of care insurance companies must provide domestically, and prohibiting insurance companies from using foreign providers that do not agree to be subject to U.S. medical malpractice law. With respect to questions of plan type—i.e., whether private insurers should be permitted to offer plans that incentivize or even mandate medical tourism—Cohen opts for an approach that not only permits libertarian paternalist interventions but also modest restrictions on consumer choice. Because consumers exhibit significant bounded rationality problems even with respect to domestic private health insurance choices, Cohen suggests that governments implement robust regulations governing plans that penalize consumers for accessing domestic care, and even limit the size of positive incentives insurance companies may offer to consumers to receive care abroad.

Cohen also discusses the legal and ethical questions surrounding medical tourism with public insurance. He focuses here on the European Union (EU), where people regularly receive health care services in a different Member State, and where EU institutions have struggled to specify the rules governing reimbursement for cross-border care. Though too complicated to summarize here, Cohen’s discussion of the relevant case law and a recent comprehensive EU Directive is clear and thorough. On the whole, Cohen finds many aspects of the emerging EU regulation to be promising, and to offer models for regulatory issues other jurisdictions may face, including the U.S. should Medicare or Medicaid ever incorporate incentives for medical tourism.

Cohen concludes his discussion of medical tourism for legal services with an empirical and ethical examination of the effects of such tourism on low- and middle-income destination countries. As Cohen notes, many scholars have criticized medical tourism on the grounds that it creates an inequitable two-tier health care system in the destination country that is harmful to these countries’ low-income residents. While medical tourists from high-income countries may have access to excellent, specialized care in high quality institutions in low-income destination countries, the poor and marginalized residents of these countries often lack access to basic health care services.

Cohen first explores whether medical tourism does in fact negatively affect residents’ access to health care in destination countries. Cohen identifies six “vectors” by which medical tourism may have such negative effects, including the internal brain drain of destination country health care professionals to the medical tourist patient population; the inelasticity of the supply of health care professionals and facilities in the destination country; and the unlikelihood of profits from the medical tourism industry “trickling down” to low-income residents. Cohen admits that there is not enough data to determine conclusively whether medical tourism is net harmful to low-income residents in any particular destination country. But, he concludes that there is sufficient evidence to show that this concern regarding net harm is a plausible one.

On the assumption that such net harm does occur, Cohen explores second whether high-income home countries or international bodies have any duty of global justice to do anything about it. Cohen considers this question from the perspective of three families of views on global justice: cosmopolitanism, statism, and “intermediate” theories that fall between these two alternatives. Cohen does not find an overlapping consensus amongst these theories regarding the question of home country obligations, but he does identify two “central tendencies” amongst these theories. The first is that the case for home country intervention in medical tourism is stronger with respect to private-insurer prompted medical tourism since prevention of such tourism is unlikely to expose home country citizens to deficits in health care access. The second is that the case for home country intervention is stronger with respect to government-prompted medical tourism since here the home country is causally responsible for the harms to low-income residents of destination countries. As an example of such an intervention, Cohen suggests that home countries could restrict medical tourism to facilities and countries that have adopted policies to prevent the imposition of harms on low-income residents.

Cohen also considers the obligations of destination countries and medical tourists from high-income countries. As Cohen notes, determining the obligations of destination countries is simpler—compared to home countries—since it is widely acknowledged that governments have a duty to protect and promote their citizens’ health. But, he acknowledges that these countries’ policy options may be limited due to constraints of the global economic system and rules of international trade. Still Cohen recommends a number of regulatory interventions destination countries could implement to prevent medical tourism from limiting citizens’ access to health care, including taxes on medical tourism providers and regulation of the amount of time health care professionals can devote to providing services for medical tourists. Relying on the work of Jeremy Snyder et al. (2013), Cohen formulates a decision-making procedure medical tourists can use to ensure that their medical tourism is ethical.

The second part of Cohen’s book concerns medical tourism for services that are illegal in the patient’s home country. Cohen starts by examining the law and ethics surrounding what is arguably the most controversial example of this form of medical tourism, transplant tourism, or tourism involving the purchase of an organ (usually a kidney). As well as providing a comprehensive overview of the existing data regarding sellers, buyers, and brokers, Cohen explores the multitude of bioethical questions this form of tourism raises, working through existing literatures concerning the ethics of organ sales in general, as well as transplant tourism in particular. Cohen rejects common corruption, crowding out, coercion, and exploitation arguments in support of prohibiting transplant tourism. Instead, relying on existing data which shows that the majority of kidney sellers regret their decision, Cohen argues that the real moral problem with transplant tourism resides with the informational deficits and bounded rationality exhibited by sellers. While these problems could be addressed by a well-regulated international market in organs, Cohen is not confident that such a market is feasible. He therefore concludes that a prohibition on transplant tourism is morally permissible as a form of justified paternalism, and is likely the best feasible policy option. Successful enforcement of such a prohibition, Cohen argues, requires a multimodal approach, involving better enforcement of destination country prohibitions, professional self-policing, and the introduction of various home-country regulations to deter transplant tourism and increase the supply of donated organs.

Cohen turns next to the law and ethics of medical tourism for assisted suicide and abortion. Both are examples of what Cohen calls “circumvention tourism” since the aim of the patients in question is to access services legal in the destination country but illegal in the home country. Cohen explores the legal question regarding whether—under international law—home countries may prosecute their citizens for seeking or assisting assisted suicide or abortion abroad, finding that they may; and also explores the ethical question of whether they should do so. In tackling this issue, Cohen sidesteps the question of what domestic legislation regarding assisted suicide and abortion should be, proceeding instead on the assumption that whatever domestic legislation is in place is normatively well-grounded. The question Cohen addresses is thus whether home countries should prosecute citizens who access or assist abortions or assisted suicides abroad, on the assumption that domestic prohibitions of these services are just. On the basis of lengthy and sophisticated argumentation, Cohen claims that they should, though he admits the argument for doing so in the case of assisted suicide is weaker than in the case of abortion.

Cohen also examines the law and ethics of fertility tourism. A number of countries legally prohibit certain forms of reproductive technologies and surrogacy contracts and so their citizens often travel to countries where such contracts are legal, including low-income countries like India and high-income countries like the U.S. After providing an overview of the empirical evidence regarding this type of tourism, Cohen first addresses the question of whether home countries should criminalize fertility tourism that circumvents home country prohibitions, including prohibitions regarding egg and sperm sales, commercial surrogacy, sex selection, and anonymous sperm donation. Proceeding on the assumption that home country legislation is ethically sound, Cohen argues that whether extraterritorial criminalization is justified or not depends on the home country’s justification for the domestic prohibition. If the justification is to prevent harm to the resultant child—a justification often appealed to in order to support prohibitions on anonymous sperm donation and the use of reproductive technologies by single individuals or LGBT couples—then home countries should criminalize circumvention fertility tourism. Home countries have no reason to discriminate in this context between harm done domestically and harm done abroad. If the justification for domestic criminalization references concerns regarding corruption and commodification—a common justification for prohibitions on commercial surrogacy—Cohen suggests that home countries also have reason to criminalize circumvention tourism, though the reason is much stronger, Cohen claims, when the prohibited practice is intrinsically corrupting rather than simply likely to have corrupting effects. If the justification for home country prohibitions is exploitation—a common justification for prohibiting commercial surrogacy—then, Cohen suggests, there may be no justification for criminalizing circumvention tourism. Where a surrogacy contract is located, Cohen argues, greatly influences whether it is exploitative or not. Focusing on surrogacy contracts in India, Cohen notes that such contracts are often a very good deal for low-income Indian women, given their other options, and so it is arguable that surrogacy contracts between such women and fertility tourists are not exploitative.

Finally, Cohen addresses the question of whether home countries should grant citizenship or at least residency to children born abroad through circumvention fertility tourism. In cases where both home and destination countries permit the reproductive practice in question, or where the grounds for home country prohibitions do not justify extraterritorial criminalization, Cohen suggests that countries should work to facilitate immigration of the resultant child to the home country. In cases of circumvention tourism where extraterritorial criminalization is justified, Cohen argues that it is permissible under certain circumstances for home countries to not extend citizenship or residency to children resulting from circumvention fertility tourism, and that the appropriate policy for home countries is one that weighs the deterrent and retributive value of not granting such status, against the possible harms to the resulting child—e.g., of not being raised by his or her intended parents or of being stateless.

In his final chapter, Cohen explores the law and ethics of medical tourism for experimental therapies unavailable in the patient’s home country, focusing on tourism for stem cell therapies. Cohen first offers a comprehensive overview of the existing literature regarding the practice of stem cell tourism, finding little regulatory oversight of clinics offering unproven therapies to patients. He then addresses two ethical and regulatory questions that the practice of stem cell tourism raises. First, how might the current “wild west” of stem cell tourism be regulated to foster innovation while protecting patients? Second, what are the duties of states and physicians in cases where parents take their children abroad to receive stem cell therapies?

With respect to the first question, Cohen suggests that there is a legitimate role for stem cell therapy innovation outside of the rather restrictive regulatory regimes of many countries. He therefore argues in favor of a channeling approach to regulation, one that directs patients to legitimate clinics and promising therapies. More specifically, Cohen suggests that a review system proposed by the International Society for Stem Cell Research be implemented by a national, supranational, or international body as a way of accrediting clinics and the particular stem cell therapies they offer. With respect to the second question, Cohen argues that states have an obligation to protect children from stem cell tourism unless there is scientific evidence to suggest that the risks to the child are minor and/or outweighed by the legitimate promise of clinical benefit. Cohen argues further that physicians have a duty to report parents to child protective services in cases where this condition is not satisfied (though he of course recommends that physicians first attempt to dissuade parents from seeking such stem cell therapies for their children).

Patients with Passports is an ambitious book and, for the most part, Cohen successfully realizes his aim of providing a comprehensive treatment of the legal and ethical issues raised by medical tourism. My only criticism is that Cohen’s ethical analysis is at times uneven, with some policies receiving greater argumentative support than others. For example, Cohen’s policy proposals on transplant tourism and circumvention tourism for assisted death, abortion, and reproductive services are rigorously defended. By contrast, I found Cohen’s treatment of the effects of medical tourism for legal services on low-income residents of low- and middle-income countries to be largely unsatisfying. As I note above, to determine whether high-income home countries have duties of justice to address the potentially negative effects of their citizens’ medical tourism, Cohen explores prominent theories of global justice and investigates their implications for medical tourism. Cohen finds no overlapping consensus amongst these theories regarding this issue, but claims that they nonetheless share two central tendencies—that states and international organizations have the strongest duties to intervene in insurer-prompted and government-prompted medical tourism. It wasn’t entirely clear to me why Cohen thinks the various theories of global justice under discussion—particularly cosmopolitan and statist theories—share these tendencies, and Cohen says very little to justify this claim. As a result, Cohen’s conclusions regarding the duties of high-income home countries regarding legal medical tourism lack sufficient support. Cohen admits that his policy prescriptions with respect to this issue are tentative and that his aim is limited to mapping the terrain of global justice theories and commenting on their application to medical tourism. But it strikes me that Cohen could have arrived at less tentative, better-supported conclusions had he adopted a less theoretical, bottom-up approach to this question, that is, an approach that considers the feasible policy options on the table and adjudicates amongst them on the basis of widely-held principles of political morality.

I also found Cohen’s conclusions regarding the duties of states and physicians regarding pediatric stem cell tourism to be in need of further argumentation. Cohen adopts strong positions on these questions, but, in my view, does not sufficiently support them. Recall that Cohen claims that states have an obligation to protect children from stem cell tourism unless there is scientific evidence to suggest that the risks to the child are minor and/or outweighed by the legitimate promise of clinical benefit, and that physicians have a duty to report parents to child protective services in cases where this condition is not satisfied. Cohen notes that a possible implication of his view is that states should intervene—and physicians should report – in most cases of pediatric stem cell tourism. Cohen recognizes that other scholars have taken a slightly weaker position on the question of physician obligations in particular, granting physicians more discretion with respect to cases where the risks are unknown or uncertain—the most common case of pediatric stem cell tourism. But, Cohen says very little to explain why his stronger view is the correct one. I don’t think Cohen’s position is necessarily wrong, but a physician’s decision to report parents to child protective agencies is weighty and consequential. In my view, Cohen needs to say much more to establish that his view on this question is the appropriate one to guide practice.

In closing, I would emphasize that these criticisms of Cohen’s book are quite minor, amounting only to requests for further defense of prima facie sensible policy prescriptions. Patient with Passports is an excellent and impressive book, and I expect it to make a significant and lasting contribution to discussions regarding the legal and ethical issues raised by medical tourism.

Douglas MacKay, PhD
Assistant Professor, Duncan and Rebecca MacRae Fellow, Department of Public Policy
Core Faculty Member, Center for Bioethics
University of North Carolina at Chapel Hill
Chapel Hill, NC, USA

REFERENCES

Snyder, Jeremy, Valorie Crooks, Rory Johnston, and Paul Kingsbury. 2013. “Beyond Sun, Sand, and Stiches: Assigning Responsibility for the Harms of Medical Tourism.” Bioethics 27 (5): 233-242.