PATIENTS WITH PASSPORTS: MEDICAL TOURISM, LAW, AND ETHICS.
The rising cost of healthcare and the legality of certain medical procedures have become nation-dividing controversies. Whether they are for private or public healthcare (1) or the legality or illegality of a procedure, (2) everyone seems to weigh in on these controversies. Seeking lower costs, some individuals and providers are willing to go so far as to leave the country. (3) Others, finding a procedure illegal at home, may be willing to go abroad to have it performed. (4) Breaking these topics down into discrete sub-issues and their implications, Professor Cohen's Patients with Passports provides a broad overview of the medical tourism industry, its benefits, its downsides, its legal implications, and some possible regulations. (5)
Ignatius Glenn Cohen is currently a Professor of Law at Harvard Law School. (6) He previously clerked for the U.S. Court of Appeals for the First Circuit, and has worked as an appellate litigator for the U.S. Department of Justice's Civil Division. (7) He has authored or edited an extensive list of literature in the crossroads of bioethics and health law. (8)
Medical tourism is a phenomenon where patients leave their "home country" for a "destination country" to make use of some comparative benefit of the destination's medical system. (9) This may sound sinister, but it is legal--and sometimes necessary--to receive a medical procedure abroad, and it is an important economic field in some countries, states, and territories. (10) While the phenomenon is not inherently sinister, Professor Cohen broadly divides the book along the line of legality and illegality in a patient's home country. (11)
The book begins by describing the actors of the medical tourism industry. (12) Professor Cohen formulates seven types of actors: the destination hospital, destination government, accreditors, facilitators, insurers, home country partners, and industries. (13) While some of these actors are self-explanatory, some deserve more explanation. A group that bears mentioning, but will not be discussed thoroughly, is the facilitators. (14) While these intermediaries between patient and the destination facility are an important aspect of the industry, facilitators vary too much to give useful description without considerable discussion on the topic. Two generalizations are worthy of note: facilitators have no uniform accreditation or training system, and they operate with significant conflicts of interest. (15) On the other hand, two of the accreditors will be referenced continually throughout this book review: the Joint Commission ("JC") is a nonprofit organization responsible for accrediting most U.S. hospitals for participation in Medicare and Medicaid, and the related Joint Commission International ("JCI") extends the accrediting mission of the JC worldwide. (16) There are notable concerns about the JC that by association may also be attributed to the JCI. (17) The JC is often considered too close to the industry it regulates, potentially leading to accreditors overlooking some faults in the accreditation-seeking organization. (18) JCI accreditation occurs in three-year intervals, upon a renewal survey. (19) Unlike the JC's unannounced surveys, the JCI appears to specifically schedule its surveys. (20) This may be problematic to an extent because some indicate that unannounced surveys are more indicative of actual hospital procedures than announced surveys. (21)
II. ANALYSIS OF MEDICAL TOURISM IN TERMS OF PROCEDURES THAT ARE LEGAL IN THE HOME COUNTRY
Professor Cohen devotes the first half of Patients with Passports to discussing procedures that are legal in the home country (22) This book review first analyzes the risks that may arise from medical tourism and to what extent those risks justify regulatory action using Professor Cohen's analysis. Later it discusses what can be done about these risks, including information disclosure and regulatory action (23) Ultimately, there is a risk of bringing dangerous diseases back from abroad which justifies regulatory action such as Professor Cohen's 'channeling' approach to regulation. (24)
A. Risk Analysis
The absence of empirical evidence creates a large hurdle in analyzing the medical tourism industry. (25) There is no international database that satisfactorily documents the empirical evidence we might want to look to when evaluating the risks of medical tourism. Even if there were, it would be difficult to find a useful baseline for a comparative analysis of risks and outcomes. From the United States perspective, one might naturally assume that a comparison against the risks and quality of healthcare in the United States is appropriate. In determining quality by outcomes, the "heterogeneity" in hospitals in the U.S. undermines the assumption that we can use healthcare in the U.S. as a meaningful center point. (26) The range of outcomes is far too nebulous, and one would have to arbitrarily choose some point within the range to use as a comparative baseline. Ultimately, there is not enough data to support that type of comparative analysis, even if there were an acceptable baseline. (27)
Instead of looking at raw empirical data, based on the data and hypotheses available, Professor Cohen recognizes three risks in the medical tourism industry: (1) those due to improperly performed procedures; (2) disease transmission; and (3) problems in follow-up care. (28) Furthermore, in assessing whether these risks morally justify regulatory action, Professor Cohen offers a moral scale between libertarianism and paternalism. (29) In applying these two divergent justification directly to Professor Cohen's Identified risks, it is first necessary to discuss the distinction between those two philosophies first. (30)
Professor Cohen explains that in the libertarian perspective "freedom includes the freedom to fail and put oneself at jeopardy, and that the State's role ends with providing or regulating the flow of information." (31) Thus, while libertarians may find intervention justified when externalities harm those who were put in jeopardy by others' choices, the libertarian philosophy emphasizes information disclosure. (32) Paternalists believe "it is the state's role, indeed its duty, to protect individuals from bad choices." (33) These poles create a scale where a libertarian perspective would require significant externalities to justify regulatory action, but information disclosure is justified under either approach. (34) Professor Cohen includes this scale as one consideration among three to measure whether intervention that restricts patient choice is justified, but assumes information disclosure is always justified under either philosophy. (35) In analyzing the risks he proposes, it makes more sense to discuss where an individual risk falls on the scale than to discuss the philosophies as separate, abstract concepts as Professor Cohen does. (36)
As with most subtopics in medical tourism, there is insufficient data and documentation relating to procedures performed improperly abroad to make conclusions on hard data. (37) Thus, Professor Cohen relies on two studies, both of which are quite limited. (38) In the Turner study, by looking through news reports, one researcher found that middle to low-income women are at particular risk in medical tourism for cosmetic and bariatric surgery. (39) In the second ("Canadian Study"), Professor Cohen and other experts discussed the experience of medical professionals dealing with patients who had resorted to medical tourism. (40) While the participants express concern, little else is expressed; in their words, "when it goes wrong it really goes wrong." (41) The highly limited nature of the data and these studies, creates a significant problem in the analysis (42) The first study indicates a useful cross section, but the news-search based study has significant limitations in trustworthiness. The second study comes from medical professionals, but it is phrased inarticulately and gives no real data to quantify the problem. (43) The lack of reliable or specific data definitively supports the creation of an information disclosure system. Without quantifiable or reliable data, regulatory action on the basis of improperly performed procedures may be premature regardless of whether one uses a libertarian or paternalistic guideline.
Fortunately--or, in another sense, unfortunately--there is a bevy of records to underline the risk of disease transmission in medical tourism, because "medical tourists are very good targets of opportunities for pathogens." (44) The risk of picking up an international bug and returning it home then becomes a quantifiable concern. (45) Initially, medical tourists may pick up a disease within the hospital or during their time recuperating (46) High-income countries see significant in-house infections, but the risks are higher in low-income countries. (47) Furthermore, while airplanes are typically safe when it comes to disease transmission, they are far from foolproof. (48) For example, in 2003, the Severe Acute Respiratory Syndrome ("SARS") outbreak started with one infected passenger and ended with sixteen confirmed cases (49) Of these sixteen, eight sat within three rows of patient zero. (50) In another case, after sitting on the runway for three hours without ventilation, seventy-two percent of fifty-four passengers had influenza within three days. (51) Even if disease screening before boarding airplanes were possible, it would be easy enough to get around. (52) In 2007, when the U.S. refused passage to a man from Europe with Tuberculosis, (53) he simply flew into Canada instead, and crossed the border into the U.S. by rental car. (54)
What makes "circular migration" through medical tourism truly frightening is the risk of spreading serious diseases, such as those caused by antibiotic resistant bacteria. (55) There are multiple cases where medical tourists brought back bacteria resistant to antibiotics. (56) In 2008, a Swedish man returned from India where he had two operations; he developed a urinary tract infection from New Delhi Metallo-betadactamase-1 ("NDM-"). (57) Shortly after, in 2009, twenty-nine people in the United Kingdom tested positive for NDM-1, and seventeen had been to India or Pakistan within the year. (58) Fourteen had received medical treatment. (59) Since then, hundreds of cases have appeared, and NDM-1 has been found in standing water and tap water in India and the Balkans (60) If even the purist libertarian viewpoint will regulate to prevent externalities, the fear of medical tourists bringing in dangerous or difficult to treat diseases into the United States provides ample justification for regulating medical tourism beyond just information disclosure. (61)
Lastly, Professor Cohen discusses difficulties in follow-up care. In the Canadian study, healthcare professionals note returning medical tourists rarely press the out-of country facilities for health records and that when they ask they are usually rebuffed. (62) The Center for Disease Control ("CDC") seems to note similar concerns. (63) On the CDC's page for medical tourism, it suggests bringing your medical records, arranging for follow-up care, and getting records before returning to the home country. (64) This is within the patient's power, and the instructions are not hard to find on the internet. (65) Thus, of the three risks, the problems in follow-up care do not appear to justify regulation under a libertarian viewpoint where it is within a patient's power to get the necessary records.
Of the three risks Professor Cohen identifies--improperly performed procedures, disease transmission, and failures in follow-up care--the risk of disease transmission is a compelling justification for regulation, whether we base the conclusion in libertarian or paternalistic philosophies. The danger posed by improperly performed procedures may ultimately justify regulation, but there is not enough current information for this risk to justify regulation, at least when considered alone. Instead, the lack of information justifies information collection and disclosure. The risk of inadequate follow-up care probably does not justify regulation without considering the bounded rationality problem discussed in the next section. While only one of the three risks can potentially stand on its own two feet if looked at from any libertarian viewpoint, it is very likely that the implementation of effective regulations of one risk would make it significantly easier to implement the others.
B. Analysis of Regulatory and Patient-Protective Measures
The first step to improve quality of care and potentially minimize the risk of medical tourism would be to provide better information to would-be medical tourists. According to Professor Cohen, medical tourism facilities point to three factors to assure would be tourists of their quality: JCI Accreditation, the number of western trained doctors working at the facility, and any association with western hospitals. (66)
Both the CDC and Professor Cohen recommend looking to a facility's JC1 accreditation as an indicator of their quality. (67) Professor Cohen points out that JCI accreditation is both very expensive and procedure-based rather than outcome-based. (68) It essentially follows the same formulae as the JC in the U.S. (69) Hospitals in the U.S. vary greatly in their outcomes. (70) This heterogeneity in outcomes despite relatively uniform regulations suggests that this accreditation model does not do a very good job of assuring outcomes. (71) Thus, the fact that an organization has western doctors does nothing more to predict good outcomes. (72) As for cooperation with western hospitals, Professor Cohen admits that particularly egregious behavior in one hospital would sever the relationship. (73) He does not think that it has a large enough impact to effectively improve the quality assurance of this factor, however. (74)
Professor Cohen's ideal information system is a third-party entity that accredited facilities on an outcome basis. (75) The JCI immediately comes to mind, particularly if continuing accreditation was to hinge on disclosure of necessary information and the JCI evaluated performance, not just procedure. (76) Professor Cohen concludes that, while the JCI may be ideal, its interest in accreditation detracts from its authority. (77) Instead, the U.S. or the E.U. might be more realistic accreditors. (78) Both have enough leverage over foreign facilities and their governments to force an auditing and disclosure system. (79) In theory, that information could be used to create a list such as the CDC's lists for fertility clinic success rates. (80)
From the U.S. perspective, it is hard to believe it would end up any less invested, due to political lobbying. (81) The medical industry is a huge field across the U.S. (82) At least with a supply and demand theory, sending patients overseas to avoid costs here would be contrary to U.S. interests, as this could drive down demand here and force costs to go down as well. Especially in light of a government ostensibly focusing on deregulation as of 2018, it seems the JCI or E.U. are the likelier parties to implement this information system. (83)
Information alone is not enough to protect against the risks of medical tourism. (84) While there are other reasons for this, the most compelling reason is the 'bounded rationality' problem. (85) Given the enormity of information available, the limits of a given mind, and the limits of time in relation to other priorities, people make satisfactory choices and not optimal ones. (86) In context, empirical data suggests that patients do not fully avail themselves to information to make the best decisions in terms of medical care. (87) The concern here is that even if an information disclosure system were put into practice it would not necessarily be used by those who might benefit from it. (88) On the other hand, given that a medical tourist is literally going out of their way to get treatment, one might imagine that tourist would go to greater lengths than others to be informed. Facilitators may convince them to take a good deal, and the tourist might do no research whatsoever. Ultimately, there is no data to this problem as applied to medical tourism, but this book review presumes bounded rationality would have some impact.
The law as an incentive to provide quality professional care has been conspicuously absent from this discussion so far. "In the United States, there are several interlocking regulatory and tort mechanisms designed to protect patients in the [healthcare] setting." (89) Legal liability is a large concern. (90) Setting aside an argument that medical malpractice is not a particularly effective regulatory mechanism, medical malpractice as it stands is not going to be available to medical tourists going abroad, at least not as we normally understand it. (91) Professor Cohen points out several legal barriers: personal jurisdiction, forum non conveniens, and the general barriers of suing abroad. (92)
It is constitutionally required that a court in the United States have personal jurisdiction over the defendant, (93) in this context the defendant is the facility performing the operation in the destination country. (94) One way a court could have personal jurisdiction is if the defendant's contacts with a state are so systematic and continuous to make it at home ("general personal jurisdiction"). (95) That probably is not going to be the case for a hospital in another country. The other way is if a defendant deliberately reaches into a state to make contact, and the cause of action arises from that contact ("specific personal jurisdiction"). (96) With regards to the internet or facilitators, passive advertisement is generally insufficient to establish specific personal jurisdiction (97) Thus, it is unlikely the facts necessary for establishing personal jurisdiction will arise in a medical tourism case. (98)
Under the forum non conveniens doctrine, a medical malpractice suit over a foreign hospital will also likely fail. If there is a proper alternate forum and that forum is preferable under a factor test, (99) a court can dismiss the case. (100) As long as the legal system in the destination country will support the suit, the first condition is probably met. (101) The factor test will also probably favor the defendant, given its focus on availability of evidence and the burden on die defendant. (102) Thus, even if a court could establish personal jurisdiction, forum non conveniens would usually be applicable.
Between personal jurisdiction and forum non conveniens, it is very likely that a plaintiff will have to sue in the destination court, under destination law. Even if they were in a United States court, the law of the place of injury would usually apply. (103) This is disadvantageous to the plaintiff, because many foreign governments and legal systems have very limited compensation for successful medical malpractice suits. (104) Most foreign legal systems do not support the large rewards associated with courts in the United States. (105) In summary, suing for medical malpractice is not an effective means of enforcing quality in medical facilities abroad.
It is not clear that the loss of legal liability is a bad because legal restrictions can regulate a patient out of a cure. For instance, "[w]e largely prevent individuals from trading a reduction in med[ical] -mal[practice] remedies for better surgical prices." (106) In U.S. courts, this applies to contractually waived liability. (107) As a policy, an absolute ban on contractually waived liability is problematic. Assuming that reduced costs to patients is desirable, banning medical tourism because there is no legal remedy would put the cart before the horse, especially in the cases of those who might otherwise be unable to properly afford the procedure at home. (108) The absence of a legal recourse to a medical tourist may only further justify some type of protection or regulatory measure.
Thus, the conversation turns to regulation. In this field, Professor Cohen proposes three evaluative considerations. (109) The first is the efficiency and administrative feasibility of regulations. (110) The second is where a regulation is over-inclusive. (111) The last is "the scope of justified paternalism." (112) Having already discussed the risks in relation to a libertarian-paternalist scale, this book review will now discuss the actual regulations Professor Cohen proposes, namely "channeling."
The term "channeling" refers to Professor Cohen proposal that the government channel potential medical tourists to a pre-approved list of facilities and services via incentives. (113) The exact form varies, and Professor Cohen offers several options. (114) The first option is to channel by service, and it is particularly aware of the over-inclusivity concern. (115) Another option is to channel by experience, which may suffer from higher administrative costs. (116) A third option is to channel by accreditation, despite the concerns expressed previously. (117) Professor Cohen's ideal channeling method is one that channels by outcome and infection data. (118) In light of the conclusion that the risk of disease transmission best justifies government regulation, this method is ideal. Professor Cohen concludes--and this book review concurs--that it is the least realistic of the methods, while the previous three methods are relatively easy to implement. (119)
III. ANALYSIS OF MEDICAL TOURISM IN RELATION TO PROCEDURES THAT ARE ILLEGAL IN THE HOME COUNTRY
In the second half of the book, Professor Cohen examines the regulation of procedures that are illegal in the home country. Unlike the first half of the book, the chapters in this half are specific to types of procedure such as, organ transplantation, life ending services, and life-starting services. Due to the illegality of the procedures in the home countries and the effects on reporting, parts of this have the book are significantly more speculative than the first half. (120) With the exception of organ transplantation, the other procedures are largely discussed for bioethical considerations. It is beyond the scope of this review to explore the controversial and abstract ethical arguments behind procedures like assisted suicide or abortion in any real depth. Instead, it will focus on more concrete discussions of the mechanics of potential regulation and policy, briefly previewing some of the bioethical arguments to provide context.
A. Framing Some of the Bioethical Issues
The second half of the book spends a great deal of time discussing whether a home country should regulate medical tourism for procedures illegal in the home country. (121) Even within the category of procedures illegal in the home country, a significant distinction in bioethical arguments arises when the procedures is illegal in the destination country as well. (122) To illustrate the difference, this review draws on the bioethical arguments regarding paying for organ transplants--which is illegal in every state, but Iran--and procedures to end life such as abortion and assisted suicide. (123)
Generally, policy makers and academics are in agreement that a commodified organ trade should be prohibited or, at the least, strictly regulated. (124) Despite the near universal outlawing of commodification, using kidney transplants as an example, Professor Cohen makes an in depth bioethical argument for a nation to regulate its citizens' medical tourism. (125) The first bioethical argument that he debunks is the argument that paying organ donors dehumanizes human beings by reducing their parts to commodities. (126) He is quick to point out that there is a false dichotomy of commodity and non-commodity in organ transplants. (127) In 2000, a study found that in the United States seventy-percent of organ procurement agencies sanctioned by the government sold body parts directly to for-profit firms at significant profit, with one achieving as much as seventy-three million dollars in revenues. (128) Professor Cohen also dismisses concerns that allowing the sale of organs by their original owners the number of donors would go down as a speculative concern. (129) Dismissing the technical qualifications of coercion, exploitation, and undue inducement, he argues that justified paternalism is ultimately the bioethical justification for prohibition of the commodification of organs. (130) This argument, while philosophically stimulating, seems like a moot point in relation to regulation. If something is illegal both at home and abroad, it is not immediately evident why one would need a sophisticated justification for prohibiting their citizens from performing the action abroad.
Along that same principle, in depth bioetifical arguments about life-ending procedures might very well be more useful given the controversial topic and the fact that it may be illegal depending on where you live in the U.S. Notably, Professor Cohen is discussing international medical tourism exclusively, as there is case law to suggest one cannot be prosecuted for intra-state, as in the United States, medical tourism. (131) When discussing life-ending procedures such as assisted suicide and abortion, Professor Cohen's argument revolves largely revolves around a thought experiment he dubs "Murder Island." (132) The thought experiment is explored in significantly more depth in the book; therefore, admittedly, this description of the argument will be overly simple. Murder Island is a country in which--due to cultural and religious expression--murder is not a crime. (133) It is not clear in this hypothetical what would fall under murder statutorily. In this scenario, two U.S. citizens come to Murder Island and one does not know that murder is legal on the island. If the knowing citizen were to murder the unknowing citizen, Professor Cohen argues that presumptively no one would be uncomfortable if the United States exercised its jurisdiction over the murderer. (134) While Professor Cohen admits that Murder Island may object to such jurisdiction, he argues this does not appear to be sufficient reason for the U.S. not to extend jurisdiction. (135)
While his logic is generally fair, three concerns arise. First, his attempts at framing a neutral argument feel somewhat hollow. At outset, Professor Cohen claims not to be re-litigating the issue of whether there should be a domestic prohibition and works under the assumption that there is a domestic prohibition. (136) Nevertheless, he frames his thought experiment in murder as a moral absolute that no one in the U.S. would stand for. The underlying concern is that he equivocates a presumption that there is a domestic prohibition with the conclusion that the prohibited act has been deemed morally wrong universally. This seems a little more conclusory than may be appropriate when, in a democratic nation, it only takes a slight majority to impose a statute. For instance, fifty-one percent of a state might find failure to pay taxes as immoral, but forty-nine may find it perfectly acceptable; yet, there can be a statute prohibiting tax evasion without a moral consensus. That concern naturally leads into the second concern: namely, Professor Cohen provides a somewhat shallow contrast to counterarguments. One argument he mentions comes from Professor Guido Pennings. (137) Professor Pennings' argument operates on the premise that a state should not use "excessive coercive power to promote majority values" and risk "permanently suppressing minority groups" by imposing a moral opinion on persons. (138) Thus, reduced very briefly, he calls for external tolerance to ensure some form of compromise to the minority groups. (139) Professor Cohen's hypothetical overreaches the presumption he asks on the part of the reader: he only asks the reader to assume the prohibition exists. The moral conclusion, however, is implicit in the thought experiment. This seems to directly contradict Professor Pennings' concern of subjecting minorities to majoritarian processes. (140) To be fair to Professor Cohen, there may be a far larger consensus in favor of enforcing domestic prohibitions abroad on moral grounds if we were to look at medical tourism to avoid prohibitions against Female Genital Cutting. (141) Lastly, Professor Cohen does mention some justifications for an exception. (142) One of his concerns is that Murder Island might retaliate and that the size of the retaliation may be a factor to consider, naming nuclear armaments as a chief concern. (143) As a technical and practical reality, this would definitely make a difference in policy decisions. The idea that one would measure whether to implement a policy that would offend a nation's sovereignty based on whether it could effectively retaliate seems out of place in a bioethics argument. These three points are relatively minor against the logic of Professor Cohen's argument, but they point to a greater concern.
In his discussions of bioethics, the overarching concern is the amount of effort he puts into these arguments relative to their priorities. There is a near universal prohibition on an individual selling their organs. This seems like the place where Professor Cohen might justifiably argue a universal moral condemnation against organ profiteering. Prohibition against end-of-life procedures is far less ubiquitous and thus the Murder Island thought experiment actually fits far better to the organ transplant scenario, standing in for the exceptional circumstances of Iran. Professor Cohen spends unneeded time on a question that does not seem to be in debate while perhaps not spending enough time on the far more contentious issue of abortion, especially in the United States.
B. Analysis of the Mechanics of Regulating Illegal Procedures Abroad
Relative to Professor Cohen's discussion of regulations for legal procedures in the first half of the book, his discussion of regulating illegal procedures is somewhat lacking. Specifically, the discussion for end-of-life procedures seems lacking in relation to the discussion for organ transplants, mirroring the concerns discussed in the last section. (144) He does, however, lay out a guideline for the United States exercising jurisdiction by domestic crimes committed abroad and his discussion of regulation of organ transplants is likewise very helpful. (145)
In terms of its jurisdiction, the United States has the power to criminalize an act committed overseas by one of its citizens via medical tourism. (146) There are three bases for such prescriptive jurisdiction: the Nationality Principle; "subjective territorial jurisdiction;" and "objective territorial jurisdiction." (147) The exercise of jurisdiction cannot be unreasonable. (148)
The problem of course is how a state could effectively regulate such medical crimes, and Professor Cohen's discussion of the mechanics regarding organ transplant tourism helps illustrate the situation, gauge the need for home country action, and offer some guide points for regulation. First, he provides a picture of the parties involved from a number of studies: the organ sellers, the organ recipients, and the brokers. (149) Second, he discusses why despite being illegal in the destination country it may be insufficient for only the destination country to deal with the problem. (150) Third, he discusses proposed regulatory methods. (151)
Professor Cohen relies on studies that show a wide range of circumstances depending on geographic location, but the organ sellers are uniformly poor. (152) One case study interviewed fifteen men in the Philippines slum called Baseco, where it is estimated that three percent of the hundred-thousand population, have have sold a kidney. (153) Of them, two had an education that went past primary school, on average they earned about seven U.S. dollars a day, which is low even in the Philippines, and half reported feeling a significant loss of strength despite working in fields where strength was important. (154) In a case study interviewing two-hundred thirty-nine, primarily male kidney sellers, the majority of sellers worked as bonded laborers; ninety-percent were illiterate and all were quite poor, often working off inherited family debts. (155) A majority stated that after the procedure their strength had diminished and that they were still in debt. (156) Some of the more gross 'abuses' occurred in a study of thirty-three sellers in Bangladesh. (157) There, brokers often used a myth that the remaining kidney 'awakens' and completely supports the rest of the body; furthermore, of the thirty-three, only six received the full amount promised, and only two benefitted economically. (158) The exchanges are arranged by mafias and the criminal underground. (159) Among the studies used to gain information regarding recipients, there is relatively little information. (160) The studies together indicate that there is a tendency for recipients to be minorities travelling to their countries of ethnic origin for their operations. (161)
There are three mechanical reasons to suspect that the destination country's regulations alone are insufficient to enforce the local prohibition. First, it is hard to detect organ trafficking. (162) Second, the enforcement of the local prohibition is not a priority. (163) Third, there is no expertise on how to detect and enforce this type of crime. (164)
Professor Cohen proposes two potential forms of regulation. First, a coordinated effort at the state and federal level could make patients ineligible for insurance coverage relating to transplant tourism and forbid insurers from reimbursing recipients for immunosuppressive drugs and other associated costs. (165) While this raises the concern that doctors would have to watch tissue rejection, (166) Professor Cohen points out that if the rule is made public and prospective, it should prevent such situations from occurring in the first place. (167) Fie further supports his assertion by pointing out that technically, the recipients could still pay out of pocket for the drugs so that it would not be a death sentence. (168) The second option is to extend the National Organ Transplant Act of 1984 extraterritorially. (169) This would institute jail time and avoid the death penalty concern of the previous regulatory measure. Notably, both regulations suffer from the same problem: "detecting violations of domestic law that occur abroad is no easy feat." (170) Professor Cohen argues that that the doctors prescribing the immunosuppressive drugs could be imposed with a duty to report suspected incidents similar to those regarding abuse of children and the elderly. (171) Professor Cohen suspects that this would in turn put doctors in a difficult situation, and they may resist reporting and that the insurance approach may be preferable. (172)
Patients with Passports is an excellent book to gain a baseline understanding of the medical tourism industry, the benefits it may offer, the problems it poses, potential regulations, and the bioethical issues to consider in support of regulation. It suffers primarily from a lack of empirical evidence; however, this is endemic to the phenomenon at hand and the lack of empirical data ultimately encourages the use of this book. Until sufficient data has been compiled, one can only work with the information already gathered and the logical arguments one can construct from that information. Professor Cohen's book does that very well.
Reviewed by Augustus Chow, Augustus Stephen Chow is a law student at Suffolk University Law School set to graduate in 2019 and a staff member for Suffolk Law School's Journal of Health and Biomedical Law. A Boston native, he is a fellow in the Marshall-Brennan Constitutional Literacy Project, where he enjoys teaching constitutional law to underserved high school students in preparation for national moot court competitions. He can be contacted at firstname.lastname@example.org.
(1) See Why is Obamacare so Controversial?, BRITISH BROADCASTING COMPANY (July 13, 2017), http://www.bbc.com/news/world-us-canada-24370967 (discussing why healthcare issues are so divisive in U.S.).
(2) See Lydia Saad, Four Moral Issues Sharply Divide Americans, GALLUP (May 26, 2010), http://news.gallup.com/poll/137357/four-moral-issues-sharply-divide-americans.aspx (framing assisted suicide and abortion as extremely divisive issues in the U.S.).
(3) See International Living, Save Thousands as a Medical Tourist in These 5 Countries, HUFFINGTON post: The Blog, https://www.huffingtonpost.com/internationallivingcom/medicaltourism_b_11573814.html (last updated Dec. 6, 2017).
(4) See Olivia Lambert, Women Travellinginterstate to Victoria for Abortions, NEWS (Oct. 28, 2015), http://www.news.com.au/lifestyle/parenting/pregnancy/women-travelling-interstate-tovictoria-for-abortions/ news-story/086cablcfb21187671c7a06943a30b8b (discussing methods of getting around abortion laws).
(5) See generally I. GLENN COHEN, PATIENTS WITH PASSPORTS: MEDICAL TOURISM, LAW, AND ETHICS (2014) [hereinafter Patients with Passports],
(6) See I. Glenn Cohen, harv. L. SCH, http://hls.harvard.edu/faculty/directory/10176/Cohen/ (last visited Mar. 26, 2018) (detailing Professor Cohen's current projects on medical tourism and his rich publication history).
(7) See id. (describing litigation work in Court of Appeals and U.S. Supreme Court).
(8) See e.g., I. Glenn Cohen, Circumvention Tourism, 97 CORNELL L. REV. 1309 (2012) [hereinafter Circumvention Tourism] (describing process of patients bypassing illegality of medical services in home country by seeking services abroad); I. Glenn Cohen, Medical Tourism, Medical Migration, and Globaljustice: Implications for Biosecurity in a Globalised World, 25 MED. L. REV. 200 (2017) (proposing global justice theory required to develop legal responses to biosecurity risks of medical tourism); I. Glenn Cohen, Organs and Inducements: Regulating the Organ Market: Normative Foundations for Market Regulation, 77 L. & contemp. probs. 71 (2014) (exploring arguments against organ markets and potential regulatory solutions).
(9) See Circumvention Tourism, supra note 8, at 1311 (citing I. Glenn Cohen, Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument, 95 LOWA L. REV. 1467, 1471-73 (2010) [hereinafter Protecting Patient[s]; see also Devon M. Herrick, Medical Tourism: Global Competition in Healthcare 1, 2 (Nat'l Center for Policy Analysis, Policy Report No. 304, Nov. 2007), http://www.recoverdiscover.medretreat.com/templates/UserFiles/Documents/Medical%20Tourism%20-%20NCPA%20Report.pdf (listing reasons why medical costs are lower in countries other than United States).
(10) See PATIENTS WITH PASSPORTS, supra note 5, at 2; see also Sarah Tung, Is Taiwan Asia's Next One-Stop Plastic-Surgery Shop?, TIME (July 16, 2010), http://content.time.eom/time/world/article/0,8599,2004023,OO.html (describing the increase of medical tourism in Taiwan). In particular, Puerto Rico is one United States territory where medical tourism may grow to be a major industry, because "ft]he cost of medial and dental services in Puerto Rico is [forty to sixty percent] lower than in the continental U.S." Adrian Brito, Puerto Rico Set to Become Medical Tourism Hub, HUFFINGTONPOST: BLOG, https://www.huffingtonpost.com/adrian-brito/puerto-rico-set-to-become_b_7058584.html (last updated Dec. 5, 2017). Combined with other advantages, Puerto Rico has initiated a major campaign to grow its medical tourism industry. Id. Along with the low costs, the proximity to continental U.S., tax benefits, and the vitiated passport requirement all benefit Puerto Rico as a medical tourism destination, particularly for U.S. citizens. Why Puerto Rico?, P.R. TOURISM CORP., https://www.prtourism.com/dnn/Portals/_default/Turismo/Documents/Brochure%20%20Puerto%20Rico%20Medical%20Tourism%20Corp oration.pdf (last visited Mar. 26, 2018).
(11) See PATIENTS WITH PASSPORTS, supra note 5, at 2.
(12) See id. at 1.
(13) See id. at 16-33.
(14) See id. at 24.
(15) See PATIENTS WITH PASSPORTS, supra note 5, at 24-28. Some facilitators come from tourism backgrounds and are limited to experience of booking vacations rather than the associated medical experience. See id. at 25. Likewise, many facilitators charge the hospital for referral fees, incentivizing sending patients to hospitals, even if it is not a good hospital. See id. at 25-26. For instance, the Medical Tourism Association and sells itself as a non-profit offering a free service, but Professor Cohen and other experts suggest that it is in fact a highly commercialized operation. See id. at 30-40 (suggesting its medical conferences are highly commercialized); see also About the MTA, MED. TOURISM ASS'N, http://medicaltourismassociation.com/en/about-us.html (last visited Mar. 26, 2018).
(16) See e.g., Who is JCI?, JOINT COMMISSION INT'L, https://www.jointcommissioninternational.org/about-jci/who-is-jci/ (last visited Mar. 26, 2018) (discussing JCI's mission and connection to the JC); Patients Meet to Promote Mother and Child Health in the Americas, PAN AMERICAN HEALTH ORG. (Jun. 11, 2007), http://wwwl.paho.org/english/dd/pin/pr070611.htm (mentioning relation between JC and JCI).
(17) Infra notes 18-20 and accompanying text.
(18) See e.g., Ian Fisher, Public Advocate Says Hospital Accreditation System Is Faulty, N.Y. TIMES (Jan. 21, 1998), http://www.nytimes.com/1998/01/21/nyregion/public-advocate-says-hospitalaccreditation-system-is-faulty.html (criticizing accreditors giving hospitals notice of inspections thus not surveying day to day practice); Gilbert M. Gaul, Accreditors Blamed for Overlooking Problems, WASHINGTON POST (Jul. 25, 2005), http://www.washingtonpost.com/wp dyn/content/article/2005/07/24/AR2005072401023.html (criticizing JC for conflicts of interest, such as operating subsidiary to coach hospitals through accreditation).
(19) Accreditation and Certification Renewal Process, JOINT COMMISSION INT'L, https://www.jointcommissioninternational.Org/assets/3/7/19-Accreditation-Renewal Process.pdf (last visited Mar. 26, 2018) (discussing three-year renewal period) (suggesting renewal scheduling is cooperatively performed between JCI and hospital).
(20) Compare Facts About the Unannounced Survey Process, JOINT COMMISSION, https://www.jointcommission.org/facts_about_the_unannounced_survey_process/ (last updated Feb. 17, 2017) (stating most JC accreditation surveys are unannounced); with Accreditation and Certification Renewal Process, supra note 19 (suggesting renewal scheduling is cooperatively performed between JCI and hospitals); and Scheduling the Survey and Planning the Survey Agenda, JOINT COMMISSION INT'L, https://www.jointcommissioninternational.org/assets/3/7/03Scheduling-the-Survey-and-Planning -the-Survey-Agenda.pdf (last visited Mar. 26, 2018) ("JCI Accreditation and the organization select the survey date and prepare the survey agenda together to meet the organization's needs and the requirements for an efficient survey."); and JCI Survey Process Innovation News, JOINT COMMISSION LNT'L (Mar. 10, 2014), https:/ /www.jointcommissioninternational.org/jci-survey-process-innovation-news/ (delaying implementation of unannounced surveys).
(21) Ehlers et al., Unannounced Versus Announced Hospital Surveys: A Nationwide Cluster--Randomised Controlled Trial, 29(3) INT'LJ. FOR QUALITY IN HEALTH CARE 406, 407 (2017), https://academic.oup.eom/intqhc/article/29/3/406/3610961 (discussing argument against announced surveys).
(22) See PATIENTS WITH PASSPORTS, supra note 5, at 39-56 (discussing legal procedures in broad topics such as cost savings and private or public health care).
(23) See PATIENTS WITH PASSPORTS, supra note 5, at 68; see also infra note 29 (discussing spectrum of moral philosophies).
(24) See PATIENTS WITH PASSPORTS, supra note 5, at 71 (posing regulation to patients traveling for medical purposes); see also infra notes 113-119 and accompanying text. Professor Cohen presents information on incentives and deterrents to ensure patient's safety as medical tourists, holding both the providers and countries accountable. Id. at 72-77.
(25) See Patients with Passports, supra note 5, at 27, 43.
(26) Id. at 41. Despite the uniformity of regulations in the U.S., U.S. hospitals are heterogeneous in the varying rates of successful outcomes. Id. at 42 (quoting Amitabh Chandra & Jonathan S. Skinner, Geography and Racial Health Disparities, in CRITICAL PERSPECTIVES ON RACIAL AND ETHNIC DIFFERENCES IN LATE LIFE 604 (Norman B. Anderson et al, 2004)); VICTOR R. FUCHS ET AL. AREA DIFFERENCES IN UTILIZATION OF MEDICAL CARE AND MORTALITY AMONG U.S. ELDERLY, IN PERSPECTIVES ON THE ECONOMICS OF AGING 367 (David Wise ed, 2004); DARTMOUTH ATLAS OF HEALTH CARE (1998). Price and quality are not necessarily correlated. PATIENTS WITH PASSPORTS, supra note 5, at 41. For example, the Apollo Hospital in New Delhi is successful in ninety-nine percent of cardiac surgeries, on par with the best U.S. performers at a fraction of the cost. Id. at 41. (quoting Aaditya Mattoo & Randeep Rathindran, How Health Insurance Inhibits Trade in Healthcare, 25 health AFF. 358, 360 (2006)). "On the other hand, there are considerably more expensive hospitals catering to medical tourists that perform less well." patients with Passports, supra note 5, at 41. This statement assumes that a correlation between price (quite high in the U.S.) and quality and medical care abroad is inherently inferior. Id.
(27) See e.g., NEIL LUNT ET AL. QUALITY, SAFETY AND RISK IN MEDICAL TOURISM, IN MEDICAL TOURISM: THE ETHICS, REGULATION, AND MARKETING OF HEALTH MOBILITY 31, 37 (C. Michael Hall ed, 2013) (estimating that one in ten patients in modern hospitals suffer adverse outcomes); Leigh Turner, Patient Mortality in Medical Tourism: Examining News Media Reports of Deaths Following Travel for Cosmetic Surgery or for Bariatric Surgery, in THE GLOBALIZATION OF HEALTH CARE: LEGAL AND ETHICAL ISSUES 3, 25 (1. Glenn Cohen ed, 2013) (discussing difficulty in gathering data for medical tourists); Thomas R. McClean, The Global Market for Health Care: Economics and Regulation, 26 WIS. INT'L L.J. 591, 622-625 (2008) (reporting on comparative theories and prices for medical services in various countries); see also infra notes 37-42 (discussing flawed case studies on medical tourism outcomes). Several difficulties exist in outcome-based healthcare, but two stand out regarding information systems: the limited analytic abilities of health care providers and barriers to information access. See Bryan Oshiro, Dr., The Top Success Factors for Making the Switch to Outcomes-Based Healthcare, HEALTH CATALYSTS, https://www.healthcatalyst.com/Outcomes-Based-Healthcare-Top-Success-Factors (last visited Mar. 26, 2018).
(28) PATIENTS WITH PASSPORTS, supra note 5, at 44-69.
(29) Id. at 68.
(30) Compare infra note 31 and discussion (suggesting only information disclosure would be justified); with infra note 85 and discussion (discussing why bounded rationality limits information disclosure's benefit in informing decisions); and infra note 33 and discussion (suggesting governments must protect individuals from poorly informed decisions). In other words, information disclosure is always a necessary regulatory measure but may not sufficiently regulate or prevent the underlying concerns.
(31) PATIENTS WITH PASSPORTS, supra note 5, at 68.
(32) See id. at 68-69.
(33) Id. at 68.
(34) See infra note 36.
(35) See PATIENTS WITH PASSPORTS supra note 5, at 66-68; see also infra note 75 and accompanying text (discussing proposed information disclosure systems).
(36) See PATIENTS WITH PASSPORTS, supra note 5, at 68 (arguing that a libertarian view will be more concerned about risks that bring externalities). Professor Cohen discusses the bioethical arguments at great length but largely in sections somewhat separated from the regulations they are meant to justify. See id. 68-71.
(37) See id. at 45; see also supra notes 26-27 and accompanying text (discussing the lack of empirical data and difficulties of comparative analysis).
(38) See PATIENTS WITH PASSPORTS supra note 5, at 44-48.
(39) See id. at 45-47 (citing Turner, supra note 27). By searching through news reports of medical tourist deaths relating to cosmetic or bariatric surgery, it was found that twenty-five of twenty-seven deaths were women. Id. Furthermore, they were often resorting to medical tourism for the cheaper costs. Id.
(40) See id. at 47-48.
(41) patients with passports, supra note 5, at 48 (quoting Valorie a. Crooks et al, Ethical and Eegal Implications of the Risks of Medical Tourism for Patients: A Qualitative Study of Canadian Health and Safety Representatives' Perspectives, 3 BRIT. MED. J. OPEN 1, 3 (2013)).
(42) See id. at 68-69 (discussing gaps in information). The actual fatality rates are unascertainable from what little data is available; the studies show only data about the twenty-seven and some correlation with fatal procedures to income and gender. See supra note 39 text and discussion. One would need far more data to balance the monetary savings or otherwise unavailability of the procedure against the danger to determine whether regulation was justified. However, the nonessential nature of the studied operations suggests this might be a lower concern. See supra note 39 and accompanying text.
(43) See supra note 41 and accompanying text.
(44) PATIENTS WITH PASSPORTS, supra note 5, at 48 (explaining medical tourists are prone to exotic pathogens that are foreign to their immune system). "In medicine, it is common to distinguish commensals--the bugs we normally carry on our skin, mouth, digestive tracts, etc.--from pathogens, the harmful bacteria that cause disease through infection." Id. "When traveling for medical care, 'one person's commensal bacteria can be another individual's exotic pathogen.'" Id.
(45) See Crooks, supra note 4140, at 1 (traveling abroad for medical procedures increases the likelihood to bring home an international bug). "Concern has also been raised that medical tourists may transmit infections to their home countries, demonstrated through the spread of New Delhi metallo- beta-lactamase 1 to the home countries of patients who had been treated abroad." Id. at 2; see infra note 57 text and discussion (discussing NDM-1 as a anti-biotic resistant bacteria); see also Kounteya Sinhal, New Delhi Superbug Spreads to 70 Countries Across the World, TIMES OF INDIA (Sep. 17, 2015), https://timesofindia.indiatimes.com/home/science/NewDelhi-superbug-spreads-to-70 -countries-across-the-world/articleshow/48998960.cms (discussing bacteria's spread).
(46) See PATIENTS WITH PASSPORTS, supra note 5, at 51, 53 (citing T.R. Walsh et al. Dissemination of NDM-1 Positive Bacteria in the New Delhi Environment and Its Implications for Human Health: An Environmental Point Prevalence Study, 11 LANCET: INFECTIOUS DISEASES 355 (2011)) (discussing the infection of a surgical wound during post-operative recovery by washing with tap water).
(47) See PATIENTS WITH PASSPORTS, supra note 5, at 51 (determining infection risks are higher in low-income countries, but still a significant problem in high-income countries). See also World Health Organization, WHO HEALTH CARE-ASSOCIATED INFECTIONS FACT SHEET (2011) (providing data on health care-associated infections); R.M. Klevens et al. Estimating Health Care Associated Infections and Deaths in U.S. Hospitals, 2002,122 PUB. health Rep. 160 (2007) (providing data on health care-associated infections and deaths in the United States). An in-house infection is one acquired while in the hospital. See Medical Definition of Hospital-Acquired Infection, MEDICINE Net, https://www.medicinenet.com/script/main/art.asp?articlekey=10429 (last visited Mar. 26, 2018).
(48) See PATIENTS WITH PASSPORTS, supra note 5, at 49 (quoting Jill R. Hodges & Ann Marie Kimball, RISKS AND CHALLENGES IN MEDICAL TOURISM: UNDERSTANDING THE GLOBAL MARKET FOR HEALTH SERVICES, 118 (2012)) (pointing out all modes of disease transmission-contact, common vehicle, vector, and airborne--are present).
(49) See id. at 49 (explaining how SARS spread in a flight from Hong Kong to Beijing).
(50) See id. at 49 (finding that viral infections can be easily spread on airplanes). The term 'patient zero' is "[u]sed to refer to the person identified as the first carrier of a communicable disease in an outbreak of related cases." Patient Zero, OXFORD ENGLISH DICTION AIRY (3d ed. 2018).
(51) See PATIENTS WITH PASSPORTS, supra note 5, at 50 (citing Hodges, supra note 48, at 118) (noting that airplanes without ventilation can facilitate the spread of viral diseases).
(52) See id. at 49 (discussing possible gaps in disease screening on airplanes). Newer planes have HEP A filters, air filters that screen out very fine particles. See id:, see also Sarah Aguirre, What Is yl HEPA Filter and Do I Need One?, spruce, https://www.thespruce.com/do-i-need-a-hepa-filter1901189 (last updated Feb. 15, 2018) (discussing value of HEPA in vacuums). However, HEPA filters only work when the plane is running, and only newer model planes have them. See PATIENTS WITH PASSPORTS, supra note 5, at 49.
(53) See id:, see also Vikki Valentine, yl Timeline of Andrew Speaker's Infection, NAT'L PUB. RADIO (June 6, 2007), https://www.npr.org/news/specials/tb/ (explaining how a man "was able to leave and re-enter the [U.S.] despite [having] drug-resistant tuberculosis").
(54) See Valentine, supra note 53.
(55) See PATIENTS WITH PASSPORTS, supra note 5, at 51 (discussing the problems with circular migration). Circular migration is the non-permanent migration between countries that can be from months to years. See Graeme Hugo, Circular Migration: Keeping Development Rolling?, MIGRATION POL'Y INST. (June 1, 3003) (discussing the effects of circular migration). The CDC puts the total deaths caused by the Ebola outbreak between the years 2014 and 2016 at eleven-thousand, three-hundred-and-twenty-five. 2014-2016 Ebola Outbreak in West Africa, ctr. for Disease Control & Prevention, https://www.cdc.gov/vhf/ebola/outbreaks/2014-westafrica/index.html (last updated Apr. 13, 2016), The impact on the United States was limited, including only two nurses that contracted the disease locally during the outbreak. Jad Mouawad, Experts Oppose Ebola Travel Ban, Saying It Would Cut Off Worst-Hit Countries, N.Y. times (Oct. 17, 2014), https://www.nytimes.com/2014/10/18/business/experts-oppose-ebola-travel-bansaying-it-would-cut-off-worst-hit -countries,html?_r=0 (pointing out that despite being difficult to catch panic was setting into the U.S.). Nevertheless, at the time of the outbreak, there were significant fears that it would spread to the U.S., underlying the public fear of disease transmission even if this one was a bit far-fetched. Id.
(56) See infra notes 57-60 and accompanying text.
(57) See PATIENTS WITH PASSPORTS, supra note 5, at 52-53 nn.46-47 (discussing cases of people who travel for surgery and return with infectious diseases). NDM-1 is a bacteria that is resistant to antibiotics.
(58) See id. at 53 n.47 (discussing those who tested positive and their travel patterns).
(59) See id. (discussing medical procedures as a possibility for becoming infected).
(60) See id. at 53 (discussing the continued effects seen from NDM-1); see also Sarah Zhang A Woman Was Killed by a Superbug Resistant to All 26 American Antibiotics, ATLANTIC (Jan. 13, 2007), https://www.theadantic.eom/health/archive/2017/01/a-superbug-resistant-to-26-antibioticskilled-a-woman-itll-happen -again/513050/ (discussing the independent rise of pan-antibiotic-resistant bacteria, after a woman died after infection in India).
(61) See supra note 31 and accompanying text (discussing libertarian views); see also Mouawad, supra note 55 and accompanying text (discussing the panic surrounding the 2014-2016 West Africa Ebola outbreak).
(62) See PATIENTS WITH PASSPORTS, supra note 5, at 56 n.66.
(63) See infra notes 64-65 and accompanying text.
(64) See generally Medical Tourism, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/features/medicaltourism/index.html (last visited Mar. 26, 2018).
(65) See id.
(66) See PATIENTS WITH PASSPORTS, supra note 5, at 23. 59 (explaining the process for hospitals to qualify for JCI accreditation).
(67) See id. at 60.
(68) See id. at 59-60.
(69) See id. at 59-60. But see infra note 20 and accompanying text (discussing difference in announced and unannounced surveys between JCI and JC). For over sixty-years, the JCAHO has accredited roughly four-thousand-and-twenty-three hospitals, three-hundred-and-sixty-six critical access hospitals, roughly seventy-seven percent of the nation's hospitals. See Patients with Passports, supra note. 5, at 59-60; Facts About Hospital Accreditation, joint commission (Sept. 18, 2017), https://www.jointcommission.org/facts_about_hospital_accreditation/.
(70) See supra note 26 and accompanying text.
(71) See supra note 26. Beyond the heterogeneity problem, the JCI's revenues depends on accrediting more hospitals, incentivizing accreditation over rejection. See PATIENTS WITH passports, supra note 10, at 60. Furthermore, the expense of accreditation is a poor indicator of quality, because destination governments often have an interest in funding the hospital, regardless of its quality. See id. at 60. Conversely, higher quality hospitals may not be able to afford accreditation. See id. at 62.
(72) See supra note 26 (describing the varying outcomes in Western hospitals).
(73) See PATIENTS WITH PASSPORTS, supra note 5, at 62-63.
(74) See id.
(75) See id. at 62. Prior to Cohen's discussion of the ideal model, he discusses two other models. See id. at 61-63. One model would be a report card system such as those in Pennsylvania or New York. See id. at 61. The other model is the Massachusetts' system of providing publicly accessible information about doctors. See id. He concludes that they both suffer from the same flaw; while they may be able to force disclosure and audits within their sovereign bounds, they cannot enforce this system abroad. See PATIENTS WITH PASSPORTS, supra note 5, at 61. Thus, a third-party force with the proper leveraging power would be ideal. See id. at 63.
(76) See id. at 61.
(77) See id.
(78) See id. (discussing U.S. state systems and the mechanisms for obtaining information).
(79) See id. at 61-62.
(80) See PATIENTS WITH PASSPORTS, supra note 5, at 62 (suggesting an institution maintain and report outcomes for patient accessibility similar to CDC); see also 2015 Assisted Reproductive Technology Fertility Clinic Success Rates Report, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/art/reports/2015/fertility-clinic.html (last visited Mar. 26, 2018) (offering lists with outcome-based data on fertility clinics in the U.S.).
(81) See PATIENTS WITH PASSPORTS, supra note 5, at 41.
(82) See Emily Rappleye, Top 20 Healthcare lobbyists by Spending, BECKERS HOSPITAL REV. (August 21, 2015), https://www.beckershospitalreview.com/finance/top-20-healthcare-lobbyists-byspending.html (discussing the multi-billion-dollar industry in 2015); American Hospital Ass'n, Open Secrets, CTR. FOR RESPONSIVE POL., https://www.opensecrets.org/lobby/clientsum.php?id=000000116 (last visited Mar. 26, 2018) (indicating the association spent more than sixteen million dollars in 2017, which was a low year).
(83) See President Donald]. Trump is Delivering on Deregulation, WHITE HOUSE (Dec. 14, 2017), https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-delivering deregulation/; see also Tracking Deregulation in the Trump Era, BROOKINGS INST. (Oct. 20, 2017), https://www.brookings.edu/interactives/tracking-deregulation-in-the-trump-era/ (prefacing an interactive tracker for trends of deregulation during the Trump presidency). But see Alan Levin & Ari Natter, Trump Stretches Meaning of Deregulation in Touting Achievements, Bloomberg (Dec. 29, 2017), https://www.bloomberg.com/news/articles/2017-12-29/trump-stretches-meaning-ofderegulation-in-touting -achievements (casting doubt on the Trump presidency's deregulatory achievements).
(84) See PATIENTS WITH PASSPORTS, supra note 5, at 62.
(85) See id. at 64-65.
(86) See id. at 64-65; Carl e. Schneider & Mark A. Hall, The Patient Life: Can Consumers Direct Health Care?, 35 AM.J.L. & MED. 7 (2009); Christopher J. Tyson, Bounded Rationality, ENCYCLOPEDIA BRITANNICA (updated Dec. 13, 2015), https://www.britannica.com/topic/bounded-rationality. "Bounded rationality" may be defined as "the notion that a behaviour can violate a rational precept or fail to conform to a norm of ideal rationality but nevertheless be consistent with the pursuit of an appropriate set of goals or objectives." Tyson, supra.
(87) See PATIENTS WITH PASSPORTS, supra note 5, at 62-63 (explaining data showing gaps in information reaching patients).
(88) See id.
(89) See id. at 42.
(90) See id. at 42, 81 (positing that the theory of medical malpractice incentivizes superior care and compensates the victim). Medical malpractice is a tort defined as a doctor's failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances. Medical Malpractice, BLACK'S LAW DICTIONARY (9th ed. 2009).
(91) See PATIENTS WITH PASSPORTS, supra note 5, at 81, 95 (pointing out that some forms of med-mal are not very effective); see also T.A. Brennan et al., Incidence of Adverse Events and Negligence in Hospitalised Patients. Results of the Harvard Medical Practice Study I, 324 N. ENGL. J. MED. 370 (1991) (offering evidence suggesting that med-mal claims do not encourage quality care).
(92) See PATIENTS WITH PASSPORTS, supra note 5, at 83, 85-86.
(93) See generally Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) (discussing personal jurisdiction).
(94) See Fed. R. Civ. P. 4(k) (describing rule for personal jurisdiction); see also Int'l Shoe, 326 U.S. at 316 (discussing the minimum contacts test).
(95) See Daimler AG v. Baugman, 134 S.Ct. 746, 754 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)) ("A court may assert general jurisdiction over foreign (sister-state or foreign country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum state.").
(96) See e.g., Int'l Shoe Co. v. Washington, 326 U.S. at 316 (requiring minimum contacts to establish specific personal jurisdiction; World-Wide Volkswagen v. Woodson, 444 U.S. 286, 295 (1980) (requiring a defendant purposefully avail itself to state in which suit is brought for jurisdiction); Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 114 (1987) (rejecting jurisdiction based on minimum contacts for being too unreasonable). These cases collectively establishing the basic tenants of specific personal jurisdiction. See Int'l Shoe Co., 326 U.S. at 316; World-Wide Volkswagen, 444 U.S. at 295.
(97) See PATIENTS WITH PASSPORTS, supra note 5, at 85; see also World-Wide Volkswagon, 444 U.S. at 295 (requiring defendant purposefully avail itself to a state to establish jurisdiction); Asahi Metal Industry, 480 U.S. at 114 (requinng more than mere awareness of commercial relation to state to establish jurisdiction). These cases together suggest some active rather than passive involvement in a forum state to establish jurisdiction. See World-Wide Volkswagon, 444 U.S. at 295; Asahi Metal Industry, 480 U.S. at 114.
(98) See supra notes 93-97 and accompanying text. The defendant hospital cannot be at home in a U.S. court, unless its contacts were so systematic and continuous as to render it at home. See supra note 95 and accompanying text. The hospital would have had to purposefully avail itself to the U.S. and, in particular, to the citizen who sued for a court to exert specific personal jurisdiction. See supra note 97 and accompanying text.
(99) See supra note 102.
(100) See PATIENTS WITH PASSPORTS, supra note 5, at 85.
(101) See id.
(102) See id. at 86; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (describing the Gilbert balancing test for forum non conveniens); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 253 (1981) (discussing the burden on defendant and importance of availability of evidence).
Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
Gilbert, 330 U.S. at 508.
(103) See PATIENTS WITH PASSPORTS, supra note 5, at 88.
(104) See id. at 87. For instance, courts in India, Thailand, Malaysia, Singapore, and Mexico provide little protection to victims of medical malpractice. Id.
(105) See id. at 88 (describing legal hazards of citizens pursuing med-mal claims in less developed countries).
(106) PATIENTS WITH PASSPORTS, supra note 5, at 99.
(107) See id. at 100 (citing Tunkl v. Regents of the Univ. of Cal., 383 P.2d 441, 442-49 (Cal. 1963)).
(108) See id. at 101-102.
(109) See id. at 66.
(110) See id. In other words, we are concerned with the efficacy, ease, and efficiency of administering the regulation. Id. For instance, it is hard to effectively prosecute an abortion received abroad, even if it is illegal in the home country. See PATIENTS WITH PASSPORTS, supra note 5, at 69.
(111) See id. at 66. In other words, we are concerned that by regulating medical tourism we may prevent the tourist from getting the aid they may require, by forcing them to look to providers outside their affordable range. See id. at 67. Facilitators are the middlemen who connect patients in a home country with destination country hospitals and physicians. Id. Some facilitators are in corporate forms, dealing with hundreds of patients each year, while others take on a sole proprietor role, advocating for fewer than twenty patients per year. Id. There is no commonly accepted regulatory training process for facilitators, and many facilitators operate with significant conflicts of interest. Id.
(112) See PATIENTS WITH PASSPORTS, supra note 5, at 68.
(113) See id. at 72.
(114) See infra notes 115-118 (outlining options for how and where to channel medical tourists).
(115) PATIENTS WITH PASSPORTS, supra note 5, at 73. The over-inclusivity concern arises if we were to ban certain non-essential services abroad, namely cosmetic surgery. See id. The high price of cosmetic surgery at home would be an insurmountable hurdle, and the patient may risk the surgery in non-vetted facilities. See id. at 74; see also supra note 39 accompanying text and discussion (discussing deaths of low-income women seeking cheaper cosmetic surgery abroad). Specifically, this option would channel patients to low-risk services. PATIENTS WITH PASSPORTS, supra note 5, at 73.
(116) See id. at 74; Aaron D. Twerski & Neil B. Cohen, The Second Revolution in Informed Consent: Comparing Physicians to Each Other., 94 NW. U. L. REV. 1 (1999). This method assumes that practice makes perfect and thus channels patients to facilities that perform a high volume of a certain procedure with a low ratio of adverse outcomes. See PATIENTS WITH PASSPORTS, supra note 5, at 74. This method requires an auditing system, explaining the higher administrative cost. See id.
(117) See PATIENTS WITH PASSPORTS, supra note 5, at 52, 75; supra note 68 (explaining the concern of channeling by accreditation). Channeling by accreditation is one possible signal, but there are also signals like number of U.S. trained physicians. PATIENTS WITH PASSPORTS, supra note 5, at 75. At least in theory, "[h]ospitals that have received a JCI accreditation have shown their ability to meet a demanding (and expensive) set of process-based requirements." Id. There are legitimate concerns that these signals are less than sufficient. See supra note 68 and accompanying text (describing some concerns).
(118) See PATIENTS WITH PASSPORTS, supra note 5, at 76. A third party would require disclosure of a facility's relevant outcome data to receive accreditation. See id. Additionally, the third party would audit the facility and compile data from the home countries where medical tourists return to. See id. This would directly correlate to outcome rather than 'proxies' for outcome. See id.
(119) PATIENTS WITH PASSPORTS, supra note 5, at 76. Given that the necessary structures do not exist yet, channeling by outcome "is, however, the most expensive and difficult to implement". See id. Furthermore, it raises the issue of arbitrarily selecting a baseline with which to compare results. See id.
(120) See PATIENTS WITH PASSPORTS, supra note 5, at 276 (describing the illegal procedures in the home countries and effects on reporting).
(121) See id. at 261.
(122) See id. at 263.
(123) Id. at 265 (explaining Iran's policy regarding organ transplants). "[For] legal, religious, or cultural reasons, many countries have not developed robust cadaveric organ procurement systems, such that there is unmet demand for organs from live donors." PATIENTS WITH PASSPORTS, supra note 5, at 265.
(124) See id. at 283 (explaining commodified organ trade arguments). "Those in favor of blocking exchanges tend to rely most often on three types of arguments: (1) corruption, (2) crowding out, and (3) coercion/exploitation/undue inducement." Id. at 263.
(125) See. id. at 265 (explaining the argument of academics and policymakers of transplant tourism).
(126) See Patients with Passports, supra note 5, at 283. First, Professor Cohen is not sure why affixing a market price to an organ--such as a kidney--that can be removed without destroying a person's individual existence somehow weakens their value as a human being. Id. at 284. While this may be true, his argument might be weaker if it used a heart transplant as the example--in which case the sale of the heart might very well put a price tag on a human life. Id. at 284. The second point he brings up is there is no reason that selling an organ for money is inherently damaging to humanity when compared to donating an organ for the "joy of helping others." Id.
(127) See Patients with Passports, supra note 5, at 284-85.
(128) See id. (explaining the for-profit firm's profit margin); see also Michele Goodwin, Altruism's Limits: Law, Capacity, and Organ Commodification, 56 RUTGERS L. REV. 305, 383 (2004) (explaining the value of body parts to for-profit firms bringing in large margins of revenue).
(129) See PATIENTS WITH PASSPORTS, supra note 5, at 286-87 (arguing bioethical concern to allow sale of organs reduces donor pool has little evidentiary support). Allowing people to sell their organs theoretically "discourages altruistic giving and ultimately decreases supply." Id. But for transplant tourism, this "motivational crowding out" does not apply. Id. at 287 (noting a lack of evidence to support the phenomenon).
(130) See id. at 287-304. Professor Cohen argues coercion requires two conditions: (1) there can be no acceptable choice but to take part and (2) the individual offering the money has to have the right to make the proposal. PATIENTS WITH PASSPORTS, supra note 5, at 290. Here, Professor Cohen argues that the transplant tourist is not responsible for the conditions that would mean the seller has no alternative but to sell their organ. See id. at 287-90. He then argues it is not exploitative because it is not clear whether the sellers have been treated unfairly and it is hard to quantify whether they have been put in a worse position. Id. at 298. Ultimately, he argues that while some organ sellers may profit, they often come to regret their decision and report lower quality of life after selling. See id. at 298-304. Therefore, this justified paternalism should be the basis for action. See PATIENTS WITH PASSPORTS, supra note 5, at 298-304.
(131) See id. at 367 (citing Bigelow v. Virginia, 421 U.S. 809, 822-24 (1975)) (stating, possibly in dicta, states could not proscribe residents from receiving abortions in another state).
(132) See id. at 334-56 (utilizing hypothetical country called "Murder Island").
(133) See id. at 334-35 (giving premise without explaining its inconsistencies).
(134) See PATIENTS WITH PASSPORTS, supra note 5, at 336-38 (arguing U.S. jurisdiction over murder in another country uncontested).
(135) See id. at 336. The murderer could have given up citizenship and taken Murder Islands. Id. Otherwise, the murderer benefits from "U.S. diplomacy and laws when abroad." Id. at 337.
(136) PATIENTS WITH PASSPORTS, supra note 5, at 331-32 (discussing Professor Cohen's assumption of domestic prohibition without justifying if it should exist).
(137) Id. at 333 (referencing the author of Reproductive Tourism as Moral Pluralism in Motion, 28 J. MED. ETHICS 337 (2008)).
(138) Guido Pennings, Reproductive Tourism as Moral Pluralism in Motion, 28(6) J. MED. ETHICS 337, 340 (2002).
(139) See id.
(140) See id. Instead of arguing the concern that Pennings' safety valve addresses, Professor Cohen argues that the safety valve would benefit elites who can afford medical tourism, which does not invalidate the concern itself--and in fact is largely true of all medical tourism. See PATIENTS WITH PASSPORTS, supra note 5, at 344-45.
(141) See id. at 351 (comparing travelling abroad for abortions to travelling abroad for Female Genital Cutting).
(142) See id. at 344-45.
(143) See id. at 344 (hypothesizing Murder Island might retaliate if U.S. prosecuted someone who had returned from Murder Island).
(144) Compare PATIENTS WITH PASSPORTS, supra note 5, at 304-314 (discussing potential regulation at length); with PATIENTS WITH PASSPORTS, supra note 5, at 370 (skipping almost directly to conclusion from bioethical arguments).
(145) See infra notes 146-148.
(146) See PATIENTS WITH PASSPORTS, supra note 5, at 324-30; Geoffrey R. Watson, Offenders Abroad: The Case for Nationality-Based Criminal jurisdiction, 17 YALE J. INT'L L. 41 (1992) (describing the U.S. as one of the least aggressive proponents of nationality based criminal jurisdiction). Nationality based jurisdiction is criminal jurisdiction based on the nationality of the offender. Id. at 42. Therefore, if a U.S. national that commits a crime overseas and if the foreign state does not prosecute, then the U.S. national would avoid prosecution altogether, since the U.S. lacks jurisdiction. See id:, David Winickoff, Governing Population Genomics: Law, Bioethics, and Biopolitics in Three Case Studies, 43 JURIMETRICS J. 187, 189 n.9 (2003).
(147) See PATIENTS WITH PASSPORTS, supra note 5, at 325-327 (discussing the basis for criminalizing assisted suicide and abortion abroad). Under the Nationality Principle, a state may "assert jurisdiction over the acts of its citizens wherever they take place." Id.; see VAUGHAN LOWE, INTERNATIONAL LAW 335,337, 340, 345 (2007). Additionally, "subjective territorial jurisdiction" holds sway over crimes initiated in the home country and completed in another. PATIENTS WITH PASSPORTS, supra note 5, at 326. Furthermore, "objective territorial jurisdiction" refers to crimes initiated outside the home country but completed within the home country. Id. at 327. Thus, subjective and objective territorial jurisdiction grant some power to prosecute non-citizens in relation to medical tourism. See id. at 326.
(148) Id. at 328 (citing Restatement (Third) of the Foreign Relations Law of the United States [section] 402(1)(a) (1987)). Professor Cohen illustrates seven factors:
(1) the link of the activity to the territory of the regulating state based on substantial, direct, and foreseeable effect upon the territory; (2) the connections between the regulating state and the person principally responsible for the activity to be regulated; (3) the character of the activity to be regulated, its importance, the extent to which other states regulate such activities, and the degree to which the desirability of that regulation is generally accepted; (4) the existence of justified expectations that might be protected or hurt by the regulation; (5) the importance of the regulation to the international political, legal, or economic system; (6) the extent to which the regulation is consistent with the traditions of the international system; (7) the extent to which another state may have an interest in regulating the activity; and ... [(8)] the likelihood of conflict with regulation by another state.
PATIENTS WITH PASSPORTS, supra note 5, at 328-29 (quoting Restatement (Third) of the Foreign Relations Law of the United States [section] 403) (applying the factors, conceptually to assisted suicide and abortion).
(149) See id. at 264-282 (discussing the market shape).
(150) See id. at 304-08 (discussing the problems in destination country enforcement).
(151) See id. at 304-314 (discussing regulation for transplant tourism).
(152) See PATIENTS WITH PASSPORTS, supra note 5, at 265-76 (explaining that poverty-stricken residents tend to be the main sellers of kidneys).
(153) See id. at 266-67; see also, Sallie Yea, Trafficking in Parts: The Commercial Kidney Market in a Manila Slum, Philippines, 10 GLOBAL SOC. POL'Y 358, 362 (2010) (explaining that men make up a majority of the 3,000 organ providers in Baseco). The study interviewed fifteen people. Yea, supra. Of them, two had an education that got past primary school and on average they earned about seven U.S. dollars a day. See id. at 362.
(154) See PATIENTS WITH PASSPORTS, supra note 5, at 267 (describing crippling conditions of the Philippine organ donors).
(155) See id. at 267-68; see also, Syed Ali Anwar Naqvi et al., A Socioeconomic Survey of Kidney Vendors in Pakistan, 20 TRANSPLANT INTERN'L 934, 937 (2007) (describing how a majority of organ donors from the Philippines were mired in poverty).
(156) See PATIENTS WITH PASSPORTS, supra note 5, at 267 (describing lack of energy the laborers suffer from during workdays).
(157) See id. at 270-71; see also, Monir Moniruzzaman, '7Jving Cadavers" in Bangladesh: Bio-violence in the Human Organ Bazaar, 26 MED. ANTHROP. Q. 69, 74 (2012) (explaining that twenty-seven of thirty-three sellers do not receive full payment for organs).
(158) See PATIENTS WITH PASSPORTS, supra note 5, at 271 (explaining how sellers do not receive full payment because buyers installed 'hidden expenses').
(159) Id. at 281; see Nancy Shepherd Hughes, Rotten Trade: Millennial Capitalism, Human Values, and Global Justice in Organ Trafficking, 2J. Hum. Rts. 197, 200-03 (2003), http://berkeley.edu/news/media/releases/991egacy/ll-03-1999b.html (describing the lack of monitoring on organ sales, leading to rampant crime in the trade). The first man convicted under a U.S. statute banning kidney sales was a rabbi targeting vulnerable Israelis and selling them for one-hundred and sixty-thousand dollars. See patients with passports supra note 5, at 282; Associated Press, Guilty Plea to Kidney Selling Charges, NY. Times (Oct. 27, 2011), http://www.nytimes.com/2011/10/28/nyregion/guilty-plea-to-kidney-selling-charges.html.
(160) PATIENTS WITH PASSPORTS, supra note 5, at 277 (explaining that most people involved in the operation are reluctant to be studied for research).
(161) See e.g., id. at 277-80; Jagbir Gill et al. Transplant Tourism in the United States: A Single-Center Experience, 3 CLINICAL J. AM. SOC'Y NEPHROLOGY 1820 (2008) (indicating larger portion of Asian-American recipients and larger portion traveling to regions of ethnicity); Muna t. Canales et al. Transplant Tourism: Outcomes of United States Residents Who Undergo Kidney Transplantation Overseas, 82 TRANSPLANTATION 1658, 1660 (2006) (indicating recipients were Somali, Chinese, and Iranian and were born outside the U.S.); G.V. Ramesh Prasad et al. Outcomes of Commercial Renal Transplantation: A Canadian Experience, 82 TRANSPLANTATION 1130 (2006) (indicating all but three recipients went to the region of their birth for the transplants); Jagbir Gill et al. Opportunities to Deter Transplant Tourism Exist before Referral for Transplantation and during the Workup and Management of Transplant Candidates, 79 KIDNEY INT'L 1026, 1028 (2011) (indicating less than ten percent were Caucasian and over ninety-percent were minorities travelling to their country of origin).
(162) See PATIENTS WITH PASSPORTS, supra note 5, at 305 (citing Frederike Ambagtsheer & Willem Weimar, yd Criminological Perspective: Why Prohibition of Organ Trade Is Not Effective and How the Declaration of Istanbul Can Move Forward, 12 AM. J. TRANSPLANT 571, 574 (2011)).
(163) See PATIENTS WITH PASSPORTS, supra note 5, at 305 (noting that enforcement is ineffective).
(164) Id. (noting that condemnation is common but enforcement lacks expertise).
(165) See id. at 309. Professor Cohen proposes that as part of the informed consent process patients would be told "if a transplant is not provided in a Medicare-approved transplant center it could affect the transplant recipient's ability to have his or her immunosuppressive drugs paid for under Medicare Part B." Id. at 308-09. Notably, however, this would cover a relatively small number of people if linked to Medicare alone. See id. That would then call for blocking reimbursement via health plans as well. See id.
(166) See PATIENTS WITH PASSPORTS, supra note 5, at 309. "Tissue rejection" refers to a phenomenon where a transplanted organ "recipient's immune system attacks the transplanted organ." Transplant Rejection, MEDLINEPLUS, https://medlineplus.gov/ency/article/000815.htm (last visited Mar. 26, 2018). A person's immune system naturally attacks foreign antigens. See id. A transplanted organ inevitably has foreign antigens; thus, organ recipients require medicine to prevent rejection. See id. The worse the match between the organ and the recipient the worse the tissue rejection, resulting in potential organ damage, organ failure, and even the death of the recipient. See id.
(167) See PATIENTS WITH PASSPORTS, supra note 5, at 310.
(169) See id. at 311. The problem that arises from a mere expansion of the law is detection. See id.
(170) See id.
(171) See id. at 311-12. Professor Cohen notes that this may face significant resistance from doctors. See PATIENTS WITH PASSPORTS, supra note 5, at 312.
(172) See id. at 311-13.
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|Publication:||Journal of Health & Biomedical Law|
|Article Type:||Book review|
|Date:||Mar 22, 2018|
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