Patients with Passports: Medical Tourism, Law, and Ethics

February 24, 2015


JOANNE MYERS: Good afternoon. I'm Joanne Myers, and on behalf of the Carnegie Council, I would like to welcome you to the second program in our new series on global health.

Our guests today are Dr. Robert Klitzman and Professor Glenn Cohen. As their bios were distributed when you checked in, I will be brief in introducing you to Dr. Klitzman, who is on my far right. He is professor of psychiatry and Master of the Bioethics Program at Columbia University.

Professor Cohen is on my near right. He is professor of law at Harvard and director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, also at Harvard. His most recent book, Patients with Passports: Medical Tourism, Law, and Ethics, is the subject of the discussion this afternoon. Copies of his book will be available for you to purchase during our reception.

They will have a conversation for about 25 to 30 minutes, and then we will turn the floor over to you.

Medical tourism, or health tourism, for those of you who may not be familiar with the term, is defined as the travel of people from one country to another for the purpose of obtaining medical treatment. It is on the rise. Millions of patients travel abroad each year seeking medical care, while contributing to a global industry estimated to be worth $24 billion to $40 billion.

In the past, patients would travel from less developed countries to highly developed ones to receive medical treatment that was unavailable in their own communities. But that has all changed. Whether seeking cardiac surgery, hip and knee replacement, cosmetic surgery, stem cell therapy, dental work, or fertility treatments, patients are now traveling to third world countries for a variety of medical assistance. While the main reason may be cost considerations, there are also those patients seeking controversial or illegal procedures, including organ sale, assisted suicides, and abortion.

But as the saying goes, buyer beware. Medical tourists are subject to a variety of risks, risks that raise questions about the ethical, legal, and moral obligations in both the departure and destination country should something go wrong. On a wider scale, concerns have also been raised around the global commercialization of health care and market-driven imperatives in medical decision-making.

You may ask, just how ethical are some of these initiatives? The purpose of this discussion is to provide opportunities for reflection on the social responsibility of physicians in medical tourism and to consider socially responsible approaches to health care worldwide.

Please join me in giving a warm welcome to our guests, a doctor who knows about medical care and a lawyer who wants to protect you from making the wrong decision.

Thank you for joining us.


ROBERT KLITZMAN: Thank you all for coming. Thank you to Joanne and Joel [Carnegie Council President] and the Carnegie Council for inviting us here. Welcome.

To start us off, what do you think are the biggest problems with medical tourism today?

GLENN COHEN: I often divide the industry at least into two: people who are traveling for things that are legal—hip replacements, cardiac bypass, cosmetic surgery—and people who are traveling for things that are illegal where they are coming from—assisted suicide, abortion, some forms of stem cell therapy.

On the legal side, I think the biggest problem is—as Joanne said, buyer beware—your ability to know about the quality of health care you are going to get abroad is very, very poor. It's very hard to know. Some of these are centers of excellence on par with Mayo Clinic. Some of them are much less good-quality.

If something does go wrong, what are your legal rights? What is your ability to recover? If you need follow-up care, as most of us do, are those records being transmitted in a way that your doctor can use and know about?

Lastly, I would say, on the legal side, what's the effect of your health-care decisions on the destination country? If you go to a place like Thailand or India, what is the systematic effect of having wealthy Americans going there in terms of redirecting resources from public sector hospitals, resources away from public health, towards trying to build this burgeoning industry?

ROBERT KLITZMAN: Let's take some of the illegal things. Let's take abortion, for instance. If I'm in a country where abortion is illegal and I want an abortion, what should I do? What are the issues that come up?

GLENN COHEN: We're going to start with the easy stuff, then, uncontroversial, off to a bang, right?

As we know, especially in Latin America, but still in parts of Europe, abortion is often illegal. Where there are exceptions, they tend to be narrow. Not even every country recognizes a life-of-the-mother exception or a rape exception. So we have many women who are in a difficult situation. Some countries, like Ireland, have actually by law passed what's known as the "travel amendment" in Ireland, to say you can't do it in Ireland, but if you go abroad to England or the Netherlands or wherever, that's perfectly fine. They have kind of arrived at this sort of modus vivendi, this way of splitting the difference, if you will.

For many poor women, that's not an option. Interestingly, in the period before Roe v. Wade in the United States, we actually had a lot of intranational medical tourism for abortion, as well as travel to Mexico and the like. But these women are in very difficult situations, in desperate situations in some ways.

What I do in the book—this is a more provocative section of the book—is ask whether Ireland has it right, to say if you believe abortion should be criminalized, in particular based on concern for the fetus's welfare and believing in fetal personhood, what should your position as Ireland be in terms of people traveling abroad? It's not so clear to me that if you take that perspective—and for many of us, I'm sure, it's hard to take that perspective, because we don't believe abortion should be criminalized within the country—if you do believe that's the case, why shouldn't you try to criminalize it abroad?

There is some international law about when you can extend your criminal law. In the United States, for example, we have what's known as the PROTECT Act. It's a crime in the United States for a U.S. citizen to go abroad and engage in sex tourism. In the UK, it's a crime for a British citizen to go abroad and get female genital cutting done on their daughter.

The way I want to pose the question is, those seem to make sense to us. For a country that views this as a moral wrong, should it take the same approach or not?

ROBERT KLITZMAN: I thought I would get to some of the meat of the issues, just to show you what is involved here.

Let's take medical tourism to get organs. Of course, in this country there are long waiting lists for people to get organs. If I need a kidney, why not go to the Philippines to get a kidney, where people will sell me their kidney? What's wrong with that? What would you say?

GLENN COHEN: Let me take this in a couple different directions. The first is, every time I give one of these talks, somebody comes up to me—almost every time—afterwards and says that they have a loved one or a friend who is on a waiting list. Some of them want the how-to guide to know what to do. So in one interesting part of the book, I go through what data we have on people who have returned from kidney purchase abroad. The studies are conflicting in some ways. Some have higher rates of immunorejection. In other studies, it actually looks like the graft rejection rate is the same. Sometimes there are gaps in the data. So there is this question about whether this is going to go well for you or not.

But thinking about yourself as a person whose actions have consequences for others, you have to have a view about whether you think the buying and selling of organs is morally problematic or not. Most people who think it's problematic rely on a series of different arguments:

• One is corruption. This is a difference in the way we think the body should be valued. It devalues the body or devalues people's personhood to do this.

• Another is coercion; it's actually coercive.

• Exploitation. We think people are exploited even if not coerced.

• Lastly, I would say there are arguments from justified paternalism, which say, even if someone is not exploited or coerced, even if we think there is no corruption of the human body, or one we're willing to accept, we think that the people who are engaged in the selling of kidneys are engaged in a practice that actually doesn't benefit them and turns out in the long run to hurt them.

My own view is that the strongest, most compelling argument is actually the last of those arguments. In the book I review the data and the stories of kidney vendors from Bangladesh, Pakistan, the Philippines, and India. The story is actually eerily similar in all of these polities, I would say. People are paid somewhere between $2,000 and $5,000 to sell one of their kidneys. They usually end up getting about two-thirds of the money, at the end of the day.

Most are motivated to sell a kidney to get themselves out of bonded labor or to afford a dowry or to pay off a debt or to get a market stall. Most of them, I would say 60 to 70 percent, when you follow up with them—and follow-up data is relatively soon thereafter; it's self-reported health data and self-reported levels of regret—about 60 to 70 percent of them usually say they were sorry that they did it or they wouldn't recommend someone else to do it.

There are also some more unsavory elements of this trade. For example, in the United States, if you donate a kidney, the nephrectomy scar tends to be about 3 inches. These men from Bangladesh end up with nephrectomy scars that are about 20 inches. They come back into the society, and one thing they don't anticipate, which was so interesting to me, is that the social stigma of being a "kidney man" is in some ways the worst part. They have difficulty with marriage, and many of them just don't achieve the goals they set out to do. They never get to pay for the dowry. They never get the stall in the market.

There are people who have, in principle, objections to selling organs. I'm not of that view—for me, the data really matters—but what I find most disturbing in this literature is that the data shows that people have very high levels of post-selling regret. They don't end up achieving their goals.

To me, if we were in the United States and talking about a legal market in the United States, I would say, "Okay, let's improve the informed consent, let's improve the information transmission, let's do all these things and regulate the market." But I have no confidence in our ability to regulate a market that is already illegal. We realize that selling kidneys is illegal in every country in the world except Iran, and in Iran it's legal only to sell it to the government, not to sell it to anybody else. The government, then, in theory at least—it's hard to know what's true and not true about Iran—has a system of organ allocation like ours. They have a mixed system where it's okay to sell, but not to buy.

ROBERT KLITZMAN: Let's talk about assisted reproductive technology. In the United States, we are one of the few countries in the world where you can buy and sell human eggs. You can now buy and sell embryos. Women will rent their wombs. A lot of Western European countries don't allow exchange of funds except for just basic expenses. If I'm in France and if I'm a single woman or if I'm a married woman and I can't have a child or I'm a gay man, I can go to Belgium and buy someone's egg or get services I can't in France. What should happen with that? Is that okay? Is that a problem?

GLENN COHEN: There is a huge amount of reproductive tourism within Europe, which is interesting. There's a study I talk about done by ESHRE [European Society of Human Reproduction and Embryology] that looks at the flow back and forth. There is a second level of travel outside of Europe into other countries. The people in Europe are often traveling to get something illegal. People from America who go to a place like India are often shopping on price. You are asking more about the illegal side.

To me, the answer depends on asking France, why does France have this prohibition in place to begin with? If your concern is something about the health of these children or something like that, that seems to me to apply equally whether people are staying at home or going abroad. If your concern, though, is about the exploitation of surrogates, here I think it's a more complicated question, for a number of reasons.

The first is, you have a home country or a destination country before traveling that has made a decision to make this legal. Are you the country that is supposed to protect the interests of Indian surrogates, as the French government, when you think about your policy? On the other hand, by making it illegal in France, you have essentially known that people are going to go abroad to do this, so in some ways you have created the market conditions where this trade occurs. So maybe you have some responsibility here.

Apart from these questions about what you should do, because you could—it turns out Turkey makes it a crime not only in Turkey, but to go abroad as a Turkish citizen to engage in some forms of artificial insemination by a donor—you could, in theory, have the same rule in France and say, not only are we banning commercial surrogacy in France, but if you are a French citizen and you go to India, we are going to say you have committed a crime in France by doing that.

Apart from that question—and here again, my view is that this case is different in some ways from, let's say, abortion or assisted suicide, because the kinds of harms we are talking about, harms of exploitation, for example—I think it's not as clear that France has as much to say or as much moral authority or as much of a right to legislate in order to protect Indian surrogates. We can talk more about that.

But apart from this question, you also face a second difficulty, which France itself has actually faced in a case involving people traveling to California, which many countries face, which is, what do you do when a child is born through this surrogacy system and they want to bring the child back to France? Do you recognize their parentage in France? Do you recognize the citizenship of these children in France?

On the one hand, it seems very draconian to say that the child should suffer for the sins of the father and the like. On the other hand, if this were to happen in France, it's not clear what you would do in terms of the parentage of the child. They would be in France. In reality, countries differ dramatically in whether they recognize what's called jus sanguinis, which is citizenship based on the genetic origin of the parent, just solely based on the territory where the child is born, or both.

So we have this difference in the world on these things. The cases of reproductive technology and extraterritorial acts of fertility tourism really complicate matters. I think most people have a strong inclination that the children's citizenship should just be granted and we should look the other way. But if you are serious about deterring this practice, it's a very strong deterrent to say that the children's citizenship or the parentage will not be recognized. Not everybody has the stomach for that, and I think there are questions you would want to ask: What happens to these children? Are they going to be stateless or is there a provision under Indian law for them to be Indian citizens? Are they going to be well taken care of? How much notification do we have for this rule?

I like to joke that when I die, my tombstone should read, "He was always able to take a problem that was already complex and make it even more complex." If I was a superhero, I would be "Complexity Man," because this is what I'm good at doing. And I think this case is actually more complex than it looks—even a very complex-looking case to begin with.

ROBERT KLITZMAN: Let's make it very concrete. Let's say I'm a woman in France and my husband and I can't get pregnant. There is something wrong with my womb. So I ask my sister, "Will you carry our child for nine months and be pregnant?" She says no. I find out that there are agencies in California where I could make an embryo with my husband. We can go to California, have it made, and give it to a woman. She will put it in her womb. She will carry the child. I give her $100,000.

I should say that kind of surrogacy is very controversial in the United States. It's actually banned in New York state, for instance. It's legal in California. States are all over the place.

So a straight couple goes to California, has this done. The child is born. They come back to France, this straight couple with their child. You would say what should happen?

GLENN COHEN: Let me start with the easy part of this, which is something you didn't mention. You might ask, should the California doctor say, "Can I see your citizenship papers? Oh, you're from France. I'm going to enforce." I don't believe that's the case. I don't think it's incumbent upon the U.S. doctors to enforce the policies of the French government, for example.

ROBERT KLITZMAN: They're happy to get the money here.

GLENN COHEN: Let's just remember, it's the doctor and not the lawyer who made that comment on this panel, just to be clear. [Laughter]

ROBERT KLITZMAN: I'm critical of this industry. That's why.

GLENN COHEN: In any event, my view is that France would be well within its rights to announce a policy that says, "We criminalized surrogacy at home because we think it exploits women. It would be churlish, it would be uncosmopolitan, it would be terrible of us to think that we're going to announce that policy and as a result, by protecting French women from victimization by surrogacy, we are going to, instead, encourage and look the other way when Indian women get victimized because of our decision," if they really believe this victimizes women.

My own view is that France would be well within its rights to have that view, if that's the reason why they have criminalized it at home, as long as the policy is announced in advance and there is a belief that this will deter people from going abroad. To me, whether it's a wise decision or not depends on your sense of how many people will be left over violating the law, playing chicken with the French government. If you think that the number of cases you have left over versus the number of cases deterred is small, and there are provisions made for making a home for this child and maybe splitting the difference and saying, "This child can come to France, but is made available for adoption," or, "You have to go ahead and adopt this child as any French person would adopt an American child," rather than automatically saying, "You get the benefit of genetic parentage."

My own view is that, unlike other cases where I think that actually countries that don't extend their law extraterritorially are acting a little hypocritically, this one I think of as a genuinely difficult case. But it's not clear to me that if France refuses to recognize this child, that every time France does this, that's a moral wrong or an improper thing for France to do.

ROBERT KLITZMAN: Let's take the case where they adopt. Let's say the couple comes in and they say, "We'll adopt the kid." That would be fine.

GLENN COHEN: Yes. My view would be that that child would be on the same footing as every other child in America that a French couple wanted to initiate adoption procedures on.

I want to make clear, I am the minority view on this issue. I think it's rather unsympathetic, at least at first. I try to give an extended argument for why this is the case. Let me test out a few bars of the argument for you to see if I might be able to convince you or at least nudge you on my side. Which is to say, there are many ways in which you can take someone who the law says is not an American citizen and try to commit an illegal act and make them an American citizen. I'm not talking here about "Dreamers" [those who came to the United States illegally as minors, but who are allowed to stay under the DREAM Act] , about undocumented immigrants, and the like.

Imagine it was the case that you had a couple with a baby who forged birth certificates to make it seem as though they were French citizens. On day one, the first day they entered the country, at that moment you detect the forgery. They have committed an act illegal in France to bring someone to the country for the interest of getting their baby citizenship in France. If on that day and that moment, we detected the forgery, would we really say that, no, the interests of this child, the interests of being a French citizen, are so clear-cut that we are going to look the other way, even though we have criminally prohibited this act?

There are many ways in which that analogy is different from this case, but I want to just suggest that on immigration it seems to me that countries get to set their immigration rules. We may have a conversation about whether the immigration rules are moral or immoral, including the immigration rules of this country. But once you set those rules, it's not crazy to me to think that you are able to police them, especially in the case where the child has no territory or no life in this country at the point at which you are making this decision.

Again, the places where I am most concerned about this are where the end result will be to leave the child stateless or when the child has formed a connection to the country or when you think the child will be mistreated in their country. I often say that instead of thinking about this as taking something away from the child, the right way to ask is, does this child, as a matter of the immigration law of the country, have an entitlement to citizenship or not?

But as I said, this is a place where I think most people have—their intuition is the other way. I try to do some work convincing people, to some extent, that at least the other possibility is one worth looking at. But it's not as though I have a close, tight, completely persuasive case that I think will persuade everyone on this point.

ROBERT KLITZMAN: Let me just say, Professor Cohen, I think, is one of the most brilliant people in the country thinking about these issues and writing about them. His book really is a very comprehensive view of, as you say, the complexities involved.

The other side is that it's good, if a country has a set of policies that some of us may think of as repressive, that there be a safety valve. Take countries that say you are not allowed to have an abortion. Even if I'm a woman who was raped in my country, there are countries that would say you cannot have an abortion; that's illegal.

On the one hand, couldn't you argue that, gee, it's great that I have an option? I can go to some other country and have the abortion. Shouldn't I be allowed to do that, and that's my right, and when I come back they should let me just be; I should not be punished for that?

GLENN COHEN: Let me give two responses. One is again from the perspective of this country. If I imagine myself as a legislator of a Latin American country, like El Salvador, trying to decide what to do, my perspective is that abortion is a murder or something like a murder, and I prohibited it at home for that reason. If my interest is in protecting a fetus and the life of the fetus, why should it matter to me if the person steps one foot outside of my border when they do it? That, to me, is a tough question.

On the question of safety valve—so imagine that that is not my perspective. I think maybe for most people in this part of New York at this particular moment, it's hard to take that perspective. Instead, my perspective is that, no, I want to fight the good fight and get abortion liberalized, and I want women to have access to abortion.

To me, in some ways, what's interesting about medical tourism is that it's easier for the elites to use it than it is for the rank-and-file people. If you think the people who have the most ability to change policy in El Salvador or wherever are actually the elites, if they are able very easily—no fuss, no muss—to leave the country to get an abortion, they have less of an incentive, in my view, to push for law change. In general, I think there is a way in which there is a distributional consequence for making it illegal at home and legal where you are going. I use this analogy in one of the chapters as a way of just provoking people.

If El Salvador were to say, "We're going to figure out how many people go abroad for abortions a year and we're going to say that's our cut-off, our number, and instead of allowing people to go abroad, we're going to have a lottery, and the people who qualify for the lottery, when you want an abortion, you get an abortion," we would say that's crazy; that's a crazy way of handling this issue. But in some ways, that's fairer, because at least through a lottery the people who would have access to the abortions in the country would not be the wealthy, the well-connected, people with passports, people who can travel.

So there is a way in which the existing status quo, I think, from their perspective is bad, because they think the fetuses should be saved. But even from the perspective of justice, if you think that what matters is actually equal access to abortion, there is a way in which this saps some of the resolve of people who will change it and also results in particular patterns of distribution of access that we might view as problematic.

ROBERT KLITZMAN: Just to push one last thing on this, let's say I'm in a country where we have tried to change the law, but the Catholic church is so strong and they own half the land and it's because they have been there for 400 years—everyone I know, we have tried, we have protested, the law is just not going to change, and I was raped. Would you tell me, "Don't go abroad"? Would you tell me, "Stay here and fight further"?

GLENN COHEN: My view of this is that when we are talking about political theory, it's very different from telling people how they live their lives. I'm very worried and nervous about telling people how they live their lives, because I think so many people's lives and their stories are their own and they have their own options.

I think it's perfectly appropriate, on the one hand, for a woman who wants to have an abortion—I don't know that I want to counsel her to break the law; there is a whole other question about when advising civil disobedience is a good idea, and we can talk about that—but for her, to say, "You should consider all your options," but at the same time saying, "And, by the way, if your government tries to make this option difficult to use, it's not acting necessarily immorally, from its own perspective," and to say, at the third level—that is, an international community—we might want to think about ways of trying to increase liberalization and pushing that country to change.

Maybe this is the mark of a true lawyer, that I can have these three ideas that sound somewhat in tension together. But another way of putting it is just to say that I think political theory and its implications for what a country should do, political theory and its implications for what an international community should do, and moral theory about what an individual can do have to be understood in concert rather than in hierarchy.

ROBERT KLITZMAN: Just one last question on this. Let's say a country has a policy that much of the world thinks is immoral. We can think of many examples, from Nazis to anti-abortion, etc. What should be the position of the world community, do you think? Do we say that that is that country, they believe abortion is illegal, let them do what they do? Should we, as a world community, do anything about that? How should we decide? What would you say?

GLENN COHEN: Again, I should be clear up front that I'm not a scholar of the human rights approach or human rights approaches. But what I would say is that as an international community, we have a view that there are zones of discretion and there are zones of non-discretion. The zones of non-discretion are kind of codified as human rights. We don't often use hard law. We are much more likely to use soft law interventions to try to deal with human rights violators, including memberships in particular organizations, sanctions, sometimes international criminal law if they are a party to that provision.

So my view is that that is probably right. Some amount of experimentation, some amount of difference is desirable. Others are, no, it violates what we think people are entitled to as human beings.

The hard questions come, whether some instances of medical tourism involve that. While I think it's tempting for us here to think that abortion is a case that involves a human rights violation, and therefore we are allowed to step a little further in the boundary, certainly some religious communities or some would view female genital cutting and the ability to do this and to practice their religion as equally a human right that is going to be violated if the United States or the UK extends prohibitions on people going abroad to engage in female genital cutting.

Not in this book, but in other articles—I like to say I specialize in making people uncomfortable, uncomfortable with comparisons—I try to juxtapose the kind of language and the kind of theory behind abortion criminalization extraterritorially against the criminalization of FGC, female genital cutting, extraterritorially, and say, do we really think the two are dissimilar? Are there ways in which they are similar in the structure of the problem?

In a lot of this work what I try to do is—we have debates about abortion. We are very familiar, especially among bioethicists, with these debates. I'm not going to say anything interesting or clever in this book that is going to convince somebody who believes that abortion is murder that it's not. What we haven't had a debate about, what we haven't talked about, is, when you have a country that believes abortion is murder and criminalizes it, what should that mean in terms of what it does for citizens traveling abroad? We haven't had as much of that debate, and that's where I think I can make a contribution.

So I start with the assumptions of these countries and see where they take us, rather than do another work challenging their assumptions.

ROBERT KLITZMAN: What would you say are the major takeaways or contributions that you see the book as offering us?

GLENN COHEN: One is just thinking about what our relationship is to the international community, in the sense of rights of access to these kinds of controversial services. But in the more mundane case of getting a hip replacement or a cardiac bypass, what are our obligations to the communities in India, Thailand, or Mexico when we divert resources by our presence there from the public sector to a private sector? When are we responsible or not responsible, both as individuals and as governments?

Another big piece of the book is about insurance, believe it or not. There are insurance companies and employers that are offering Americans checks to go to Costa Rica and other places for gastric bypass. How should we think about their responsibilities? Also, how should we think about the way the health insurance industry should be recognized and should be organized along this way?

Again, I don't want you to think that I'm an enemy of this industry. My view is that actually this industry is quite interesting. There is a lot of money to be saved if we can do health care much more cheaply. A priori, there is no reason to think health care should be a good only provided and consumed locally, while so much of our other goods and services are produced and consumed globally. But I'm interested in the ways in which the existing structure is suboptimal in terms of protecting patients, in terms of the interests of people in the destination country, and in terms of regulation.

ROBERT KLITZMAN: Let's be concrete. There are states in this country and insurance companies that say to get a hip replacement here costs, let's say, $50,000. If we send you to Malaysia to get a hip replacement, it's only $4,000. We want all the Americans that we're covering here in our state or on our health plan to go to Malaysia.

What would you say? Is that good, bad? What should be the parameters on that?

GLENN COHEN: First of all, currently, if you are a self-insured employer, there are almost no restrictions on you doing this. Even if the state has insurance regulation, most of that is preempted as to self-insured employers, which are most of the big employers in the United States.

So what's wrong with that system? One is that there is no provision that says it has to be a JCI (Joint Commission International) or other kind of accredited institution. There is no provision for getting information disclosure about the quality of care there. There is no provision requiring the foreign hospital to agree to arbitrate claims or subject itself to medical malpractice liability should something go wrong. It's very hard to sue a foreign hospital in the United States. There is no attempt to regulate what effect those foreign hospitals have on the health-care infrastructure and access to health care in these places where people are going.

In my view, what I would really like to see is probably the federal government get in the business of trying to approve or pre-approve or certify or rely on third-party certifications of foreign hospitals, such that insurance companies, employers have to jump through some of these hoops and ameliorate these kinds of situations for patients.

The last thing to say on this line is that the other two things are follow-up care—what the quality of follow-up care is, the transmission of documents, how able that is—and the question of transmission of bugs, multi-drug-resistant bug transmission. I know you spoke about Ebola here. Ebola, of course, is big and scary, but actually much more common is the transmission of bugs that are often resistant to most of our antibiotics and the like, and that end up costing the system a lot of money, if not a lot of lives, when people come back with these bugs. So we have to think a little bit about the infrastructure for detecting them and for also dealing with them.

ROBERT KLITZMAN: What do you feel are the ethical tensions here?

GLENN COHEN: One of the ethical tensions is to say, when I travel abroad in general and I have effects on the place I'm going, when are those effects that I as an individual need to internalize? This is a little bit like carbon offsets, in some ways. Should there be the equivalent of eco-friendly or fair-trade coffee? Do I have a moral obligation to consume only in a way that creates the least bit—maybe it's making a contribution to the health-care systems of these countries.

As the U.S. government, do we have obligations in terms of regulating where people go or maybe even taxing the system and making up for some of the ill effects on foreign countries when our patients go abroad?

Then, thinking ethically about when the state may limit our liberty to travel or impose its law when we go abroad, coming up with a more robust theory of when we carry our state's law on our back in a way that is morally acceptable versus the idea that the state is becoming fascistic and totalitarian—I often think about this a little bit like The Merchant of Venice. There's Venice, where a deal is a deal, and there is Belmont, where it's a place of love and familial relationships. There is an idea that the way that life in Venice is tolerable is that you can always go to Belmont for a weekend or a week and you can escape.

In a world where you always carry all the law on your back, there is no escape. There is no exit, if I can sound like Jean-Paul Sartre. I guess you can give up your citizenship. We can talk about that, too. How do we view that world? Is this ability to do things illegal at home in a foreign destination a kind of important freedom or is it, instead, a kind of victimization of the people there, and under what circumstances?

ROBERT KLITZMAN: There is clearly a lot more to talk about. I recommend that you look at the book. We are now opening the floor up for your questions.


QUESTION: I'm in the Columbia Bioethics Program that Dr. Klitzman directs. I'm Jared Silberman.

Dr. Klitzman wrote an article about mitochondrial transfer if a woman has a disease. My question is kind of along the line of the abortion issue. Do you talk about what might be called a noble medical tourism decision, where the country technologically might not be on to that, but the woman wants to not have a diseased baby born of that? If you would comment on that, I would appreciate it.

GLENN COHEN: I think the cases of technological sophistication are quite different from travel for something that is legal on kind of moral grounds. It turns out that Thailand, for example, is a very good destination for sex reassignment, gender reassignment, essentially. Historically they were much better at it than we were, and there were many people who went abroad.

The place where the two merge and become tricky, actually, is my chapter in the book on experimental therapies. You may think MRT [microbeam radiation therapy] is experimental now. It is experimental. When you want something that is experimental—my own view is there's experimental and there's experimental. There are things where we have a view that they might work, they might not work, and you have terminally ill patients traveling for them. Then there are things like most of the stem cell therapies being offered in China, for example, where we have no reason to believe they work. We have good reason to believe they may cause tumors in some instances. We know that they are not collecting data in a rigorous way and they are not really doing experimentation to find the right answer. They are selling a product.

The thing that is the most tricky about these cases is actually that a lot of times, from the U.S. context at least, it's parents taking their children abroad.

In the book I review these webpages and the like. They promise everything from impotence to autism that stem cell therapies will cure. You can't find out what the kinds of stem cells are. Often it's a different kind of stem cell than you have been told it's going to be, the quantities.

The stories of the people who go abroad for this are fascinating. There is a real playing on the politics of hope. There are many people who go who have no good effect, but they say, "Oh, I just need a booster shot," or, "I need to come back."

So my view is that it depends a lot on the population. When you are talking about pediatric cases, I think a lot more restriction, maybe even reporting in some cases by home-country physicians of parents who want to take their kids abroad might be in order.

When you are talking about adults, my own view is that the closer the condition is to being life-threatening or terminal, even though I think it's bad science, even though I think we should fight back with informational interventions, I'm not a strong believer at this stage to try to restrict people traveling. We have seen this movie before. In the 1970s, it was Laetrile. Steve McQueen, the actor, died in Rosarito, Mexico, getting a Laetrile treatment. I think that was too bad, but I understand why, especially for people who are adults and who are facing something terminal or life-threatening, they may want to try something that has very little chance of success. I don't think the state should interpose itself there.

ROBERT KLITZMAN: Just to clarify, if you don't know, what Jared was alluding to was—you may have read that about two weeks ago the British House of Commons voted to allow research to go forward on mitochondrial replacement therapy, which the press dubbed "creating babies with three parents." There are women who have mutated mitochondria and there is a technique that scientists believe could help these women have safe babies. It has been banned, essentially, by the FDA [Food and Drug Adminstration] here, and the British government decided that we should at least let trials—again, even with research that the scientific community feels is legitimate, there could be differences between what different countries allow, for various reasons.

GLENN COHEN: And FDA had a hearing last year, last calendar year, on the subject and has referred the matter to the IOM [Institue of Medicine]. I think there is some chance that we may have a push towards more liberalism. We can talk about that another time. If people are interested, we can talk about it now.

QUESTION: James Starkman.

Just going back to the case of the French couple and the foreign surrogacy—this may be one of the least significant questions you will be asked on this subject, but I was just curious—even forgetting about the denial of citizenship to the child, what are the financial penalties? How severe are they? I'm just curious—and in other countries as well. I am just wondering.

GLENN COHEN: I should mention that the European Court of Human Rights actually decided—the first level of review there heard this French case and they said that—it's complicated, has to do with European law and the margin of appreciation—that France may not, under the rules of the European Human Rights Conventions, be allowed to deny citizenship. We will probably get a little bit more litigation on that.

My understanding is that the French penalties can be jail time, actually, in some cases; at other times, can be a fine. I think they have the discretion to impose one or the other on the parents.

QUESTION: Don Simmons.

A bit of a curveball. For some decades, Cuba has been practicing medical tourism in reverse, so to speak, sending their doctors to where the patients are—Venezuela, Angola. What ethical issues do you think arise in that practice? For example, the host authorities might say, "Operate on that general, but not on that taxi driver."

GLENN COHEN: It's a great question. I edited a book just before this one called The Globalization of Health Care. This often goes under the term "medical migration." The much more common version is actually what we do in the United States. About a quarter, I think, of all residents in the United States are actually foreign-trained. There were estimates of the Ghana nursing school—I can't remember the exact number—upward of 50 percent of the graduates of the Ghana medical school in a particular year are actually poached—that's a loaded term; that's the term some people use—poached by South Africa, by the UK, and the United States.

It's fascinating in that there is an interesting flow of cost. It's much cheaper for these developing countries to train the doctors than for us. We make a huge amount of cost savings on the ability to use these doctors and to have them do residency here. We also have immigration provisions that try to ease them into U.S. society and towards citizenship or at least visa status.

I think the most interesting ethical issue is whether that is a kind of moral harm that we are doing to these countries. We are contributing to the low number of physicians per patient in these countries. This has a real implication in cases like Ebola, where in Sierra Leone there were so few doctors when the crisis broke out.

Imagine you are of the view that there is something problematic about this kind of dynamic. They call it the brain drain. Then you face a very difficult question about what you think you ought to do about it. One possibility would be that you just basically don't allow these doctors to come to the United States. That runs into trouble when we think about freedom of movement and freedom of repatriation and the like.

My own view is that there is an element of this in which, one, we should be regulating. Many countries now voluntarily—and there is a WHO [World Health Organization] rule on the subject, I think—we should have rules about what kinds of incentives we can give to doctors and nurses to come here to the United States. We should make some steps to recompense these countries and help them capacity-build. This is going to be an ongoing thing to try to increase the number of graduates from their medical schools and nursing schools so we don't end up diminishing what they have available.

These countries themselves may want to think about strategies like conditional scholarships. We often do this in this country and in Canada for urban versus rural. We say, "Okay, you can come here and the government will pay your salary and your time in medical school, but there is a condition that for the first couple years out, you have to spend it in a rural setting." It may be the case that in many of these countries one could try to do that with medical education, the payment of medical education.

But it's tricky. If the money being offered by the United States or the UK dwarfs whatever their indebtedness is, it's not a very good strategy.

ROBERT KLITZMAN: I should just say, part of the issue is, I think, why "poaching" is not a good term is because a lot of nurses and doctors who are trained in the developing world and lower-income countries actually are delighted to go abroad. They are looking for opportunities. They are going to med school in their home country because they know that after going to med school or nursing school, they could earn many, many times what they would earn in their country by going to South Africa, France, the United States, the UK, etc. So it's not just these other countries coming and getting the people.

Also, a lot of the economies of these countries actually are delighted that we now have people who are working—a nurse here may be sending back to her home country quite a bit of her income. So it's actually bringing money into the country.

It's a complex situation often.

GLENN COHEN: That's a great point, just to add a few more bars of this. One thing is you have the possibility of what's called "brain circulation," not just brain migration or brain drain. People go abroad, they learn things, they come back, and they start a new unit in the country. The other is the flow of remittances back.

But what's interesting is that the public system and the government pays for the medical education, in large part. People go abroad with that medical education. They send the remittances back, but the remittances are not enjoyed by the whole country. They are enjoyed by the family of the individual and somewhat by taxes, if they declare it, to some extent.

Just to say it's complicated. It also may exacerbate what I call interregional brain drain. It may be that if Pakistan begins to retain more of its citizens and has—and this is the way in which medical tourism deeply relates to this. Some people think medical tourism is good because it's a bulwark against medical migration. If you can serve in a high-quality hospital, be well-paid, even if you are going to see mostly foreign patients, maybe you stay there and you are an extra person who would have otherwise gone abroad.

But establishing that medical tourism hospital in that country may actually exacerbate interregional brain drain from the country next door and the like. So even just charting it descriptively, forgetting about the normative, as you say quite correctly, is very difficult.

ROBERT KLITZMAN: If I can just say one other thing on this, I think one common theme to all these issues, which may seem very disparate in some ways, is that you have enormous disparities in health care and in economies between wealthy countries and poor countries, and often within many low- and middle-income countries. You then have the problem of individual actors who, on the one hand, may have a certain right to say, "I'm a doctor. I want to go earn more money," versus questions about what the role of the state should be to say, "No, you have to stay here. You can't get an abortion. You can't go work abroad," etc., etc.

I think those are some of the issues in when the state should play a role or not that play out in many varied forms, as you describe so well in the book.

QUESTION: Edith Everett.

Just today I had a conversation with a friend—a heated conversation—about universal health care, known as socialism by some. The detractors' argument against it is, "Look at all those people who come from England and from Canada to get treated. So it's really not so hot." What is your response to that?

GLENN COHEN: I should say, I'm a Canadian myself, which is interesting. I told Robert that my mother actually was a medical tourist to the United States. (Mom doesn't mind me telling the story, in case she is watching at home.)  She needed a hip replacement and the method that was available at the time was different in the United States, with a much shorter recovery period. She was not so excited by the existing queue and decided to queue-jump.

In some ways, that was actually a bonus for Canada—one fewer person to pay for their hip replacement. She thought it was welfare maximized. The U.S. doctors were happy for the extra business and for someone paying out of pocket, a self-pay patient, rather than having to deal with insurance.

There are two elements here. One is from the perspective of the individual patient and one is from the perspective of the population level. On the level of the individual patient, my own view is that if you want high-tech medicine and you want it right now, there is no better place to come than the United States. In some areas other countries do just as well or better, but for the very, very high-end of expensive technology and forward thinking, the United States is the place to go. And if individual people do that, it relieves their home country to some extent of the expense of paying for it.

At the population level, though, you look at how much is paid for every quality-adjusted life-year or disability-adjusted life-year, or whatever measure you have in mind, the United States, as against a whole raft of other countries, pays far too much per increment for year of quality of life than do these other countries. While I'm a big fan of a universal health-care system, in fact you don't need to only look at the universal health-care system comparators. Even if you look at a place like Germany, which has competing insurance systems, for example, or insurance companies—it's not publicized; it's privatized, but it is price-set by the government—you see that what they pay for and what they get is much better than what we do.

So at the very high end, if you are at the high end, the United States is the place to be—

ROBERT KLITZMAN: If you can afford it.

GLENN COHEN: If you can afford it. That's why I say if you are at the high end, not only if what you want is at the high end. But if you want to look at how to run a railroad overall and imagine you have this many million people, I think there are some clear benefits, lessons we can learn from other countries.

But it's complicated. Among other things, Canadians have different levels of obesity, different levels of familial support, different ethnic origins, and different cultures that come with it. These comparisons, I think, always have to be made more subtle. But I don't think, when you talk about value, how much you spend and how much you get, that most people think that our current U.S. system is a great model for that.

ROBERT KLITZMAN: I would say no country—maybe a few of the Gulf states are the exception to this—no country has enough money to give as much health care to everyone as everyone in that country wants. There have to be tradeoffs. One system is, and one notion of justice is, everyone should get a certain amount. The problem with that is that even if someone has a million dollars to spend on his or her last year of life, they may not get that or special things. The other is to say we are going to give less to each person and have a system that allows those who can afford a lot of extra care, expensive care, fancy care to get it, but a much bigger gap between the haves and the have-nots, which is what we have.

My own view of justice is a more utilitarian one: The more we can help, the better. But there are some who argue that justice is, if I pay more money in the system, I should get more out, for instance.

QUESTIONER: How about the British system, which is two-tier?

GLENN COHEN: Another option. In Canada, what's interesting is that we don't allow privatization in the country. We have some limited exceptions. But we allow, essentially, people to drive across from Toronto to Buffalo to get the MRI, whereas in the UK, they have decided to have the privatization within the system. When you have the privatization within the system, as a regulatory matter, things become more complicated. France has a similar thing. How do you control and allocate your physicians between the two systems? Do you limit the number of hours somebody can spend in the private systems or do you certify that only physicians of this type and this quality at this level can spend time in the private system, but all the rest have to be in the public system? What do you do with the income differentials between people in the private system and the public system as physicians?

Health policy is fascinating. I hope people take that message away from this. But it turns out that we have a bunch of different experiments going on, on how to deal with privatization. Medical tourism is just one of them.

One nice thing about the data we do have on medical tourism is that by looking at these charts—and I have them near the beginning of the book—you see that the cost, both out of pocket and for an insurer in the United States, for almost every procedure is 40 to 60 to 80 percent higher than what it is in Thailand, India, and Mexico. Even though I think the quality of care here is excellent—compared to the average hospital in the United States, I would take it any day, compared to the average hospital in most of these places—my own view is that, gosh, there has to be something that we can possibly learn from these countries, even if we decide we don't like medical tourism so much.

I think the price competition and the exposure of price transparency—as The New York Times and others have pointed out, it's very hard to know what you actually pay or what something actually costs in the United States. I think medical tourism actually produces a nice way of getting some price transparency, even if not perfect.

QUESTION: George, from City College.

I'm going to make an assumption and then a wild generalization, and maybe you can comment critically on both.

The assumption is that, with the price of airline tickets and a growing middle class, medical tourism in the next few decades, if anything, is going to increase drastically.

The wild generalization has to do with something that keeps coming up today, that discrepancy between what nations allow internally and what they seem to tolerate when citizens go abroad. The wild speculation is that over time, over the next few decades, with the increase in medical tourism, that discrepancy will tend gradually to diminish.

GLENN COHEN: Very interesting. Let me first just talk about the assumption for a moment. In the United States, I think the market is changing dramatically, in part because of the Affordable Care Act. We will see what the Supreme Court thinks next week when they have oral arguments. But if the Affordable Care Act is here to stay—currently most people who go abroad for medical tourism are uninsured or underinsured. That means they have insurance, but, for whatever reason—the deductible, the co-pay, or whatever—it dissuades them from consuming here. I think if the Affordable Care Act gets implemented correctly and continues, the uninsured population is going to diminish. The underinsured—unclear what's going to happen—probably also will diminish. But we are seeing increasing interest by insurance companies of involving this.

And, by the way, undocumented aliens are the one group left out of the subsidies of the exchanges and the like, in terms of getting more affordable health care in the United States. So we will still see a lot of flow, particularly along the Mexican border, of people going home to their country of ethnic origin for health care.

Elsewhere in the world, though, I think you are completely right. Chances are, as airline tickets become cheaper, as telecommunication, as health IT, among other things, gets better and we have more interoperability, the ability to run medical tourism as a way of providing always is going to be—it's not going to be emergency care. That will always be provided by the locality. But we will see more and more elective surgeries, I think, in that direction.

In terms of the speculation about whether we will see more or less convergence on the norms question, I think on the question of technical side—for example, the best way to do a particular procedure—we are likely to get more convergence, because we are going to have more sharing, more experience, and the like.

On these more moral questions about abortion and assisted suicide, for example, my own view is that the easier medical tourism becomes, the less pressure countries will face to converge, and we will live the way Ireland has lived for the last little while, which is that we keep our abortion law the way it is and you just go somewhere else if you want to have an abortion. My own intuition is actually, on the moral questions, it may go in the opposite direction.

But mine, too, is rank speculation. We're going to have to see.

ROBERT KLITZMAN: I would just say that I think medical tourism is here to stay, because you also have still, if anything, a widening gap in the world between countries that are wealthy and not. So for a lot of procedures, there will still be a difference.

Take, for example, assisted reproductive technologies. If I want a woman to carry my child, in the United States that costs about $100,000. In India it costs maybe $5,000. That is not going away, partly because there are procedures, like that, that the Affordable Care Act undoubtedly will not cover because they are not considered essential. If I am a single woman, a single man, a gay couple, lesbian couple, or I just can't conceive because I'm 40 and I was fertile when I was 30, but now I decided to have a career and I'm 40, the Affordable Care Act won't cover for me to get as much assisted reproductive technology as I want. It's $100,000-plus. There are places where it will be cheaper, and that's going to stay.

Convergence—I think, unfortunately, the world is a complex place. Even in Europe, to buy and sell human body parts is illegal in all of Western Europe. There are only three countries, as I understand it, where it's explicitly allowed to buy and sell human eggs: Russia, India, and the United States. It's illegal in Scandinavia, in Germany, many other countries—in all countries in Western Europe. Sometimes it happens anyway. People go around the rules. But you have histories that set people's moral beliefs about themselves and what things should be that may or may not be observed in the breach, as it's said.

So I think there is still going to be quite a bit of variety. If anything, we see, arguably, more religious war in the world, more difference in ideology. I think that may translate to continuing differences about the moral issues that come up in a lot of these procedures.

JOANNE MYERS: I want to thank you both for raising so many wonderful issues. Robert, Glenn, a good combination, a doctor and a lawyer.

blog comments powered by Disqus

Read MoreRead Less