Medical Tourism: The View from Ten Thousand Feet
In lieu of an abstract, here is a brief excerpt of the content:

Medical Tourism:
The View from Ten Thousand Feet

Medical tourism—the travel of patients from their home country to another for the primary purpose of seeking medical treatment—is already big business. In 2005, Bumrungrad International Hospital in Bangkok, Thailand, saw 400,000 foreign patients, 55,000 of whom were Americans, and centers in India, Malaysia, Singapore, Mexico, and elsewhere also attract significant foreign patient populations.1 Some of these patients are seeking care that is unavailable at home, such as surrogacy services or stem cell treatments. Others are uninsured or underinsured Americans looking for price savings (in some cases upwards of 80 percent) compared to what they would pay out of pocket in the United States.2

Governments, too, have taken interest. The U.S. Senate held a hearing, “The Globalization of Health Care: Can Medical Tourism Reduce Health Care Costs?” West Virginia considered (but ultimately rejected) a bill that would have given its public employees financial incentives to get treatment abroad (something many self-insured U.S. firms already do). Texas has taken steps to ban insurers from making their covered populations use health care services abroad.3

Medical tourism raises a panoply of legal and ethical questions. In this short space I offer only the view from ten thousand feet, setting out the different types of medical tourism and the kinds of concerns they can pose. Consider this as a statement of a kind of research agenda, one that I hope readers will join me and other scholars in developing.4

One can usefully distinguish three kinds of medical tourism.

Medical tourism for services that are illegal in both the patient’s home and destination countries. Organ sale, which is illegal in all countries except Iran, is a good example. While in such cases both the patient’s home and destination countries have decided to ban the practice, medical tourism raises a set of questions about extraterritoriality and the coordination of domestic and foreign regimes of criminal law. If a foreign country criminalizes organ sales but has a lax enforcement regime that essentially tolerates a gray market, should the United States use also its own criminal law against its citizens that purchase organs abroad? One model here would be the Protect Act of 2003, which levies either a fine or thirty years in prison or both in the United States for any U.S. citizen or permanent resident “who travels in foreign commerce, and engages in any illicit sexual conduct” including “any commercial sex act . . . with a person under 18 years of age.”5 Another possible approach (that is potentially even more draconian) currently in place to curb organ tourism is sketched in Medicare regulations requiring that physicians inform patients seeking organ transplantation that transplantation by an unapproved center “could affect the transplant recipient’s ability to have his or her immunosuppressive drugs”—required to avoid tissue rejection—“paid for under Medicare Part B.”6

One set of ethical questions is whether these approaches go too far in their penalties; perhaps we should defer to the level of enforcement and penalties in the destination country. A corresponding set of pragmatic questions asks how we can do a better job of detecting this kind of medical tourism if we decide to penalize it through domestic criminal sanction.

Another set of questions focuses on the duties of U.S. doctors. If a patient is waiting for an organ and appears unlikely to get it, does his doctor have a duty if asked to inform the patient of better versus worse transplant centers dealing with such purchased organs abroad, or at least to refer the patient to a colleague who will? May a physician faced with a patient she determines has purchased an organ abroad and who now requires follow-up care decline to provide that care? Can she decline only if she finds another physician willing to provide care?

Medical tourism for services that are illegal in the patient’s home country but legal in the destination country. Let me give three quite different examples of what might fall within this second category: (1) A same-sex married couple has difficulty in securing a traditional...