See, e.g., Cohen, I. G., “Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument,” Iowa Law Review 95, no. 5 (2010): 1467–1567; Cohen, I. G., “Medical Tourism, Access to Health Care, and Global Justice,” Virginia Journal of International Law 52, no. 1 (2011): 1–51; Cohen, I.G., “Circumvention Tourism”, Cornell Law Review 97, no. 6 (2012): 1309–1398. While I use the term “medical tourism” because it is the conventional term used by the industry, and in many instances it is partially supported by the tourism industry in the destination country, I do not mean to suggest anything pejorative or that those using these services are engaged in something frivolous. “Medical travel” or “cross-border care” could be used just as easily for my purposes.Google Scholar

As I discuss below, even in Iran it is subject to significant regulation of who can sell and buy organs.Google Scholar

See the chapter on Transplant Tourism in my forthcoming book. Cohen, I. G., Patients with Passport: Medical Tourism, Law, and Ethics (under contract, Oxford Univ. Press).Google Scholar

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Because of the short length of this article I focus on quantitative data, but there is also a rich set of narrative data collected by anthropologists on the subject. See, e.g., Scheper-Hughes, , supra note 4; Scheper-Hughes, N., “Rotten Trade: Millenial Capitalism, Human Values, and Global Justice in Organ Trafficking,” Journal of Human Rights 2, no. 2 (2003): 197–226; Cohen, L., “The Other Kidney: Biopolitics Beyond Recognition,” Body & Science 7, no. 2 (2001): 9–29; Cohen, L., “Where It Hurts: Indian Material for an Ethics of Organ Transplantation,” Zygon Journal of Religion and Science 38, no. 3 (2003): 135–165.CrossRefGoogle Scholar

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The authors noted that it was unlikely that these declines represented a secular trend since per capita income has increased by 10% (or 37% adjusted for inflation) in the region in the 10 years preceding the study, and between 1988 and 2001 there was a 50% decrease in the proportion of the population living below the poverty line. See Goyal, , supra note 12, at 1592.Google Scholar

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This finding mirrors those found in other studies of transplant tourism, though many are from much earlier periods. Id. at 1660 (citing Invanoski, N. et al., “Renal Transplantation from Paid Unrelated Donors – It Is Not Only Unethical, It Is Medically Unsafe,” Nephrology Dialysis Transplantation 12, no. 9 (1997): 2028–2029; Morad, Z. and Lim, T. O., “Outcome of Overseas Kidney Transplantation in Malaysia,” Transplant Proceedings 32, no. 1485 (2000): 224–227; Salahudeen, A. et al., “High Mortality Among Recipients of Bought Living-Unrelated Donor Kidneys,” Lancet 336, no. 8717 (1990): 725–728).Google Scholar

Unfortunately the authors do not provide equivalent numbers for the two control groups on these measures, which would better enable us to put this into perspective.Google Scholar

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E.g., Frey, B. S., Not Just For the Money: An Economic Theory of Personal Motivation (Cheltenham: Edward Elgar, 1997); See Titmuss, R., The Gift Relationship: From Human Blood to Social Policy (New York: Pantheon Books, 1970). There is also a variant of the argument focused on loss of opportunities for altruism.Google Scholar

For those making variants of this argument. See, e.g., Goodwin, M., Black Markets: The Supply and Demand of Body Parts (New York: Cambridge University Press, 2006): at 12; Delmonico, F. L., “The Development of the Declaration of Istanbul on Organ Trafficking and Transplant,” Nephrology Dialysis Transplantation 23, no. 11 (2008): 3381–3382; Danovitch, and Leicthman, , supra note 27; Scheper-Hughes, N., “Keeping an Eye on the Global Traffic in Human Organs”, Lancet 361, no. 9369 (2003): 1645–1647; Naqvi, , supra note 10, at 937; Goyal, et al., supra note 12, at 1592. This formulation follows Wertheimer, A., Coercion (Princeton: Princeton University Press, 1987): at 192–208, 267, 272–74. See also Wertheimer, A., “Exploitation in Clinical Research,” in Hawkins, J. S. and Emanuel, E. J., Exploitation in Developing Countries: The Ethics of Clinical Research (Princeton: Princeton University Press, 2008): at 63, 71; Fried, C., Contract As Promise: A Theory of Contractual Obligation (Cambridge: Harvard University Press, 1981): at 104.Google Scholar

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A prohibition on transplant tourism might also be thought to be justified on the ground that it seems unfair for us to prohibit our citizens from buying organs from our citizens but allow our citizens to buy from poor Indians, or Pakistanis, increasing their exploitation. I have discussed a similar argument as to surrogacy elsewhere, and pressed on whether a home country's obligation to prevent the exploitation by its citizens of its own citizens is the same as the exploitation by its citizens of foreign individuals. See Cohen, , “Circumvention Tourism,” supra note 1.Google Scholar

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Francis and Francis have argued that the International Criminal Court or a specialized international tribunal should be given jurisdiction to pursue organ trafficking specifically. See Francis, and Francis, , supra note 69, at 291. They reach this suggestion because they conclude that “domestic legal regimes have proved ineffective and there is little reason to believe enforcement is likely to improve,” and because “the presence of a credible international enforcement regime could prove both a spur and a complement to the strengthening of domestic enforcement regimes.” Id., at 292. However, as they admit, this would require a significant expansion of the existing scope of international criminal liability and cannot fit within the definitions of genocide and crimes against humanity set forth in the Statute of Rome. Id., at 292–293. I think that international criminal liability is worth considering, but I am both more skeptical that it is politically feasible in the middle term future than the Francises, and less skeptical of the possibility for effective home country enforcement mechanisms of the kind I set out below.Google Scholar

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For a discussion of how states can use this power of health insurance to regulate medical tourism, see Cohen, I.G., “Patients with Passports,” supra note 1, at 1467, 1544–1547. This would be somewhat unusual in that most state coverage is aimed at expanding not restricting the number of covered procedures, but not unheard of. The federal government would also likely have to alter the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. §§1395dd(a)-(d), which requires hospitals to either stabilize (give “treatment as may be required to stabilize the medical condition”) or transfer patients that show up in emergency rooms, to prevent patients repeatedly showing up to the ER to get immunosuppressive drugs they are not entitled to receive.Google Scholar

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