What kind of ‘problem’ is health tourism?

In 2012 on July 4, 2012 at 9:13 pm

Many members of HEAL have spent a very interesting two days exploring issues in law and global health at UCL. Amongst the areas that were discussed related to health ‘tourism’ – where people travel between countries to avail themselves of health services that are less available or affordable in their home nations. What is the nature of the legal issues that these activities raise? Are they best seen as issues of health law or are they better understood as examples of other legal fields?

As Sheelagh McGuinness and Jean McHale explored, there may be issues of protection from harm that are equivalent to those raised by female genital mutilation or child sex tourism where it is widely accepted that it is appropriate to use the criminal law to punish and deter that behaviour. They considered whether travel abroad for ‘donate’ organs for transplantation in return for financial reward might be in this category. Although this concerns a health procedure, it is not necessarily a health law issue. It more obviously turns on whether the grounds for invoking criminal sanctions in the UK for actions that take place abroad are met; an issue about the nature of the harm rather than the procedure by which it is inflicted.

Kerry Petersen’s paper showed a number of complexities raised by international surrogacy arrangements. Few  of these seem best seen as health law problems. Rather, they concern problems of status similar to those in ‘limping marriages’ where legal variations can lead to people having different marital statuses in different countries. Lack of clarity on parental status is the problem that leaves children vulnerable. The issues are about ‘conflict of laws’; a well developed field of law that is rarely connected with health law. Failure to protect against the commercial exploitation of the adults involved is a consumer law issue. International comity of rules on the enforceability of contracts seems to be an issue for commercial or trade law. In so far as particular groups are disadvantaged, is this best analysed as an issue of discrimination law?

If we focus on the policy issues that health law literature typically discusses – moral acceptability – we might be accused of moral colonialism when we seek to apply domestic standards to activities that take place abroad. In the Blood case, the policy on moral issues was set aside in favour of the economic law of the European Union. In Purdy, a degree of legal control was exerted over activities in the UK that would be illegal there even though preparatory to lawful acts abroad, but in the context of an unusually drafted statute that proscribes assistance in otherwise non-criminal acts and without any criticism of the overseas law (0n which variation is unsurprising, given expectations of a ‘margin of appreciation’, see Pretty v UK).

This seems an interesting illustration of problems in delineating our subject matter on which Jean McHale has already illuminated.

Jonathan Montgomery

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