Document Type

Article

Disciplines

International Law

Abstract

Data from the U.S. Census, Center for Disease Control, the federal court system, and the Commonwealth Fund, a private foundation that promotes access, quality and efficiency in the health-care system, estimated that the inability to pay medical bills will lead 1.7 million American households to declare bankruptcy by the end of 2013.1 With the rise in hospital costs and the significant impact of COVID-19, the number of Americans who have fallen into debt due to medical bills has since jumped to 137 million.2 Medical tourism has allowed patients to benefit from access to cheaper treatments abroad and those that may not be offered in the tourist's home country. 3 Medical tourism has also had a positive effect on the economy of many developing nations, which earn millions by offering cheaper procedures. Many patients travel to other countries to receive treatment that is illegal in their country of residence, including abortions, organ and tissue transplantation, and fertility treatments.4 In recent years, there has been an increase in travel for euthanasia and physician-assisted suicide as an organ donor.5 In organ donation euthanasia (ODE), rather than from administered euthanasia drugs, patients die after receiving anesthesia and removal of their organs, such as their heart, lungs, or kidneys.

With the increase in medical tourism, there will likely be great debate as to where liability falls when patients travel out of their home country to receive medical treatment. Although some countries have considered the possibility of criminalizing medical tourism, there is no current data to show that the United States is prosecuting patients for doing so. However, questions have arisen about whether liability should be placed on the patient's physician.9 Under current U.S. law, most torts cases must be filed where the injury occurs. For medical tourism, patients are therefore required to file a complaint in the destination country after they have returned to their home country. 10 However, patients may be unable to sue international physicians due to difficulty in establishing jurisdiction." Even when jurisdiction is met, a court may still dismiss the claim for lack of convenient forum.12 Moreover, some international countries require patients to sign medical waivers prior to receiving treatment that restrict where any subsequent case will be held, the law that will cover the litigation, and further liability limitation or exclusion clauses thus preventing the patients from any recovery. 13 Regardless of the outcome of the performing doctor, there remain questions as to whether and to what extent the doctor from the home country should be held liable for knowingly allowing his patient to receive an illegal procedure.

This paper focuses specifically on the potential liability for individuals that choose to travel abroad for organ donation euthanasia. I argue that because organ donation is legal in all fifty U.S. states, patients should be allowed to travel to other countries and consent to be euthanized to preserve their organs for the purpose of donations. Further, doctors from the home country should not be held criminally liable if they are cognizant of their patient's actions.

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