On May 4th and 5th, 2012, this year’s National Health Law Conference on “Global Health Challenges and the Role of Law” was held at the Metropolitan Hotel in Toronto. The conference brought together leading scholars, policy makers, practicing lawyers and health care professional to explore how the law can address global health challenges and, hopefully, make real progressive changes. Although the speakers addressed a diverse range of topics during the two-day event, the presentations were organized around several main themes, including improving global access to care and essential medicines on the part of the most vulnerable, addressing the global spread of chronic disease; and ensuring fair access to health and health care in a globalized world.

Today, global health is characterized by startling inequality between the developed and the developing world with respect to both health care resources and health status. For example, in the conference opening address, Colleen Flood noted that the wealthiest 5% of the global population has access to 4500 times more in per capita health spending than the poorest 20% of the world. Further, between and within societies, health challenges disproportionately impact poor and vulnerable populations; as stated by Lawrence O. Gostin, “disease always tilts towards the poor”. To list just a few examples, Gostin and William Bogart highlighted how non-communicable diseases and obesity, respectively, are significantly more prevalent amongst the lower socio-economic strata. Mary Anne Bobinski and Rebecca Cook discussed how women are often disproportionately impacted by poverty, and consequently, are particularly susceptible to health challenges, particularly in respect of reproductive health rights. Constance MacIntosh pointed to how even in the wealthiest countries, indigenous people continue to suffer from significantly lower health status than the general population.

With the rise of globalization, global health challenges are becoming increasingly interconnected. While globalization may have led to the greater exchange of medical knowledge and health care resources between countries, it also means that attendant health problems are also increasingly crossing borders. Many of the presenters pointed to examples of globalization in the health sector. For example, Gostin noted that as globalized trading systems have brought more and more Western goods to the developing world, formerly “first world” diseases such as obesity, diabetes and heart disease now constitute a rapidly growing proportion of the burden of disease in developing countries. As noted by Trudo Lemmens, the creation of pharmaceutical knowledge is an increasingly global affair, with clinical trials now being commonly conducted in developing countries. Further, as highlighted in the presentations by I. Glenn Cohen and Jocelyn Downie, even human organs and reproductive material have become internationally traded goods.

In addition to the international exchange of health care-related goods and knowledge, individuals themselves are increasingly crossing borders to seek medical treatments. Y.Y. Chen described how the tides of medical tourism are in fact reversing. While elites from the developing world have been seeking medical treatment in the developed world for decades, a much more recent—and quickly increasing—trend has been the flood of residents from highly industrialized nations seeking cheaper, more accessible health services in developing countries—all of which can have a significant impact on the availability of health care services in these already resource-strained countries. Tim Caulfield also gave an interesting example of how people are crossing borders to access unproven, and often highly dangerous, procedures that are not approved in their home jurisdiction, particularly in the area of stem cell therapy.

Against this backdrop of health care inequality in a globalized world, the human rights-based approach to health has become an important new tool in tackling global health challenges. Speakers such as Abdallah S. Daar highlighted the revolutionary nature of the rights-based approach in general, and the concept of a right to health in particular. Michael Ignatieff noted that the human rights-based approach to health contributes to change in two principal ways: by establishing the courts as a new venue in the struggle for improved access to health care; and by universalizing the human rights claims that the claimants seek to defend. Health is seen not simply as a matter of fate or change, but as a matter of justice—at least to some degree.

While the development of the right to health has in many respects been an important step forward, the rights-based approach is certainly not a panacea and may even introduce new problems and challenges to global health, particularly when rights conflict with one another. Mariana Mato Prado offered an interesting example of how in countries like Columbia and Brazil, a constitutionally protected right to health has resulted in extensive litigation by individual claimants seeking public coverage of desired health care services, and while this trend may have led to some important victories for disadvantaged individuals and groups, the system places significant strain on health care budgets and is increasingly being hijacked by more privileged individuals who have access to greater legal resources.

Theodore Marmor also raised a few notes of caution about the rights-based approach to health. Given the reality of our political systems, he noted that it is not sufficient to invoke the desirability of an idea as if it trumps all other considerations. Rather, as he stated, if what is optimal is not doable, then it is not optimal. Similarly, James Orbinski stated that if improvements in global health are to be something beyond an ideal, it requires a practical framework rooted in the reality of each time and space. Political realities should not be overlooked when discussing health interventions, especially with regard to who is advantaged and disadvantaged by each action.

In the end, in responding to the question of whether the law can be used to create real change in addressing global health challenges, keynote speaker James Morone wisely noted that this is not a yes or no question. Rather, the answer lies with the leaders and the people who will bring the motion forward.  We must ask ourselves what kind of society we want to live in, and how we can shape our legal and political systems to reflect, and ultimately to achieve, our values.

For more information on the 2012 National Health Law Conference, including speaker bios, please visit the conference website.