To someone holding a hammer, the cliché goes, everything looks like a nail. A similar myopia often afflicts legal minds as they approach deep-seated problems in global health, as every crisis is approached by first asking how it might be litigated away. In recent years, there has been a growing recognition of the limits of litigation as a tool for advancing equitable access to health — indeed of its potential, under some circumstances, to have a positively regressive impact. This very timely symposium offers us a chance to reflect more deeply on the matter.

The foregoing, both appearing in early 2012, represent very different understandings about the significance of being substantially overweight and possible responses. The first focuses on being fat as the problem. 3 The solution is weight loss or, better still, prevention of weight gain. Of particular note is the plight of obese children and their physical ailments and psychological stress because of bullying by other children and embarrassment in wider society. The second underscores the enormous difficulty of losing weight and, even more so, of maintaining any such reduction. Being fat may give rise to problems. But the greatest difficulty may be in not accepting that most people who become fat will remain fat. That denial stymies efforts to foster the healthiest state possible for the obese and to create effective prevention programs, especially for children.

The most common response to the challenge of protecting health through law is to focus on protecting the rights of vulnerable individuals and to enhance their access to health care. Each one of us is vulnerable or potentially vulnerable because of the fragile, existential nature of the human condition. Catastrophic and unexpected events could instantaneously transform us from a state of total independence and potential vulnerability to one of extreme vulnerability and complete dependence. Some legal provisions have the potential to provide a modicum of protection when we find ourselves in those situations (for example, through legislation, effective emergency health services can be created to reduce the impact of our potential vulnerability). There are also legal provisions that contribute to beneficial social circumstances; for example, legislation enabling universal access to medical care, and operationalizing respect for the individual’s right to health care, as advocated for by other authors in this issue.

The World Health Organization (WHO) has in the last decade identified mental health as a priority for global health promotion and international development, to be targeted through promulgation of evidence-based medical practices, health systems reform, and respect for human rights. Yet these overlapping strategies are marked by tensions as the historical primacy of expert-led initiatives is increasingly subject to challenge by new social movements — in particular, disabled persons’ organizations (DPOs). These tensions come into focus upon situating the WHO’s contributions to the analysis of global mental health in light of the negotiation and early stages of implementation of the Convention on the Rights of Persons with Disabilities (CRPD), particularly as it applies to persons with mental disabilities.

State and international laws have often been instruments of oppression against Indigenous peoples, enabling and casting a veil of legitimacy over state actions that dispossess, assimilate, and discriminate. In the contemporary setting such law has, at times, come to be harnessed to support or protect Indigenous interests, including addressing Indigenous health deficits and associated injustices.

In this paper we review selected international legal instruments, the effect, if any, that they have had on global health, and how these instruments might have contributed to the realization of health rights. We consider a number of instruments from the international health law field as well as two from the field of international environmental law.1 The latter two, in addition to the considerable link between health and climate/environment, are considered with the purpose of drawing more generalized lessons about what contributes to the success or failure of an international legal instrument; the lessons are then applied to our analysis of the health law instruments that are the primary focus of our paper.

Alyne da Silva Pimentel Teixeira died of postpartum hemorrhage (PPH) following the stillbirth of a 27-week-old fetus on November 16, 2002 in Rio de Janeiro, Brazil. Her death led in 2011 to the first decision of an international treaty body holding a government accountable for a preventable maternal death. The decision, Alyne da Silva Pimentel Teixeira (deceased) v. Brazil, was given by the Committee on the Elimination of Discrimination against Women (the Committee), established to monitor compliance by member states with the UN Convention on the Elimination of All Forms of Discrimination against Women (the Convention). The decision upheld a complaint, filed in 2007 against the state and government of Brazil, finding discrimination in the field of health care for Alyne’s avoidable maternal death, in breach of the Women’s Convention.

The 1988 Brazilian Constitution establishes a right to health in two of its provisions. The first provision provides a relatively long list of social rights, which includes not only the right to health, but also the right to the determinants of health such as education, food, employment, and shelter (Art. 6). The second provision (Art. 196) recognizes the two components of the right to health, namely: (i) factors that are likely to affect a person’s health, such as access to clean water, sanitation and nutrition; and (ii) medical care or health services. This second provision establishes that the right to health “shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and by the universal and equal access to actions and services for its promotion, protection and recovery.” It also enumerates state obligations, the first and most important one being the duty of the Brazilian state to guarantee the right to health to every citizen.

Recent years have seen an increase in the turn to rights discourse within the context of access to health and specifically health care. Developments took place at both the national and global levels, with a significant increase in right to health litigation around the world1 and developments at the international level, such as the appointment of a Special Rapporteur on the Right to Health and the adoption of a “General Comment” on the topic by the UN Committee on Economic, Social and Cultural Rights.

There is perhaps no area of law that so effectively protects human health and thereby advances the right to the highest attainable standard of health, as tobacco control. Globally, tobacco is responsible for 1 in 10 adult deaths, and is on track to kill 10 million people per year, mostly in developing countries, representing a US$200 billion drain on the global economy. Yet experience in recent decades has shown that a range of tobacco control measures, such as comprehensive bans on smoking in public places, tobacco taxes, and limits on tobacco advertising, can greatly reduce smoking prevalence. These measures have slowly curtailed the epidemic, despite strong opposition from various sectors led by the tobacco industry. It is fitting that tobacco control is the focus of a recent, widely ratified global treaty (the Framework Convention on Tobacco Control) and of increasing national litigation, often directly linked to countries’ human rights commitments.

In recent years, the development process of pharmaceuticals, medical devices, and related products and the overall market of these products have become increasingly global. This paper discusses the need for better governance of one aspect of this market: the production, distribution, and use of pharmaceutical knowledge. Various controversies, some of which will be described in this paper, highlight how industry control over pharmaceutical data production has resulted in very serious threats to public health. Different practices and regulatory fields that affect what I will refer to in this paper as “pharmaceutical knowledge production” are all too often artificially separated and dealt with in isolation, which seriously affects the quality of the available information on the safety and effectiveness of products. I will examine here how a human rights-based approach should inspire us to look more carefully not only at the significant human rights-related interests that are at stake, but also at the relations between the different interwoven regulatory, cultural, and social factors and how these play out at the various stages of knowledge production.

Patents and free trade make strange bedfellows. For most of their history, patents have been instruments deployed to resist trade with other countries, not to enhance it. Whether one looks at Venetian laws that punished citizens who practiced local crafts outside the city, the Mercantilist uses to which patents were put in Elizabethan England, or the cartels of the 19th and 20th centuries created on a foundation of interlocking patent rights, patents have had a distinctly protectionist function. It is thus ironic that it is intellectual property rights in general, and patents in particular, that have been held up in recent years as the poster child of much that is wrong with globalization and free trade. Nowhere is this more so than in debates concerning international human rights law and patents, in particular the position that patents violate an international right to health.

The United States’ pursuit of increasingly TRIPS-Plus levels of intellectual property protection for medicines in bilateral and regional trade agreements is well recognized. Less so, however, are U.S. efforts through these agreements, to directly influence and constrain the pharmaceutical coverage programs of its trading partners. The pursuit of increasing levels of intellectual property (IP) protection in successive bilateral and regional trade agreements has been driven, at least in part, by a U.S. desire to achieve standards of protection it anticipated from the TRIPS Agreement, but failed to secure. Despite the conclusion of a global agreement on IP standards that would establish significant protections in countries that had hitherto declined them, the U.S. pharmaceutical industry viewed TRIPS as falling well short of its objectives — particularly in light of the delayed introduction of patent protection in countries that are key suppliers of generic medicines, such as India.

In Canada (as elsewhere) there is a growing demand for human eggs for reproductive purposes and currently demand exceeds supply. This is not surprising, as egg production and retrieval is onerous. It requires considerable time, effort, and energy and carries with it significant physical and psychological risks. In very general terms, one cycle of egg production and retrieval involves an estimated total of 56 hours for interviews, counseling, and medical procedures (i.e., screening, hormonal stimulation, and egg retrieval). The screening carries risks of unanticipated findings with severe consequences for insurability (which can be catastrophic). The daily hormone injections can be painful and uncomfortable, causing cramping, abdominal pain, nausea, vomiting, bloating, mood changes, and irritability.

Lawyers (and others) tend to look to the law to resolve disputes and to create certainty about the rights and responsibilities of parties to relationships. There is a particularly acute need for certainty in the context of global trade in surrogacy services, both because of the number of parties who may be involved in creating familial relationships and because of the vulnerabilities created as a result of surrogacy arrangements. Participants in the Global Health Challenges conference (on which this special issue is based) were invited to consider to what extent law is implicated in global health challenges — both in terms of how law might help to resolve the challenges, and (as is particularly of interest in international surrogacy), how law might contribute to or create these challenges.

Stem cell tourism is a form of medical tourism in which patients travel to receive unproven or untested stem cell-based interventions for many different diseases and conditions. A few studies indicate that patients and the public have several reasons for seeking these treatments for themselves or for their loved ones. Among these are the feeling of not having any other clinical options left, distrust of or frustration with their home country’s health care system, and a perception that their home country has a burdensome or sluggish regulatory system for the approval of novel stem cell therapies. These last two viewpoints may contribute to a certain sense of distrust of regulatory agencies governing the conduct of clinical research, and perhaps the perception of a health care system that seems unresponsive to the needs of patients suffering from severe conditions.

“Medical Tourism” is the travel of residents of one country to another country for treatment. In this article I focus on travel abroad to purchase organs for transplant, what I will call “Transplant Tourism.” With the exception of Iran, organ sale is illegal across the globe, but many destination countries have thriving black markets, either due to their willful failure to police the practice or more good faith lack of resources to detect it. I focus on the sale of kidneys, the most common subject of transplant tourism, though much of what I say could be applied to other organs as well. Part I briefly reviews some data on sellers, recipients, and brokers. Part II discusses the bioethical issues posed by the trade, and Part III focuses on potential regulation to deal with these issues.

Travelling internationally to acquire medical treatments otherwise unavailable or inaccessible in one’s home country is not a novel concept. Conventionally, such medical travel largely entailed patients from developed countries or wealthy patients from the developing world seeking care in Western facilities like the Mayo Clinic in the U.S. and myriad private clinics along Harley Street in London, England. What is different about the topical phenomenon known as “medical tourism” is the growing trend of health services export in the opposite direction. The number of patients travelling from the developed world to low- and middle-income countries (LMICs) for treatments has ballooned in recent years, primarily driven by difficulties with accessing affordable care at home. According to a liberal estimate by the Deloitte Center for Health Solutions, the number of Americans travelling abroad for care rose from 750,000 in 2007 to 1.6 million in 2012. On the flip side, Thailand reportedly treated a total of 1.3 million foreign nationals in 2007, which represented a 16% leap from 2001.

As concerns about the negative health effects of unhealthy eating and overweight/obesity increase, so too do efforts to combat obesity. Both the federal government, as well as state and local governments, have proposed and implemented a variety of healthy eating and obesity prevention policies. Many of these policies are controversial, facing objections that range from the practical (e.g., the policy will not succeed at improving people's diets) to the ethical (e.g., the policy is paternalistic or inequitable). In this paper, we consider one such policy — restrictions on food assistance programs that are meant to improve participants’ diet — and one criticism of these policies, that they are inequitable. We take as our primary example the recent, unsuccessful effort by New York State to exclude sweetened beverages from the items eligible for purchase in New York City with Supplemental Nutrition Assistance Program (SNAP, also known as food stamps).