Should Host States Resist “Brain Gain”? Other-Regarding Obligations of States that Attract Foreign Health Personnel

Eyal Benvenisti

Should states take foreign communities’ interests when they recruit doctors and nurses in developing countries? Should they invest more in education and training of their own citizens thereby reducing demand to foreign health personnel? These and others have become acute questions due to the growing global demand for health workers. The current North/South imbalance in the availability of health providers, which is already characterized as “extreme,” is expected to grow and to further disadvantage the poor and less healthy societies. In 2010 the OECD reported that in top Anglo-American destination countries, migrant doctors make up 22.5–39% of the national physician workforce. Between 2001 and 2008 the number of foreign-trained fully registered medical doctors has increased by 70% in the US, 50% in Australia and 40% in Canada*. The imbalance is also economic, as the remittances sent home by the foreign health providers do not compensate for the public investment in medical training in the countries of origin.

Obviously, the right of health personnel to emigrate and thereby improve their financial and working conditions, as well as ensure their personal security, must be respected. Moreover, for many in the developing world, the opportunity to emigrate is an important incentive for enrolment in medical schools, * and thus also a driver for the generation of more health professionals globally. But to what extent may affluent societies, relying on stable supply of foreign professionals, under-invest in health education while mining other countries’ meagre resources? Shouldn’t they take those countries’ interests into account when budgeting for local training programs?

The World Health Organisation (WHO) Global Code of Practice on the International Recruitment of Health Personnel (2010) calls on host countries to achieve self-sufficiency in health providers:

“Member States should strive, to the extent possible, to create a sustainable health workforce and work towards establishing effective health workforce planning, education and training, and retention strategies that will reduce their need to recruit migrant health personnel. Policies and measures to strengthen the health workforce should be appropriate for the specific conditions of each country and should be integrated within national development programmes.”

Without “limiting the freedom of health personnel to migrate to countries that wish to admit and employ them,” the Code also calls upon member states to

“take into account the right to the highest attainable standard of health of  the populations of source countries […] in order to mitigate the negative effects and maximize the positive effects of migration on the health systems of the source countries.”

And as a compensatory response, the Code suggests that

“Developed countries should, to the extent possible, provide technical and financial assistance to developing countries and countries with economies in transition aimed at strengthening health systems, including health personnel development.”

Furthermore, the Code urges states to “take the Code into account when developing their national health policies and cooperating with each other,” seeing “the setting of voluntary international principles and the coordination of national policies on international health personnel recruitment [as] desirable in order to advance frameworks to equitably strengthen health systems worldwide, to mitigate the negative effects of health personnel migration on the health systems of developing countries and to safeguard the rights of health personnel.”

A few countries did not wait for the WHO to develop their own guidelines: the United Kingdom endorsed a Code of Practice for international recruitment in 2004, and the Pacific Island countries did the same in 2007 with their Pacific Code of Practice for the Recruitment of Health Workers. The UK code goes significantly beyond the WHO Code, in its requirements that condition the active recruitment of healthcare professionals on the existence of an inter-governmental agreement on this matter, and the demand that all recruitment agencies comply with the code. The UK Code of Practice states that developing countries should not be targeted when actively recruiting healthcare professionals as provided on the NHS website.

Even if non-binding, the acknowledgement of an obligation take into account the interests of others in foreign countries is important in setting an expectation from state parties to justify their acts and omissions in this context.


Recommended reading:

Jennifer S. Edge and Steven J Hoffman, Empirical impact evaluation of the WHO Global Code of Practice on the International Recruitment of Health Personnel in Australia, Canada, UK and USA, 9 Globalization and Health 60 (2013);

Lawrence O. Gostin, The International Migration and Recruitment of Nurses: Human Rights and Global Justice, 299 (No. 15)  J. Am. Med. Assoc., 1827 (2008);

Eszter Kollar, Alena Buyx, Ethics and Policy of Medical Brain Drain: A Review, 143 Swiss Med Wkly. (2013);

Brij Maharaj, The African Brain Drain: Causes, Costs, and Consequences, Global Diasporas and Development 121 (2014);

Jeremy Snyder, Migration of Health Personnel and Brain Drain, in Handbook of Global Bioethics 755 (Henk A.M.J. ten Have, Bert Gordijn eds., 2014);

Allyn L. Taylor and Ibadat S. Dhillon, The WHO Global Code of Practice on the International Recruitment of Health Personnel: The Evolution of Global Health Diplomacy,  Georgetown Public Law and Legal Theory Research Paper No. 11-140 (2011).