Right and access to healthcare for undocumented children: Addressing the gap between international conventions and disparate implementations in North America and Europe
Introduction
Of the more than 200 million migrants in the world, 60.5 percent reside in the more developed regions, particularly North America and Europe, and 10–15 percent or 20–30 million migrants are estimated to be undocumented (United Nations, 2009). Increasingly concerned with the social, economic, and political consequences of high levels of immigration, North American and European governments are tightening their immigration laws in an effort to lower the levels of immigration and to adjust the status of those already residing in their territory (e.g., through the imposition of numerous restrictions to enter or extend their stay indefinitely) (Crépeau & Nakache, 2006). In consequence, countless migrants are entering and remaining in the host country without legal documents or staying longer or on different terms than their temporary permits allowed (e.g., when the asylum claim has failed) (Derluyn and Broekaert, 2005, Derluyn et al., in press, Lindert et al., 2008, Passel, 2006, Ter Kuile et al., 2007). Of these millions of undocumented migrants (12 million for the USA alone), a small but significant number (estimated at between 800,000 and 2.4 million people worldwide yearly, 80 percent of whom are women and girls and up to 50 percent are minors, and most of whom are improperly documented) are especially vulnerable as they have been trafficked and are subsequently exploited (United Nations, 2005, USDS, 2008).
Recent immigration policy changes and increasing weight of unremunerated medical services on hospital budgets have rekindled the debate about what medical services should be provided to undocumented migrants and who should pay for those services (Ellis, 2006). Obliged to never disclose their presence to the host country's authorities, undocumented migrants are generally only entitled to emergency care or ‘immediately necessary’ services. Faced with widespread use of healthcare as an immigration policy tool, researchers, medical professionals and national associations in the UK, Sweden, and the US have expressed their concern about increasing restrictions of access to primary healthcare by failed asylum seekers and other undocumented migrants (Arnold et al., 2008, BMA, 2008, Committee on Community Health Services, 1997, Hjern and Bouvier, 2004). To support their claim, they allege not only humanitarian and public health reasons, but also find it “more cost-effective to provide on-going support, rather than to wait until emergency treatment is required” (BMA, 2008).
Access to healthcare for children is of special concern because of the long lasting consequences of inadequate care on development as well as the State duty of protection of the most vulnerable. Indeed, there is growing recognition of the far reaching impact of good health during pregnancy and childhood on adult health (Lu, Lin, et al., 2000). Underutilization of preventive care has also been associated with poorer health outcomes such as longer stays in hospitals, more acute health crises, and higher mortality rates (Hadley, 2003, Ter Kuile et al., 2007). This has lead, inter alia, to the creation of special public healthcare programs for undocumented children and/or pregnant women in Sweden and several states with large immigrant populations in the USA (Hill et al., 2008, Hjern and Bouvier, 2004).
This paper raises a profound ethical and public health question: Which children (should) have the right to healthcare? After reviewing international human rights instruments addressing the right to health, and which have been endorsed by most European and North American countries, this paper provides legal and ethical arguments for extending full coverage to all children without regard to their immigration status. To illustrate the disconnect between international obligations and their national implementation, we then compare entitlements to healthcare by undocumented migrants in a selected group of countries, with special attention to children. This ‘disconnect’ is, however, but one aspect of the ‘gap’ highlighted in this paper. Research in the field of migration and health is all too frequently confined to a macro level of analysis with an overriding emphasis on comparing countries on the level of entitlement alone without an examination of the problems of access faced by migrants at ground level (Watters, 2008). This analysis groups countries on the basis of their subscription to international conventions and the development of national laws and policies. It has well established precedents in international and comparative social policy in which macro level analysis of the features of specific welfare states have given rise to highly influential typologies such as the ‘three worlds of welfare capitalism’ proposed by Esping-Andersen (1990).
However, the confining of the field of inquiry to laws and policies may, we argue, generate a potentially misleading impression of the localized implementation of such regulations and of the lived experience of migrants. The investigation of these aspects requires an approach that engages with both macro and micro dimensions and explores the relationship between these levels (Castles, 2003, Watters, 2008). A bridging of these levels of analysis is suggested by Castles and Miller (2003) in their articulation of ‘migration systems theory’, the basic principle of which is that any migratory movement can be seen as the result of interacting macro- (i.e., ‘the laws, structures and practices’ established by states) and micro-structures (i.e., informal social networks developed by migrants themselves) (p. 27). Here we argue that a micro level of investigation is not confined to relations between migrants but includes the interpretation and implementation of laws and policies at a local level. Examples of this approach include the work of NGOs concerned with the documentation of human rights abuses within countries that are signatories to relevant human rights instruments (e.g., AI, 2005, HRW., 2008). Another significant illustration combining both the macro level of laws and policies and the micro level of local implementation is the detailed study of unaccompanied children in the US, UK and Australia undertaken by Bhabha and Crock (2007). These examples highlight the need for approaches to research in this field that are both multidisciplinary and offer multilevel examination incorporating micro and macro levels. The discussion proposes a research agenda and advocates for collaboration of health providers and institutions to ensure the genuine realization of the right to health for all children. We acknowledge that the right to health contains a variety of freedoms and entitlements, yet our discussion will focus on equality of access to health facilities, goods, and services because guaranteeing primary healthcare is an essential intervention to prevent childhood poor health outcomes and maternal complications. Although relevant to all countries receiving immigrants, we will illustrate this discussion with legislation and implementation practices in Europe and North America as these regions represent the highest proportion of international migrants worldwide as well as a diversity of healthcare systems (i.e., universal and non-universal coverage).
Section snippets
The international legal framework for the right to health
International human rights law sets the boundaries of the right to health. The Constitution of the World Health Organization (WHO, 1946), adopted by 193 countries, recognizes the fundamental right of every human being to the enjoyment of the highest attainable standard of health (Preamble). Also widely accepted, the Universal Declaration of Human Rights (UDHR) (United Nations, 1948) proclaims the right of everyone to “a standard of living adequate for the health and well-being of himself and of
Legal, moral, and prudential claims for children
Arguments in favour of comprehensive healthcare for all children regardless of their immigration status are legal, moral, and prudential in nature. The previous section presented North American and European countries as bound by international Human Rights instruments and, in many cases, their own (constitutionalized) bills of rights, to achieve real equality in access to care and health status for all children. By becoming a “State party”, these countries accepted a legal as well as a moral
Undocumented migrants and access to healthcare in Europe and North America
Wide gaps in implementation of legal obligations to provide healthcare to all children exist both in countries with no universal healthcare system such as the United States as well as countries with public healthcare coverage for all (e.g., Europe and Canada). Our emphasis on State protection and obligations, which originates in the fact that we live in universal healthcare system environments, should not be interpreted, however, as an endorsement of exclusive responsibility on the part of the
Healthcare for undocumented immigrant children in the United States
The March 2005 Current Population Survey in the US shows that there were 1.8 million undocumented children and 3.1 million children who are US citizens by birth living in families in which the head of the family or a spouse was undocumented (Passel, 2006). Most children in undocumented families—particularly younger children—are eligible for the full range of state and federal public benefits because they are USA citizens. Many of these children, however, may not be receiving the benefits
Healthcare for undocumented immigrant children in Canada
Whereas in the United States and in most European countries immigrants account for 12 percent or less of the population, immigrants made up 19 percent of Canada's population (Dumont & Lemaître, 2005). However, estimates of undocumented migrants are particularly vague, with 200,000 being the conservative figure most often used (Jiminez, 2006, Keung, 2008). Recent studies conducted in Toronto and Montreal, two of the three largest immigrant destinations in Canada, raised important questions
Healthcare for undocumented immigrant children in the European Union
It is estimated that 60 million migrants and 8 million undocumented migrants are living in the European region (Lancet, 2007). Policies on migration—including access to healthcare—remain diverse in European countries, and are strongly influenced by the differences in the country's historical context of migration. A recent report by the Platform for International Cooperation on Undocumented Migrants (PICUM, 2007) suggests five different systems of access to healthcare for undocumented migrants
Improving accountability for the implementation of healthcare standards for undocumented migrant children
The full enjoyment of the right to health still remains a distant goal for millions of migrant children throughout the world. The increasing use of healthcare access as a weapon in immigration control by European and North American countries “makes a farce of the UN conventions that they have all ratified” (Lancet, 2007, 2070). Human rights violations are justified as an inevitable consequence of irregular migration and limited resources, yet nobody dares to openly defend this position vis-à-vis
Acknowledgements
We thank the participants in the Séminaire sur l'accès aux soins de santé des personnes à statut migratoire précaire held in January 2008 at the Centre d'études et de recherches internationales (CÉRIUM) at the Université de Montréal. We are also grateful to Anne-Claire Gayet, Sarah Curtis, and three anonymous reviewers for their input. This article was written while Mónica Ruiz-Casares was a Richard H. Tomlinson Postdoctoral Fellow at McGill University.
References (64)
- et al.
Medical justice for undocumented migrants
The Lancet
(2008) - et al.
Elimination of public funding of prenatal care for undocumented immigrants in California: a cost/benefit analysis
American Journal of Obstetrics and Gynecology
(2000) - Aliens who are not qualified aliens or nonimmigrants ineligible for state and local public benefits. 8 U.S.C. §§...
- Aliens who are not qualified aliens or nonimmigrants ineligible for state and local public benefits. 8 USC §§ 1621(b)...
Spain: The southern border
(2005)- et al.
Seeking asylum alone. A comparative study of laws, policy and practice in Australia, the U.K., the U.S.
(2007) - et al.
Health care use among undocumented Latino immigrants. Is free health care the main reason why Latinos come to the United States? A unique look at the facts
Health Affairs
(2000) Asylum Seekers and Their Health
(2008)Towards a sociology of forced migration and social transformation
Sociology
(2003)- et al.
The age of migration
(2003)